EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (this “Agreement”)
is
made as of December 11, 2006, by and between NexCen Brands, Inc., a Delaware
corporation (the “Company”),
and
Xxxxxxx X. Xxxx (the “Executive”),
each
a “Party”
and
collectively the “Parties.”
Unless
otherwise indicated, capitalized terms used herein are defined in Section 2.1.
WHEREAS,
the Company has determined that it is in the best interests of the Company
and
its shareholders to enter into an employment agreement with the Executive and
the Executive is willing to serve as an employee of the Company.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, including the Option Grant, as defined below, it is agreed by and
between the Executive and the Company as follows:
ARTICLE
I
EMPLOYMENT
TERMS
1.1
Employment.
The
Company will employ the Executive, and the Executive accepts employment with
the
Company, upon the terms and conditions set forth in this Agreement for the
period beginning on the date hereof (the “Effective Date”) and ending as
provided in Section
1.4(a)
hereof
(the “Employment
Period”).
1.2
Position
and Duties.
(a) Generally.
The
Executive shall serve as the Executive Vice President, Brand Management and
Licensing, of the Company and, in such capacity shall perform such duties as
are
set forth in the By-Laws of the Company and as are customarily performed by
an
officer with similar title and responsibilities of a public company of a similar
size and shall have such power and authority as shall reasonably be required
to
enable him to perform his duties hereunder; provided, however, that in
exercising such power and authority and performing such duties, he shall at
all
times be subject to the authority, control and direction of the President and
Chief Executive Officer of the Company.
(b) Duties
and Responsibilities.
The
Executive shall report to the President and Chief Executive Officer of the
Company and shall devote his full business time and attention to the business
and affairs of the Company and its Subsidiaries. The Executive shall perform
his
duties and responsibilities in a diligent, trustworthy, businesslike and
efficient manner. The Executive shall not engage in any other business
activities that could reasonably be expected to conflict with the Executive’s
duties, responsibilities and obligations hereunder. During the Employment
Period, the Executive shall promptly bring to the Company or its Subsidiaries,
as applicable, all investment or business opportunities relating to the Business
of which the Executive becomes aware.
(c) Principal
Office.
The
principal place of performance by the Executive of his duties hereunder shall
be
the Company’s principal executive offices in New York, New York, although the
Executive may be required to travel outside of the area where the Company’s
principal executive offices are located in connection with the business of
the
Company.
1.3
Compensation.
(a) Base
Salary.
The
Executive’s base salary shall be $300,000.00 per annum (the “Base
Salary”).
The
Base Salary payable for Fiscal Year 2006 shall be pro rated based on the number
of days from and including the Effective Date through and including
December 31, 2006. The Base Salary will be payable to the Executive by the
Company in regular installments in accordance with the Company’s general payroll
practices. The Executive shall receive such increases (but not decreases) in
his
Base Salary as the President and Chief Executive Officer, or the compensation
committee of the Board, may approve in his or its sole discretion from time
to
time, provided that the Executive’s Base Salary will be reviewed for potential
upward adjustment not less often than annually.
(b) Annual
Bonus.
Executive will be eligible to receive a performance-based bonus calculated
as a
percentage of the Bonus Pool, as determined by the President and Chief Executive
Officer, based on achieving annual performance goals that may be recommended
by
the President and Chief Executive Officer, all of which shall be subject to
review and confirmation by the Company’s compensation committee or Board of
Directors to the extent required under applicable securities laws and the Nasdaq
listed company requirements.
(c) Withholding.
All
payments made under this Agreement (including Base Salary, bonus payments,
and
other amounts) shall be subject to withholding for income taxes, payroll taxes
and other legally required deductions.
(d) Expenses.
The
Company will reimburse the Executive for all reasonable expenses incurred by
him
in the course of performing his duties under this Agreement that are consistent
with the Company’s policies in effect at that time with respect to travel,
entertainment and other business expenses, subject to the Company’s requirements
with respect to reporting and documentation of such expenses.
(e) Vacation;
Holiday Pay and Sick Leave.
The
Executive shall be entitled to four (4) weeks’ paid vacation in each calendar
year, which if not taken during any year may be carried forward to any
subsequent year. Executive shall receive holiday pay and paid sick leave as
provided to other executive employees of the Company.
(f) Additional
Benefits.
During
the Employment Period, the Executive shall be entitled to participate (for
himself and, as applicable, his dependents) in the group medical, life, 401(k)
and other insurance programs, employee benefit plans and perquisites which
may
be adopted by the Board, or the compensation committee of the Board, from time
to time, for participation by the Company’s senior management or executives, as
well as dental, life and disability insurance coverage, with payment of, or
reimbursement for, such insurance premiums by the Company, subject to, in all
cases, the terms and conditions established by the Board with respect to such
plans (collectively, the “Benefits”);
provided, however, that the Board, in its reasonable discretion, may revise
the
terms of any Benefits so long as such revision does not have a
disproportionately negative impact on the Executive vis-à-vis other Company
employees, to the extent applicable.
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(g) Indemnification.
The
Executive shall be entitled to indemnification by the Company in the same
circumstances and to the same extent as the other executive officers and
directors of the Company, which indemnification shall in no event be less
favorable to the Executive than the fullest scope of indemnification permitted
by applicable Delaware law (or any such greater scope of indemnification
provided by agreement or by the terms of the Company’s Certificate of
Incorporation or By-Laws to any executive officer or director of the Company).
(h) Stock
Options.
The
Executive shall be granted options to purchase a total of 250,000 shares of
the
Company’s common stock (the “Stock
Options”)
on the
Effective Date (such grant of Stock Options being referred to herein as the
“Option
Grant”).
These
Stock Options shall have an exercise price equal to the fair market value of
the
Company’s common stock on the date of grant, and a 10-year term. The Stock
Options shall be granted pursuant to and be subject to the terms of the
Company’s 2006 Equity Incentive Plan (the “Plan”)
and
customary grant agreements. The Stock Options shall vest and become exercisable
in equal tranches on the first, second and third anniversaries of the Effective
Date, subject to the Executive’s continued employment with the Company on each
vesting date, and further subject to accelerated vesting under the Plan, the
grant agreement and the terms of this Agreement; provided that in the event
of
the Executive’s termination by the Company without Cause, the Executive’s
resignation with Good Reason or upon a Change of Control (as defined below),
the
Executive shall immediately be fully vested in all of the Stock Options. Except
as provided in the preceding sentence, any unvested options shall be forfeited
upon termination of Executive’s employment, and any options that are vested but
unexercised upon termination shall be subject to the terms and conditions of
the
Plan or, if applicable, the last sentence of Section 1.4(c) hereof. In the
event that the Company elects from time to time during the Employment Period
to
award to its senior management or executives, generally, options to purchase
shares of the Company’s stock pursuant to any stock option plan or similar
program, the Executive shall be entitled to participate in any such stock option
plan or similar program on a basis consistent with the participation of other
senior management or executives of the Company.
