Exhibit 10.30
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made as of the 20th day of
June, 2006, by and between Costar Video Systems, LLC, a Delaware limited
liability company (the "Company"), and Xxxxx Xxxxxxxxx (the "Executive").
W I T N E S S E T H :
WHEREAS, Southern Imaging, Inc., a Texas corporation ("Southern Imaging"),
and its Affiliates (including Video Solutions Technology Center, Inc., a Nevada
corporation ("Video Solutions") are engaged in the business of designing,
developing, sourcing, selling and distributing, video and imaging products and
accessories (the "Business");
WHEREAS, the Company intends to acquire substantially all of the assets
and certain of the liabilities of Southern Imaging and its Affiliates pursuant
to the Asset Purchase Agreement, dated as of the date hereof (the "Asset
Purchase Agreement"), by and among the Company, Video Solutions Technology
Center, LLC, Southern Imaging and Video Solutions;
WHEREAS, Executive is currently employed as the Vice President, Sales of
Southern Imaging;
WHEREAS, the Company wishes to ensure that it will continue to have the
benefits of Executive's services after the closing (the "Closing") of the
transactions contemplated by the Asset Purchase Agreement on the terms and
conditions hereinafter set forth, and therefore desires to enter into this
Agreement with Executive, to be effective upon the Closing;
WHEREAS, the Company and Executive acknowledge and agree that the
retention of Executive's services and Executive's agreement to enter into and
adhere to the noncompetition, nonsolicitation and nondisclosure of proprietary
information provisions contained in this Agreement are material conditions to
the Company entering into the Asset Purchase Agreement and consummating the
transactions contemplated thereby; and
WHEREAS, Executive desires to work for the Company on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Employment; Term. The Company hereby employs Executive, and Executive
hereby accepts employment with the Company, in accordance with and subject to
the
terms and conditions set forth herein. The term of this Agreement shall commence
upon the Closing (the "Effective Date") and shall continue for a period of
thirty-six (36) months (the "Initial Term"), unless earlier terminated in
accordance with Section 6 hereof. The Initial Term may be extended for
subsequent twelve (12) month periods upon mutual agreement of the Company and
Executive at any time prior to the end of the then-current term, it being
understood and agreed that the Company shall endeavor to provide the Executive
with at least six (6) months notice of its desire to extend the agreement and
that the Executive will endeavor to agree or disagree to extend the agreement
within 30 days thereafter. The Initial Term, as it may be adjusted or extended
pursuant to the terms and conditions hereof, may be referred to herein as the
"Term").
2. Employment.
(a) The Company hereby agrees to employ Executive as its President,
and Chief Operating Officer for Sales for the Term. Executive agrees to serve in
such capacity with the duties and responsibilities reasonably requested by the
Company consistent with such position in a company of the size and nature of the
Company. During the Term, Executive shall report to the Chief Executive Officer
of the Company, or his designee.
(b) Executive shall perform his duties with diligence and
faithfulness to the best of his abilities and shall devote his full business
time (excluding periods of vacation and sick leave), attention and energy to
such duties.
3. Compensation. The Company shall pay Executive a base salary (the "Base
Salary") of One Hundred Fifty Thousand Dollars ($150,000) per annum, payable at
least semi-monthly, in accordance with the Company's then existing payroll
practices and subject to all legally required or customary withholdings and
other applicable taxes.
4. Incentive Payment.
(a) Provided that the Executive's employment under this Agreement is
not terminated pursuant to the provisions of Section 6(a), (b), (d) or (e) prior
to the end of the calendar year for each of the Bonus Eligible Years (as
hereinafter defined), the Executive shall be eligible to receive from the
Company as additional compensation an incentive payment (the "Incentive
Payment") pursuant to and subject to the terms of this Section 4.
(b) Calculation of Incentive Payment.
(i) For each of the Bonus Eligible Years, the Incentive
Payment shall equal 40% of the Annual Available Bonus Pool calculated in
accordance with the provisions set forth on Schedule A hereto.
