Exhibit 10.5
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "AGREEMENT"), dated as of January 24, 2007,
between Courtside Acquisition Corp., a Delaware corporation (the "COMPANY") and
Xxxxxx X. Xxxxxx ("EXECUTIVE").
WHEREAS, Executive is currently employed as Chief Financial Officer of
American Community Newspapers LLC ("LLC") and ACN Holding LLC, the sole member
of LLC ("Holding"), pursuant to an employment agreement dated as of December 9,
2004 (the "ORIGINAL AGREEMENT");
WHEREAS, the Company has entered into an Asset Purchase Agreement (the
"PURCHASE AGREEMENT") dated as of January 24, 2007, by and among the Company,
American Community Newspapers, LLC ("ACN") and Holding pursuant to which the
Company will purchase certain of the assets, and assume certain of the
liabilities, of ACN (the "ACQUISITION");
WHEREAS, the Company desires to enter into a new employment agreement with
Executive to take effect upon consummation of the Acquisition (the "COMMENCEMENT
DATE"); and
WHEREAS, Executive is willing to enter into such employment agreement on
the terms, conditions and provisions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises, terms, covenants
and conditions set forth herein and the performance of each, the parties hereby
agree as follows:
1. Employment and Duties.
(a) During the Term (as defined in Section 4), the Company shall
employ Executive in the position of Chief Financial Officer of the Company and
Operating Sub (as defined below) and such other positions as shall be given to
Executive by the Board of Directors of the Company or Operating Sub (defined
below) (as applicable, the "BOARD") or the Company's Chief Executive Officer
(the "CEO") and Executive shall report directly to the CEO. In addition,
Executive agrees to serve as Chief Financial Officer of the Company's
to-be-formed operating subsidiary which will hold the assets of ACN upon
consummation of the Acquisition (referred to herein as "Operating Sub").
Executive shall have such responsibilities, duties and authorities reasonably
accorded to and expected of such positions, as well as those that may be
established by the Board or the CEO, which responsibilities, duties and
authorities will be generally consistent with those of a chief financial officer
or treasurer. Executive shall report to the Chairman of the Board and Chief
Executive Officer of the Company and to the Board (and the Audit Committee
thereof). Executive hereby accepts this employment upon the terms and conditions
contained herein and agrees to devote his full business time, attention and
efforts to promote and further the business of the Company and Operating Sub,
and
Executive shall not, during the Term, be engaged in any other business activity
pursued for gain, profit or other pecuniary advantage without the prior written
consent of the Board. However, the foregoing limitations shall not be construed
as prohibiting Executive from making personal passive investments in such form
or manner as will neither require his services in the operation or affairs of
the companies or enterprises in which such investments are made, nor violate the
terms of Section 3 hereof. Notwithstanding the foregoing, Executive shall also
be able to devote occasional business time to charitable and community
activities, so long as such activities do not interfere with the discharge of
his duties and responsibilities to the Company and Operating Sub.
(b) Executive faithfully shall adhere to, execute and fulfill all
policies established by the Board.
(c) Executive shall be located at the Company's Addison, Texas office,
or such other location in the greater Dallas/Ft. Worth, Texas metropolitan area
or as the Executive and the Board may mutually determine, from which Executive
shall execute his responsibilities hereunder. Executive understands and agrees
that he shall be required to travel for business reasons to and from the
principal offices of, and on behalf of the Company and Operating Sub, and
Executive agrees that none of such travel requirements shall constitute Good
Reason (as defined below).
2. Compensation. For all services rendered by Executive in any capacity
required hereunder, the Company shall compensate Executive as follows:
(a) Base Salary. During the Term, Executive shall be paid a base
salary at the rate of $235,000 per year (the "BASE SALARY"), payable on a
regular basis in accordance with the Company's standard payroll procedures, but
not less frequently than monthly. The Base Salary shall be subject to annual
increases, commencing at the beginning of each calendar year, at the discretion
of the Board.
(b) Incentive Bonus Plan. Commencing for the calendar year in which
the consummation of the Acquisition occurs and thereafter during the Term,
Executive shall be eligible to receive a fiscal year-end performance cash bonus
equal to up to fifty percent (50%) of the Base Salary (the "BONUS"). The amount
of such bonus, if any, shall be determined after the audited financial
statements of the Company are prepared and shall be based upon the Company's and
the Executive's level of achievement of preestablished performance goals which
shall be determined by the Board, in its sole discretion, and such other factors
as may be determined by the Board, in its sole discretion.
