EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
this 16th day of June 2005, by and between the Xxxxxx Center, Inc., a Delaware
corporation ("Company" or "Xxxxxx Center"), and Xxxxx X.X. Xxxxxx, LCSW, Ph.D.,
an individual ("Xx. Xxxxxx"). Company or Xx. Xxxxxx are sometimes referred to
herein as "party" or collectively as "parties".
RECITALS
WHEREAS, Xx. Xxxxxx, a sex educator and therapist, is co-founder of the
Xxxxxx Center, a specialized health center for women focusing on female sexual
health and menopause management; and
WHEREAS, Company recognizes that Xx. Xxxxxx'x talents and abilities are
unique, and have been integral to the success of the Xxxxxx Center, and thus
wishes to secure the ongoing services of Xx. Xxxxxx; and
WHEREAS, Company is currently involved in a reverse merger transaction
(the "Merger", as defined in the Placement Agent Agreement by and between
Company and Hunter World Markets dated April 11, 2005); and
WHEREAS, the Merger shall be completed on June 16, 2005 (the "Effective
Date"); and
WHEREAS, following the completion of the Merger, Company wishes to engage
the services of Xx. Xxxxxx under the terms and conditions stated herein as of
the Effective Date;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, and for other good and valuable consideration, it is
hereby agreed by and between the parties hereto as follows:
1. Term
The term of employment under this Agreement shall be for a period
commencing on the Effective Date and concluding on the third anniversary of the
Effective Date (the "Term", inclusive of any and all extensions, if applicable),
unless terminated earlier pursuant to the provisions of Paragraph 7 below. At or
near the expiration of the Term, the parties agree to engage in good faith
discussions regarding a new employment contract or an extension of this
Agreement. However, neither party shall be obligated to enter into a new
agreement, nor does this Paragraph 1 create any representation, express or
implied, that a new agreement will be entered into.
2. Employment and Duties
(a) Employment. Company hereby employs Xx. Xxxxxx as the President and
Executive Director of Company and Xx. Xxxxxx hereby accepts such employment as
of the Effective Date pursuant to the terms, covenants and conditions set forth
herein. Xx. Xxxxxx shall report directly to the Board of Directors of Company.
(b) Exclusivity. During the Term, Xx. Xxxxxx shall render her services
exclusively to Company.
(c) Services. During the Term, Xx. Xxxxxx shall render services to Company
to the best of her ability and in a manner satisfactory to Company. Xx. Xxxxxx
shall be responsible for rendering services to Company that include, without
limitation, the following:
(i) Xx. Xxxxxx shall render all services customarily rendered by
individuals in similar capacities with companies that provide sexual health
services to women, or which duties are delegated to her by the Board of
Directors consistent with such positions and/or the terms of this Agreement.
(ii) In connection with any and all media, whether now known or
hereafter created, including without limitation, television, film, radio, DVD,
CD, CD-ROM, Internet, and live stage, Xx. Xxxxxx shall render services in the
capacity of, including without limitation, performer, host, co-host, expert,
consultant, producer, executive producer, writer, teacher, lecturer, and
endorser of products and services in areas of businesses of Company covered
under this Agreement (the services defined in Paragraph 2(c)(i) and (ii) shall
be collectively referred to as the "Services"). The foregoing notwithstanding,
Xx. Xxxxxx'x services rendered prior to the Effective Date of this Agreement
including, without limitation, Xx. Xxxxxx'x services as co-host of the
television program, "Xxxxxx and Xxxxxx: For Women Only," on the Discovery Health
Channel as well as Xx. Xxxxxx'x services as host of the syndicated radio talk
show, "The Xx. Xxxxx Xxxxxx Show" (collectively, the "Prior Services") shall be
deemed Services rendered hereunder.
(iii) If Xx. Xxxxxx creates, individually and/or jointly with third
parties, products pursuant to this Agreement in connection with the Services
rendered hereunder, such products shall include, without limitation, Xx.