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1.4
Term
and Termination.
(a) Duration.
The
Employment Period shall commence on the Effective Date and the initial term
shall terminate three (3) years from the Effective Date (the “Term”),
unless earlier terminated by the Company or the Executive as set forth in this
Section 1.4.
The
Term shall renew automatically for one-year periods, unless either party gives
the other party written notice of its intention not to renew the Agreement
no
later than 90 days prior to the expiration of the then current Term. The
Employment Period shall be terminated prior to the then-applicable expiration
of
the Term upon the first to occur of (i) termination of the Executive’s
employment by the Company for Cause, (ii) termination of the Executive’s
employment by the Company without Cause, (iii) the Executive’s resignation
with Good Reason, (iv) the Executive’s resignation other than for Good
Reason, or (v) the Executive’s death or Disability. The Executive shall not
terminate the Employment Period unless he gives the Company written notice
that
he intends to terminate the Employment Period at least (i) 90 days prior to
the Executive’s proposed Termination Date in the case of termination without
Good Reason or (ii) 30 days prior to the Executive’s proposed Termination
Date in the case of termination with Good Reason. As a condition to Executive
receiving any payments or benefits under Section 1.4(b) or
Section 1.4(c), the Executive shall execute and deliver to the Company the
General Release in the form attached hereto as Exhibit
A.
(b) Severance
Upon Termination Without Cause, Upon Resignation by the Executive For Good
Reason or Failure to Renew Term.
If the
Employment Period is terminated by the Company without Cause or if the Executive
resigns for Good Reason, or if the Company fails to renew the Term (in which
case termination of the Executive’s employment shall be effective at the
expiration of the then-current Term), then the Executive will be entitled to
receive (1) any unpaid Base Salary through and including the date of
termination or resignation and any other amounts, including any declared but
unpaid Annual Bonus, or other entitlements then due and owing to the Executive
as of the Termination Date; (2) an amount equal to the Executive’s Base
Salary (at the rate in effect on the date the Executive’s employment is
terminated) for a 6-month period following the Executive’s termination of
employment as described in this Section 1.4(b),
payable
in (A) substantially equal installments over the lesser of (i) a
six-month period immediately following such termination, or (ii) such
shorter period that is the longest period permissible in order for the payments
not to be considered “nonqualified deferred compensation” under
Section 409A of the Code or any regulations, rulings or other regulatory
guidance issued thereunder, or, (B) if such payment terms would not
satisfy the requirements of Section 409A of the Code and the regulations,
rulings and other regulatory guidance issued thereunder, a lump sum on the
date
that is six months following the Executive’s “separation from service” (within
the meaning of Section 409A of the Code) occurring in connection with such
termination and (3) continue to participate in the Company’s group medical
plan on the same basis as he previously participated or
receive
payment of, or reimbursement for, COBRA premiums (or, if COBRA coverage is
not
available, reimbursement of premiums paid for other medical insurance in an
amount not to exceed the COBRA premium) for a one-year period following the
Executive’s termination of employment; provided
that
if
the Executive is provided with health insurance coverage by a successor
employer, any such coverage by the Company shall cease (each of (2) and
(3) referred to as the “Severance
Payment”).
The
Executive also shall be entitled to receive payment for all reimbursable
expenses or other entitlements then due and owing to the Executive as of the
Termination Date. If the Executive breaches his obligations under Section 1.6,
1.7, 1.8 or 1.9
of this
Agreement, the Company’s obligation to make any Severance Payments and provide
any Benefits shall cease as of the date of such breach; provided, that if the
Executive cures such breach within 10 days of receiving written notice from
the Company of such breach (which notice the Company shall provide promptly
to
the Executive after learning of such breach), the Company shall promptly pay
all
Severance Payments not made during such period of dispute and resume making
Severance Payments and providing Benefits promptly following such cure.
4
(c) Severance
upon a Change of Control.
Anything contained herein to the contrary notwithstanding, in the event the
Executive’s employment hereunder is terminated within twelve (12) months
following a Change of Control (as defined in the Plan) by the Company without
Cause or by the Executive with Good Reason, the Executive shall be entitled
to
receive the Severance Payment as described in sub-section (b) above;
provided, however, that in lieu of the calculation contained in Section 1.4(b)(2),
Executive shall be entitled to receive an amount equal to $100 less than two
times the sum of (i) the Executive’s Base Salary (at the rate in effect on
the date of termination) and (ii) the annual bonus paid to Executive
pursuant to Section
1.3(b)
in the
year prior to such Change of Control, if any; provided, however, that if such
lump sum severance payment, either alone or together with other payments or
benefits, either cash or non-cash, that the Executive has the right to receive
from the Company, including, but not limited to, accelerated vesting or payment
of any deferred compensation, options, stock appreciation rights or any benefits
payable to the Executive under any plan for the benefit of employees, would
constitute an “excess parachute payment” (as defined in Section 280G of the
Internal Revenue Code of 1986), then such lump sum severance payment or other
benefit shall be reduced to the largest amount that will not result in receipt
by the Executive of an “excess parachute payment.” The determination of the
amount of the payment described in this subsection shall be made by the
Company’s independent auditors at the sole expense of the Company. For purposes
of clarification the value of any options described above will be determined
by
the Company’s independent auditors using a Black-Scholes valuation methodology.
If within twelve (12) months after the occurrence of a Change of Control,
the Company shall terminate the Executive’s employment without Cause or the
Executive terminates his employment with Good Reason, then notwithstanding
the
vesting and exercisability schedule in any stock option or other grant agreement
between the Company and the Executive, all unvested stock options, shares of
restricted stock and other equity awards granted by the Company to the Executive
pursuant to any such agreement shall immediately vest, and all such stock
options shall become exercisable and shall remain exercisable for the lesser
of
180 days after the effective date of termination of the Executive’s
employment or the remaining term of the applicable option.
5
(d) Death
and Disability.
