EXHIBIT 99.2
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made as
of March 31, 2004, effective as of April 1, 2004 (the "Effective Date") between
Xxxxxx Interactive Inc., a Delaware corporation ("Company"), and Xxxxxx
Xxxxxxxxx ("Executive").
This Agreement amends, replaces, and restates in its entirety the
Employment Agreement made between Company and Executive dated as of August 5,
2001 (the "2001 Agreement"). Notwithstanding the foregoing, all amounts accrued
but unpaid as of the Effective Date pursuant to Sections 3.1, 3.3, 3.4, 3.5 (but
only as Section 3.5 applies to unused vacation carried over from calendar 2003),
and 3.6 of the 2001 Agreement shall continue to be due and payable when and as
required thereby.
In consideration of the premises and the mutual agreements contained
herein and intending to be legally bound hereby, the parties hereto agree as
follows:
SECTION 1 CAPACITY AND DUTIES
1.1 Employment. Company shall continue to employ Executive and
Executive hereby accepts continued employment by Company for the period and upon
the terms and conditions hereinafter set forth.
1.2 Capacity and Duties.
Asof the Effective Date, Executive hereby resigns as the
President and Chief Operating Officer of Company, and as a
member of the Board of Directors ("Board") of the Company.
Executive will remain as an employee of the Company
reporting to the Board of Directors of the Company (the
"Board") acting through its Lead Director. From the
Effective Date through the Termination Date Executive
shall perform only such duties and shall have only such
authority as may from time to time be specified in writing
by the Lead Director of the Board of Directors of Company;
provided, however, that Executive shall not be required to
perform duties except duties of a senior executive nature
and, to the extent requested by the Lead Director of the
Board and mutually agreed between Executive and such Lead
Director in advance in writing, duties related to
acquisitions. All duties of Executive shall be performed
in a manner that will faithfully and diligently further
the business and interests of Company. Executive shall not
be required to devote full time efforts to the performance
of duties hereunder, and may accept outside consulting
assignments during the term of this Agreement, subject,
however, to the provisions of Section 5 of this Agreement.
(b) The Company will provide Executive with an office in
Princeton, New Jersey and secretarial support through and including the
Termination Date.
1.3 Good Will. Until and following the Termination Date and subject to
any applicable legal requirements, Executive will act and communicate in a
manner consistent with
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maintenance of the good will and positive internal and public perception of
Company, and Company will act and communicate in a manner consistent with
maintenance of the good will and positive public perception of Executive.
SECTION 2 TERM OF EMPLOYMENT
2.1 Term. Executive's employment hereunder shall continue through and
including the earliest to occur of (i) January 15, 2005, (ii) death of
Executive, and (iii) the date on which Executive's employment is terminated by
the Board of Directors for Cause (defined below), or by Executive for any
reason, pursuant to the provisions of this Agreement (the "Termination Date").
SECTION 3 COMPENSATION
3.1 Base Compensation. As compensation for Executive's services
commencing on the Effective Date and continuing through and including the
Termination Date, Company shall pay to Executive base compensation in the form
of salary of $375,000 per annum. The salary shall be payable in periodic
installments in accordance with Company's regular payroll practices for its
executive personnel at the time of payment, but in no event less frequently than
monthly. Executive's annual salary is hereinafter referred to as Executive's
"Base Compensation". In the event that the Lead Director requests the Executive
to perform additional services related to acquisitions as provided in Section
1.2(a), Executive shall receive additional compensation in connection therewith,
but only as mutually agreed in advance in writing by Executive and the Lead
Director.
3.2 Performance Bonus. The Company's Board of Directors, by resolution
adopted on November 12, 2003, approved an incentive executive bonus plan which
provided for creation of a bonus pool of a variable amount (which could be zero)
payable to senior executives, and further provided for payment to Executive of
17.5% of amounts allocated to such pool after completion of fiscal year 2004, in
each case, however, expressly subject to achievement by the Company of specified
financial targets. On the Effective Date, the Company shall provide Executive
with a copy of the minutes of the Board of Directors evidencing adoption of the
plan with a copy of the plan as adopted attached, certified by the Secretary of
the Company. Executive shall continue to be entitled to receive his percentage
share of the bonus pool, if any, earned under the terms of such incentive plan
and any such earned bonus shall be payable on or before September 30, 2004. In
the event that the fiscal year 2004 bonus plan is amended or the manner and form
of payment thereunder are modified after the Effective Date and prior to
September 30, 2004 (other than an allocation or reallocation of the remaining
82.5% of the pool among the other executives participating in the pool that does
not affect the payment due to Executive thereunder), Executive's bonus hereunder
shall be correspondingly modified so that Executive's bonus is earned and paid
in the same manner as is applicable to the other executive employees covered by
the plan.