Xxxxxx'x authorship and co-authorship of books, articles, essays, manuals,
scripts or other literary products, Xx. Xxxxxx'x creation of medical and
treatment devices, wellness, nutritional and exercise programs, and any and all
other products created by Xx. Xxxxxx in areas of businesses of Company covered
under this Agreement (the "Products"). The foregoing notwithstanding, products
created by Xx. Xxxxxx prior to the Effective Date of this Agreement including,
without limitation, Xx. Xxxxxx'x best selling books, "For Women Only: A
Revolutionary Guide to Overcoming Sexual Dysfunction and Reclaiming Your Sex
Life (Xxxxx Xxxx, 2000), "Secrets of the Sexually Satisfied Woman" (Hyperion
Books, ___) and "The Passion Prescription: Ten Weeks to Your Best Sex Ever"
(Hyperion Books, ___) (collectively, the "Prior Products") shall be deemed
Products created hereunder. For clarification purposes, if Xx. Xxxxxx co-created
any Product, this Agreement only applies to such portion that was created by or
attributable to Xx. Xxxxxx.
(d) Time and Efforts. Xx. Xxxxxx shall devote her full-time efforts,
attention, and energies to the business of the Company.
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(e) Place of Performance. During the Term, Company shall maintain
executive offices for Xx. Xxxxxx in Chicago, IL, and Xx. Xxxxxx shall not be
required to relocate to any other location. Subject to Xx. Xxxxxx'x prior
approval, Company shall provide Xx. Xxxxxx with an exclusive office, private
secretary, usual and customary office support and staff consistent with the
practices of Company and as is customary in the health care industry.
3. Compensation
(a) Salary. As the total consideration for Xx. Xxxxxx'x Services rendered
and Products created hereunder, Xx. Xxxxxx shall be entitled to an annual salary
of Two Hundred Thousand Dollars ($200,000.00) (the "Salary") beginning on the
Effective Date of the Agreement and payable in regular installments in
accordance with the customary payroll practices of Company. The Salary may be
increased at the discretion of the Board of Directors on or after the 180th day
following the Effective Date. The Salary shall not be decreased.
(b) Expenses. During the Term, Company shall pay or promptly reimburse Xx.
Xxxxxx for all business, travel and entertainment expenses consistent with Xx.
Xxxxxx'x title and the practices of Company in effect during the Term,
including, without limitation, business class air transportation, standard room
at first class hotel, exclusive ground transportation by town car, when
necessary, otherwise taxis to and from airports, first class luxury rental car
or car service at Xx. Xxxxxx'x discretion, car lease allowance of $1200/month,
inclusive of insurance and gas expenses but exclusive of maintenance expenses.
Company shall also provide Xx. Xxxxxx with any and all items reasonably
necessary and appropriate to render the Services and create the Products
hereunder to the best of her abilities including, without limitation, electronic
equipment and a personal assistant for use during the Term.
(c) Vacation. Xx. Xxxxxx shall be entitled to six (6) weeks of vacation
per year. Vacation not taken during the applicable fiscal year (but in excess of
three weeks) shall be carried over to the next following fiscal year.
(d) Welfare, Pension and Incentive Benefit Plans. During the Term, Xx.
Xxxxxx (and her eligible spouse and dependents) shall be entitled to participate
in all the welfare benefit plans and programs maintained by Company from time to
time for the benefit of its senior executives including, without limitation, all
medical (medical insurance shall be at least POS or PPD with a deductible not
greater than $250/person), hospitalization, dental, disability, accidental death
(accidental death insurance in an amount not less than $2,000,000.00) and
dismemberment and travel accident insurance plans and programs. In addition,
during the Term, Xx. Xxxxxx shall be eligible to participate in all pension,
retirement, savings and other employee benefit plans and programs maintained
from time to time by Company for the benefit of its senior executives, other
than any annual cash incentive plan.
(e) Dues. During the Term, Company shall pay or promptly reimburse Xx.
Xxxxxx for annual dues for membership in organizations including, but not
limited to, the American Federation of Television and Radio Artists, the Screen
Actors Guild, medical and health associations.
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4. Revenues
(a) Any and all net revenues generated as a result of Xx. Xxxxxx'x
Products created hereunder, to the extent such revenues are payable to Xx.
