EMPLOYMENT AGREEMENT
AGREEMENT, made and entered into as of the 21st day of February, 2000 by and
between Xxxxxxx.xxx, Inc., a Delaware company (the "Company"), and Xxxxx Xxxxx
(the "Executive").
WITNESSETH:
WHEREAS, the Company desires to employ the Executive and to enter into an
agreement embodying the terms of such employment (this "Agreement") and the
Executive desires to enter into this Agreement and to accept such employment,
subject to the terms and provisions of this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants contained
herein and for other good and valuable consideration, the receipt of which is
mutually acknowledged, the Company and the Executive (individually a "Party" and
together the "Parties") agree as follows:
1. DEFINITIONS.
(a) "Base Salary" shall mean the salary provided for in section 4.
below.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Cause" shall mean that the Executive shall have:
(i) been convicted of a criminal violation involving
dishonesty, fraud or breach of trust; or
(ii) willfully engaged in misconduct in the performance of
Executive's duties that materially injures the
Company or "Affiliate" of the Company. Affiliate
shall mean any company directly or indirectly through
one or more intermediaries, controlling the Company
or controlled by, or under common control with the
Company. For purposes of the foregoing, "control"
(and "controlled" and "controlling"
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respectively), as used in the immediately preceding
sentence, means the possession, direct or indirect,
of the power to direct or cause the direction of the
management and policies of the specified
company/Company (whether by the holding of shares or
other equity interests, the possession of voting or
contract rights or otherwise).
(d) "Constructive Termination without Cause" shall mean
termination by the Executive of his employment following
occurrence of any of the following events without his written
consent:
(i) a reduction in the Executive's compensation (Base
Salary or equity opportunity); or
(ii) a material diminution in the Executive's duties or
the assignment to the Executive of duties which are
materially inconsistent with his current duties.
2. TERM OF EMPLOYMENT.
(a) The Company hereby employs the Executive, and the Executive
hereby accepts such employment, for the period commencing
February 21, 2000 and ending February 20, 2004, subject to
earlier termination, as provided in section 10. below ("Term
of Employment").
(b) Anything herein to the contrary notwithstanding, the Company
shall have the right to terminate Executive's employment
hereunder with or without cause at any time.
3. POSITION, DUTIES AND RESPONSIBILITIES.
(a) During the Term of Employment, the Executive shall be employed
as President and Chief Executive Officer of the Company and
shall also serve on the Company's Board. The Executive, in
carrying out his duties under this Agreement, shall report to
the
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Company's Board. The Executive's responsibilities and
authority will be commensurate with his position.
(b) Anything herein to the contrary notwithstanding, nothing shall
preclude the Executive from serving, subject to approval of
the Company's Board, on the boards of a reasonable number of
other corporations or the boards of a reasonable number of
trade associations and/or charitable organizations, provided
that such activities do not interfere with the proper
performance of his duties and responsibilities on behalf of
the Company.
(c) The Executive will be based in New York City, New York with
offices there and in Los Angeles, California and Chicago,
Illinois.
4. BASE SALARY.
The Executive shall be paid an annualized Base Salary, payable in
accordance with the regular payroll practices of the Company, of three
hundred fifty thousand dollars ($350,000).
5. ANNUAL INCENTIVE COMPENSATION.
The Executive shall participate in an incentive compensation plan with
a maximum annual target award opportunity of twenty-five percent (25%)
of Base Salary tied to the Company's performance against budget and
paid as soon after fiscal year-end as the financial objectives can be
measured and the Company's outside auditors have closed the Company's
books. For fiscal year 2000 (January 1 through December 31, 2000),
Executive will be treated as if he were employed for the entire fiscal
year for purposes of computing any such incentive compensation payable
to him.
6. EQUITY PARTICIPATION.
Effective as of February 21, 2000, the Company shall grant the
Executive, pursuant to the Company's 2000 Incentive Stock Plan (which
is to be approved by the
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Company's Board and sole shareholder), an option (the "Stock Option")
to purchase those number of shares (the "Option Shares") of the
Company's common stock which represents five percent (5%) of the
Company's outstanding pre-Initial Public Offering ("IPO") equity based
on an enterprise valuation by the Company's lead investment bankers,
which valuation in no event shall be more than one hundred ninety-five
million dollars ($195,000,000). The strike price for such shares shall
be calculated by taking said referenced enterprise valuation and
dividing it by the number of the Company's outstanding pre-IPO equity
shares.