(c) Benefits and Other Compensation. Executive shall be entitled to
receive additional benefits and compensation from the Company as follows:
(i) Payment of such premiums for coverage for Executive under
health, hospitalization, disability, dental, life and other insurance plans that
the Company may have in effect from time to time, on the same terms generally
provided to
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other executive employees from time to time, together with enhanced long term
disability and term life insurance on substantially the same terms as in effect
under the plans covering Executive and maintained by ACN on the date hereof (so
long as such terms are available without unreasonable increase in cost).
(ii) Reimbursement for all business travel and other
out-of-pocket expenses reasonably incurred by Executive in the performance of
his services pursuant to this Agreement. All reimbursable expenses shall be
appropriately documented in reasonable detail by Executive upon submission of
any request for reimbursement, and in a format and manner consistent with the
Company's expense reporting policy.
(iii) The Company shall provide Executive with other executive
perquisites as maybe available to, or deemed appropriate for, Executive by the
Board and shall allow Executive to participate in all other company-wide
employee benefits, including a defined contribution pension plan and 401 (k)
plan, as may be made available generally to executive employees from time to
time.
(iv) Executive shall be entitled to five (5) weeks of paid
vacation per calendar year (pro rated for partial calendar years worked), such
vacation to be taken at such times and intervals as shall be determined by
Executive. Vacation shall not be cumulative. In addition, Executive shall be
entitled to sick pay and personal days (e.g., bereavement, jury duty, etc.), if
any, as may be made generally available to Company employees from time to time.
(v) During the Term, Executive shall receive a car allowance of
$1,000 per month.
(d) No Other Compensation or Benefits; Payment. The compensation and
benefits specified in this Section 2 shall be in lieu of any and all other
compensation and benefits. Payment of all compensation and benefits to Executive
hereunder shall be made in accordance with the relevant Company policies in
effect from time to time, including normal payroll practices, and shall be
subject to all applicable employment and withholding taxes.
(e) Equity Plan. Prior to the Commencement Date at the special meeting
of its stockholders called to approve the Acquisition, the Company will request
approval of an Incentive Equity Plan (the "Equity Plan") providing for an
aggregate of 1,650,000 shares of the Company's common stock to be reserved for
issuance thereunder. The Executive will be eligible to participate in the Equity
Plan and will receive an initial grant, effective upon the Commencement Date,
comprised of 330,000 non-qualified stock options (the "OPTIONS"), all vesting in
eight (8) equal installments on each of December 31, 2007, June 30, 2008,
December 31, 2008, June 30, 2009, December 31, 2009, June 30, 2010, December 31,
2010 and on the fourth (4th) anniversary of the Commencement Date, and otherwise
subject to the terms of the Equity Plan. The non-qualified stock
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options will have an exercise price equal to the fair market value of the
Company's common stock on the Commencement Date.
(f) Cessation of Employment. In the event Executive shall cease to be
employed by the Company for any reason, then Executive's compensation and
benefits shall cease on the date of such event, except as otherwise provided
herein or in any applicable employee benefit plan or program.
3. Non-Competition.
(a) Executive shall not during the period of his employment by or with
the Company and for the Applicable Period (defined below), for himself or on
behalf of, or in conjunction with, any other person, persons, company,
partnership, limited liability company, corporation or business of whatever
nature:
(i) engage, as an officer, director, manager, member,
shareholder, owner, partner, joint venturer, trustee, or in a managerial
capacity, whether as an employee, independent contractor, agent, consultant or
advisor, or as a sales representative, in any newspaper publishing business that
is located within 75 miles of any market in the United States and any other
country in which the Company operates, that the Company either does business in,
or has plans to do business in, at the time of termination;
(ii) call upon any person who is at that time, or within the
preceding twelve (12) months has been, an employee of the Company, for the
purpose, or with the intent, of enticing such employee away from, or out of, the
employ of the Company or for the purpose of hiring such person for Executive or
any other person or entity, unless any such person was terminated by the Company
more than six (6) months prior thereto;
(iii) call upon any person who, or entity that is then or that
has been within one year prior to that time, a customer of the Company, for the
purpose of soliciting or selling products or services in competition with the
Company; or
(iv) call upon any prospective acquisition or investment
candidate, on the Executive's own behalf or on behalf of any other person or
entity, which candidate was known by Executive to have, within the previous
twelve (12) months, been called upon by the Company or for which the Company
made an acquisition or investment analysis or contemplated a joint marketing or
joint venture arrangement with, for the purpose of acquiring or investing or
enticing such entity into a joint marketing or joint venture arrangement.