Xxxxxx, shall be payable to Company in perpetuity when any such revenues are
received by Xx. Xxxxxx or on Xx. Xxxxxx'x behalf, directly or indirectly, or by
any person, firm or corporation on Xx. Xxxxxx'x behalf pursuant to contracts,
engagements and commitments entered into during the Term. In connection with the
foregoing: (i) all agreements substantially negotiated during the Term and
executed within six (6) months thereafter shall be deemed entered into during
the Term and (ii) Company shall be entitled to any and all revenues in
perpetuity with respect to Products created by Xx. Xxxxxx during the Term
pursuant to agreements entered into during the Term. For the avoidance of doubt,
any and all revenues accruing and received after the commencement of the Term
which are generated as a result of Prior Products created, to the extent such
revenues are payable to Xx. Xxxxxx, shall be automatically paid to Company.
(b) Any and all net revenues generated as a result of Xx. Xxxxxx'x
Services rendered hereunder, to the extent such revenues are payable to Xx.
Xxxxxx, shall be payable to Company in perpetuity when any such revenues are
received by Xx. Xxxxxx or on Xx. Xxxxxx'x behalf, directly or indirectly, or by
any person, firm or corporation on Xx. Xxxxxx'x behalf pursuant to contracts,
engagements and commitments entered into during the Term. For the avoidance of
doubt, any and all revenues accruing and received after the commencement of the
Term which are generated as a result of Prior Services rendered, to the extent
such revenues are payable to Xx. Xxxxxx, shall be automatically paid to Company.
Notwithstanding the foregoing, Xx. Xxxxxx shall not be required to pay or
contribute to Company any income, revenue or other compensation derived from
honorarium fees and live speaking engagements. If, after the expiration of the
Term of this Agreement, Xx. Xxxxxx renders Services pursuant to an agreement
entered into during the Term of this Agreement, Company shall not be entitled to
any revenues earned after the expiration of the Term.
(c) In the event Xx. Xxxxxx'x employment is terminated pursuant to
Paragraphs 6(b) or 6(d) herein, any and all revenues generated as a result of
Xx. Xxxxxx'x Services rendered and Products created hereunder shall be
immediately payable to Xx. Xxxxxx.
5. Agreements
(a) During the Term, Company may enter into third party agreements for Xx.
Xxxxxx'x Services rendered and Products created hereunder. In the event that Xx.
Xxxxxx enters into any such third party agreement(s) directly, Xx. Xxxxxx agrees
and acknowledges that any and all revenues generated as a result of such third
party agreement(s) shall be automatically assignable to Company, and the terms
and conditions of this Agreement shall govern.
(b) If the term of any third party agreement extends beyond the Term of
this Agreement and Xx. Xxxxxx'x employment is not terminated pursuant to
Paragraphs 6(b) or 6(d) herein, Xx. Xxxxxx shall continue to create Products
pursuant to such third party agreement until the termination or expiration
thereof and any and all revenues generated as a result of such third party
agreement shall be automatically assignable to Company for the length of the
term of such third party agreement, and the terms and conditions of this
Agreement shall govern.
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(c) If the term of any third party agreement extends beyond the Term of
this Agreement and Xx. Xxxxxx'x employment is not terminated pursuant to
Paragraphs 6(b) or 6(d) herein, Xx. Xxxxxx shall continue to render Services
pursuant to such third party agreement until the termination or expiration
thereof provided that any and all revenues generated as a result of such third
party agreement shall be payable to Xx. Xxxxxx and the terms and conditions of
this Agreement shall not govern.