(a) The Option Shares will vest in the following manner:
(i) twenty percent (20%) of the Option Shares will vest
on the first (1st) anniversary of the Effective Date;
(ii) sixty percent (60%) of the Option Shares will vest in
equal monthly installments in each twelve (12) month
period (i.e., one-thirty-sixth (1/36th) each month)
after the first (1st) anniversary of the Effective
Date; and
(iii) The remaining twenty percent (20%) of the Option
Shares will vest in equal increments on each December
31, for the years ending in 2000, 2001, 2002 and
2003, provided that the Company's Performance, as
defined, for any such year exceeds the Dow Xxxxx
Internet Index Performance, as defined, in such year
by a minimum of fifteen percent (15%). Each year will
be considered separately for purposes of determining
if such vesting has occurred. (Solely for purposes of
illustrating the foregoing, if the Dow Xxxxx Internet
Index increases from the effective date of the
Company's IPO to the end of the year 2000 by ten
percent (10%), then the Company's Performance from
its initial sales price to underwriters on its IPO
must increase by eleven and one-half percent (11.5%)
(i.e., 115% of 10%) in order for Executive to
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qualify for vesting in the year 2000. Also, for
purposes of illustration only, if the Dow Xxxxx
Internet Index decreases by twenty percent (20%) in
any such year, the Company's performance must
decrease by seventeen percent (17%) or less in order
for Executive to vest the Option Shares for such
year.)
Xxxxxxx.xxx's Performance shall be defined as
follows: for the year ending December 31, 2000 it
shall be the percentage change in the share price to
underwriters from the date of the Company's initial
public offering to the current year-end price, which
shall be defined as the average of the closing prices
of Xxxxxxx.xxx on the ten (10) trading days preceding
the next January 1. For each subsequent year, it
shall be measured by calculating the percentage
change in the previous year-end price and the current
year-end price.
Dow Xxxxx Internet Index Performance shall be defined
as follows: for the year ending December 31, 2000 it
shall be the percentage change in the Index from the
date of the IPO to the current year-end price, which
shall be defined as the average of the closing prices
of the Dow Xxxxx Internet Index on the ten (10)
trading days preceding the next January 1. For each
subsequent year, it shall be measured by calculating
the percentage change in the previous year-end price
and the current year-end price.
(b) In the event there is a Change of Control and the Company
terminates the Executive's employment during the Term of
Employment other than pursuant to section 10.(c), or if
Executive terminates his employment pursuant to section
10.(d), all unvested Stock Options granted to Executive
hereunder will immediately vest. "Change of Control" shall
mean a change in ownership or control of the Company effected
through any of the following transactions:
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(i) a merger, consolidation or reorganization approved by
the Company's stockholders, UNLESS securities
representing more than fifty percent (50%) of the
total combined voting power of the voting securities
of the successor corporation are immediately
thereafter beneficially owned, directly or indirectly
and in substantially the same proportion, by the
persons who beneficially owned the Company's
outstanding voting securities immediately prior to
such transaction;
(ii) any stockholder-approved transfer or other
disposition of all or substantially all of the
Company's assets; or
(iii) the acquisition, directly or indirectly by any person
or related group of persons (other than the Company
or a person or company that directly or indirectly
controls, is controlled by, or is under common
control with, the Company), of beneficial ownership
(within the meaning of Rule 13d-3 of the 0000 Xxx) of
securities possession more than fifty percent (50%)
of the total combined voting power of the Company's
outstanding securities pursuant to a tender or
exchange offer made directly to the Company's
stockholders which the Board recommends such
stockholders accept.
For purposes of this section 6.(b) only, the "Company" shall
include its ultimate parent, Playboy Enterprises, Inc.