(ii) For the avoidance of doubt, the parties acknowledge that
the Incentive Payment shall never be less than zero.
(c) Annual EBITDA Statement. The Company shall prepare or cause to
be prepared, (i) audited consolidated financial statements of the Company for
such Bonus Eligible Year, (ii) a statement which shall explain in reasonable
detail the calculations of Annual
EBITDA and the Incentive Payment (the "Incentive Payment Statement") and (iii)
reasonable supporting documentation sufficiently detailed to enable Executive to
verify in all material respects the calculations of Annual EBITDA and the
Incentive Payment, and deliver or cause to be delivered each of the forgoing to
Executive promptly after the audited consolidated financial statements of the
Company for such Bonus Eligible Year have been completed.
(d) Payment of Incentive Payment. The Incentive Payment shall be
paid by the Company to the Executive in cash no later than 35 days after the
issuance of the audited financial statements of the Company for each Bonus
Eligible Year.
(e) Definitions. The following terms used in this Agreement shall
have the meanings indicated:
(i) "Affiliate" with respect to any Person shall mean any
other Person which, directly or indirectly, is in control of, is controlled by
or is under common control with such specified Person. For the purposes of this
definition, "control," when used with respect to any Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise.
(ii) "Annual EBITDA" shall mean the EBITDA of the Company
during each of the Bonus Eligible Years.
(iii) "Bonus Eligible Years" shall mean the 2006, 2007, 2008
and 2009 calendar years.
(iv) "EBITDA of the Company" shall mean the consolidated net
income of the Company before interest, income taxes, depreciation and
amortization. For purposes hereof the EBITDA for the year ended December 31,
2006, shall be equal to the sum of (i) the EBITDA of Southern Imaging and Video
Solutions for the period commencing on January 1, 2006 and ending on the Closing
and (ii) the EBITDA of the Company for the period from and after the Closing and
ending on December 31, 2006.
(v) "GAAP" shall mean United States generally accepted
accounting principles in effect on the date hereof applied on a consistent
basis.
(vi) "Person" shall mean an individual, partnership, venture,
unincorporated association, organization, syndicate, corporation, limited
liability company, or other entity, trust, trustee, executor, administrator or
other legal or personal representative or any government or any agency or
political subdivision thereof.
5. Benefits.
(a) The Company agrees to reimburse Executive for all reasonable and
necessary documented out-of-pocket travel and other business expenses incurred
by Executive in connection with the performance of his duties under this
Agreement in accordance with the Company's corporate policy regarding such
expenses as it may be amended from time to time. Such reimbursements shall be
made by the Company within a reasonable amount of time after
submission by Executive of vouchers in accordance with the Company's then
applicable policies and procedures. It is understood and agreed between the
parties that (i) the Executive shall only be required to travel for reasonable
business purposes and (ii) the Executive shall only be entitled to reimbursement
of travel and business expenses incurred in connection with business activities
and prospects that are in accordance with the Company's business plan, as
approved by Dynabazaar, Inc., the Company's parent ("Dynabazaar").
(b) Executive shall be entitled to participate in any and all
medical insurance, group health, dental and vision care programs, disability
insurance, pension, and other benefit plans which are made generally available
by the Company to its senior executives, as the same may be amended or modified
from time to time. The Company may at any time amend or terminate its benefit
plans or programs, subject to the written consent of Dynabazaar, provided,
however, that the Company shall not terminate any health plan or program
provided to the Executive during the Term unless it shall provide the Executive
with comparable benefits under a replacement plan or program.
(c) Executive shall be entitled to an annual paid vacation in
accordance with the Company's vacation policy applicable to senior executives,
but in no event less than three (3) weeks per calendar year. Paid vacation may
not be accrued from year-to-year.
6. Termination. Executive's employment hereunder may be terminated prior
to the end of the Term under the following circumstances:
(a) Death. Executive's employment hereunder shall terminate upon
Executive's death.