6. Termination
Xx. Xxxxxx'x employment shall terminate upon the happening of the
following:
(a) Termination For Cause. Company may terminate this Agreement for Cause
if the Board of Directors determines that Cause exists provided, however, that
such termination for Cause requires a resolution approved by seventy-five
percent (75%) of the Board of Directors. There shall also be a special meeting
of the Board of Director after written notification to Xx. Xxxxxx that in the
good faith opinion of the Board of Directors, Xx. Xxxxxx is guilty of the
misconduct described herein with particular detail. Thereafter, Xx. Xxxxxx shall
be given an opportunity to meet with the Board of Directors to discuss and
attempt to cure the misconduct. For purposes of this Agreement, "Cause" shall
mean
(i) A proven act of dishonesty, fraud, embezzlement, or
misappropriation of proprietary information in connection with the Xx. Xxxxxx'x
responsibilities as President and Director of the Xxxxxx Center;
(ii) Xx. Xxxxxx'x conviction of, or plea of nolo contendere to, a
felony or a crime involving moral turpitude; or
(iii) Xx. Xxxxxx'x habitual failure or refusal to perform her
employment duties under this Agreement if such failure or refusal is not cured
by Xx. Xxxxxx within thirty (30) days after receiving written notice thereof
from the Board of Directors.
(b) Termination Without Cause.
(i) Company may terminate this Agreement Without Cause. For purposes
of this Agreement, "Without Cause" shall mean termination by Company of Xx.
Xxxxxx'x employment for any reason, including termination from a Change of
Control (as defined herein), other than as specified in Paragraphs 6(a) and 6(c)
hereof.
(ii) Change of Control shall mean the occurrence of any one of the
following: (i) any "person," as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than
Company, a subsidiary, an affiliate, or a Company employee benefit plan,
including any trustee of such plan acting as trustee) becoming the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of Company representing 50% or more of the combined
voting power of Company's then outstanding securities; (ii) a sale of assets
involving 50% or more of the fair market value of the assets of Company as
determined in good faith by the Board of Directors of Company; or (iii) any
merger or reorganization of Company whether or not another entity is the
survivor, pursuant to which the holders of all the shares of capital stock of
Company outstanding prior to the transaction hold, as a group, fewer than 50% of
the shares of capital stock of Company outstanding after the transaction.
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(iii) Company may terminate the employment of Xx. Xxxxxx and all of
Company's obligations hereunder (except as hereinafter provided) at any time
during the Term of this Agreement "Without Cause" by giving Xx. Xxxxxx written
notice of such termination, to be effective thirty (30) days following the
giving of such written notice.
(c) Termination Due to Disability or Death. Xx. Xxxxxx'x employment
hereunder may be terminated by Company as follows:
(i) To the extent permitted by law, upon thirty (30) days' prior
written notice to Xx. Xxxxxx in the event that Xx. Xxxxxx has been unable to
perform substantially all of her duties under this Agreement for an aggregate of
150 days (inclusive of weekends and holidays) within any 12-month period, as the
result of Xx. Xxxxxx'x incapacity to perform the essential functions of her job
due to a physical or mental disability and after reasonable accommodation made
by Company, and within thirty (30) days of receipt of such notice, Xx. Xxxxxx
shall not have returned to the full-time, continuing performance of her duties
hereunder, or
(ii) Immediately upon the death of Xx. Xxxxxx.
(d) Termination for Good Reason. Xx. Xxxxxx may terminate the Agreement
for "Good Reason". Xx. Xxxxxx'x termination shall be for "Good Reason" if Xx.
Xxxxxx provides written notice to Company of the Good Reason within six (6)
months of the event constituting Good Reason, or as soon as the event becomes
known to Xx. Xxxxxx, whichever is later, and provides Company with a period of
thirty (30) days to cure the Good Reason and Company fails to cure the Good
Reason within that period. For purposes of this Agreement, "Good Reason" shall
mean any of the following events if the event is effected by Company or third
parties without Xx. Xxxxxx'x consent: (i) a reduction in the Salary or other
component of compensation and benefits, except for changes to Company's
generally applicable benefit plans and policies; or (ii) if Company then changes
Xx. Xxxxxx'x title, position, reporting or job duties which materially reduces
Xx. Xxxxxx'x level of responsibility, (except for any reduction for Cause as
defined above). Xx. Xxxxxx may terminate her employment at any time for Good
Reason, in which case Xx. Xxxxxx shall receive the compensation and benefit
continuation required by Paragraph 7(c) below. The foregoing notwithstanding,
Xx. Xxxxxx shall have the right to terminate this Agreement without Good Reason
by providing Company with written notice thereof.