In the
event of the Company terminates this Agreement due to the death or Disability
of
the Executive, the Company shall pay the Executive or his estate his Base Salary
through the date of termination, at the rate then in effect, any declared but
unpaid Annual bonus, and all expenses or accrued Benefits, including any arising
prior to such termination which are payable to the Executive pursuant to this
Agreement through the date of termination. Any other rights and benefits the
Executive may have under employee benefit plans and programs of the Company
generally in the event of the Executive’s Disability shall be determined in
accordance with the terms of such plans and programs. In the event of
Executive’s death, any rights and benefits that the Executive’s estate or any
other person may have under employee benefit plans and programs of the Company
generally in the event of the Executive’s death shall be determined in
accordance with the terms of such plans and programs.
(e) Salary
and Other Payments Through Termination.
If the
Executive’s employment with the Company is terminated during the Term
(i) by the Company for Cause or (ii) by the Executive other than for
Good Reason, the Executive will be entitled to receive his Base Salary through
the Termination Date, as well as any declared but unpaid Annual Bonus, but
will
not be entitled to receive any Severance Payments or Benefits after the
Termination Date. The Executive shall be entitled to receive payment for all
reimbursable expenses or other entitlements then due and owing to the Executive
as of the Termination Date.
(f) Other
Rights.
Except
as set forth in this Section 1.4,
all of
the Executive’s rights to receive Base Salary, Benefits and annual bonuses
hereunder (if any) which accrue or become payable after the termination of
the
Employment Period shall cease upon such termination.
(g) Continuing
Benefits.
Notwithstanding Section 1.4(f),
termination pursuant to this Section 1.4
shall
not modify or affect in any way whatsoever any vested right of the Executive
to
benefits payable under any retirement or pension plan or under any other
employee benefit plan of the Company, and all such benefits shall continue,
in
accordance with, and subject to, the terms and conditions of such plans, to
be
payable in full to, or on account of, the Executive after such termination.
(h) No
Duty of Mitigation.
The
Executive shall not be required to mitigate the amount of any payment provided
for in this Article I by seeking other employment or
otherwise.
1.5
Confidential
Information.
(a) The
Executive shall not disclose or, directly or indirectly, use at any time, during
the Employment Period or thereafter, any Confidential Information (as defined
below) of which the Executive is or becomes aware, whether or not such
information is developed by him, alone or with others, except to the extent
that
(i) such disclosure or use is required by the Executive’s performance of
the duties assigned to the Executive by the President and Chief Executive
Officer, (ii) the Executive is required by subpoena or similar process to
disclose or discuss any Confidential Information, provided, that in such case,
the Executive shall promptly inform the Company in writing of such event, shall
cooperate with the Company in attempting to obtain a protective order or to
otherwise limit or restrict such disclosure to the greatest extent possible,
except if the Executive’s reasonable interests are adverse to the Company with
respect to such disclosure or discussion, and shall disclose only that portion
of the Confidential Information as is strictly required, or (iii) such
Confidential Information is or becomes generally known to and available for
use
by the public, other than as a result of any action or inaction directly or
indirectly by the Executive in breach of this Agreement. At the Company’s
expense, the Executive shall take all appropriate steps to safeguard
Confidential Information and to protect it against disclosure, misuse,
espionage, loss and theft. The Executive acknowledges that the Confidential
Information obtained by him during the course of his employment with the Company
is the sole and exclusive property of the Company and its Subsidiaries, as
applicable.
6
(b) The
Executive understands that the Company and its Subsidiaries will receive from
third parties confidential or proprietary information (“Third
Party Information”)
subject to a duty on the part of the Company and its Subsidiaries to maintain
the confidentiality of such information and to use it only for certain limited
purposes. During the Employment Period and in the period specified in such
confidentiality agreements, and without in any way limiting the provisions
of
Section 1.5(a)
above,
the Executive will hold Third Party Information in confidence, consistent with
the obligations applicable to Confidential Information of the Company generally,
and will not disclose to anyone (other than personnel and agents of the Company
or its Subsidiaries who need to know such information in connection with their
work for the Company or its Subsidiaries) or use, except in connection with
his
work for the Company or its Subsidiaries, Third Party Information unless
expressly authorized by the President and Chief Executive Officer in writing.
(c) As
used in this Agreement, the term “Confidential
Information”
means
information that is not generally known to the public and that is related in
any
way to the actual or anticipated business of the Company, its Subsidiaries,
its
Affiliates or any of their respective predecessors in interest, including but
not limited to (i) business development, growth and other strategic
business plans, (ii) properties available for acquisition, financing
development or sale, (iii) accounting and business methods,
(iv) services or products and the marketing of such services and products,
(v) fees, costs and pricing structures, (vi) designs,
(vii) analysis, (viii) drawings, photographs and reports,
(ix) computer software, including operating systems, applications and
program listings, (x) flow charts, manuals and documentation,
(xi) data bases, (xii) inventions, devices, new developments, methods
and processes, whether patentable or unpatentable and whether or not reduced
to
practice, (xiii) copyrightable works, (xiv) all technology and trade
secrets, (xv) confidential terms of material agreements and customer
relationships, and (xvi) all similar and related information in whatever
form or medium. Confidential Information shall not include any information
that
has become generally available to the public (other than through a breach by
Executive of this Agreement) prior to the date the Executive proposes to
disclose or use such information or general know-how of the
Executive.
7
1.6
Inventions
and Patents.
Executive acknowledges that all discoveries, concepts, ideas, inventions,
innovations, improvements, developments, products, methods, processes,
techniques, programs, designs, analyses, drawings, reports, patents,
copyrightable works and mask works (whether or not including any Confidential
Information) and all issuances, registrations or applications related thereto,
all other proprietary information or intellectual property and all similar
or
related information (whether or not patentable) conceived, developed,
contributed to, made, or reduced to practice by Executive (either alone or
with
others) while employed by Company or any of its Subsidiaries or Affiliates
or
any of their respective predecessors in interest (including prior to the date
of
this Agreement) or using the materials, facilities or resources of the Company
or any of its Subsidiaries or Affiliates or any of their respective predecessors
in interest (collectively, “Company
Works”)
is the
sole and exclusive property of the Company and its Subsidiaries. Executive
hereby assigns all right, title and interest in and to all Company Works to
the
Company and its Subsidiaries and waives any moral rights he may have therein,
without further obligation or consideration. Any copyrightable work prepared
in
whole or in part by the Executive will be deemed “a work made for hire” under
Section 201(b) of the 1976 Copyright Act, and the Company and its Subsidiaries
shall own all of the rights comprised in the copyright therein. The Executive
shall promptly and fully disclose in writing all Company Works to the Company
and shall cooperate with the Company and its Subsidiaries to protect, maintain
and enforce the Company’s and its Subsidiaries’ interests in and rights to such
Company Works (including, without limitation, providing reasonable assistance
in
securing patent protection and copyright registrations and executing all
affidavits, assignments, powers-of-attorney and other documents as reasonably
requested by the Company, whether such requests occur prior to or after
termination of the Executive’s employment with the Company).