For purposes of this Section 3:
o the term "COMPANY" shall be deemed to include Operating Sub; and
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o the term "APPLICABLE PERIOD" shall mean (A) the one (1) year
period following termination of Executive's employment with the
Company under Section 4(b) or Section 4(c)(i), or (B) in the case
of a termination of Executive's employment by the Company under
Section 4(c)(ii) or by Executive under Section 4(d), a period of
time equal to the Severance Period (defined in Section 4(f)
below).
(b) Because of the difficulty of measuring economic losses to the
Company as a result of a breach of the foregoing covenant, and because of the
immediate and irreparable damage that could be caused to the Company for which
it would have no other adequate remedy, Executive agrees that the foregoing
covenant may be enforced by the Company in the event of breach by him, by
injunctions and restraining orders.
(c) It is agreed by the parties that the foregoing covenants in this
Section 3 impose a reasonable restraint on Executive in light of the activities,
business and plans of the Company; it is also the intent of the Company and
Executive that such covenants be construed and enforced in accordance with any
change in the activities, business or plans of the Company throughout the Term.
(d) The covenants in this Section 3 are severable and separate, and
the unenforceability of any specific covenant shall not affect the provisions of
any other covenant.
(e) All of the covenants in this Section 3 shall be construed as an
agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Executive against the Company,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement of such covenants; provided, however, that the
Company's failure to make payments to Executive under Section 2 or Section 4 of
this Agreement shall constitute such a defense.
(f) Notwithstanding any of the foregoing, if any applicable law shall
reduce the time period during which Executive shall be prohibited from engaging
in any competitive activity described in Section 3(a) hereof, the period of time
for which Executive shall be prohibited pursuant to Section 3(a) hereof shall be
the maximum time permitted by law.
4. Term; Termination; Rights on Termination. The term of this Agreement
shall begin on the Commencement Date and continue until the fourth (4th)
anniversary thereof (the "TERM"). This Agreement shall become null and void in
the event of the termination of the Purchase Agreement prior to the consummation
of the Acquisition contemplated thereby. Notwithstanding any provision in this
Agreement to the contrary, this Agreement shall become effective only upon
consummation of the Acquisition. This Agreement may also be terminated by
Executive, if Executive is not issued the Options on the Commencement Date, such
termination to be effected by written notice given by Executive to the Company
within ten (10) days after the Commencement Date (upon
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which this Agreement shall be null and void). In addition, this Agreement and
Executive's employment may be terminated in any one of the following ways:
(a) Death. The death of Executive shall immediately terminate this
Agreement with no severance compensation due to Executive's estate.
(b) Disability. If, as a result of Executive's incapacity due to
physical or mental illness, Executive shall not have performed his duties
hereunder on a full-time basis for one hundred twenty (120) days or more in any
one hundred fifty (150) day period, Executive's employment under this Agreement
may be terminated by the Company upon thirty (30) days written notice if
Executive is unable to resume his full time duties at the conclusion of such
notice period. Executive's compensation during any period of disability prior to
the effective date of such termination shall be the amounts normally payable to
him in accordance with his then current annual base salary, reduced by the
amounts of disability pay, if any, paid to Executive under any Company
disability program. Executive shall not be entitled to any further compensation
from the Company for any period subsequent to the effective date of such
termination, except for a prorated portion of the targeted Bonus for the current
fiscal year and pay or benefits, if any, in accordance with then existing
severance policies of the Company and the severance terms of Company benefit
plans.
(c) Termination by the Company.