(e) Voluntary Termination. Xx. Xxxxxx'x employment hereunder may be
terminated by Xx. Xxxxxx for any reason (other than by Termination Due to
Disability or Death) upon Xx. Xxxxxx providing Company with thirty (30) days'
notice of Xx. Xxxxxx'x voluntary termination.
7. Effect of Termination
(a) Termination For Cause or Voluntary Termination. In the event that Xx.
Xxxxxx'x employment is terminated pursuant to Paragraphs 6(a) or 6(e) above:
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(i) Company shall pay to Xx. Xxxxxx, or her representatives, on the
date of termination of employment (the "Termination Date") only that portion of
the Salary provided in Paragraph 3(a) that has been earned to the Termination
Date, and any accrued but unpaid Vacation pay provided in Paragraph 3(c), and
any expense reimbursements due and owing to Xx. Xxxxxx as of the Termination
Date.
(b) Termination Due to Disability or Death. In the event Xx. Xxxxxx'x
employment is terminated pursuant to Paragraph 6(c) above, Company shall pay to
Xx. Xxxxxx, or her representatives, on the Termination Date the following:
(i) The payments, if any, referred to in Paragraph 7(a)(i) above.
(c) Termination Without Cause or for Good Reason. In the event Xx.
Xxxxxx'x employment is terminated pursuant to Paragraphs 6(b) or 6(d) above,
Company shall pay Xx. Xxxxxx all of the following:
(i) The payments referred to in Paragraph 7(a)(i) above; and
(ii) Xx. Xxxxxx'x salary for the remainder of the Term hereof.
(iii) Upon Xx. Xxxxxx'x Termination Without Cause or Termination for
Good Reason, any and all rights in and to the Services rendered and Products
created hereunder including, without limitation, all right, title, interest, and
license (including the Property license as granted pursuant to the Intellectual
Property License and Preservation Agreement entered into by and between the
parties dated as the date hereof) and in the Services and Products, shall
immediately vest in and revert back to Xx. Xxxxxx and the provisions of
Paragraphs 9 and 10 of this Agreement shall not apply. In connection therewith,
Company agrees to execute such any and all documents and instruments as may
reasonably be required in order to effectuate the terms and intentions of this
Paragraph 7(c)(iii), and in the event Company fails or is unable to execute any
such documents or instruments, after receipt of a written request therefore from
Xx. Xxxxxx, Company hereby appoints Xx. Xxxxxx as its irrevocable attorney in
fact to execute any such documents or instruments, provided that said documents
and instruments shall not be inconsistent with the terms and conditions of this
Agreement. Xx. Xxxxxx'x rights under this Paragraph 7(c)(iii) constitute a power
coupled with an interest and are irrevocable.
8. Confidential Information
Except as may be required or appropriate in connection with her carrying
out her duties under this Agreement, Xx. Xxxxxx shall not, without the prior
written consent of Company or as may be required by law or any legal process, or
as is necessary in connection with any adversarial proceeding against Company
(in which case Xx. Xxxxxx shall cooperate with Company in obtaining a protective
order at Company's expense against disclosure by a court of competent
jurisdiction), communicate, to anyone other than Company in the furtherance of
its business or to perform her duties hereunder, any trade secrets, confidential
information, knowledge or data relating to Company and its businesses and
investments, obtained by Xx. Xxxxxx during the Term by Company and that is not
generally available public knowledge.