1.7
Delivery
of Materials Upon Termination of Employment.
As
requested by the Company from time to time and in any event upon the termination
of the Executive’s employment with the Company, the Executive shall promptly
deliver to the Company, or at the Company’s election destroy, all copies and
embodiments, in whatever form or medium, of all Confidential Information,
Company Works and other property and assets of the Company and its Subsidiaries
in the Executive’s possession or within his control (including, but not limited
to, office keys, access cards, written records, notes, photographs, manuals,
notebooks, documentation, program listings, flow charts, magnetic media, disks,
diskettes, tapes computers and handheld devices (including all software, files
and documents thereon) and any other materials containing any Confidential
Information or Company Works) irrespective of the location or form of such
material and, if requested by the Company, shall provide the Company with
written confirmation that all such materials have been delivered to the Company
or destroyed, as applicable.
1.8
Non-Compete
and Non-Solicitation Covenants.
8
(a) The
Executive acknowledges and agrees that the Executive’s services to the Company
and its Subsidiaries are unique in nature and that the Company and its
Subsidiaries would be irreparably damaged if the Executive were to provide
similar services to any Person competing with the Company and its Subsidiaries
or engaged in the Business. The Executive further acknowledges that, in the
course of his employment with the Company, he will become familiar with the
Company’s and its Subsidiaries’ trade secrets and with other Confidential
Information. During the Noncompete Period, he shall not, directly or indirectly,
whether for himself or for any other Person, permit his name to be used by
or
participate in any business or enterprise (including, without limitation, any
division, group or franchise of a larger organization) that engages or proposes
to engage in the Business in the Restricted Territories, other than the Company
and its Subsidiaries or except as otherwise directed or authorized by the
President and Chief Executive Officer. For purposes of this Agreement, the
term
“participate in” shall include, without limitation, having any direct or
indirect interest in any Person, whether as a sole proprietor, owner,
stockholder, partner, member, joint venturer, creditor or otherwise, or
rendering any direct or indirect service or assistance to any Person (whether
as
a director, officer, supervisor, employee, agent, consultant or otherwise).
Nothing herein will prohibit the Executive from mere passive ownership of not
more than five percent (5%) of the outstanding stock of any class of a publicly
held corporation whose stock is traded on a national securities exchange or
in
the over-the-counter market. As used herein, the phrase “mere passive ownership”
shall include voting or otherwise granting any consents or approvals required
to
be obtained from such Person as an owner of stock or other ownership interests
in any entity pursuant to the charter or other organizational documents of
such
entity, but shall not include, without limitation, any involvement in the
day-to-day operations of such entity.
(b) During
the Nonsolicitation Period, the Executive will not directly, or indirectly
through another Person, solicit, induce or attempt to induce any customer,
supplier, licensee, or other business relation of the Company or any of its
Subsidiaries to cease doing business with the Company or any of its
Subsidiaries, or solicit, induce or attempt to induce any person who is, or
was
during the then-most recent 12-month period, a corporate officer, general
manager or other employee of the Company or any of its Subsidiaries to terminate
such employee’s employment with the Company or any of its Subsidiaries, or hire
any such person unless such person’s employment was terminated by the Company or
any of its Subsidiaries, or in any way interfere with the relationship between
any such customer, supplier, licensee, employee or business relation and the
Company or any of its Subsidiaries. The Executive acknowledges and agrees that
the Company and its Subsidiaries would be irreparably damaged if the Executive
were to breach any of the provisions contained in this Section 1.8(b).
(c) Executive
acknowledges that this Agreement, and specifically, this Section 1.8,
does
not preclude Executive from earning a livelihood, nor does it unreasonably
impose limitations on Executive’s ability to earn a living. In addition,
Executive agrees and acknowledges that the potential harm to the Company of
its
non-enforcement outweighs any harm to Executive of its enforcement by injunction
or otherwise.
9
1.9
Enforcement.
If, at
the time of enforcement of Section 1.5,
1.6,
1.7,
1.8
or
1.10,
a court
holds that the restrictions stated herein are unreasonable under circumstances
then existing, the Parties agree that, to the extent permitted by applicable
law, the maximum period, scope or geographical area reasonable under such
circumstances will be substituted for the Noncompete Period, scope or area.
Because the Executive’s services are unique and because the Executive has access
to Confidential Information and Company Works, the Parties agree that money
damages would be an inadequate remedy for any breach of Section
1.5,
1.6,
1.7,
1.8
or
1.10.
Therefore, in the event of a breach or threatened breach of Section 1.5,
1.6,
1.7,
1.8
or
1.10,
the
Company or any of its Subsidiaries or any of their respective successors or
assigns may, in addition to other rights and remedies existing in their favor,
apply to any court of competent jurisdiction for specific performance and/or
injunctive or other relief in order to enforce, or prevent any violations of,
the provisions hereof (without posting a bond or other security). The Parties
hereby acknowledge and agree that (a) performance of the services of the
Executive hereunder may occur in jurisdictions other than the jurisdiction
whose
law the Parties have agreed shall govern the construction, validity and
interpretation of this Agreement, (b) the law of the State of New York
shall govern construction, validity and interpretation of this Agreement to
the
fullest extent possible, and (c) Section 1.5,
1.6,
1.7,
1.8
or
1.10
shall
restrict the Executive only to the extent permitted by applicable
law.
1.10
Survival.
Sections 1.5,
1.6,
1.7
and
1.8
and
1.10
will
survive and continue in full force in accordance with their terms
notwithstanding any termination of the Employment Period.
1.11
Consideration.
The
Executive hereby agrees and acknowledges that the Option Grant constitutes
good
and valuable consideration for the covenant and obligations incurred by
Executive pursuant to Section 1.8.
ARTICLE
III
DEFINED
TERMS
2.1
Definitions.