7. EMPLOYEE BENEFIT PROGRAMS.
The Executive shall be eligible to participate in any employee benefit
programs of the Company applicable to other senior level executives. In
addition, the Executive shall be entitled to four (4) weeks per annum
vacation.
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8. PERQUISITES.
The Executive shall be entitled to perquisites on the same basis as
made available to other senior executives of the Company and:
(a) during the Term of Employment, in recognition of the
substantial amount of time required to be spent in New York on
Company business, the Company shall reimburse the Executive up
to fifty thousand dollars ($50,000) annually of the cost of a
New York apartment lease in lieu of hotel accommodations; and
(b) expensing the cost of airline upgrade certificates or coupons.
9. REIMBURSEMENT OF BUSINESS AND OTHER EXPENSES.
Executive shall be reimbursed for all necessary travel, entertainment
and miscellaneous expenses reasonably incurred by Executive in the
performance of his duties hereunder in accordance with the Company
travel and entertainment policy applicable to other members of senior
management of the Company upon submission of documentation reasonably
satisfactory to the Company of such expenses.
10. TERMINATION OF EMPLOYMENT.
(a) TERMINATION DUE TO DEATH.
In the event the Executive's employment is terminated due to
his death, his estate or his beneficiaries, as the case may
be, shall be entitled to:
(i) Base Salary through the date of death;
(ii) the right to exercise any Stock Option which was
exercisable at the date of the Executive's death for
a period of one (1) year following the Executive's
death;
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(iii) any amounts earned, accrued or owing to the Executive
but not yet paid; and
(iv) other benefits in accordance with applicable plans
and programs of the Company.
(b) TERMINATION DUE TO DISABILITY.
In the event the Executive becomes totally disabled or
disabled such that he is rendered unable to perform
substantially all of his usual duties for the Company, and if
such disability shall persist for a continuous period in
excess of three (3) months, or an aggregate period in excess
of four (4) months in any one (1) fiscal year, the Company
shall have the right at any time after the end of such period
to terminate the Executive's employment under this Agreement
by delivering a thirty (30) day prior written notice to him.
For purposes of this Agreement, if the Executive and the
Company shall disagree as to whether he is totally disabled,
or disabled such that he is rendered unable to perform
substantially all of his usual duties for the Company, the
decision of a doctor, mutually agreed upon by the parties,
shall be binding as to both questions. If the parties cannot
agree upon a doctor, the Executive and the Company shall each
select a doctor. The two (2) doctors so selected shall select
a third (3rd) doctor, who shall resolve either or both of the
questions referred to above.
In the event the Executive's employment is terminated due to
disability, he shall be entitled to:
(i) Base Salary through the effective date of his
termination due to disability;
(ii) the right to exercise any Stock Option which is
exercisable on the date of termination for a period
of one (1) year;
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(iii) any amounts earned, accrued or owing to the Executive
but not yet paid; and
(iv) disability and other benefits in accordance with the
applicable plans and programs of the Company.
(c) TERMINATION BY THE COMPANY FOR CAUSE.
In the event the Company terminates the Executive's employment
for Cause, he shall be entitled to:
(i) Base Salary through the date of such termination;
(ii) any amounts earned, accrued or owing to the Executive
but not yet paid; and
(iii) other benefits, if any, in accordance with applicable
plans and programs of the Company.
(d) TERMINATION WITHOUT CAUSE OR CONSTRUCTIVE TERMINATION WITHOUT
CAUSE.
In the event the Executive's employment is terminated without
cause or in the event there is a Constructive Termination
Without Cause, the Executive shall be entitled to:
(i) Base Salary through the date of such termination;
(ii) Base Salary, at the annualized rate in effect on the
date of termination of the Executive's employment for
a period of twelve (12) months; payable lump sum
immediately after such termination;
(iii) if termination occurs prior to the end of the
Executive's first (1st) year of employment, the
immediate vesting of all unvested Stock Options
granted to Executive under section 6.(a)(i);
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(iv) any amounts earned, accrued or owing to the Executive
but not yet paid; and
(v) other benefits in accordance with applicable plans
and programs of the Company.
(e) VOLUNTARY TERMINATION.