In the event that Executive performs services in connection with
acquisition activity if and as mutually agreed by the Lead Director of the Board
and Executive pursuant to Section 1.2 hereof, Executive shall be entitled to
participate in the Company's fiscal year 2005 bonus pool to the extent agreed in
writing in advance of the performance of such services.
3.3 Employee Benefits. Prior to the Termination Date, Executive shall
be entitled to participate in such of Company's employee benefit plans and
benefit programs, such as medical, hospitalization, dental, disability,
accidental death and dismemberment and travel accident plans and
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programs, as may from time to time be provided by Company for its senior
executives generally. In addition, prior to the Termination Date Executive shall
be eligible to participate in all pension, retirement, savings and other
employee benefit plans and programs maintained from time to time by Company for
the benefit of its senior executives generally. Company shall have no
obligation, however, to maintain any particular program or level of benefits
referred to in this Section 3.3.
3.4 Car Allowance. Through and including the Termination Date, the
Company shall provide Executive with an automobile allowance of $1,000.00 per
month for the use of an automobile owned or leased by him in accordance with the
policies and procedures established by the Company from time to time for
executive employees.
3.5 Vacation. Executive shall be entitled to 15 days of paid vacation
between the Effective Date and the Termination Date. Any vacation days that are
not taken shall not be carried over or provide a basis of additional
compensation. The Executive may be granted leaves of absence with or without pay
for such valid and legitimate reasons as the Board in its sole and absolute
discretion may determine, and is entitled to the same sick leave and holidays
provided to other senior executive officers of Company.
3.6 Expense Reimbursement. Company shall reimburse Executive for all
reasonable and documented expenses incurred by him in connection with the
performance of Executive's duties under Section 1.2 in accordance with its
regular reimbursement policies as in effect from time to time.
3.7 Stock Options. The Incentive Stock Option Agreement (the "Option
Agreement") entered into as of November 1, 2001 between Company and Executive,
which provides for an aggregate of 500,000 options vesting through and including
October 31, 2004 subject to the terms of the Option Agreement, remains unchanged
and in full force and effect.
3.8 Special Bonus. As additional incentive and contingent upon
Executive's performance of his obligations under this Agreement through and
including the period ending on January 15, 2005, the Company shall pay an
additional bonus of $134,600 to Executive on January 30, 2005.
3.9 Compensation For Excess "Parachute Payments". If all or any portion
of the payments or other benefits provided to Executive under this Agreement,
either alone or together with other payments and benefits which Executive
receives or is entitled to receive from Company, constitutes an excess
"parachute payment" within the meaning of section 280G of the Internal Revenue
Code of 1986, as amended, and as it may be amended on or after the date of this
Agreement (the "Code"), and results in the imposition on Executive of an excise
tax under section 4999 of the Code, then, in addition to any other benefits to
which Executive is entitled under this Agreement, Company shall pay Executive an
amount equal to the sum of (i) the excise taxes payable by Executive by reason
of receiving excess parachute payments; and (ii) a gross-up amount necessary to
offset any and all applicable federal, state, and local excise, income, or other
taxes incurred by Executive by reason of Company's payment of the excise tax
described in (i) above on or after the date of this Agreement.
SECTION 4 TERMINATION OF EMPLOYMENT
4.1 Accrued Base Obligations; Accrued Bonus Obligations. For purposes
of this Agreement, (i) "Accrued Base Obligations" shall mean amounts for Base
Compensation, expense reimbursement, employee benefits, and car allowance which
have accrued and are unpaid as of the
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Termination Date, and (ii) "Accrued Bonus Obligations" shall mean the amount of
any Performance Bonus that would have been payable but for occurrence of the
Termination Date, pro rated for the portion of the applicable fiscal year
elapsed prior to the Termination Date. Accrued Base Obligations shall be paid
within thirty (30) days after the Termination Date, and Accrued Bonus
Obligations shall be paid on the date on which they would have been paid under
this Agreement absent the occurrence of the Termination Date.