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9. Noncompetition
(a) During the Term, and for twelve (12) months after the Termination Date
if Xx. Xxxxxx is terminated by Company for Cause or Xx. Xxxxxx terminates
without Good Reason, Xx. Xxxxxx shall not engage in or become associated with
any Competitive Activity. For purposes of this Paragraph 9, a "Competitive
Activity" shall mean any business or other endeavor that engages in any United
States territory in which Company has significant business operations as of the
Date of Termination to a significant degree in a business that directly competes
with all or any substantial part of Company's business of using Xx. Xxxxxx'x
name, likeness, image, or voice to the extent such uses involve counseling and
core businesses of Xx. Xxxxxx, excluding television appearances and book
publishing, in connection with any Services rendered or Products created
hereunder (the "Business"); provided, that, a Competitive Activity shall not
include (i) any speaking engagement to the extent such speaking engagement does
not promote or endorse a product or service of the Business, (ii) the writing of
any book or article relating to subjects other than the Business (e.g.,
nonfiction relating to Xx. Xxxxxx'x career or general business advice) or (iii)
the television, video or movie business so long as such business does not relate
to the Business. Xx. Xxxxxx shall be considered to have become "associated with
a Competitive Activity" if she becomes involved as an owner, employee, officer,
director, independent contractor, agent, partner, advisor, or in any other
capacity calling for the rendition of Xx. Xxxxxx'x personal services, with any
individual, partnership, corporation or other organization that is engaged in a
Competitive Activity and her involvement relates to a significant extent to the
Competitive Activity of such entity; provided, however, that Xx. Xxxxxx shall
not be prohibited from (a) owning less than one percent (1%) of any publicly
traded corporation, whether or not such corporation is in competition with
Company or (b) serving as a director of a corporation or other entity the
primary business of which is not a Competitive Activity. If, at any time, the
provisions of this Paragraph 10 shall be determined to be invalid or
unenforceable, by reason of being vague or unreasonable as to area, duration or
scope of activity, this Paragraph 10 shall be considered divisible and shall
become and be immediately amended to only such area, duration and scope of
activity as shall be determined to be reasonable and enforceable by the court or
other body having jurisdiction over the matter; and Xx. Xxxxxx agrees that this
Paragraph 9 as so amended shall be valid and binding as though any invalid or
unenforceable provision had not been included herein.
(b) In the event Xx. Xxxxxx engages in or becomes associated with any
Competitive Activity during the Term, any and all revenues generated as a result
of Xx. Xxxxxx'x involvement in such Competitive Activity shall be automatically
assignable to Company.
(c) In the event Xx. Xxxxxx is terminated Without Cause or Xx. Xxxxxx
terminates for Good Reason, the provisions of Paragraph 9(a) and 9(b) shall not
apply.
10. Nonsolicitation
(a) During the Term, and for twelve (12) months after the Termination Date
if Xx. Xxxxxx is terminated by Company for Cause or Xx. Xxxxxx terminates
without Good Reason, Xx. Xxxxxx will not, directly or indirectly, solicit for
employment any person (other than any personal secretary or assistant hired to
work directly for Xx. Xxxxxx) employed by Company or its affiliated companies,
nor will Xx. Xxxxxx, directly or indirectly, solicit for employment any person
known by Xx. Xxxxxx (after reasonable inquiry) to be employed at the time by
Company or its affiliated companies.
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(b) In the event Xx. Xxxxxx is terminated Without Cause or Xx. Xxxxxx
terminates for Good Reason, the provisions of Paragraph 10(a) shall not apply.
11. Approvals
Xx. Xxxxxx shall have the right to approve all uses of her name, likeness,
biography and any and all statements attributed to her, which approval shall not
be unreasonably withheld and shall be given to Company within five (5) business
days after such materials are submitted by Company to Xx. Xxxxxx. Xx. Xxxxxx'x
failure to give such notice as aforesaid shall be deemed to be Xx. Xxxxxx'x
disapproval as to the material for which such approval is sought. All materials
submitted by Xx. Xxxxxx to Company shall be deemed approved by Xx. Xxxxxx.
