Key Hospitality Acquisition Corporation
|
[Date]
|
Xxxx
Xxxxx
Dear
Xxxx:
This
letter is to confirm our understanding with respect to (i) your future
employment by Key Acquisition Corp. or any present or future parent, subsidiary
or affiliate thereof (collectively, the “Company”), (ii) your agreement not to
compete with the Company, (iii) your agreement to protect and preserve
information and property which is confidential and proprietary to the Company
and (iv) your agreement with respect to the ownership of inventions, ideas,
copyrights and patents which may be used in the business of the Company (the
terms and conditions agreed to in this letter are hereinafter referred to as
the
“Agreement”). In consideration of the mutual promises and covenants contained in
this Agreement, and for other good and valuable consideration, the receipt
and
sufficiency of which are hereby mutually acknowledged, we have agreed as
follows:
| 1. |
Employment.
|
(a) Subject
to the terms and conditions of this Agreement, the Company will employ you,
and
you will be employed by the Company, as Chairman of the Board and Chief
Executive Officer reporting only to the Board of Directors (the “Board”). You
will have the responsibilities, duty and authority commensurate with the
position of Chairman and CEO, including, without limitation, presiding
at all meetings of the Board and stockholders at which you are present
and
general
supervision and direction of all of the officers, employees and agents of the
Company.
You
will also perform such other services of an executive nature for the Company
as
may be assigned to you from time to time by the Board and agreed to by you.
The
principal locations at which you will perform such services will be at the
Company’s facilities located within Florida.
(b) Devotion
to Duties.
For so
long as you are employed hereunder, you will devote substantially all of your
business time and energies to the business and affairs of the Company, provided
that nothing contained in this Section 1(b) will be deemed to prevent or limit
your right to manage your personal investments on your own personal time,
including, without limitation, the right to make passive investments in the
securities of (i) any entity which you do not control, directly or indirectly,
and which does not compete with the Company, or (ii) any publicly held entity
so
long as your aggregate direct and indirect interest does not exceed five percent
of the issued and outstanding securities of any class of securities of such
publicly held entity, and provided further, that nothing contained in this
Agreement will be deemed to prohibit you from (A) serving on a reasonable
number of corporate, civic or charitable boards or committees that do not
compete with the Company, provided that serving on those boards or committees
does not prevent or interfere in any way with your ability to be Chairman and
CEO of the Company and that you may not serve on any public company boards
or
committees without prior written consent from the Board, (B) delivering
lectures, fulfilling speaking engagements or teaching at educational
institutions, and (C) managing personal investments, so long as such
activities do not significantly interfere with the performance of you
responsibilities as an employee of the Company in accordance with this
Agreement.
|
2.
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Term
of Employment.
|
(a) Term;
Termination.
Subject
to the terms hereof, your employment hereunder will commence on [DATE OF
CLOSING] [_____________________]
(the
“Commencement Date”) and will continue until three years from the Commencement
Date (the “Initial Term”), provided that on the third anniversary
of the Commencement Date, the term of your employment hereunder will be
automatically extended for an additional period of one year (the “Subsequent
Term”) unless either you or the Company has given written notice to the other
that such automatic extension will not occur (a “Non-Renewal Notice”), which
notice was given not less than 60 days prior to the relevant anniversary of
the
Commencement Date. The Initial Term and the Subsequent Term are referred to
herein as the “Term.”
Notwithstanding
the foregoing, your employment hereunder will terminate upon the first to occur
of the following:
(i) Immediately
upon your death;
(ii) By
the
Company:
(A) By
written notice to you effective the date of such notice, following your failure,
due to illness, accident or any other physical or mental incapacity, to perform
the essential functions of your position for an aggregate of 120 business days
within any period of 180 consecutive days during the term hereof as determined
by a physician selected by you (“Disability”), provided that if applicable law
provides any provision regarding disability that is more favorable to you than
that set forth herein, such more favorable provision will govern;
(B) By
written notice to you effective after the termination of any applicable cure
period stated herein commencing on the date of such notice, for Cause (as
defined below); or
(C) By
written notice to you effective 30 days after the date of such notice and
subject to Section 4 hereof, without Cause; or
2
(iii) By
you:
(A) At
any
time by written notice to the Company effective 30 days after the date of such
notice; or
(B) By
written notice to the Company for Good Reason (as defined below) effective
the
date of such notice.