(b) Total Disability. The Company may terminate Executive's
employment hereunder at any time after Executive becomes "Totally Disabled." For
purposes of this Agreement, Executive shall be "Totally Disabled" upon the
earlier of (i) the date Executive becomes entitled to receive disability
benefits under the Company's long-term disability plan, if any, or (ii)
Executive's inability to perform the duties and responsibilities contemplated
under this Agreement for a period of more than 90 consecutive days, or 120 days
in any 365-day period, due to physical or mental incapacity or impairment. Such
termination shall become effective five days after the Company gives notice of
such termination to Executive, or to his spouse or legal representative, in
accordance with Section 10 hereof.
(c) Termination by the Company without Cause. The Company may
terminate Executive's employment hereunder without Cause (as hereinafter
defined) at any time after providing written notice to Executive.
(d) Termination by the Company for Cause. The Company may terminate
Executive's employment hereunder for Cause at any time after providing written
notice to Executive. For purposes of this Agreement, the term "Cause" shall mean
any of the following: (i) Executive's willful or intentional failure or refusal
to perform or observe any of his duties, responsibilities or obligations set
forth in, or as contemplated under, this Agreement, unless such failure or
refusal is susceptible to cure and is corrected within thirty (30) days
following written notice by the Company or Dynabazaar specifying the details
thereof; (ii) acts
or omissions by Executive involving Executive's gross negligence related to the
discharge of his duties; (iii) any act or failure to act involving fraud, a
material, knowing or intentional misrepresentation, theft, embezzlement,
dishonesty or moral turpitude; (iv) conviction of (or a plea of nolo contendere
to) an offense which is a felony in the jurisdiction involved or which is a
misdemeanor in the jurisdiction involved but which involves an act set forth in
Section 6(d)(iii) above; (v) any willful or intentional act or omission which
could reasonably be expected to materially injure the reputation, business or
business relationships of the Company, or Executive's reputation or business
relationships; or (vi) Executive's willful or intentional failure to comply with
any reasonable request or direction of the Company not contrary to the
provisions of this Agreement, unless such failure to comply is susceptible to
cure and is corrected within thirty (30) days following written notice by the
Company or Dynabazaar specifying the details thereof.
(e) Termination by Executive for Good Reason. Executive may
terminate his employment hereunder at any time if Executive has "Good Reason"
and gives written notice thereof to the Company within 30 days after the
occurrence of such Good Reason. For purposes of this Agreement, the term "Good
Reason" shall mean: (i) a material reduction in Executive's salary or other
benefits, except to the extent permitted pursuant to the terms of this
Agreement; or (ii) a material breach by the Company of any material provision of
this Agreement; which, in each case, is not cured by the Company within 30 days
after the Company receives written notice thereof from Executive.
7. Compensation Following Termination Prior to the End of the Initial
Term. In the event that Executive's employment hereunder is terminated prior to
the end of the Initial Term, Executive shall be entitled only to the following
compensation and benefits upon such termination:
(a) Termination by Reason of Death or Total Disability, by the
Company for Cause, or by Executive other than for Good Reason. In the event that
Executive's employment is terminated prior to the expiration of the Term by
reason of Executive's death or Total Disability, or termination by the Company
for Cause, or termination by Executive other than for Good Reason, respectively,
the Company shall pay the following amounts to Executive (or Executive's spouse
or estate, as the case may be):
i. any accrued but unpaid Base Salary (as determined pursuant to
Section 3 hereof) for services rendered to the date of termination,
which amount shall be paid to the Executive within thirty (30) days
following the date of termination;
ii. any accrued but unpaid expenses required to be reimbursed pursuant
to Section 5(a) hereof, which amount shall be paid to the Executive
within thirty (30) days following the date of termination;
iii. any accrued but unpaid vacation time pursuant to Section 5(c)
hereof, which amount shall be paid to the Executive within thirty
(30) days following the date of termination; and
iv. for each full Bonus Eligible Year worked by the Executive for the
Company, any incentive payment due and payable pursuant to Section 4
hereof in accordance with the provisions thereof.