4.2 Death of Executive. Upon death of the Executive, the Company shall
not be obligated to make any further payments hereunder except for Accrued Base
Obligations and Accrued Bonus Obligations.
4.3 Termination for Cause.
(a) Executive's employment hereunder shall terminate
immediately upon the giving of written notice to Executive that the majority of
the Board has duly adopted a resolution finding that Cause (as defined herein)
exists in the good faith opinion of the Board, in which event Company shall not
thereafter be obligated to make any further payments hereunder other than
Accrued Base Obligations.
(b) For purposes of this Agreement, "Cause" shall mean any of
the following:
willful conduct that is materially and demonstrably
injurious to Company or any of its subsidiaries,
but not including (x) good faith conduct taken
without intention to injure the Company or its
subsidiaries that, at the time engaged in, could
not reasonably be expected to be more likely than
not to be materially injurious to the Company, or
(y) conduct that is taken in response to
instructions or a request for assistance made
pursuant to subclauses (iv) and (v) below;
conviction or plea of guilty or nolo contendere to a
crime, provided the act giving rise to such
conviction or plea is materially and demonstrably
injurious to the Company or any of its
subsidiaries;
violation of the confidentiality obligations
contained in Section 5.3,
failure to comply with written instructions from the
Lead Director regarding public communications
including among others communications with
analysts, shareholders, financial advisors, and
potential investors;
failure to cooperate with the Company or provide
reasonable assistance to the Company as requested
in writing by the Lead Director, provided,
however, that such requests for cooperation and
assistance shall not include performance of
executive duties other than consultative services
of a transitional nature and mutually agreed
duties in connection with acquisitions as
provided in Section 2.1; and
material breach of any provision of this Agreement by
Executive, which breach continues for more than
ten days after written notice thereof is given by
the Board to Executive.
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(c) This Section 4.3 shall not prevent Executive from challenging in
any arbitration proceeding the Board's determination that Cause exists or that
Executive has failed to cure any act (or failure to act), to the extent
permitted by this Agreement, that purportedly formed the basis for the Board's
determination. Company must provide written notice to Executive that it is
intending to terminate Executive's employment for Cause within one hundred and
twenty (120) days after the Board has actual knowledge of the occurrence of the
event it believes constitutes Cause.
4.4 Termination by Executive for Good Reason.
(a) If Executive's employment is terminated by Executive for
Good Reason prior to January 15, 2005, then Company shall continue to make all
payments and provide all benefits on the dates otherwise required by Sections
3.1, 3.2, 3.3, and 3.4 through and including January 15, 2005, and as required
by Section 3.8; provided, however, if Executive, Executive's spouse or
Executive's dependents are ineligible to participate in the Company benefit
programs under Section 3.3, the Company shall arrange to provide Executive,
Executive's spouse and Executive's dependents with the economic equivalent of
such benefits which they otherwise would have been entitled to receive, provided
that such benefits shall terminate upon the date or dates Executive receives
coverage and benefits which are substantially similar, taken as a whole, without
waiting period or pre-existing condition limitations, under the plans and
programs of a subsequent employer. Upon making the payments described in this
Section 4.4, Company shall have no further obligation to Executive hereunder.
(b) For purposes of this Agreement, "Good Reason" shall mean
any of the following:
(i) material breach of Company's obligations hereunder,
which breach continues for more than ten days after written notice thereof is
given by the Executive to the Lead Director;
(ii) the relocation of Executive's principal office to a
location more than thirty (30) miles from Princeton, New Jersey; provided,
however, that Executive's principal office shall not be deemed to be relocated
by virtue of Executive being required to travel to the extent reasonably related
and incidental to his duties hereunder; and
(iii) the failure of any successor in interest of
Company to be bound by the terms of this Agreement in accordance with Section
6.4 hereof.