(b) Definition
of “Cause”.
For
purposes of this Agreement, “Cause” means (i) your conviction of a felony,
either in connection with the performance of your obligations to the Company
or
which otherwise materially and adversely affects your ability to perform such
obligations, (ii) your willful disloyalty or deliberate dishonesty, (iii) the
commission by you of an act of fraud or embezzlement against the Company, or
(iv) a material breach by you of any material provision of this Agreement which
breach is not cured within 30 days after delivery to you by the Company of
written notice of such breach, provided that if such breach is not capable
of
being cured within such 30 day period, you will have a reasonable additional
period to cure such breach but only if you promptly commence and continue good
faith efforts to cure such breach. Any determination under this Section 2(b)
will be made by two thirds of the Board voting on such determination. With
respect to any such determination, the Board will act fairly and in utmost
good
faith and will give you and your counsel an opportunity to appear and be heard
at a meeting of the Board and present evidence on your behalf. No act or
omission on your part will be considered “willful” unless done, or admitted to
be done, by you in bad faith or without your reasonable belief that such act
or
omission was in the best interest of the Company.
(c) Definition
of “Good Reason”.
For
purposes of this Agreement, a “Good Reason” means any of the
following:
(i) A
change
in the principal location outside of the State of Florida at which you provide
services to the Company, without your prior written consent;
(ii) The
assignment to you of duties not commensurate or consistent with your position
as
Chairman and CEO of the Company without your prior written consent or any other
action by the Company which results in a diminution in such position, authority,
duties or responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by
you;
(iii) A
reduction in your compensation or other benefits except such a reduction in
connection with a general reduction in compensation or other benefits of all
senior executives of the Company;
(iv) A
material breach of this Agreement by the Company that has not been cured within
30 days after written notice thereof by you to the Company;
(v) A
Change
of Control (as defined in Section 2(d) below) of the Company; or
3
(vi) Failure
by the Company to obtain the assumption of this Agreement by any successor
to
the Company.
(d) Definition
of “Change of Control”
For
purposes of this Agreement, a Change of Control means that any of the following
events has occurred:
(i) Any
person (as such term is used in Section 13(d) of the Securities Exchange Act
of
1934 (the “Exchange Act”)), other than the Company, any employee benefit plan of
the Company or any entity organized, appointed or established by the Company
for
or pursuant to the terms of any such plan, together with all “affiliates” and
“associates” (as such terms are defined in Rule 12b-2 under the Exchange Act)
becomes the beneficial owner or owners (as defined in Rule 13d-3 and 13d-5
promulgated under the Exchange Act), directly or indirectly (the “Control
Group”), of more than 50% of the outstanding equity securities of the Company,
or otherwise becomes entitled, directly or indirectly, to vote more than 50%
of
the voting power entitled to be cast at elections for directors (“Voting Power”)
of the Company, provided that a Change of Control will not have occurred if
such
Control Group acquired securities or Voting Power solely by purchasing
securities from the Company, including, without limitation, acquisition of
securities by one or more third party investors such as venture capital
investor(s);
(ii) A
consolidation or merger (in one transaction or a series of related transactions)
of the Company pursuant to which the holders of the Company’s equity securities
immediately prior to such transaction or series of related transactions would
not be the holders, directly or indirectly, immediately after such transaction
or series of related transactions of more than 50% of the Voting Power of the
entity surviving such transaction or series of related
transactions;
(iii) The
sale,
lease, exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of the Company;
or
(iv) The
liquidation or dissolution of the Company or the Company ceasing to do
business.
| 3. |
Compensation.
|
(a) Base
Salary.