Except as otherwise specifically provided herein, in the event Executive's
employment is terminated pursuant to this Section 7(a), the benefits to which
Executive and/or his family may be entitled upon such termination pursuant to
the plans, programs and arrangements referred to in Section 5(b) hereof shall be
determined and paid in accordance with the terms of such plans, programs and
arrangements.
(b) Termination by the Company Without Cause. In the event that
Executive's employment is terminated by the Company without Cause, the Company
shall pay the following amounts to Executive:
i. any accrued but unpaid Base Salary (as determined pursuant to
Section 3 hereof) for services rendered to the date of termination,
which amount shall be paid to the Executive within thirty (30) days
following the date of termination;
ii. any accrued but unpaid expenses required to be reimbursed pursuant
to Section 5(a) hereof, which amount shall be paid to the Executive
within thirty (30) days following the date of termination;
iii. any accrued but unpaid vacation time pursuant to Section 5(c)
hereof, which amount shall be paid to the Executive within thirty
(30) days following the date of termination;
iv. the Executive's Base Salary (as determined pursuant to Section 3(a)
hereof) for a period of six (6) months following the termination of
Executive's employment, to be paid in accordance with the Company's
standard payroll practices then in effect; and
v. for each full Bonus Eligible Year worked by the Executive for the
Company, any incentive payment due and payable pursuant to Section 4
hereof in accordance with the provisions thereof, and for each
partial Bonus Eligible Year worked by the Executive for the Company,
a pro-rate portion of any incentive payment that would be due and
payable pursuant to Section 4 in accordance with the provisions
thereof assuming that the Executive worked for the Company for the
full Bonus Eligible Year.
In the event Executive's employment is terminated pursuant to this Section 7(b),
Executive and/or his family shall continue to be entitled to coverage under the
plans, programs and arrangements referred to in Section 4(b) hereof for so long
as Executive continues to receive payments from the Company pursuant to clause
(iv) of this Section 7(b).
(c) Termination by the Executive for Good Reason. In the event that
Executive's employment is terminated by the Executive for Good Reason, the
Company shall pay the following amounts to Executive:
i. any accrued but unpaid Base Salary (as determined pursuant to
Section 3 hereof) for services rendered to the date of termination,
which amount shall be paid to the Executive within thirty (30) days
following the date of termination;
ii. any accrued but unpaid expenses required to be reimbursed pursuant
to Section 5(a) hereof, which amount shall be paid to the Executive
within thirty (30) days following the date of termination;
iii. any accrued but unpaid vacation time pursuant to Section 5(c)
hereof, which amount shall be paid to the Executive within thirty
(30) days following the date of termination;
iv. the Executive's Base Salary (as determined pursuant to Section 3(a)
hereof) for a period of six (6) months following the termination of
Executive's employment, to be paid in accordance with the Company's
standard payroll practices then in effect; and
v. for each full Bonus Eligible Year worked by the Executive for the
Company, any incentive payment due and payable pursuant to Section 4
hereof in accordance with the provisions thereof.
In the event Executive's employment is terminated pursuant to this Section 7(c),
Executive and/or his family shall continue to be entitled to coverage under the
plans, programs and arrangements referred to in Section 4(b) hereof for so long
as Executive continues to receive payments from the Company pursuant to clause
(iv) of this Section 7(c).
(d) No Other Benefits or Compensation. Except as may be provided
under this Agreement or under the terms of any incentive compensation, employee
benefit or fringe benefit plan applicable to Executive at the time of the
termination of Executive's employment prior to the end of the Term, Executive
shall have no right to receive any other compensation, or to participate in any
other plan, arrangement or benefit, with respect to any future period after such
termination.