For
purposes of this Agreement, the following terms will have the following
meanings:
“Bonus
Pool”
means,
with respect to any Fiscal Year, the amount of the annual net income of Company
for such Fiscal Year, expressed as a percentage, as determined by the
compensation committee of the Board of Directors.
“Business”
means
the business of (i) acquiring or licensing, for sale, licensing or
sublicensing (or other commercial exploitation) intellectual property including
trademarks and service marks, (ii) providing, structuring or assisting
others in providing or obtaining whole company or asset-backed securitization
financings involving intellectual property and (iii) activities related or
ancillary to, or that support, any of the foregoing.
10
“Cause”
means
with respect to the Executive, the occurrence of one or more of the following:
(i) indictment of a felony involving moral turpitude, misappropriation of
Company property, embezzlement of Company funds, violation of the securities
laws or dishonesty, (ii) persistent and repeated refusal to comply with the
material directives of the President and Chief Executive Officer of the Company
or acting in a manner inconsistent with Executive’s fiduciary obligations;
(iii) reporting to work under the influence of alcohol or illegal drugs, or
the use of illegal drugs (whether or not at the workplace), or (iv) any willful
breach of Section 1.6,
1.7, 1.8 or 1.9
of this
Agreement. Notwithstanding the foregoing, termination by the Company for Cause
(other than pursuant to clause (i) above) shall not be effective until and
unless (i) to the extent such alleged act or circumstance is curable,
Executive fails to cure such alleged act or circumstance within 30 days of
receipt of written notice thereof, to the satisfaction of the President and
Chief Executive Officer in the exercise of his reasonable judgment (or, if
within such 30-day period the Executive commences and proceeds to take all
reasonable actions to effect such cure, within such reasonable additional time
period (no longer than 60 days) as may be necessary), and (ii) notice
of intention to terminate for Cause has been given by the Company within sixty
(60) days after the President and Chief Executive Officer learns of the
act, failure or event constituting “Cause,” which notice shall include a
description of the particular acts or circumstances which are the basis for
the
termination for Cause.
“Code”
means
the
Internal Revenue Code of 1986 and the Treasury regulations thereunder, each
as
amended from time to time.
“Disability”
shall
have the meaning set forth in a policy or policies of long-term disability
insurance, if any, the Company obtains for the benefit of itself and/or its
employees. If there is no definition of “disability” applicable under any such
policy or policies, if any, then the Executive shall be considered disabled
due
to mental or physical impairment or disability, despite reasonable
accommodations by the Company and its Subsidiaries, to perform his customary
or
other comparable duties with the Company or its Subsidiaries immediately prior
to such disability for a period of at least 120 consecutive days or for at
least
180 non-consecutive days in any 12-month period.
“Fiscal
Year”
means
the fiscal year of the Company and its Subsidiaries.
“Good
Reason”
means
the occurrence, without the Executive’s written consent, of one or more of the
following events: (i) the Company reduces the amount of Executive’s Base
Salary, (ii) the Company requires that the Executive relocate his principal
place of employment to a site that is more than 50 miles from the Company’s
offices in New York City or if the Company changes the location of its
headquarters without the consent of Executive to a location that is more than
50
miles from such location, (iii) the Company materially reduces the
Executive’s responsibilities or removes the Executive from the position of
Executive Vice President, Brand Management and Licensing other than pursuant
to
a termination of his employment for Cause, or upon the Executive’s death or
Disability, (iv) the failure or unreasonable delay of the Company to
provide to the Executive any of the payments or benefits contemplated hereby
or
(v) the Company otherwise materially breaches the terms of this Agreement;
provided that no such event shall constitute Good Reason hereunder unless
(a) the Executive shall have given written notice to the Company of the
Executive’s intent to resign for Good Reason within 30 days after the
Executive becomes aware of the occurrence of any such event, which notice shall
describe in reasonable detail the event or events constitution the basis for
the
Executive’s intention to resign for Good Reason and (b) such event or
occurrence, if a breach susceptible to cure, shall not have been cured or
otherwise shall not have been resolved to the Executive’s reasonable
satisfaction, in each case within 30 days of the Company’s receipt of such
notice. In such case the Executive’s resignation shall become effective on the
31st
day
after the Company’s receipt of the aforementioned notice.
11
“Noncompete
Period”
means
the Employment Period and 12 months thereafter; provided that, in the
event, but only in the event, the Executive’s employment hereunder is terminated
by the Company without Cause or by the Executive with Good Reason, “Noncompete
Period” shall mean the Employment Period and 6 months
thereafter.
“Nonsolicitation
Period”
means
the Employment Period and 12 months thereafter.
“Person”
means
an individual, a partnership, a corporation, a limited liability company, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or the United States of America any other nation, any state or
other political subdivision thereof, or any entity exercising executive,
legislative, judicial, regulatory or administrative functions of government.
“Restricted
Territories”
means
the United States and its territories and possessions in which the Company
engages in the Business as of the Termination Date.
“Subsidiary”
means,
with respect to any Person, any corporation, limited liability company,
partnership, association, or business entity of which (i) if a corporation,
a majority of the total voting power of shares of stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
managers, or trustees thereof is at the time owned or controlled, directly
or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof, or (ii) if a limited liability company,
partnership, association, or other business entity (other than a corporation),
a
majority of partnership or other similar ownership interest thereof is at the
time owned or controlled, directly or indirectly, by that Person or one or
more
Subsidiaries of that Person or a combination thereof. For purposes hereof,
a
Person or Persons shall be deemed to have a majority ownership interest in
a
limited liability company, partnership, association, or other business entity
(other than a corporation) if such Person or Persons shall be allocated a
majority of limited liability company, partnership, association, or other
business entity gains or losses or shall be or control any managing director
or
general partner of such limited liability company, partnership, association,
or
other business entity. For purposes hereof, references to a “Subsidiary” of any
Person shall be given effect only at such times that such Person has one or
more
Subsidiaries, and, unless otherwise indicated, the term “Subsidiary” refers to a
Subsidiary of the Company.
“Termination
Date”
means
the effective date of the Executive’s termination of employment with the
Company.
12
2.2
Other
Definitional Provisions.
(a) Section
references contained in this Agreement are references to sections in this
Agreement, unless otherwise specified. Each defined term used in this Agreement
has a comparable meaning when used in its plural or singular form. Each
gender-specific term used in this Agreement has a comparable meaning whether
used in a masculine, feminine or gender-neutral form.