(c) Executive must provide written notice to the Company that he is
intending to terminate Executive's employment for Good Reason within one hundred
and twenty (120) days after Executive has actual knowledge of the occurrence of
an event he believes constitutes Good Reason, which termination notice shall
specify a termination date within thirty (30) days after the date of such
notice. Subject to compliance by Executive with the notice provisions of this
Section 4.4, Executive's continued employment prior to terminating employment
for Good Reason shall not constitute consent to, or a waiver of rights with
respect to, any act or failure to act constituting Good Reason. No action by the
Board, other than the remedy of the circumstances within the time periods
specified in Section this 4.4, shall be binding on Executive.
4.5 Change in Control.
(a) If a Change of Control (as defined in the Option
Agreement) occurs prior to a Termination Date, Company shall, upon such Change
of Control, accelerate and immediately pay to
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Executive the payment required by Section 3.8 regardless of whether or not
Executive's employment continues after such Change of Control. All other
provisions of this Agreement shall remain in full force and effect.
(b) Upon the occurrence of a Change in Control, the stock
options covered by the Option Agreement that are not then exercisable, ie.
unvested, shall immediately vest and become exercisable by Executive as provided
in such Option Agreement.
4.6 Termination by Executive without Good Reason. In the event
Executive's employment is voluntarily terminated by Executive without Good
Reason, Company shall not be obligated to make any further payments to Executive
hereunder other than Accrued Base Obligations.
4.7 Mitigation. Executive shall not be required to mitigate amounts
payable under this Section 4 by seeking other employment or otherwise, and there
shall be no offset against amounts due Executive under this Agreement on account
of subsequent employment except as specifically provided herein.
4.8 Mutual Releases.
(a) As a condition of the payments and benefits required under
this Agreement, Executive shall execute and deliver to Company on January 15,
2005 a Release in the form attached hereto as Exhibit A. Executive acknowledges
that he has consulted with legal counsel prior to signing this Agreement, and
that by virtue of the date on which the Release is required to be delivered he
has at least twenty-one days to consider this Agreement, the Release, and their
respective language, meaning, and effect. Executive acknowledges that his
execution of the General Release is a precondition to his receiving benefits
under the Agreement. In the event that Executive executes the Release, he shall
have eight days to revoke it. If Executive chooses to revoke the Release, he
shall exercise such option by delivering written notice of the desire to so
revoke in the manner set forth in the Release and in such event the Release
shall be nullified and Company shall have all legal rights for breach by
Executive of the terms of this Agreement, including among others the right to
withhold the payment otherwise due under Section 3.8.
(b) Unless the Termination Date occurs due to a termination of
Executive for Cause pursuant to Section 4.3 or a voluntary termination by
Executive without "Good Reason" pursuant to Section 4.6, effective on the
Termination Date the Company hereby releases Executive from any and all claims,
causes of action, and/or liabilities of any kind or nature whatsoever, known or
unknown, at law, in equity, or otherwise, that may have occurred at any time up
to the date hereof, including, but not limited to, any and all possible claims
arising from his employment relationship or during his employment with the
Company or as a result of the parties' agreement to modify and end the
employment relationship, and hereby agrees not to assert such claims or causes
of action for monetary damages. This release is intended to be as complete and
broad as may be permitted under law, and it shall not be affected by the full or
partial invalidity of any other provision of the Agreement. Notwithstanding the
foregoing or anything else to the contrary in this Section 4.8(a), however, this
release does not extend to (i) any breach of Executive's obligations under this
Agreement, (ii) Executive's ongoing obligations under Section 5 hereof, and
(iii) any defense and or claim by the Company relating to any right to
indemnification, as an employee, officer or director of Company under law or
governing documents of the Company, asserted by Executive.
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SECTION 5 NON-COMPETITION AND CONFIDENTIALITY
5.1 Non-Competition.
(a) During the period through and including April 1,
2005 (the "Non-Competition Period"), Executive shall not, directly or
indirectly, own, manage, operate, join, control, participate in, invest in or
otherwise be connected or associated with, in any manner, including, without
limitation, as an officer, director, employee, distributor, independent
contractor, independent representative, partner, consultant, advisor, agent,
proprietor, trustee or investor, any Competing Business (defined herein);
provided, however, that ownership of 4.9% or less of the stock or other
securities of a corporation, the stock of which is listed on a national
securities exchange or is quoted on the NASDAQ Stock Market's National Market,
shall not constitute a breach of this Section 5, so long as the Executive does
not in fact have the power to control, or direct the management of, or is not
otherwise engaged in activities with, such corporation.