(e) General. (i) In the event that Executive's employment is
terminated for any reason, the Company's payment of salary and other amounts
specifically provided for in the applicable previous paragraph of this Section 7
shall constitute complete satisfaction of all payment obligations of the Company
to Executive pursuant to this Agreement. Upon any such termination, Executive
shall cease to be an employee of the Company for all purposes and (except as
otherwise expressly set forth in this Agreement) the Company shall have no
obligation to Executive to provide Executive with any employee benefits or
perquisites hereunder.
(ii) Executive's rights set out in this Agreement shall
constitute Executive's sole and exclusive rights and remedies as a result of
Executive's actual or constructive termination of employment.
8. Noncompetition and Nonsolicitation; Nondisclosure of Proprietary
Information; Surrender of Records.
(a) Noncompetition; Nonsolicitation.
(i) Executive acknowledges and recognizes the highly
competitive nature of the Company's business and that his position with the
Company and access to the Company's confidential records and proprietary
information renders him special and unique. In consideration of payments made
and to be made by the Company to Executive pursuant to this Agreement
(including, without limitation, pursuant to Section 3 hereof), Executive agrees
not to, directly or indirectly, by ownership of securities or otherwise (other
than as a stockholder of not more than five percent (5%) of any class of
securities of any other corporation, which class of securities shall have been
registered under Section 12 of the Securities Exchange Act of 1934, as amended),
for a period equal to the later of (A) five (5) years after the Closing Date (as
defined in the Asset Purchase Agreement) and (B) three (3) years after the
termination or expiration of this Agreement, engage in any business competitive
with the business of the Company located in North America (the "Geographic
Region") or become associated with or render services in connection therewith to
any person, firm, corporation, association or other entity so engaged (other
than Dynabazar and its Affiliates and their respective successors and assigns)
in such Geographic Region.
(ii) In further consideration of the payments made and to be
made by the Company to Executive pursuant to this Agreement (including, without
limitation, pursuant to Section 3 hereof), Executive agrees that during the Term
of this Agreement and for a period of two (2) years thereafter, he shall not,
directly or indirectly, (A) advise or encourage any employee, agent, consultant,
representative or customer of, or vendor or supplier to, the Company to
terminate his, her, or its relationship with the Company or to reduce the amount
of business customarily done with the Company, or (B) solicit or attempt to
solicit or participate in the solicitation of or employ or otherwise engage any
employee of the Company, or otherwise advise or encourage any employee to become
an employee, agent, representative or consultant of or to any other Person.
(iii) Executive understands that the provisions of this
Section 8(a) may limit his ability to earn a livelihood in a business similar to
the business of the Company but nevertheless agrees and hereby acknowledges that
the consideration provided under this Agreement, including any amounts provided
under Section 3 hereof, are sufficient to justify the restrictions contained in
such provisions. In consideration thereof and in light of Executive's education,
skills and abilities, Executive agrees that he will not assert in any forum that
such provisions prevent him from earning a living or otherwise are void or
unenforceable or should be held void or unenforceable.
(iv) For purposes of any provision of Section 8 hereof,
"directly or indirectly" means in Executive's individual capacity for his own
benefit or for the benefit of a third party, or as a shareholder, partner,
member, principal, officer, director, trustee, employee, representative, agent
or consultant of or to any Person whatsoever.