Same consequences as Termination for Cause.
(f) NO MITIGATION.
In the event of any termination of employment, the Executive
shall be under no obligation to seek other employment and
there shall be no offset against amounts due him under the
Agreement on account of any remuneration attributable to any
subsequent employment that he may obtain.
11. TERMINATION OF DISPUTES.
Any disputes arising under or in connection with this Agreement shall,
at the election of the Executive or the Company, be resolved by binding
arbitration, to be held in New York City, New York in accordance with
the rules and procedures of the American Arbitration Association.
Judgment upon the award rendered by the arbitrator(s) may be entered in
any court having jurisdiction thereof. Costs of the arbitration or
litigation, including, without limitation, reasonable attorneys' fees
of both Parties, shall be borne by the Company. Pending the resolution
of any arbitration or court proceeding, the Company shall continue
payment of all amounts due the Executive under this Agreement and all
benefits to which the Executive is entitled at the time the dispute
arises.
12. INDEMNIFICATION.
(a) The Executive shall be entitled to indemnification by the
Company in accordance with the provisions of the Company's
bylaws and the implementing Board resolutions as in effect on
the date of this Agreement
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or, if more favorable to Executive, the provisions of such
bylaws as in effect at the time indemnification is requested.
(b) The Company shall include Executive as an additional insured
under its directors' and officers' liability insurance which
shall be maintained by the Company during the Term of
Employment.
13. EFFECT OF AGREEMENT ON OTHER BENEFITS.
Except as specifically provided in this Agreement, the existence of
this Agreement shall not prohibit or restrict the Executive's
entitlement to full participation in the employee benefit and other
plans or programs in which senior executives of the Company are
eligible to participate.
14. ASSIGNABILITY; BINDING NATURE.
This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors, heirs (in the case of the
Executive) and assigns. Without the prior written consent of the
Company, no rights or obligations of the Executive under this Agreement
may be assigned or transferred by the Executive other than his rights
to compensation and benefits, which may be transferred only by will or
operation of law, except as provided in section 23. below.
15. CONFLICTS OF INTEREST.
(a) It is hereby acknowledged that Executive is aware of Company's
Affiliates' conflict of interest policy (a copy of which is
attached hereto as Exhibit "A" and by this reference made a
part hereof), and understands that compliance therewith is of
the essence of and is material to this Agreement. Company
agrees that Executive shall have a period of sixty (60) days
from commencement of services hereunder during which to divest
himself of ownership of any firms, corporation, stock or
similar items which are in violation of said conflict of
interest policy.
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(b) Executive recognizes and acknowledges that a breach of the
provisions of this paragraph would result in immeasurable and
irreparable harm to Company. Executive accordingly agrees that
in addition to, and not in lieu of, all other remedies
available to Company against Executive by reason of such
breach, Company shall be entitled to temporary and permanent
injunctive relief to prevent the occurrence or continuation
thereof.
16. CONFIDENTIALITY, DISCLOSURE OF INFORMATION.
(a) The Executive recognizes and acknowledges that he will have
access to Confidential Information (as defined below) relating
to the business or interest of the Company or of persons with
whom the Company may have business relationships. Except as
permitted herein or as may be approved by the Company from
time to time, the Executive will not during the Term of
Employment or at any time thereafter, use, disclose or permit
to be known by any other person or entity, any Confidential
Information of the Company (except as required by applicable
law or in connection with the performance of the Executive's
duties and responsibilities hereunder). If Executive is
requested or becomes legally compelled to disclose any of the
Confidential Information, he will give prompt notice of such
request or legal compulsion to the Company. The Company may
waive compliance with this section 16.(a) or will provide
Executive with legal counsel at no cost to Executive to seek
an appropriate remedy. The term "Confidential Information"
means information relating to the Company's business affairs,
proprietary technology, trade secrets, patented processes,
research and development data, know-how, market studies and
forecasts, competitive analyses, pricing policies, employee
lists, employment agreements (other than this Agreement),
personnel policies, the substance of agreements with
customers, suppliers and others, marketing arrangements,
customer lists, commercial arrangements, or any other
information relating to the Company's business that is not
generally known
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to the public or to actual or potential competitors of the
Company (other than through a breach of this Agreement). This
obligation shall continue until such Confidential Information
becomes publicly available, other than pursuant to a breach of
this section 16. by the Executive, regardless of whether the
Executive continues to be employed by the Company.