(b) For purposes hereof, the term "Competing Business"
shall mean any business or venture which is substantially similar to the whole
or any significant part of the business conducted by Company.
5.2 No Solicitation. During the Non-Competition Period, the Executive
shall not, directly or indirectly, including on behalf of, for the benefit of,
or in conjunction with, any other person or entity, (i) solicit, assist, advise,
influence, induce or otherwise encourage in any way, any employee of Company to
terminate Executive's relationship with Company for any reason, or assist any
person or entity in doing so, or employ, engage or otherwise contract with any
employee or former employee of Company in a Competing Business or any other
business unless such former employee shall not have been employed by Company for
a period of at least one year, (ii) interfere in any manner with the
relationship between any employee and Company or (iii) contact, service or
solicit any existing clients, customers or accounts of Company on behalf of a
Competing Business, either as an individual on Executive's own account, as an
investor, or as an officer, director, partner, joint venturer, consultant,
employee, agent or sales man of any other person or entity.
5.3 Confidential Information
(a) "Confidential Information" shall mean proprietary
information, trade secrets, and confidential records and information, including,
but not limited to, development, marketing, purchasing, organizational,
strategic, financial, managerial, administrative, production, distribution and
sales information, methods, data, specifications, technologies, and processes
(including the Transferred Property as hereinafter defined), presently owned or
at any time hereafter developed by Company, or its agents, consultants, or
otherwise on its behalf, or used presently or at any time hereafter in the
course of the business of Company, that are not otherwise part of the public
domain.
(b) Executive hereby sells, transfers and assigns to
Company, or to any person or entity designated by Company, all of Executive's
entire right, title and interest in and to all inventions, ideas, methods,
developments, disclosures and improvements (the "Inventions"), whether patented
or unpatented, and copyrightable material, and all trademarks, trade names, all
goodwill associated therewith and all federal and state registrations or
applications thereof, made, adopted or conceived by solely or jointly, in whole
or in part (collectively, the "Transferred Property"), prior to or
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during the Term which (i) relate to methods, apparatus, designs, products,
processes or devices sold, leased, used or under construction or development by
Company or (ii) otherwise relate to or pertain to the business, products,
services, functions or operations of the Company. Executive shall make adequate
written records of all Inventions, which records shall be Company's property and
shall communicate promptly and disclose to Company, in such forms Company
requests, all information, details and data pertaining to the aforementioned
Inventions. Whether during the Term or thereafter, Executive shall execute and
deliver to Company such formal transfers and assignments and such other papers
and documents as may be required of Executive to permit Company, or any person
or entity designated by Company, to file and prosecute patent applications
(including, but not limited to, records, memoranda or instruments deemed
necessary by Company for the prosecution of the patent application or the
acquisition of letters patent in the United states, foreign counties or
otherwise) and, as to copyrightable material, to obtain copyrights thereon, and
as to trademarks, to record the transfer of ownership of any federal or state
registrations or applications.
(c) All such Confidential Information is considered
secret and will be disclosed to the Executive in confidence, and Executive
acknowledges that, as a consequence of Executive's employment and position with
Company, Executive may have access to and become acquainted with Confidential
Information. Except in the performance of Executive's duties as an employee of
Company, Executive shall not, during the term and at all times thereafter,
directly or indirectly for any reason whatsoever, disclose or use any such
Confidential Information. All records, files, drawings, documents, equipment and
other tangible items (whether in electronic form or otherwise), wherever
located, relating in any way to or containing Confidential Information, which
Executive has prepared, used or encountered or shall in the future prepare, use
or encounter, shall be and remain Company's sole and exclusive property and
shall be included in the Confidential Information. Upon termination of this
agreement, or whenever requested by Company, Executive shall promptly deliver to
Company any and all of the Confidential Information and copies thereof, not
previously delivered to Company, that may be in the possession or under the
control of the Executive. The foregoing restrictions shall not apply to the use,
divulgence, disclosure or grant of access to Confidential Information to the
extent, but only to the extent, (i) expressly permitted or required pursuant to
any other written agreement between Executive and Company, (ii) such
Confidential Information has been publicly disclosed (not due to a breach by the
Executive of Executive's obligations hereunder, or by breach of any other
person, of a fiduciary or confidential obligation to Company or (iii) the
Executive is required to disclose Confidential Information by or to any court of
competent jurisdiction or any governmental or quasi-governmental agency,
authority or instrumentality of competent jurisdiction, provided, however, that
the Executive shall, prior to any such disclosure, immediately notify Company of
such requirements and provided further, however, that the Company shall have the
right, at its expense, to object to such disclosures and to seek confidential
treatment of any Confidential Information to be so disclosed on such terms as it
shall determine.