(b) Proprietary Information. Executive acknowledges that during the
course of his employment with the Company he will necessarily have access to and
make use of proprietary information and confidential records of the Company and
its affiliates. Executive covenants that he shall not, during the Term or at any
time thereafter (irrespective of the
circumstances under which Executive's employment with the Company terminates),
directly or indirectly, use for his own purpose or for the benefit of any Person
other than the Company and its affiliates, nor otherwise disclose, any
proprietary information of which he has knowledge to any Person, unless such
disclosure has been authorized in writing by the Company or such affiliates or
is otherwise required by law. Executive acknowledges and understands that the
term "proprietary information" includes, but is not limited to, patents,
copyrights and trade secrets such as: (i) designs, drawings, sketches, fabrics,
accessories and ornaments utilized or incorporated in or proposed to be utilized
or incorporated in any product of the Company or its affiliates; (ii) the
software products, programs, applications and processes utilized by or on behalf
of the Company and its affiliates (other than off-the-shelf software programs);
(iii) the name and/or address of any customer or vendor of the Company and its
affiliates or any information concerning the transactions or relations of any
customer or vendor of the Company and its affiliates with the Company or any of
its shareholders, principals, directors, officers, employees or agents; (iv) any
information concerning any product, technology or procedure employed by or on
behalf of the Company and its affiliates but not generally known to its
customers, vendors or competitors, or under development by or being tested by or
on behalf of the Company and its affiliates but not at the time offered
generally to customers or vendors; (v) any information relating to the Company's
computer software, computer systems, pricing or marketing methods, sales
margins, cost or source of raw materials, supplies or goods, capital structure,
operating results, borrowing arrangements or business plans; (vi) any
information which is generally regarded as confidential or proprietary in any
line of business engaged in by or on behalf of the Company and its affiliates;
(vii) any business plans, budgets, advertising or marketing plans of the Company
or its affiliates; (viii) any information contained in any of the written or
oral policies and procedures or manuals of the Company or its affiliates; (ix)
any information belonging to customers, vendors or affiliates of the Company and
its affiliates or any other individual or entity which the Company and its
affiliates has agreed to hold in confidence; and (x) all written, graphic and
other material (whether in writing on magnetic tape or in electronic or other
form) relating to or containing any of the foregoing. Executive acknowledges and
understands that information that is not novel or copyrighted or trademarked or
patented may nonetheless be proprietary information. The term "proprietary
information" shall not include information generally available to and known by
the public or information that is or becomes available to Executive on a
non-confidential basis from a source other than the Company (or any of its
affiliates) or the Company's shareholders, principals, directors, officers,
employees or agents (other than as a result of a breach of any obligation of
confidentiality).
(c) Confidentiality and Surrender of Records. Following the
expiration or termination of this Agreement, Executive shall not retain, and
will deliver promptly to the Company, all confidential records. The term
"confidential records" means all correspondence, memoranda, files, manuals,
books, designs, sketches, lists, financial, operating, or marketing records,
magnetic tape, or electronic or other media or equipment or records of any kind
which may be in Executive's possession or under his control or accessible to him
which contain any proprietary information. All confidential records shall be and
remain the sole property of the Company during the Term and thereafter.
(d) Disclosure Required by Law. In the event Executive is required
by law or court order to disclose any proprietary information or confidential
records of the Company, Executive shall provide the Company with prompt written
notice so that the Company
may seek a protective order or other appropriate remedy, and if such protective
order or other remedy is not obtained, Executive shall furnish only that portion
of the proprietary information or confidential records that is legally required
and, upon request, shall assist the Company (at the Company's expense) in
obtaining assurance that confidential treatment will be accorded such
information or records.
(e) No Other Obligations. Executive represents and warrants to the
Company that he is not precluded or limited in his ability to undertake or
perform the duties described herein by any contract, agreement or restrictive
covenant. Executive covenants that he shall not employ the trade secrets or
proprietary information of any other person in connection with his employment by
the Company.
(f) Confidentiality. Executive agrees to keep confidential the terms
of this Agreement. This provision does not prohibit Executive from providing
this information to his attorneys or accountants for purposes of obtaining legal
or tax advice or as otherwise required by law; provided, however, the Executive
shall be responsible for breaches of the confidentiality restrictions contained
herein by such people as if Executive herself had breached such restrictions.
The Company shall not disclose the terms of this Agreement except as necessary
in the ordinary course of its business, as required by law or as required by any
governmental or quasi-governmental entity or any self regulatory organization.