While
you are employed hereunder, the Company will pay you a base salary at the annual
rate of $1 (the “Base Salary”). In addition to the Base Salary you will receive
the following: (i) for the first year after the Commencement Date (the “First
Anniversary”) the Company will grant you 225,000 Options at an exercise price
equal to the fair market value of the Company’s shares of Common Stock on the
date of the grant, vesting quarterly, (ii) After the First Anniversary until
January 1, 2009, the Company will grant you an amount equal to 225,000 Options
multiplied by the number of days remaining until January 1, 2009 and then
divided by 365. The Options will vest quarterly and the price will be at an
exercise price equal to the fair market value of the Company’s shares of Common
Stock on the date of the grant (iii) From January 1, 2009 until the expiration
of your employment period, you will receive an annual salary to be determined
at
the discretion of the Board, but no less than $750,000. The Base Salary will
be
payable in substantially equal installments in accordance with the Company’s
payroll practices as in effect from time to time. The Company will deduct from
each such installment any amounts required to be deducted or withheld under
applicable law or under any employee benefit plan in which you participate.
The
Base Salary shall also be reviewed, at least annually, for merit increases
and
may, by action and in the discretion of the Board, be increased at any time
or
from time to time. The Base Salary, if increased, shall not thereafter be
decreased for any reason, except for an overall reduction in Company executive
salaries due to prevailing economic or industry conditions.
4
(b) Bonus.
(i) Annual
Bonus.
You
will be entitled to a performance based annual bonus (the “Annual Bonus”) of (i)
up to $750,000 per year until January 1, 2009, and (ii) up to 100% of your
Base
Salary thereafter, at the discretion of the Board.
(c) Equity
Compensation.
(i) Options.
You
will be entitled to participate in and may receive additional options under
any
option plan adopted by the Company. The granting of such options will be at
the
discretion of the Board.
(d) Vacation.
You
will be entitled to paid vacation in each calendar year and paid holidays and
personal days in accordance with the most favorable plans, policies, programs
and practices of the Company and its subsidiaries as in effect at any time
hereafter with respect to other key executives of the Company and its
subsidiaries; provided,
however,
that in
no event shall you be entitled to fewer than four weeks paid vacation per year.
Accrued unused vacation may be carried over for one year.
(e) Fringe
Benefits.
You
will be entitled to participate in the same manner as other senior executives
of
the Company in any employee benefit plans which the Company provides or may
establish for the benefit of its senior executives generally (including, without
limitation, group life, disability, medical, dental and other insurance, tax
benefit and planning services, 401(k), retirement, pension, profit-sharing
and
similar plans) (collectively, the “Fringe Benefits”), provided that the Fringe
Benefits will not include any stock option or similar plans relating to the
grant of equity securities of the Company.
(f) Automobile;
Computer; Mobile Phone.
The
Company will pay you an automobile allowance for two automobiles in the amount
of $1,500 per month per car. One car is to be stored in Clearwater and the
other
in the Florida Keys. The amount of such allowance will be reviewed and adjusted
not less frequently than annually. The Company will also provide you with a
mobile telephone and laptop computer at the expense of the Company. The Company
will pay for all charges related to use of your mobile telephone, however,
you
agree to reimburse the Company for all personal use of your mobile phone.
5
(g) Reimbursement
of Expenses.
The
Company will reimburse you for all ordinary and reasonable out-of-pocket
business expenses that are incurred by you in furtherance of the Company’s
business in accordance with the Company’s policies with respect thereto as in
effect from time to time.
(h) Indemnification.
The
Company will indemnify you to the extent permitted by its charter and by-laws
and by applicable law against all costs, charges and expenses, including,
without limitation, attorneys’ fees, incurred or sustained by you in connection
with any action, suit or proceeding to which you may be made a party by reason
of being an officer, director or employee of the Company. In connection with
the
foregoing, you will be covered under any liability insurance policy that
protects other officers of the Company.
(i) Working
Facilities.
During
the term of your employment hereunder, the Company shall furnish you with an
office, a secretary and such other facilities and services suitable to your
position and adequate for the performance of your duties hereunder.
(j) Company
Aircraft.