5.5 Consideration for Section 5 Covenants. The covenants made in this
Section 5 by Executive are made in consideration of the payments and benefits to
Executive under this Agreement, including in particular but not limited to the
payment provided by Section 3.8.
5.6 Acknowledgement; Remedies; Survival of this Agreement. Executive
acknowledges that violation of any of the covenants and provisions set forth in
Section 5 of this Agreement would cause Company irreparable damage and agrees
that Company's remedies at law for a breach or threatened breach of any of the
provisions of this Agreement would be inadequate. In recognition of this fact,
in the event of a breach or threatened breach by Executive of any of the
provisions of this
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Agreement, it is agreed that, in addition to the remedies at law or in equity,
Company shall be entitled, without the posting of a bond, to equitable relief in
the form of specific performance, a temporary restraining order, temporary or
permanent injunction, or any other equitable remedy which may then be available
for the purposes of restraining Executive from any actual or threatened breach
of such covenants. Without limiting the generality of the foregoing, if
Executive breaches or threatens to breach this Section 5 hereof, such breach or
threatened breach will entitle Company to enjoin Executive from disclosing any
Confidential Information to any Competing Business, to enjoin any Competing
Business from retaining Executive or using any such Confidential Information,
and to enjoin Executive from rendering personal services to or in connection
with any Competing Business. The rights and remedies of the parties hereto are
cumulative and shall not be exclusive, and each such party shall be entitled to
pursue all legal and equitable rights and remedies and to secure performance of
the obligations and duties of the other under this Agreement, and the
enforcement of one or more of such rights and remedies by a party shall in no
way preclude such party from pursuing, at the same time or subsequently, any and
all other rights and remedies available to it.
5.7 Survival. The provisions of this Section 5 shall survive the
termination of Executive's employment with Company.
SECTION 6 MISCELLANEOUS
6.1 Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Princeton, New Jersey, in accordance with the Commercial Arbitration Rules of
the American Arbitration Association then in effect. Judgment may be entered on
the arbitrator's award in any court having jurisdiction. The parties consent to
the authority of the arbitrator, if the arbitrator so determines, to award fees
and expenses (including legal fees) to the prevailing party in the arbitration.
Notwithstanding the foregoing, Company shall be entitled to enforce the
provisions of Section 5 hereof through proceedings brought in a court of
competent jurisdiction as contemplated by Section 6.8 hereof.
6.2 Severability; Reasonableness of Agreement. If any term, provision
or covenant of this Agreement or part thereof, or the application thereof to any
person, place or circumstance shall be held to be invalid, unenforceable or void
by a court of competent jurisdiction, the remainder of this Agreement and such
term, provision or covenant shall remain in full force and effect, and any such
invalid, unenforceable or void term, provision or covenant shall be deemed,
without further action on the part of the parties hereto, modified, amended and
limited, and the court shall have the power to modify, amend and limit any such
term, provision or covenant, to the extent necessary to render the same and the
remainder of the Agreement valid, enforceable and lawful. In this regard, the
Executive understands that the provisions of Section 5 may limit Executive's
ability to earn a livelihood in a business similar or related to the business of
Company, but nevertheless agrees and acknowledges that (i) the provisions of
Section 5 are reasonable and necessary for the protection of Company, and do not
impose a greater restraint than necessary to protect the goodwill or other
business interest of Company, (ii) such provisions contain reasonable
limitations as to the time and the scope of activity to be restrained, and (iii)
the payment Executive is receiving pursuant to Section 5 is adequate to fully
compensate Executive for any lost opportunity due to the operation of Section 5.