12. Indemnification
(a) General. Company agrees that if Xx. Xxxxxx is made a party or is
threatened to be made a party to any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding"), by reason of the
fact that Xx. Xxxxxx is or was a trustee, director or officer of Company, or any
predecessor to Company (including any sole proprietorship owned by Xx. Xxxxxx)
or any of their affiliates or is or was serving at the request of Company, any
predecessor to Company (including any sole proprietorship owned by Xx. Xxxxxx),
or any of their affiliates as a trustee, director, officer, member, employee or
agent of another corporation or a partnership, joint venture, limited liability
company, trust or other enterprise, including, without limitation, service with
respect to employee benefit plans, whether or not the basis of such Proceeding
is alleged action in an official capacity as a trustee, director, officer,
member, employee or agent while serving as a trustee, director, officer, member,
employee or agent, or in connection with any of the Services rendered or
Products created hereunder, Xx. Xxxxxx shall be defended, indemnified and held
harmless by Company to the fullest extent authorized by California law, as the
same exists or may hereafter be amended, against all Expenses incurred or
suffered by Xx. Xxxxxx in connection therewith, and such indemnification shall
continue as to Xx. Xxxxxx even if she has ceased to be an officer, director,
trustee or agent, or is no longer employed by Company and shall inure to the
benefit of her heirs, executors and administrators.
(b) Expenses. As used in this Agreement, the term "Expenses" shall
include, without limitation, damages, losses, judgments, liabilities, fines,
penalties, excise taxes, settlements, and costs, attorneys' fees, accountants'
fees, and disbursements and costs of attachment or similar bonds,
investigations, and any expenses of establishing a right to indemnification
under this Agreement.
(c) Enforcement. If a claim or request under this Paragraph 12 is not paid
by Company or on its behalf, within thirty (30) days after a written claim or
request has been received by Company, Xx. Xxxxxx may at any time thereafter
bring suit against Company to recover the unpaid amount of the claim or request
and if successful in whole or in part, Xx. Xxxxxx shall be entitled to be paid
also the expenses of prosecuting such suit against Company. All obligations for
indemnification hereunder shall be subject to, and paid in accordance with,
applicable California law.
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(d) Partial Indemnification. If Xx. Xxxxxx is entitled under any provision
of this Agreement to indemnification by Company for some or a portion of any
Expenses, but not, however, for the total amount thereof, the Company shall
nevertheless indemnify Xx. Xxxxxx for the portion of such Expenses to which Xx.
Xxxxxx is entitled.
(e) Advances of Expenses. Expenses incurred by Xx. Xxxxxx in connection
with any Proceeding shall be paid by Company in advance upon request of Xx.
Xxxxxx that Company pay such Expenses, but only in the event that Xx. Xxxxxx
shall have delivered in writing to Company (i) an undertaking to reimburse
Company for Expenses with respect to which Xx. Xxxxxx is not entitled to
indemnification and (ii) a statement of her good faith belief that the standard
of conduct necessary for indemnification by Company has been met.
(f) Notice of Claim. Xx. Xxxxxx shall give to Company notice of any claim
made against her for which indemnification will or could be sought under this
Agreement. In addition, Xx. Xxxxxx shall give Company such information and
cooperation as it may reasonably require and as shall be within Xx. Xxxxxx'x
power and at such times and places as are convenient for Xx. Xxxxxx.
(g) Defense of Claim. With respect to any Proceeding as to which Xx.
Xxxxxx notifies Company of the commencement thereof:
(i) Company will be entitled to participate therein at its own
expense;
(ii) Except as otherwise provided below, to the extent that it may
wish, Company will be entitled to assume the defense thereof, with counsel
reasonably satisfactory to Xx. Xxxxxx, which in Company's sole discretion may be
regular counsel to Company and may be counsel to other officers and directors of
Company or any subsidiary. Xx. Xxxxxx also shall have the right to employ her
own counsel in such action, suit or proceeding if she reasonably concludes that
failure to do so would involve a conflict of interest between Company and Xx.
Xxxxxx, and under such circumstances the fees and expenses of such counsel shall
be at the expense of Company.
(iii) Company shall not be liable to indemnify Xx. Xxxxxx under this
Agreement for any amounts paid in settlement of any action or claim affected
without its written consent. Company shall not settle any action or claim in any
manner which would impose any penalty that would not be paid directly or
indirectly by Company or limitation on Xx. Xxxxxx without Xx. Xxxxxx'x written
consent. Neither Company nor Xx. Xxxxxx will unreasonably withhold or delay
their consent to any proposed settlement.