(i) FOR CAUSE. The Company may terminate this Agreement
immediately upon written notice to Executive for cause, which shall be: (1)
Executive's conviction of, or plea of nolo contendere to, a felony or other
crime involving moral turpitude; (2) Executive's breach of any fiduciary duty
owed to the Company or Operating Sub or their affiliates, or breach of the
provisions of Section 3 or Section 6 hereof that is not cured within ten (10)
days of written notice to Executive, (3) any other material breach by Executive
of this Agreement that is not cured within twenty (20) days of written notice to
Executive, or (4) Executive's commission of (A) any act of willful dishonesty or
fraud, (B) any act of embezzlement or other misappropriation of Company assets,
or (C) gross negligence or intentional nonperformance of duties, so long as such
breach or matter is not corrected or cured to the Company's reasonable
satisfaction within ten (10) days of notice to Executive thereof. In the event
of a termination for Cause, as enumerated above, Executive shall have no right
to any severance compensation.
(ii) WITHOUT CAUSE. In addition to the provisions of Section
4(c)(i), the Company may, at any time, terminate this Agreement upon written
notice to Executive, if such termination is approved by a majority of the Board
of the Company. In the event of such a termination "Without Cause," Executive
shall have the right to receive severance compensation as set forth below in
Section 4(f).
(d) Termination by Executive For Good Reason. Executive may terminate
this Agreement upon thirty (30) days' written notice to the Company in the event
of (1) a
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material breach by the Company of the terms of this Agreement, (2) the Board
assigning Executive duties that are not commensurate with the position of chief
financial officer, (3) a reduction in Executive's Base Salary or Bonus
percentage set forth in Section 2 above, or a material change in the aggregate
benefits provided to Executive (other than reductions in benefits which apply to
all employees of the Company, generally), or (4) the office of the Company to
which Executive is assigned is moved out of the greater Dallas/Ft. Worth, Texas
metropolitan area, so long as such breach or matter is not corrected or cured
within such thirty (30) day period. Such events shall hereinafter be referred to
as "FOR GOOD REASON." In the event of a termination For Good Reason, Executive
shall have the right to receive severance compensation as set forth below in
Section 4(f). If Executive resigns or otherwise terminates his employment for
any reason other than For Good Reason, Executive shall receive no severance
compensation.
(e) Payment Through Termination. Upon termination of this Agreement
for any reason provided above, Executive (or Executive's estate, as applicable)
shall be entitled to receive all compensation earned and all benefits and
reimbursements (including payments for accrued vacation and sick leave) due
through the effective date of termination. Additional compensation subsequent to
termination, if any, shall be due and payable to Executive only to the extent,
and in the manner, expressly provided above. All other rights and obligations
under this Agreement shall cease as of the effective date of termination, except
that Executive's obligations under Sections 3, 5, 6, 7 and 9 shall survive such
termination in accordance with their terms.
(f) Severance. If Executive's employment is terminated by the Company
pursuant to Section 4(c)(ii) Without Cause, or by Executive pursuant to Section
4(d) For Good Reason, the Company shall, subject to Executive's execution of a
general release of all claims and rights that Executive may have against the
Company and its related entities and their respective officers, directors, and
employees, including but not limited to all claims and rights relating to
Executive's employment and/or termination, in a form reasonably acceptable to
the Company and Executive (a "RELEASE"), continue to pay Executive (the
"SEVERANCE") his then current Base Salary plus the targeted Bonus for the
remainder of the Term (the "Severance Period"). Notwithstanding anything herein
to the contrary, the Severance payments shall terminate twenty (20) days after
the Company provides notice to Executive that the Company intends to terminate
such payments because Executive has breached a provision of Sections 3, 5, or 6
of this Agreement. It is understood and agreed that the Release shall not
release or affect (x) any right of Executive to indemnification in his capacity
as an officer of the Company or Operating Sub or member of the Board, on the
same terms available to other officers or members of the Board generally or (y)
any remaining obligations of the Company under this Agreement to be performed
from and after the date of such Release.
(g) Non-Disparagement. Each of the Company and Executive agrees that,
during the Term and following the expiration or early termination thereof, it or
he, as the case may be, will not make any derogatory comments, either written or
oral, which could be construed as negative or derogatory concerning the other,
to any persons including,
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but not limited to, clients, customers, potential clients, potential customers,
vendors, employees, or financial or credit institutions.
(h) Vesting. Following termination of Executive's employment with the
Company under Section 4(a), Section 4(b), Section 4(c)(ii) or Section 4(d) all
options scheduled to vest on the vesting date immediately following the date of
such termination shall automatically vest.