(b) It is further agreed and understood by and between the parties
to this Agreement that all "Company Materials," which include,
but are not limited to, computers, computer software, computer
disks, tapes, printouts, source, HTML and other code,
flowcharts, schematics, designs, graphics, drawings,
photographs, charts, graphs, notebooks, customer lists, sound
recordings, other tangible or intangible manifestation of
content, and all other documents whether printed, typewritten,
handwritten, electronic, or stored on computer disks, tapes,
hard drives, or any other tangible medium, as well as samples,
prototypes, models, products and the like, shall be the
exclusive property of the Company and, upon termination of
Executive's employment with the Company, and/or upon the
request of the Company, all Company Materials, including
copies thereof, as well as all other Company property then in
the Executive's possession or control, shall be returned to
and left with the Company. Anything in this section 16.(b) to
the contrary notwithstanding, Executive shall be entitled to
retain his personal rolodex and any Company Materials
contained in his personal computer so long as he does not
disclose any Company Materials to any third parties.
17. INVENTIONS DISCOVERED BY EXECUTIVE
The Executive shall promptly disclose to the Company any invention,
improvement, discovery, process, formula or method or other
intellectual property, whether or not patentable or copyrightable
(collectively, "Inventions"), conceived or first reduced to practice by
the Executive, either alone or jointly with others, while performing
services
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hereunder (or, if based on any Confidential Information, within one (1)
year after the Term):
(a) which pertain to any line of business activity of the Company,
if then conducted or then being actively planned by the
Company, with which the Executive was or is involved,
(b) which is developed using time, material or facilities of the
Company, whether or not during working hours or on the Company
premises, or
(c) which directly relates to any of the Executive's work during
the Term, whether or not during normal working hours.
The Executive hereby quitclaims to the Company all of the Executive's
right, title and interest in and to any such Inventions. During and
after the Term, the Executive shall execute any documents necessary to
perfect the quitclaim of such Inventions to the Company and to enable
the Company to apply for, obtain and enforce patents, trademarks and
copyrights in any and all countries on such Inventions, including,
without limitation, the execution of any instruments and the giving of
evidence and testimony, without further compensation beyond the
Executive's agreed compensation during the course of the Executive's
employment. Without limiting the foregoing, the Executive further
acknowledges that all original works of authorship by the Executive,
whether created alone or jointly with others, relating to the
Executive's employment with the Company, and which are protectable by
copyright, are "works made for hire" within the meaning of the United
States Copyright Act, 17 U.S.C. Section 101, as amended, and the
copyright of which shall be owned solely, completely and exclusively by
the Company. If any Invention is considered to be a work not included
in the categories of work covered by the United States Copyright Act,
17 U.S.C. Section 101, as amended, such work is hereby conveyed and
transferred completely and exclusively to the Company. The Executive
hereby irrevocably designates counsel to the Company as the Executive's
agent and attorney-in-fact to do all lawful acts necessary to apply for
and obtain patents and copyrights and to enforce
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the Company's rights under this section. This section 17. shall survive
the termination of this Agreement. Any conveyance of copyright
hereunder includes all rights of paternity, integrity, disclosure and
withdrawal and any other rights that may be known as or referred to as
"moral rights" (collectively "Moral Rights"). To the extent such Moral
Rights cannot be conveyed under applicable law and to the extent the
following is allowed by the laws in the various countries where Moral
Rights exist, the Executive hereby waives such Moral Rights and
consents to any action of the Company that would violate such Moral
Rights in the absence of such consent. The Executive agrees to confirm
any such waivers and consents from time to time as requested by the
Company.