(h) Non-exclusivity. The right to indemnification and the payment of
expenses incurred in defending a Proceeding in advance of its final disposition
conferred in this Paragraph 12 shall not be exclusive of any other right which
Xx. Xxxxxx may have or hereafter may acquire under any statute or certificate of
incorporation or by-laws of Company or any subsidiary, agreement, vote of
shareholders or disinterested directors or trustees or otherwise.
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13. Assignment
This Agreement is personal in nature, and neither this Agreement nor any
part of any obligation herein shall be assignable by Xx. Xxxxxx. Company shall
be entitled to assign this Agreement, upon the prior approval of Xx. Xxxxxx, to
any affiliate of Company that assumes the ownership and control of the business
of Company provided, however that Company shall remain secondarily liable to Xx.
Xxxxxx.
14. Severability
Should any term, provision, covenant or condition of this Agreement be
held to be void or invalid, the same shall not affect any other term, provision,
covenant or condition of this Agreement, but such remainder shall continue in
full force and effect as though each such voided term, provision, covenant or
condition is not contained herein.
15. Governing Law and Submission to Jurisdiction
This Agreement shall be governed by and construed in accordance with the
laws of the State of California applicable to contracts made and to be carried
out in California. Each of the parties submits to the exclusive jurisdiction of
any state or federal court sitting in Los Angeles, California in any action or
proceeding arising out of or relating to this Agreement and further agrees that
all claims in respect of the action or proceeding may be heard and determined in
any such court and agrees not to bring any action or proceeding arising out of
or relating to this Agreement in any other court. Each of the parties agrees
that a final judgment in any action or proceeding so brought shall be conclusive
and may be enforced by suit on the judgment or in any other manner so provided
by law.
16. Attorney's Fees
In the event that any party shall bring an action or proceeding in
connection with the performance, breach or interpretation of this Agreement,
then the prevailing party in any such action or proceeding, as determined by the
court or other body having jurisdiction, shall be entitled to recover from the
losing party all reasonable costs and expenses of such action or proceeding,
including reasonable attorneys' fees, court costs, costs of investigation,
expert witness fees and other costs reasonably related to such action or
proceeding.
17. Binding Agreement
This Agreement shall be binding upon the parties, and each party's
successors and assigns.
18. Captions
The Paragraph captions herein are inserted only as a matter of convenience
and reference and in no way define, limit or describe the scope of this
Agreement or the intent of any provisions hereof.
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19. Notice
All notices and other communications under this Agreement shall be in
writing and mailed, telegraphed, telecopied, or delivered by hand (by a party or
a recognized courier service) to the other party at the following address (or to
such other address as such party may have specified by notice given to the other
party pursuant to this provision):
If to Company:
Xxxxxx Center, LLC
000 X. Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
-----------------
If to Xx. Xxxxxx:
c/x Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx Xxxxxx LLP
00000 Xxxxx Xxxxxx Xxxxxxxxx
0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Esq.
With Courtesy Copies of all notices to Xx. Xxxxxx
simultaneously sent to the following:
Manatt, Xxxxxx & Xxxxxxxx, LLP
00000 Xxxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
///
///
///
///
///
///
///
///
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20. Entire Agreement
This Agreement contains the entire agreement of the parties relating to
the subject matter hereof, and the parties hereto have made no agreements,
representations or warranties relating to the subject matter of this Agreement
that are not set forth otherwise herein. In this regard, each of the parties
represents and warrants to the other party that such party is not relying on any
promises or representations that do not appear in writing herein. This Agreement
supersedes all prior agreements, whether written or oral, pertaining hereto.
Each of the parties further agrees and understands that this Agreement can be
amended or modified only by a written agreement signed by all parties.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, this Agreement is executed as of the day and year
first above written.
XXXXXX CENTER, INC., a Delaware
corporation
By: /s/ XXXXXX XXXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Executive Officer
and
XXXXX X.X. XXXXXX, LCSW, PH.D.
By: /s/ XXXXX XXXXXX
-------------------------------------
Xxxxx X.X. Xxxxxx, LCSW, Ph.D.
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