In consideration of the foregoing and in light of Executive's education, skills
and abilities, Executive agrees that all defenses by Executive to the strict
enforcement of such provisions are hereby waived by Executive.
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6.3 Assignment; Benefit. This Agreement shall not be assignable by
Executive, other than Executive's rights to payments or benefits hereunder,
which may be transferred only by will or the laws of descent and distribution.
Upon Executive's death, this Agreement and all rights of Executive hereunder
shall inure to the benefit of and be enforceable by Executive's beneficiary or
beneficiaries, personal or legal representatives, or estate, to the extent any
such person succeeds to Executive's interests under this Agreement. No rights or
obligations of Company under this Agreement may be assigned or transferred
except to a successor of the Company by purchase, merger consolidation or
otherwise which successor expressly or by operation of law assumes all of the
obligations of the Company hereunder. As used in this Agreement, "Company" shall
mean Company as hereinbefore defined and any such successor.
6.4 Notices. All notices hereunder shall be in writing and, except as
otherwise expressly provided herein, shall be sufficiently given if
hand-delivered, one business day after deposit with documented overnight
delivery service, or when delivered if by registered or certified mail, postage
prepaid, return receipt requested, addressed as set forth below or at such other
address for either party as may be specified in a notice given as provided
herein by such party to the other. Any and all service of process and any other
notice in any such action, suit or proceeding shall be effective against any
party if given in the manner provided for notices given under in this Agreement;
provided that nothing herein shall be deemed to affect the right of any party to
serve process in any other manner permitted by law.
If to Company:
Xxxxxx Interactive Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
With Copies To:
Xxxx Xxx Xxxxxxx, Esq.
Xxxxxx Beach LLP
00 Xxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
If to Executive:
Xxxxxx Xxxxxxxxx
00 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
With Copies To:
Xxxxxx X. Xxxxxx, Esq.
Drinker Xxxxxx & Xxxxx LLP
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
6.5 Entire Agreement and Modification. This Agreement constitutes the
entire agreement between the parties hereto with respect to the matters
contemplated herein and supersedes all prior agreements and understandings with
respect thereto. No amendment, modification, or waiver of this Agreement shall
be effective unless in writing. Neither the failure nor any delay on the part of
any party to exercise any right, remedy, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, power or privilege preclude any other or
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further exercise of the same or of any other right, remedy, power, or privilege
with respect to such occurrence or with respect to any other occurrence.
6.6 Governing Law. This Agreement is made pursuant to, and shall be
construed and enforced in accordance with, the laws of the State of New York and
the federal laws of the United States of America, to the extent applicable,
without giving effect to otherwise applicable principles of conflicts of law.
The parties hereto expressly consent to the jurisdiction of any state or federal
court located in New York, and to venue therein, and consent to the service of
process in any such action or proceeding by certified or registered mailing of
the summons and complaint therein directed to Executive or Company, as the case
may be, at its address as provided in Section 6.4 hereof.
6.7 Withholding. All payments hereunder shall be subject to any
required withholding of Federal, state and local taxes pursuant to any
applicable law or regulation.
6.8 Legal Representation. Each of the parties acknowledges that it has
been represented by legal counsel in the negotiation and drafting of this
Agreement, that this Agreement has been drafted by mutual effort, and that no
ambiguity in this Agreement shall be construed against either party as
draftsperson. The Company shall reimburse Executive for his reasonable
attorney's fees and disbursements, up to a maximum of $10,000, incurred in
connection with this Agreement.
6.9 Headings; Counterparts. The headings of sections in this Agreement
are for convenience only and shall not affect its interpretation. This Agreement
may be executed in two or more counterparts, each of which shall be deemed to be
an original and all of which, when taken together, shall be deemed to constitute
the same Agreement.
6.10 Further Assurances. Each of the parties hereto shall execute such
further instruments and take such other actions as the other party shall
reasonably request in order to effectuate the purposes of this Agreement
including among others executing such documents as reasonably relate to the
performance of duties under the 2001 Agreement and this Agreement (such as
representation letters to the Company's accountants related to periods covered
by the 2001 Agreement).
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
XXXXXX INTERACTIVE INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Chief Executive Officer
/s/ Xxxxxx Xxxxxxxxx
--------------------------------------
XXXXXX XXXXXXXXX
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