(g) Developments the Property of the Company. All discoveries,
inventions, designs, drawings, sketches, products, processes, methods and
improvements conceived, developed or otherwise made by Executive at any time,
alone or with others, and in any way relating to the present or future business
or products of the Company and its Affiliates, including fabric or other
designs, whether or not subject to copyright protection and whether or not
reduced to tangible form during the period of Executive's employment with the
Company (collectively referred to as "Developments"), shall be the sole property
of the Company. Executive agrees to, and hereby does, assign to the Company all
of Executive's right, title and interest throughout the world in and to all
Developments. Executive agrees that all such Developments that are copyrightable
shall constitute works made for hire under the copyright laws of the United
States and Executive hereby assigns to the Company all copyrights and other
proprietary rights Executive may have in any such Developments to the extent
that they might not be considered works made for hire. There shall be excluded
from this Section 8(g) any Development made by Executive (i) which is developed
by Executive without the use of the Company's property or facilities, (ii) which
does not make use of any confidential or proprietary information of the Company
or any of its Affiliates and (iii) which does not relate to the Company's
business or to the ongoing or planned product development efforts of the Company
and its affiliates. Executive shall make and maintain adequate and current
written records of all Developments, and shall disclose all Developments fully
and in writing to the Company promptly after development of the same, and at any
time upon request; provided, however, that Developments excluded under the
preceding sentence shall be received by the Company in confidence.
(h) Enforcement. Executive acknowledges and agrees that, by virtue
of his position, his services, and access to and use of confidential records and
proprietary information, any violation by his of any of the undertakings
contained in this Section 8 would
cause the Company or its Affiliates immediate, substantial and irreparable
injury for which it or any of them has no adequate remedy at law. Accordingly,
Executive agrees that in the event of a breach by him of any said undertakings,
the Company will be entitled to temporary and permanent injunctive relief in any
court of competent jurisdiction (without the need to post any bond and without
proving that damages would be inadequate). Rights and remedies provided for in
this Section 8 are cumulative and shall be in addition to rights and remedies
otherwise available to the parties hereunder or under any other agreement or
applicable law.
9. No Third Party Rights. Except as set forth in Section 7(a), the parties
do not intend the benefits of this Agreement to inure to any person or entity
not a party to this Agreement and notwithstanding anything contained in this
Agreement, or any conduct or course of conduct by either party before or after
signing this Agreement, this Agreement shall not be construed as creating any
right, claim or cause of action against either party by any person or entity not
a party to this Agreement.
10. Notices. Any notice, consent, request or other communication made or
given in accordance with this Agreement shall be in writing and shall be deemed
to have been duly given when actually received if delivered in person, sent by
Federal Express or equivalent courier service, or if mailed, three (3) business
days after mailing by registered or certified mail, return receipt requested, to
those listed below at their following respective addresses, or at such other
address as each may specify by notice to the others:
To the Company:
Costar Video Systems, LLC
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
With copies to:
Barington Capital Group, L.P.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
To Executive:
Xxxxx Xxxxxxxxx
0000 Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
11. Assignability; Binding Effect. This Agreement is a personal contract
calling for the provision of unique services by Executive, and Executive's
rights and obligations hereunder may not be sold, transferred, assigned, pledged
or hypothecated. In the event of any attempted assignment or transfer of rights
hereunder by Executive contrary to the provisions hereof, the Company will have
no further liability for payments hereunder. The rights and
obligations of the Company hereunder will be binding upon and run in favor of
the successors and assigns of the Company.