(b) Whenever
the term “including” (whether or not that term is followed by the phrase “but
not limited to” or “without limitation” or words of similar effect) is used in
this Agreement in connection with a listing of items within a particular
classification, that listing will be interpreted to be illustrative only and
will not be interpreted as a limitation on, or an exclusive listing of, the
items within that classification.
ARTICLE
III
MISCELLANEOUS
TERMS
3.1
Defense
of Claims.
The
Executive agrees that, during the Employment Period, and for a period of six
months after termination of the Executive’s employment, upon request by the
Company, the Executive shall reasonably cooperate with the Company in connection
with any matters the Executive worked on during his employment with the Company
and any related transitional matters. In addition, during the Employment Period
and thereafter, the Executive agrees to reasonably cooperate with the Company
in
the defense of any claims or actions that may be made by or against the Company
that affect the Executive’s prior areas of responsibility or involve matters
about which the Executive has knowledge, except if the Executive’s reasonable
interests are adverse to the Company in such claim or action and provided that
after the Employment Period such level of cooperation shall be reasonable and
shall take due account of the Executive’s work and personal commitments. The
Company agrees to promptly reimburse the Executive for all of the Executive’s
reasonable travel and other direct expenses incurred, or to be reasonably
incurred, to comply with the Executive’s obligations under this
Section 3.1.
3.2
Nondisparagement.
The
Executive agrees to refrain from (i) making, directly or indirectly, any
derogatory comments concerning the Company or its Subsidiaries or any current
or
former officers, directors, employees or shareholders thereof or
(ii) taking any other action with respect to the Company or its
Subsidiaries which is reasonably expected to result, or does result in, damage
to the business or reputation of the Company, its Subsidiaries or any of its
current or former officers, directors, employees or shareholders. The Company
agrees to refrain from (i) making, directly or indirectly, any derogatory
comments concerning the Executive or (ii) taking any other action with
respect to the Executive which is reasonably expected to result, or does result
in, damage to the reputation of the Executive. Notwithstanding anything to
the
contrary contained herein, nothing in this Agreement shall prohibit or restrict
either party from, truthfully and in good faith: (i) making any disclosure
of information required by law; (ii) providing information to, or testifying
or
otherwise assisting in any investigation or proceeding brought by, any federal
regulatory or law enforcement agency or legislative body, any self-regulatory
organization, or the Company’s or the Executive’s designated legal, compliance
or human resources officers; (iii) filing, testifying, participating in or
otherwise assisting in a proceeding relating to an alleged violation of any
federal, state or municipal law relating to fraud, or any rule or regulation
of
the Securities and Exchange Commission or any self-regulatory organization
or
(iv) competing with each other after the expiration of any applicable
non-compete and non-solicitation periods.
13
3.3
Source
of Payments.
All
payments provided under this Agreement, other than payments made pursuant to
a
plan which provides otherwise and except as otherwise provided herein, shall
be
paid in cash from the general funds of the Company, and no special or separate
fund shall be established, and no other segregation of assets shall be made,
to
assure payment. The Executive shall have no right, title or interest whatsoever
in or to any investments which the Company or its Subsidiaries may make to
aid
the Company in meeting its obligations hereunder. To the extent that any person
acquires a right to receive payments from the Company hereunder, such right
shall be no greater than the right of an unsecured creditor of the Company.
3.4
Notices.
Any
notice provided for in this Agreement must be in writing and must be either
personally delivered, mailed by first class mail (postage prepaid and return
receipt requested), sent by reputable overnight courier service (charges
prepaid) or sent by facsimile (with receipt confirmed) to the recipient at
the
address or facsimile number indicated below:
To
the
Company:
0000
Xxxxxx xx xxx Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
Attention:
Chief Executive Officer
With
copies to:
Xxxxxxx
Xxxxxx LLP
000
Xxxxx
Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
Attention:
Xxxxxxxx X. Xxxxxxx, Esq.
14
To
the
Executive:
Xxxxxxx
X. Xxxx
1330
Avenue of the Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
With
copies to:
Xxxxxx
Xxxxxxx & Xxxx LLP
Xxx
Xxxxxxx Xxxx Xxxxx
Xxx
Xxxx,
X.X. 00000-0000
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
Attention:
Xxxxxx Xxxxxxxx, Esq.
or
such
other address or to the attention of such other Person as the recipient Party
will have specified by prior written notice to the sending Party. Any notice
under this Agreement will be deemed to have been given when so delivered or
sent
or, if mailed, five days after deposit in the U.S. mail.
3.5
Severability.
Subject
to the express provisions of Section 1.10
relating
to certain specified changes, whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in
any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
3.6
Complete
Agreement.
This
Agreement embodies the complete agreement and understanding among the Parties
with regard to the subject matter hereof and supersedes and preempts any prior
understandings, agreements or representations by or among the Parties, written
or oral, which may have related to the subject matter hereof in any way. To
the
extent that this Agreement provides greater benefits to the Executive than
available under the Company’s employee handbook or other corporate policies,
then this Agreement shall prevail.
3.7
Counterparts.
This
Agreement may be executed in separate counterparts, each of which is deemed
to
be an original and all of which taken together constitute one and the same
agreement.
3.8
Assignment.
Without
the Executive’s consent, the Company may not assign its rights and obligations
under this Agreement except (i) to a “Successor” (as defined below) or (ii)
to an entity that is formed and controlled by the Company or any of its
Subsidiaries. This Agreement is personal to the Executive, and the Executive
shall not have the right to assign the Executive’s interest in this Agreement,
any rights under this Agreement or any duties imposed under this Agreement,
nor
shall the Executive have the right to pledge, hypothecate, transfer, assign
or
otherwise encumber the Executive’s right to receive any form of compensation
hereunder without the prior written consent of the President and Chief Executive
Officer of the Company. As used in this Section 3.8,
“Successor”
shall
include any Person that at any time, whether by purchase, merger or otherwise,
directly or indirectly acquires all or substantially all of the assets of,
or
ownership interests in, the Company and its Subsidiaries.
15
3.9
Successors
and Assigns.
This
Agreement is intended to bind and inure to the benefit of and be enforceable
by
the Company, the Executive, and their respective heirs, successors and permitted
assigns.
3.10
Choice
of Law.
This
Agreement and the performance of the parties hereunder shall be governed by
the
internal laws (and not the law of conflicts) of the State of New York. Any
claim
or controversy arising out of or in connection with this Agreement, or the
breach thereof, shall be adjudicated exclusively by the Supreme Court, New
York
County, State of New York, or by a federal court sitting in Manhattan in New
York City, State of New York. The parties hereto agree to the personal
jurisdiction of such courts and agree to accept process by regular mail in
connection with any such dispute.