5. Inventions. Executive shall disclose promptly to the Company any and all
significant conceptions and ideas for inventions, improvements and valuable
discoveries ("INVENTIONS"), whether patentable or not, that are conceived or
made by Executive, solely or jointly with another, during the period of
employment and that are directly related to the business or activities of the
Company and that Executive conceives as a result of his employment by the
Company. Executive hereby assigns and agrees to assign all his interests in the
Inventions to the Company or its nominee. Executive agrees that all Inventions
that he develops or conceives and/or documents during such period shall be
deemed works made-for-hire for the Company within the meaning of the copyright
laws of the United States or any similar or analogous law or statute of any
other jurisdiction, and accordingly, the Company shall be the sole and exclusive
owner for all purposes for the distribution, exhibition, advertising and
exploitation of the Inventions or any part of them in all media and by all means
now known or that may hereafter be devised, throughout the universe in
perpetuity. Executive agrees that in furtherance of the foregoing, he shall
disclose, deliver and assign to the Company all Inventions and shall execute all
such documents, including patent and copyright applications, as the Company
reasonably shall deem necessary to further document the Company's ownership
rights therein and to provide the Company the full and complete benefit thereof.
Should any arbitrator or court of competent jurisdiction ever hold that the
materials derived from Executive's contributions to the Company do not
constitute works made-for-hire, Executive hereby irrevocably assigns to the
Company, and agrees that the Company shall be the sole and exclusive owner of,
all right, title and interest in and to all Inventions, including the copyrights
and any other proprietary rights arising therefrom. Executive reserves no rights
with respect to any Inventions, and hereby acknowledges the adequacy and
sufficiency of the compensation paid and to be paid by the Company to Executive
for the Inventions and the contributions he will make to the development of any
such information or Inventions. Executive agrees to cooperate with all lawful
efforts of the Company to protect the Company's rights in and to any or all of
such information and Inventions and will, at the request of the Company, execute
any and all instruments or documents necessary or desirable in order to
register, establish, acquire, prosecute, maintain, perfect or defend the
Company's rights in and to the Inventions. Any such Inventions that were
developed by Executive prior to his employment with ACN (and its predecessors)
shall not be covered by the terms of this Section 5. However, to the extent that
any such Inventions are deemed owned by Executive and Executive has permitted
the Company (or ACN or its predecessors) to use such Inventions, the Company
shall have a perpetual, non-exclusive, royalty-free license to use such
Inventions, which license shall survive the termination of this Agreement.
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6. Confidential Information and Trade Secrets. Executive acknowledges and
agrees that all Confidential Information, Trade Secrets and other property
delivered to or compiled by Executive by or on behalf of the Company or its
representatives, vendors or customers that pertain to the business of the
Company shall be and remain the property of the Company and be subject at all
times to its discretion and control. Executive agrees that he shall maintain
strictly the confidentiality of, and shall not, during, or for a period of five
(5) years after, the expiration of the Term, disclose, any such Confidential
Information or Trade Secrets.
For purposes hereof, "CONFIDENTIAL INFORMATION" means and includes:
o All business or financial information, plans, processes and
strategies, market research and analyses, projections, financing
arrangements, consulting and sales methods and techniques, expansion
plans, forecasts and forecast assumptions, business practices,
operations and procedures, marketing and merchandising information,
distribution techniques, customer information and other business
information, including records, designs, patents, business plans,
financial statements, manuals, memoranda, lists and other
documentation respecting the Company, Operating Sub and its
affiliates;
o All information and materials that are proprietary and confidential to
a third party and that have been provided to the Company by such third
party for Company use; and
o All information derived from such Confidential Information.
Confidential Information shall not include information and materials that are
already, or otherwise become, known by or generally available to the public
without restriction on disclosure, other than as a result of an act or omission
by Executive in breach of the provisions of this Agreement or any other
applicable agreement between Executive and the Company.
For purposes hereof, the term "TRADE SECRET" shall have the meaning given in the
Delaware enactment of the Uniform Trade Secrets Act, and shall include, without
limitation, the whole or any portion or phase of any scientific or technical
information, design, process, formula, concept, data organization, manual, other
system documentation, or any improvement of any thereof, in any case that is
valuable and secret (in the sense that it is not generally known to the
Company's competitors). Any such Confidential Information and Trade Secrets that
were developed by Executive prior to his employment with ACN (and its
predecessors) shall not be covered by the terms of this Section 6.