During
the term of your employment, you may use the Company’s aircraft for business
reasons in accordance with the Company’s policies applying to the key executives
of the Company. You agree to reimburse the Company for any personal use of
the
Company’s aircraft.
(k) Location
and Relocation.
The
Company agrees that you, in the ordinary course of performing your duties,
will
work in the Company’s various offices located throughout the state of Florida;
provided, however, that if, at any time during the Term, you and the Company
agree that you will perform your duties at a different location causing you
to
commute more than 60 miles from your then-current residence, the Company will:
(a) reimburse you for all costs incurred by you in connection with the
relocation of you and your family, but not the purchase price of a new
residence, and (b) provide you, at the Company’s cost, temporary accommodations
at your new work location that are reasonably acceptable to you, until the
earlier of (i) the date on which you are able to occupy permanent housing of
your choice within 60 miles of your new work location, and (ii) the date that
is
twelve (12) months after the first date on which the temporary accommodation
is
made available to you. Additionally, the Company agrees to provide you with
accommodations reasonably acceptable to you in Clearwater when you travel there
for business reasons.
| 4. |
Severance
Compensation.
|
(a) Definition
of Accrued Obligations.
For
purposes of this Agreement, “Accrued Obligations” means (i) the portion of your
Base Salary as has accrued prior to any termination of your employment with
the
Company and has not yet been paid, (ii) an amount equal to the value of your
accrued unused vacation days, and (iii) the amount of any expenses properly
incurred by you on behalf of the Company prior to any such termination and
not
yet reimbursed.
6
(b) Death
or Disability.
If your
employment hereunder is terminated as a result of your death or
Disability:
(i) The
Company will pay the Accrued Obligations to you (or your estate) promptly
following such termination.
(ii) The
Company will continue to pay you (or your estate) an amount equal to the Base
Salary at the rate in effect at the date of such termination in accordance
with
Section 3(a) of this Agreement for the period commencing on the date of such
termination and ending on the earlier of six months from such termination or
the
date of the end of the then current Term.
(iii) The
Company will continue to provide you or your covered beneficiaries with the
Fringe Benefits for so long as it is obligated to continue payments equal to
the
Base Salary pursuant to Section 4(b)(ii) above, subject to applicable law and
the terms of the respective policies.
(c) Termination
for Cause or in the Absence of a Good Reason.
If your
employment hereunder is terminated either by the Company for Cause or by you
in
the absence of a Good Reason (either pursuant to Section 2(a)(iii)(A) above
or
by delivery by you of a Non-Renewal Notice), the Company will pay the Accrued
Obligations to you promptly following such termination.
(d) Termination
Without Cause or for a Good Reason.
If your
employment hereunder is terminated either by the Company without Cause (either
pursuant to Section 2(a)(ii)(c) above or by delivery of a Non-Renewal Notice
by
the Company) or by you for a Good Reason:
(i) The
Company will pay the Accrued Obligations to you promptly following such
termination.
(ii) The
Company will continue to pay you an amount equal to the Base Salary at the
rate
in effect at such termination in accordance with Section 3(a) of this Agreement
for the period commencing on the date of such termination and ending the later
of (A) the date of the end of the then current Term, or (B) 18 months, whichever
is greater.
(iii) The
Company will continue to provide you with the Fringe Benefits for a period
of
twelve months, subject to applicable law and the terms of the respective
policies.
(iv) The
Company will allow you to keep and transfer ownership for you of
your laptop
computer, cell phone, etc., provided that you will provide the Company with
an
opportunity to delete any Company information from any such equipment and you
will be responsible for all costs in connection with such equipment after the
date of termination of your employment.
7
(e) No
Duty to Mitigate.
Notwithstanding any other provision of this Agreement, (i) you will have no
obligation to mitigate your damages for any breach of this Agreement by the
Company or for any termination of this Agreement, whether by seeking employment
or otherwise and (ii) the amount of any benefit due to you after the date of
such termination pursuant to this Agreement will not be reduced or offset by
any
payment or benefit that you may receive from any other source.
| 5. |
Prohibited
Competition.
|
(a) Certain
Acknowledgements and Agreements.
