EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (this “Agreement”)
is
made as of November 12, 2008 (the “Effective
Date”),
by
and between NexCen Brands, Inc. (“NBI”)
and
NexCen Franchise Management, Inc. (“NFM”)
(NBI
together with NFM, collectively, the “Company”)
and
Xxxx Xxxxxx (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 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 Chief Financial Officer and Treasurer of NBI,
concurrently with his current position as the Chief Financial Officer of NFM.
In
such capacity as the Chief Financial Officer and Treasurer of NBI, the Executive
shall perform such duties as are set forth in the By-Laws
of
NBI
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 Chief Executive Officer of NBI and ultimately
the
Board of Directors of NBI (the “Board”).
(b) Duties
and Responsibilities.
The
Executive shall report to the Chief Executive Officer of NBI
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) 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.
(d) Principal
Office.
The
principal place of performance by the Executive of his duties hereunder shall
be
the Company’s offices in Norcross, Georgia, although the Executive may be
required to travel in connection with the business of the
Company.
The
Executive acknowledges and agrees that such travel shall include periodic visits
to the Company’s offices in New York, New York .
1.3
Compensation.
(a) Base
Salary.
The
Executive’s base salary shall be $225,000.00 per annum (the “Base
Salary”).
The
Base Salary payable for Fiscal Year 2008 shall be prorated based on the number
of days from and including October 16, 2008 through and including December 31,
2008.
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 Board, or the Compensation Committee of
the
Board (“Compensation Committee”), may approve in 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, as determined
by the Chief Executive Officer, calculated as a percentage of the Bonus Pool,
based on the Executive and the Company achieving annual performance goals,
all
of which shall be subject to review and confirmation by Compensation Committee
or the Board to the extent required under the Company’s management bonus plan or
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 Company, the Board or the Compensation Committee, from time
to
time, for participation by the
Company’s
senior
management or executives, such as dental, life and disability insurance
coverage, subject to, in all cases, the terms and conditions established by
the
Company, Board or the Compensation Committee with respect to such plans
(collectively, the “Benefits”);
provided, however, that the Company, Board or the Compensation Committee, 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.
2
(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 additional options to purchase 30,000 shares of
the
NBI’s
common
stock (the “Option
Grant”),
subject to the approval of the Compensation Committee. These Stock Options
shall
have a 10-year term and an exercise price equal to the fair market value of
NBI’s common stock on the grant date, which is typically the closing price per
share on the third trading day after NBI publicly announces its next annual
or
quarterly financial results, immediately following the start of
employment. The
Stock
Options shall be granted pursuant to and be subject to the terms of the 2006
Long Term 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 grant 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 this Agreement, 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.
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,
with or without Good Reason, unless he gives the
Company
written
notice that he intends to terminate the Employment Period at least 90 days
prior to the Executive’s proposed Termination Date. 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.
3
(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 twelve-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, 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, or (B) 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 twelve-month 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 (1), (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 one 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 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
greater of 180 days after the effective date of termination of the
Executive’s employment or the remaining term of the applicable option.
(d) Death
and Disability.
In the
event of the
Company
terminates this Agreement due to the death of the Executive, the
Company
shall
pay the Executive his Base Salary through the date of termination, at the rate
then in effect, and all expenses or accrued Benefits 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, 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.
5
(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.
(i)
Effect
of Termination by NBI or NFM.
For
purposes of clarification, termination of the Executive’s employment by
the
Company
consists
of termination by both NBI and NFM. The Executive’s employment shall not be
deemed terminated by the Company if he remains employed by either NBI or NFM.
Termination of Executive’s employment by the Executive, however, shall consist
of termination of his employment with either NBI or NFM.
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 Board, (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, 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. 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 Board 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 prior to the date the Executive
proposes to disclose or use such information or general know-how of the
Executive.
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).
7
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.
(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 Board. 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.
8
(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.
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.
9
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, an amount equal to 5.0% of the annual net
income of Company for such Fiscal year, as reported by Company in its audited
annual financial statements or any other amount authorized as the “Bonus Pool”
by the Board or Compensation Committee under the 2006 Management Bonus Plan
or
any other management bonus plan adopted by the Company.
“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) retail or quick service restaurant
franchising and (iii) activities related or ancillary to, or that support,
any
of the foregoing.
“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 no
less than three written directives of the Board with respect to an item that
the
Board deems material to the business, prospects and/or operations of
the
Company
or
requiring the Executive, in his reasonable judgment, after consultation with
counsel, to act in a manner inconsistent with his 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 breach
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) Executive fails to cure such alleged act or
circumstance within 30 days of receipt of notice thereof, to the
satisfaction of the Board in the exercise of its 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).
“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.
10
“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 Norcross, Georgia, (iii) the
Company
materially reduces the Executive’s responsibilities or removes the Executive
from the position of Chief Financial Officer and Treasurer 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.
“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.
11
“Termination
Date”
means
the effective date of the Executive’s termination of employment with
the
Company.
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.
12
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; or
(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.
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:
General Counsel
13
To
the
Executive:
Xxxx
Xxxxxx
c/o
NexCen Franchise Management, Inc.
0000
Xxxxxxxx Xxxxx
Xxxxx
000
Xxxxxxxx,
XX 000000
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 Board. 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.
14
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.
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
15
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]
16
IN
WITNESS WHEREOF, the Parties have executed this Employment Agreement as of
the
date first written above.
|
By:
|
/s/
Xxxxxxx X. Xxxx
|
|
Name: Xxxxxxx
X. Xxxx
|
|
|
Title: Chief
Executive Officer
|
|
|
|
|
|
NEXCEN
FRANCHISE MANAGEMENT, INC.
|
|
|
By:
|
/s/
Xxxxxxx X. Xxxx
|
|
Name: Xxxxxxx
X. Xxxx
|
|
|
Title: Treasurer
|
|
|
/s/
Xxxx Xxxxxx
|
|
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XXXX
XXXXXX
|
|
17
EXHIBIT
A
FORM
OF RELEASE
I,
Xxxx
Xxxxxx, on behalf of myself and my heirs, successors and assigns, in
consideration of the performance by NexCen Brands, Inc., a Delaware corporation
(together with its Subsidiaries,
the
“Company”),
of
its material obligations under the Employment Agreement, dated as of November
__, 2008 (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.
18
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.
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.
19
9.
Without limitation of any provision of the Agreement, I hereby expressly
re-affirm my obligations under Sections 1.5, 1.6, 1.8, 1.8, 1.10 and 3.1.
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;
(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;
20
(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.
Xxxx
Xxxxxx
DATE:
___________ __, ______
21