18. NON-COMPETITION AND NON-SOLICITATION
The Executive acknowledges that the Company has invested substantial
time, money and resources in the development and retention of its
Inventions, Confidential Information (including trade secrets),
customers, accounts and business partners, and further acknowledges
that during the course of the Executive's employment with the Company
the Executive has had and will have access to the Company's Inventions
and Confidential Information (including trade secrets), and will be
introduced to existing and prospective customers, accounts and business
partners of the Company. The Executive acknowledges and agrees that any
and all "goodwill" associated with any existing or prospective
customer, account or business partner belongs exclusively to the
Company, including, but not limited to, any goodwill created as a
result of direct or indirect contacts or relationships between the
Executive and any existing or prospective customers, accounts or
business partners. Additionally, the parties acknowledge and agree that
Executive possesses skills that are special, unique or extraordinary
and that the value of the Company depends upon his use of such skills
on its behalf.
In recognition of this, the Executive covenants and agrees that:
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(a) During the Executive's employment with the Company, and for a
period of one (1) year thereafter, the Executive may not,
without the prior written consent of the Company, (whether as
an employee, agent, servant, owner, partner, consultant,
independent contractor, representative, stockholder, or in any
other capacity whatsoever) perform any work directly
competitive in any way to the content driven men's
entertainment internet business of the Company or a
substantially planned business that the Executive is aware of
during the Executive's employment with the Company on behalf
of any entity or person other than the Company (including the
Executive).
(b) During the Executive's employment with the Company, and for a
period of one (1) year thereafter, the Executive may not
entice, solicit or encourage any Company employee (except for
Executive's Los Angeles based executive assistant) to leave
the employ of the Company or any independent contractor to
sever its engagement with the Company, absent prior written
consent from the Company.
(c) During the Executive's employment with the Company, and for a
period of one (1) year thereafter, the Executive may not,
directly or indirectly, entice, solicit or encourage any
customer or prospective customer of the Company to cease doing
business with the Company, reduce its relationship with the
Company or refrain from establishing or expanding a
relationship with the Company.
19. NON-DISPARAGEMENT; NON-DISCLOSURE.
(a) The Executive hereby agrees that during the Term of Employment
and at all times thereafter, the Executive will not make any
public statement, or engage in any conduct, that is
disparaging to the Company, any of its officers, directors, or
shareholders known to Executive, including, but not limited
to, any statement that disparages the products, services,
finances, financial condition, capabilities or other aspect of
the business of the Company. Notwithstanding
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any term to the contrary herein, the Executive shall not be
in breach of this section 19. for the making of any truthful
statements under oath.
(b) The Executive will not directly or indirectly disclose,
discuss, disseminate, be the source of or otherwise publish or
communicate in any manner to any person or entity any
Confidential Information concerning the personal, social or
business activities of the Company, its Affiliates or the
executives and principals and the officers, directors, agents
and employees of all of the foregoing during or at any time
after the termination of Executive's employment. In addition,
the Executive agrees that without Employer's express written
approval in each case, Executive will not:
(i) write, be the source of or contribute to any
articles, stores, books, screenplays or any other
communication or publicity of any kind (written or
otherwise) or deliver lectures in any way regarding
or concerning the Confidential Information, or
(ii) grant any interviews regarding or concerning the
Confidential Information during or at any time after
the termination of his employment.
20. PROVISIONS NECESSARY AND REASONABLE.
(a) The Executive agrees that:
(i) the provisions of sections 16., 17., 18. and 19. of
this Agreement are necessary and reasonable to
protect the Company's Confidential Information,
Inventions and goodwill;
(ii) the specific temporal, geographic and substantive
provisions set forth in section 18. of this Agreement
are reasonable and necessary to protect the Company's
business interests; and
(iii) in the event of any breach of any of the covenants
set forth in sections 16., 17., 18. and 19.
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herein, the Company would suffer substantial
irreparable harm and would not have an adequate
remedy at law for such breach.
In recognition of the foregoing, the Executive agrees that in
the event of a breach or threatened breach of any of these
covenants, in addition to such remedies as the Company may
have at law, without posting any bond or security, the Company
shall be entitled to seek and obtain equitable relief, in the
form of specific performance, and/or temporary, preliminary or
permanent injunctive relief, or any other equitable remedy
which then may be available. The seeking of such injunction or
order shall not affect the Company's right to seek and obtain
damages or other equitable relief on account of any such
actual or threatened breach.