3.11
Waiver
of Jury Trial.
AS A
SPECIFICALLY BARGAINED FOR INDUCEMENT FOR EACH OF THE PARTIES HERETO TO ENTER
INTO THIS AGREEMENT (AFTER HAVING THE OPPORTUNITY TO CONSULT WITH COUNSEL),
EACH
PARTY HERETO EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR
PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE MATTERS
CONTEMPLATED HEREBY.
3.12
Legal
Fees and Court Costs.
In the
event that any action, suit or other proceeding in law or in equity is brought
to enforce the provisions of this Agreement, and such action results in the
award of a judgment for money damages or in the granting of any injunction
in
favor of the Company, all expenses (including reasonable attorneys’ fees) of the
Company in such action, suit or other proceeding shall be paid by the Executive.
In the event that any action, suit or other proceeding in law or in equity
is
brought to enforce the provisions of this Agreement, and such action results
in
the award of a judgment for money damages or in the granting of any injunction
in favor of the Executive, all expenses (including reasonable attorneys’ fees
and travel expenses) of the Executive in such action, suit or other proceeding
shall be paid by the Company.
3.13
Remedies.
Subject
to the provisions of Section 3.1,
each
Party will be entitled to enforce its rights under this Agreement specifically,
to recover damages and costs caused by any breach of any provision of this
Agreement and to exercise all other rights existing in its favor. Nothing herein
shall prohibit any arbitrator or judicial authority from awarding attorneys’
fees or costs to a prevailing Party in any arbitration or other proceeding
to
the extent that such arbitrator or authority may lawfully do so.
16
3.14
Amendment
and Waiver.
The
provisions of this Agreement may be amended or waived only with the prior
written consent of the Company and the Executive, and no course of conduct
or
failure or delay in enforcing the provisions of this Agreement will affect
the
validity, binding effect or enforceability of this Agreement.
3.15
Third
Party Beneficiaries.
This
Agreement will not confer any rights or remedies upon any Person other than
the
Parties and their respective successors and permitted assigns and other than,
in
the event of the Executive’s death, his estate, to which all of Executive’s
rights and remedies set forth herein shall accrue.
3.16
The
Executive’s Representations.
The
Executive hereby represents and warrants to the Company that (a) the
execution, delivery and performance of this Agreement by the Executive do not
and shall not conflict with, breach, violate or cause a default under any
contract, agreement, instrument, order, judgment or decree to which the
Executive is a party or by which he is bound, (b) the Executive is not a
party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other Person (or other agreement with any
other person containing a restriction on the Executive’s right to do business or
obligating him to do business with any other Person on a priority or
preferential basis), (c) upon the execution and delivery of this Agreement
by the Company, this Agreement shall be the valid and binding obligation of
the
Executive, enforceable in accordance with its terms and (d) upon the
execution and delivery of this Agreement by the Company, Executive shall not
be
in violation of clause (i) set forth in the definition of Cause and shall
not be Disabled.
3.17
Amendment
to Comply with Section 409A of the Code.
To the
extent that this Agreement or any part thereof is deemed to be a nonqualified
deferred compensation plan subject to Section 409A of the Code and the
Treasury Regulations (including proposed regulations) and guidance promulgated
thereunder, (a) the provisions of this Agreement shall be interpreted in a
manner to the maximum extent possible to comply in good faith with Code
Section 409A and (b) the parties hereto agree to amend this Agreement
for purposes of complying with Code Section 409A promptly upon issuance of
any Treasury regulations or guidance thereunder, provided,
that
any such amendment shall not materially change the present value of the benefits
payable to the Executive hereunder or otherwise materially adversely affect
the
Executive, the Company, or any affiliate of the Company, without the consent
of
such party.
[END
OF PAGE]
[SIGNATURE
PAGE FOLLOWS]
17
IN
WITNESS WHEREOF, the Parties have executed this Employment Agreement as of
the
date first written above.
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Name:
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X. X’Xxxxx
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XXXXXXX
X. XXXX
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18
EXHIBIT
A
FORM
OF RELEASE
I,
Xxxxxxx X. Xxxx, on behalf of myself and my heirs, successors and assigns,
in
consideration of the performance by NexCen Brands, Inc., Inc., a Delaware
corporation (together with its Subsidiaries, the “Company”),
of
its material obligations under the Employment Agreement, dated as of November
__, 2006 (the “Agreement”),
do
hereby release and forever discharge as of the date hereof the Company, its
Affiliates, each such Person’s respective successors and assigns and each of the
foregoing Persons’ respective present and former directors, officers, partners,
stockholders, members, managers, agents, representatives, employees (and each
such Person’s respective successors and assigns) (collectively, the
“Released
Parties”)
to the
extent provided below.
1.
I
understand that any payments or benefits paid or granted to me under
Section 1.4(b)
of the
Agreement represent, in part, consideration for signing this General Release
and
are not salary, wages or benefits to which I was already entitled. I understand
and agree that I will not receive the payments and benefits specified in
Section 1.4(b)
of the
Agreement unless I execute this General Release and do not revoke this General
Release within the time period permitted hereafter or breach this General
Release.
2.
I
knowingly and voluntarily release and forever discharge the Company and the
other Released Parties from any and all claims, controversies, actions, causes
of action, cross-claims, counter-claims, demands, debts, compensatory damages,
liquidated damages, punitive or exemplary damages, other damages, claims for
costs and attorneys’ fees, or liabilities of any nature whatsoever in law and in
equity, both past and present (through the date of this General Release),
whether under the laws of the United States or another jurisdiction and whether
known or unknown, suspected or claimed against the Company or any of the
Released Parties which I, my spouse, or any of my heirs, executors,
administrators or assigns, have or may have, which arise out of or are connected
with my employment with, or my separation from, the Company (including, but
not
limited to, any allegation, claim or violation, arising under: Title VII of
the
Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age
Discrimination in Employment Act of 1967, as amended (including the Older
Workers Benefit Protection Act); the Equal Pay Act of 1963, as amended; the
Americans with Disabilities Act of 1990; the Family and Medical Leave Act of
1993; the Civil Rights Act of 1866, as amended; the Worker Adjustment Retraining
and Notification Act; the Employee Retirement Income Security Act of 1974;
any
applicable Executive Order Programs; the Fair Labor Standards Act; or their
state or local counterparts; or under any other federal, state or local civil
or
human rights law, or under any other local, state, or federal law, regulation
or
ordinance; or under any public policy, contract or tort, or under common law;
or
arising under any policies, practices or procedures of the Company; or any
claim
for wrongful discharge, breach of contract, infliction of emotional distress,
or
defamation; or any claim for costs, fees, or other expenses, including
attorneys’ fees incurred in these matters) (all of the foregoing collectively
referred to herein as the “Claims”);
provided,
however, that nothing contained in this General Release shall apply to, or
release the Company from, (i) any obligation of the Company contained in
the Agreement to be performed after the date hereof or (ii) any vested or
accrued benefits pursuant to any employee benefit plan, program or policy of
the
Company.