(i) We
have
discussed, and you recognize and acknowledge the competitive and proprietary
aspects of the business of the Company.
(ii) You
acknowledge that a business will be deemed competitive with the Company if
it
performs any of the services or manufactures or sells any of the products
provided or offered by the Company or if it performs any other services and/or
engages in the production, manufacture, distribution or sale of any product
similar to services or products, which services or products were performed,
produced, manufactured, distributed or sold by the Company during the period
while you are employed hereunder.
(iii) You
further acknowledge that, while you are employed hereunder, the Company will
furnish, disclose or make available to you Confidential Information (as defined
below) related to the Company’s business and that the Company may provide you
with unique and specialized training. You also acknowledge that such
Confidential Information and such training have been developed and will be
developed by the Company through the expenditure by the Company of substantial
time, effort and money and that all such Confidential Information and training
could be used by you to compete with the Company.
(iv) For
purposes of this Agreement, “Confidential Information” means confidential and
proprietary information of the Company, whether in written, oral, electronic
or
other form, including but not limited to, information and facts concerning
business plans, customers, future customers, suppliers, licensors, licensees,
partners, investors, affiliates or others, training methods and materials,
financial information, sales prospects, client lists, inventions, or any other
scientific, technical or trade secrets of the Company or of any third party
provided to you or the Company under a condition of confidentiality, provided
that Confidential Information will not include information that is (1) in the
public domain other than through any fault or act by you, (2) known to you
prior
to its disclosure to you in the course of your employment hereunder, or (3)
lawfully disclosed to you by a source other than the Company which source has
a
legal right to disclose such information.
8
(b) Non-Competition;
Non-Solicitation.
During
the period while you are employed hereunder and for a period of two years
following the termination of your employment hereunder for any reason or for
no
reason you will not, without the prior written consent of the
Company:
(i) For
yourself or on behalf of any other person or entity, directly or indirectly,
either as principal, partner, stockholder, officer, director, member, employee,
consultant, agent, representative or in any other capacity, own, manage, operate
or control, or be concerned, connected or employed by, or otherwise associate
in
any manner with, engage in, or have a financial interest in, any business which
is directly or indirectly competitive with the business of the Company (each,
a
“Restricted Activity”) in each state that the Company has properties at the time
of termination (the “Restricted Territory”), except that (A) nothing contained
herein will preclude you from purchasing or owning securities of any such
business if such securities are publicly traded, and provided that your holdings
do not exceed four percent of the issued and outstanding securities of any
class
of securities of such business, and (B) nothing contained herein will prevent
you from engaging in a Restricted Activity for or with respect to any
subsidiary, division or affiliate or unit (each, a “Unit”) of an entity if that
Unit is not engaged in any business which is competitive with the business
of
the Company, irrespective of whether some other Unit of such entity engages
in
such competition (as long as you do not engage in a Restricted Activity for
such
other Unit); or
(ii) Either
individually or on behalf of or through any third party, directly or indirectly,
solicit, divert or appropriate or attempt to solicit, divert or appropriate,
for
the purpose of competing with the Company, any customers or patrons of the
Company, or any prospective customers or patrons with respect to which the
Company has developed or made a sales presentation (or similar offering of
services); or
(iii) Either
individually or on behalf of or through any third party, solicit, entice or
persuade or attempt to solicit, entice or persuade any employee of or consultant
to the Company to leave the service of the Company; provided, however, that
the
foregoing provisions will not prevent you from hiring any such person who
contacts you on his or her own initiative without any direct or indirect
solicitation by or encouragement from or on behalf of you or your
representatives.
(c) Survival
of Acknowledgements and Agreements.
Your
acknowledgements and agreements set forth in this Section 5 will survive the
termination of your employment hereunder for any reason or for no reason for
the
periods set forth in this Agreement.
6.
Protected
Information.
You
will at all times, both during the period while you are employed hereunder
and
after the termination of your employment hereunder for a period of four
years thereafter,
for any reason or for no reason, maintain in confidence and will not, without
the prior written consent of the Company, use, except in the course of
performance of your duties for the Company or by court order, disclose or give
to others any Confidential Information. Upon the termination of your employment
hereunder for any reason or for no reason, you will return to the Company all
tangible Confidential Information and copies thereof (regardless how such
Confidential Information or copies are maintained).