(b) If any of the covenants contained in sections 16., 17., 18. and
19. hereof, or any part thereof, are hereafter construed to be
invalid or unenforceable, the same shall not affect the
remainder of the covenant or covenants, which shall be given
full effect without regard to the invalid portions.
(c) If any of the covenants contained in sections 16., 17., 18. and
19. hereof, or any part thereof, are held to be unenforceable
by a court of competent jurisdiction because of the temporal or
geographic scope of such provision or the area covered thereby,
the parties agree that the court making such determination
shall have the power to reduce the duration and/or geographic
area of such provision and, in its reduced form, such provision
shall be enforceable.
21. REPRESENTATIONS REGARDING PRIOR WORK AND LEGAL OBLIGATIONS.
(a) The Executive represents that the Executive has no agreement
or other legal obligation with any prior employer, or any
other person or entity, that restricts the Executive's ability
to accept employment with, or to perform any function for, the
Company.
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(b) The Executive has been advised by the Company that at no time
should the Executive divulge to or use for the benefit of the
Company any trade secret or confidential or proprietary
information of any previous employer. The Executive expressly
acknowledges that the Executive has not divulged or used any
such information for the benefit of the Company.
(c) The Executive acknowledges that the Company is basing
important business decisions on these representations, and
affirms that all of the statements included herein are true.
22. ENTIRE AGREEMENT.
This Agreement contains the entire understanding and agreement between
the Parties concerning the subject matter hereof and supersedes all
prior agreements, understandings, discussions, negotiations and
undertakings, whether written or oral, between the parties with respect
thereto.
23. AMENDMENT OR WAIVER.
No provision in this Agreement may be amended unless such amendment is
agreed to in writing and signed by the Executive and an authorized
officer of the Company. No waiver by either Party of any breach by the
other Party of any condition or provision contained in this Agreement
to be performed by such other Party shall be deemed a waiver of a
similar or dissimilar condition or provision at the same or any prior
or subsequent time. Any waiver must be in writing and signed by the
Executive or an authorized officer of the Company, as the case may be.
24. SEVERABILITY.
In the event that any provision or portion of this Agreement shall be
determined to be invalid or unenforceable for any reason, in whole or
in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
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25. SURVIVORSHIP.
The respective rights and obligations of the Parties hereunder shall
survive any termination of the Executive's employment to the extent
necessary to the intended preservation of such rights and obligations.
26. BENEFICIARIES/REFERENCES.
The Executive shall be entitled to select (and change, to the extent
permitted under any applicable law) a beneficiary or beneficiaries to
receive any compensation or benefit payable hereunder following the
Executive's death by giving the Company written notice thereof. In the
event of the Executive's death or a judicial determination of his
incompetence, reference in this Agreement to the Executive shall be
deemed, where appropriate, to refer to his beneficiary, estate or other
legal representative.
27. GOVERNING LAW.
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of New York without reference to principles of
conflict of laws.
28. NOTICES.
Any notice given to a Party shall be in writing and shall be deemed to
have been given when delivered personally or sent by registered mail,
postage prepaid, return receipt requested, duly addressed to the Party
concerned at the address indicated below or to such changed address as
such Party may subsequently give such notice of:
If to the Company: Xxxxxxx.xxx, Inc.
000 Xxxxx Xxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
If to the Executive: Xxxxx Xxxxx
0000 Xxxxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
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With a copy to: Xxx Xxxxxxx
Ziffren Xxxxxxxxxx Xxxxxx &
Xxxxxxx, LLP
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000-0000
29. HEADINGS.
The headings of the sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the
meaning or construction of any provision of this Agreement.
30. COUNTERPARTS.
This Agreement may be executed in two (2) or more counterparts.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
XXXXXXX.XXX, INC.
By /s/ Xxxxxxxx Xxxxxx
-----------------------------------
Xxxxxxxx Xxxxxx
Chairman and Acting Chief Executive Officer
/s/ Xxxxx Xxxxx
-------------------------------------
Xxxxx Xxxxx
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