19
3.
I
represent that I have made no assignment or transfer of any right, claim,
demand, cause of action, or other matter covered by paragraph 2
above.
4.
I
agree that this General Release does not waive or release any rights or claims
that I may have under the Age Discrimination in Employment Act of 1967 which
arise after the date I execute this General Release. I acknowledge and agree
that my separation from employment with the Company in compliance with the
terms
of the Agreement shall not serve as the basis for any claim or action
(including, without limitation, any claim under the Age Discrimination in
Employment Act of 1967).
5.
In
signing this General Release, I acknowledge and intend that it shall be
effective as a bar to each and every one of the Claims hereinabove mentioned
or
implied. I expressly consent that this General Release shall be given full
force
and effect according to each and all of its express terms and provisions,
including those relating to unknown and unsuspected Claims (notwithstanding
any
state statute that expressly limits the effectiveness of a general release
of
unknown, unsuspected and unanticipated Claims), if any, as well as those
relating to any other Claims hereinabove mentioned or implied. I acknowledge
and
agree that this waiver is an essential and material term of this General Release
and that without such waiver the Company would not have agreed to the terms
of
the Agreement. I covenant that I shall not directly or indirectly, commence,
maintain or prosecute or xxx any of the Released Persons either affirmatively
or
by way of cross-complaint, indemnity claim, defense or counterclaim or in any
other manner or at all on any Claim covered by this General Release. I further
agree that in the event I should bring a Claim seeking damages against the
Company, or in the event I should seek to recover against the Company in any
Claim brought by a governmental agency on my behalf, this General Release shall
serve as a complete defense to such Claims. I further agree that I am not aware
of any pending charge or complaint of the type described in paragraph 2 as
of
the execution of this General Release.
6.
I
agree that neither this General Release, nor the furnishing of the consideration
for this General Release, shall be deemed or construed at any time to be an
admission by the Company, any Released Party or myself of any improper or
unlawful conduct.
7.
I
agree that this General Release is confidential and agree not to disclose any
information regarding the terms of this General Release, except to my immediate
family and any tax, legal or other counsel I have consulted regarding the
meaning or effect hereof or as required by law, and I will instruct each of
the
foregoing not to disclose the same to anyone.
20
8.
Any
non-disclosure provision in this General Release does not prohibit or restrict
me (or my attorney) from responding to any inquiry about this General Release
or
its underlying facts and circumstances by the Securities and Exchange
Commission, the National Association of Securities Dealers, Inc. or any other
self-regulatory organization or governmental entity.
9.
Without limitation of any provision of the Agreement, I hereby expressly
re-affirm my obligations under Sections 1.5,
1.6,
1.7,
1.8,
1.10,
3.1 and 3.2.
10.
Whenever possible, each provision of this General Release shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of this General Release is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this General Release shall
be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
“Affiliate”
means,
with respect to any Person, any Person that controls, is controlled by or is
under common control with such Person or an Affiliate of such Person.
“Person”
means
an individual, a partnership, a limited liability company, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, investment fund, any other business entity and a governmental
entity or any department, agency or political subdivision thereof.
“Subsidiary”
means,
with respect to any Person, any corporation, limited liability company,
partnership, association, or business entity of which (i) if a corporation,
a majority of the total voting power of shares of stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
managers, or trustees thereof is at the time owned or controlled, directly
or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof, or (ii) if a limited liability company,
partnership, association, or other business entity (other than a corporation),
a
majority of partnership or other similar ownership interest thereof is at the
time owned or controlled, directly or indirectly, by that Person or one or
more
Subsidiaries of that Person or a combination thereof. For purposes hereof,
a
Person or Persons shall be deemed to have a majority ownership interest in
a
limited liability company, partnership, association, or other business entity
(other than a corporation) if such Person or Persons shall be allocated a
majority of limited liability company, partnership, association, or other
business entity gains or losses or shall be or control any managing director
or
general partner of such limited liability company, partnership, association,
or
other business entity.
BY
SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:
(a) I
HAVE READ IT CAREFULLY;
21
(b) I
UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT RIGHTS,
INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT
ACT OF 1967, AS AMENDED, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED;
THE EQUAL PAY ACT OF 1963, THE AMERICANS WITH DISABILITIES ACT OF 1990; AND
THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED;
(c) I
VOLUNTARILY CONSENT TO EVERYTHING IN IT;
(d) I
HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY (VIA THE AGREEMENT AND THIS
RELEASE) BEFORE EXECUTING IT AND I HAVE DONE SO OR, AFTER CAREFUL READING AND
CONSIDERATION, I HAVE CHOSEN NOT TO DO SO OF MY OWN VOLITION;
(e) I
HAVE HAD AT LEAST 21 DAYS FROM THE DATE OF MY RECEIPT OF THIS RELEASE
SUBSTANTIALLY IN ITS FINAL FORM ON ___, ___TO CONSIDER IT AND THE CHANGES MADE
SINCE THE ___, ___VERSION OF THIS RELEASE ARE NOT MATERIAL AND WILL NOT RESTART
THE REQUIRED 21-DAY PERIOD;
(f) THE
CHANGES TO THE AGREEMENT SINCE ___, ___EITHER ARE NOT MATERIAL OR WERE MADE
AT
MY REQUEST.
(g) I
UNDERSTAND THAT I HAVE SEVEN DAYS AFTER THE EXECUTION OF THIS RELEASE TO REVOKE
IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE
EIGHTH DAY FOLLOWING EXECUTION OF THE AGREEMENT;
(h) I
HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH THE ADVICE
OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT; AND
(i) I
AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED, WAIVED,
CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY AN AUTHORIZED
REPRESENTATIVE OF THE COMPANY AND BY ME.
Xxxxxxx
X. Xxxx
DATE:
___________ __, ______
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