9
| 7. |
Ownership
of Ideas, Copyrights and Patents.
|
(a) Property
of the Company.
All
ideas, discoveries, creations, manuscripts and properties, innovations,
improvements, know-how, inventions, designs, developments, apparatus,
techniques, methods, and formulae (collectively the “Inventions”) which may be
used in the business of the Company, whether patentable, copyrightable or not,
which you may conceive, reduce to practice or develop while you are employed
hereunder, alone or in conjunction with another or others, and whether at the
request or upon the suggestion of the Company or otherwise, will be the sole
and
exclusive property of the Company, and that you will not publish any of the
Inventions without the prior written consent of the Company. You hereby assign
to the Company all of your right, title and interest in and to all of the
foregoing.
(b) Cooperation.
At any
time during your employment hereunder or after the termination of your
employment hereunder for any reason or for no reason, you will fully cooperate
with the Company and its attorneys and agents in the preparation and filing
of
all papers and other documents as may be required to perfect the Company’s
rights in and to any of such Inventions, including, but not limited to, joining
in any proceeding to obtain letters patent, copyrights, trademarks or other
legal rights with respect to any such Inventions in the United States and in
any
and all other countries, provided that the Company will bear the expense of
such
proceedings, and that any patent or other legal right so issued to you
personally will be assigned by you to the Company or its designee without charge
by you. The Company will reimburse you for reasonable expenses incurred by
you
in connection with the performance of your obligations under this Section
7.
8. Records.
Upon
termination of your employment hereunder for any reason or for no reason, you
will deliver to the Company any property of the Company which may be in your
possession, including products, materials, memoranda, notes, records, reports
or
other documents or photocopies of the same.
9. Insurance.
The
Company, in its sole discretion, may apply for and purchase key person life
insurance on your life in an amount determined by the Company with the Company
as beneficiary. You will submit to any medical or other examinations and to
execute and deliver any applications or other instruments in writing that are
reasonably necessary to effectuate such insurance.
| 10. |
General.
|
(a) Notices.
All
notices, requests, consents and other communications hereunder will be in
writing, will be addressed to the receiving party’s address set forth above or
to such other address as a party may designate by notice hereunder, and will
be
either (i) delivered by hand, (ii) sent by overnight courier, or (iii) sent
by
registered or certified mail, return receipt requested, postage prepaid. All
notices, requests, consents and other communications hereunder will be deemed
to
have been given either (i) if by hand, at the time of the delivery thereof
to
the receiving party at the address of such party set forth above, (ii) if sent
by overnight courier, on the next business day following the day such notice
is
delivered to the courier service, or (iii) if sent by registered or certified
mail, on the fifth business day following the day such mailing is
made.
10
(b) Entire
Agreement.
This
Agreement and the other agreements specifically referred to herein, embodies
the
entire agreement and understanding between the parties hereto with respect
to
the subject matter hereof and supersedes all prior oral or written agreements
and understandings relating to the subject matter hereof. No statement,
representation, warranty, covenant or agreement of any kind not expressly set
forth in this Agreement will affect, or be used to interpret, change or
restrict, the express terms and provisions of this Agreement.
(c) Modifications
and Amendments.
The
terms and provisions of this Agreement may be modified or amended only by
written agreement executed by the parties hereto.
(d) Waivers
and Consents.
The
terms and provisions of this Agreement may be waived, or consent for the
departure therefrom granted, only by written document executed by the party
entitled to the benefits of such terms or provisions. No such waiver or consent
will be deemed to be or will constitute a waiver or consent with respect to
any
other terms or provisions of this Agreement, whether or not similar. Each such
waiver or consent will be effective only in the specific instance and for the
purpose for which it was given, and will not constitute a continuing waiver
or
consent.
(e) Assignment.