12. Complete Understanding; Amendment; Waiver. This Agreement constitutes
the complete understanding between the parties with respect to the employment of
Executive and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof,
and no statement, representation, warranty or covenant has been made by either
party with respect thereto except as expressly set forth herein. All prior
employment, consulting or other agreements between the Company and Executive
with respect to the performance of any services by Executive to the Company or
any of its Affiliates (including, without limitation, Video Solutions) or the
payment of any royalties, license fees or other similar fees to Executive, are
terminated as of the Effective Date. This Agreement shall not be altered,
modified, amended or terminated except by a written instrument signed by each of
the parties hereto. Any waiver of any term or provision hereof, or of the
application of any such term or provision to any circumstances, shall be in
writing signed by the party charged with giving such waiver. Waiver by either
party hereto of any breach hereunder by the other party shall not operate as a
waiver of any other breach, whether similar to or different from the breach
waived. No delay on the part of the Company or Executive in the exercise of any
of their respective rights or remedies shall operate as a waiver thereof, and no
single or partial exercise by the Company or Executive of any such right or
remedy shall preclude other or further exercise thereof.
13. Severability. If any provision of this Agreement or the application of
any such provision to any party or circumstances shall be determined by any
court of competent jurisdiction to be invalid or unenforceable to any extent,
the remainder of this Agreement, or the application of such provision to such
person or circumstances other than those to which it is so determined to be
invalid or unenforceable, shall not be affected thereby, and each provision
hereof shall be enforced to the fullest extent permitted by law. To the extent
that a court of competent jurisdiction determines that Executive breached any
undertaking in Section 8 hereof, any and all of the Company's obligations to
make payments hereunder shall immediately cease, provided that the Company shall
be liable for such payments in the event that the determination of such court is
overturned or reversed by any higher court. If the final judgment of a court of
competent jurisdiction declares that any item or provision hereof is invalid or
unenforceable, the parties hereto agree that the court making the determination
of invalidity or unenforceability shall have the power, and is hereby directed,
to reduce the scope, duration or area of the term or provision, to delete
specific words or phrases and to replace any invalid or unenforceable term or
provision with a term or provision that is valid and enforceable and that comes
closest to expressing the intention of the invalid or unenforceable term or
provision, and this Agreement shall be enforceable as so modified.
14. Survivability. The provisions of this Agreement which by their terms
call for performance subsequent to termination of Executive's employment
hereunder, or of this Agreement, shall so survive such termination.
15. Governing Law; Consent to Jurisdiction. This Agreement shall be
governed by, and construed and enforced in accordance with, the internal laws of
the State of New York applicable to contracts made and to be entirely performed
therein, without regard to
principles of conflicts of laws. In the event of any controversy or claim
arising out of or relating to this Agreement or the breach or alleged breach
hereof, each of the parties hereto irrevocably (a) submits to the exclusive
jurisdiction of any New York state court sitting in the County of New York or
any federal court sitting in U.S. District Court for the Southern District of
the State of New York, (b) waives any objection which it may have at any time to
the laying of venue of any action or proceeding brought in any such court, (c)
waives any claim that such action or proceeding has been brought in an
inconvenient forum, and (d) agrees that service of process or of any other
papers upon such party by registered mail at the address to which notices are
required to be sent to such party under Section 10 shall be deemed good, proper
and effective service upon such party.
16. Counterparts; Facsimile. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Each counterpart may
consist of a number of copies hereof each signed by less than all, but together
signed by all of the parties hereto. Facsimile transmission of any signed
original counterpart and/or retransmission of any signed facsimile transmission
shall be deemed the same as the delivery of an original.
17. Interpretation. The headings and captions used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement. The parties hereto acknowledge and agree that: (i)
each party and its counsel reviewed and negotiated the terms and provisions of
this Agreement and have contributed to its revision; (ii) the rule of
construction to the effect that any ambiguities are resolved against the
drafting party shall not be employed in the interpretation of this Agreement;
and (iii) the terms and provisions of this Agreement shall be construed fairly
as to all parties hereto and not in favor of or against any party, regardless of
which party was generally responsible for the preparation of this Agreement.
18. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY.
[SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement as of the date first above written.
COSTAR VIDEO SYSTEMS, LLC
By: /s/ Xxxxx X. Xxxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxxx
Title: President
XXXXX XXXXXXXXX
/s/ Xxxxx Xxxxxxxxx
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Schedule Intentionally Omitted