The
Company may assign its rights and obligations hereunder to any person or entity
that succeeds to all or substantially all of the Company’s business or that
aspect of the Company’s business in which you are principally involved. You may
not assign your rights and obligations under this Agreement without the prior
written consent of the Company.
(f) Benefit.
All
statements, representations, warranties, covenants and agreements in this
Agreement will be binding on the parties hereto and will inure to the benefit
of
the respective successors and permitted assigns of each party hereto. Nothing
in
this Agreement will be construed to create any rights or obligations except
among the parties hereto, and no person or entity will be regarded as a
third-party beneficiary of this Agreement. The Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform
it
if no such succession had taken place. As used in this Agreement, "Company"
shall mean the Company as hereinbefore defined and any successor to its business
and/or assets which assumes and agrees to perform this Agreement by operation
of
law or otherwise.
11
(g) Governing
Law.
This
Agreement and the rights and obligations of the parties hereunder will be
construed in accordance with and governed by the law of the State of Florida,
without giving effect to the conflict of law principles thereof.
(h) Jury
Waiver.
The
parties agree to
waive
trial by jury with respect to any claims arising out of or relating to this
Agreement or your employment by the Company.
(i) Severability.
The
parties intend this Agreement to be enforced as written. However, (i) if any
portion or provision of this Agreement is to any extent be declared illegal
or
unenforceable by a duly authorized court having jurisdiction, then the remainder
of this Agreement, or the application of such portion or provision in
circumstances other than those as to which it is so declared illegal or
unenforceable, will not be affected thereby, and each portion and provision
of
this Agreement will be valid arid enforceable to the fullest extent permitted
by
law and (ii) if any provision, or part thereof, is held to be unenforceable
because of the duration of such provision, the geographic area covered thereby,
or other aspect of the scope of such provision, the court making such
determination will have the power to reduce the duration, geographic area of
such provision, or other aspect of the scope of such provision, and/or to delete
specific words and phrases (“blue-penciling”), and in its reduced or
blue-penciled form, such provision will then be enforceable and will be
enforced.
(j) Headings
and Captions.
The
headings and captions of the various subdivisions of this Agreement are for
convenience of reference only and will in no way modify or affect the meaning
or
construction of any of the terms or provisions hereof
(k) No
Waiver of Rights, Powers and Remedies.
No
failure or delay by a party hereto in exercising any right, power or remedy
under this Agreement, and no course of dealing between the parties hereto,
will
operate as a waiver of any such right, power or remedy of the party. No single
or partial exercise of any right, power or remedy under this Agreement by a
party hereto, nor any abandonment or discontinuance of steps to enforce any
such
right, power or remedy, will preclude such party from any other or further
exercise thereof or the exercise of any other right, power or remedy hereunder.
The election of any remedy by a party hereto will not constitute a waiver of
the
right of such party to pursue other available remedies. No notice to or demand
on a party not expressly required under this Agreement will entitle the party
receiving such notice or demand to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the
party
giving such notice or demand to any other or further action in any circumstances
without such notice or demand.
(l) Expenses.
Should
the Company breach this Agreement, in addition to all other remedies available
at law or in equity, the Company will pay all of your costs and expenses
resulting therefrom and/or incurred in enforcing this Agreement, including
legal
fees and expenses. The Company will reimburse you for reasonable fees of
one counsel
retained by you in connection with the negotiation and execution of this
Agreement.
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(m) Counterparts.
This
Agreement may be executed in two or more counterparts, and by different parties
hereto on separate counterparts, each of which will be deemed an original,
but
all of which together will constitute one and the same instrument.
(n) Election
as Director.
For so
long as you continue to serve as the Company’s Chairman and CEO, the Company
shall cause you to be nominated as a director of the Company at each shareholder
meeting at which election of directors is considered and otherwise use its
best
efforts to cause you to be elected as a director of the Company.
REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
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If
the
foregoing accurately sets forth our agreement, please so indicate by signing
and
returning to us the enclosed copy of this letter.
|
Very
truly yours,
By:
Name:
Title:
|
Accepted
and Approved
| ________________________ | __________________ | |
| Xxxx Xxxxx | Date |
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