7. Return of Company Property; Termination of Employment. At such time, if
ever, as Executive's employment with the Company is terminated, he shall be
required to participate in an exit interview for the purpose of assuring a
proper termination of his employment and his obligations hereunder. On or before
the actual date of such
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termination, Executive shall return to the Company all records, materials and
other physical objects relating to his employment with the Company (and
Operating Sub), including, without limitation, all Company credit cards and
access keys and all materials relating to, containing or derived from any Trade
Secrets or Confidential Information.
8. No Prior Agreements. Executive hereby represents and warrants to the
Company that the execution of this Agreement by Executive and his employment by
the Company (and Operating Sub) and the performance of his duties hereunder will
not violate or be a breach of any agreement with a former employer, client or
any other person or entity. Further, Executive agrees to indemnify the Company
and Operating Sub for, and hold the Company and Operating Sub harmless from, and
against, all claims, including, but not limited to, attorneys' fees and expenses
of investigation, by any such third party that such third party may now have or
may hereafter come to have against the Company or Operating Sub based upon or
arising out of any noncompetition agreement, invention or secrecy agreement
between Executive and such third party that was in existence as of the date of
this Agreement.
9. Binding Effect; Assignment. This Agreement shall be binding upon, inure
to the benefit of and be enforceable by the parties hereto and their respective
heirs, legal representatives, successors and assigns. Executive understands that
he has been selected for employment by the Company (and Operating Sub) on the
basis of his personal qualifications, experience and skills. Executive agrees,
therefore, that he cannot assign all or any portion of his performance under
this Agreement. In addition, the Company may not assign this Agreement except to
Operating Sub or another subsidiary of the Company, without the prior written
consent of Executive.
10. Complete Agreement. Except as specifically provided herein, this
Agreement is not a promise of future employment. Executive has no oral
representations, understandings or agreements with the Company, Operating Sub,
or any of their officers, directors or representatives covering the same subject
matter as this Agreement. This Agreement is the final, complete and exclusive
statement and expression of the agreement between the Company and Executive
regarding the subject matter contained herein and of all the terms of this
Agreement, it cannot be varied, contradicted or supplemented by evidence of any
prior or contemporaneous oral or written agreements. The Original Agreement and
any rights granted to Executive thereby are superseded by this Agreement,
effective as of the Commencement Date.
11. Notice. Whenever any notice is required hereunder, it shall be given in
writing addressed as follows:
To the Company or Operating Sub:
Courtside Acquisition Corp.
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Fax No.: (000) 000-0000
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with a copy to:
Xxxxxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxx Xxxxxx, Esq.
Fax No.: (000) 000-0000
To Executive:
Xxxxxx X. Xxxxxx
0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
with a copy to:
Xxxx X. Xxxxx, Esq.
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxx
Fax No.: (000) 000-0000
Notice shall be deemed given and effective three (3) days after the deposit in
the U.S. mail of a writing addressed as above and sent first class mail,
certified, return receipt requested, or when actually received, if earlier.
Either party may change the address for notice by notifying the other party of
such change in accordance with this Section 11.
12. Severability; Headings. It is the intention of the parties that the
provisions herein shall be enforceable to the fullest extent permitted under
applicable law and that the unenforceability of any provision or provisions
hereof, or any portion thereof, shall not render unenforceable or otherwise
impair any other provisions or portions thereof. If any provision of this
Agreement is determined by a court of competent jurisdiction to be
unenforceable, void or invalid in whole or in part, this Agreement shall be
deemed amended to delete or modify, as necessary, the offending provisions or
portions thereof and to alter the bounds thereof, including specifically, any
time, place and manner restrictions contained in any of the restrictive
covenants contained herein, in order to render it valid and enforceable. In any
event, the balance of this Agreement shall be enforced to the fullest extent
possible without regard to such unenforceable, void or invalid provisions or
part thereof. The Section headings herein are for reference purposes only and
are not intended in any way to describe, interpret, define or limit the extent
or intent of this Agreement or of any part hereof.
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13. Arbitration. Any unresolved dispute or controversy arising under or in
connection with this Agreement (excluding specifically, however, claims and
counterclaims of the Company or Operating Sub arising out of any breach by
Executive of the provisions of Sections 3, 5, 6, and 7) shall be settled
exclusively by arbitration, conducted in accordance with the rules of the
American Arbitration Association then in effect, as modified hereby.
Notwithstanding anything contained in the rules to the contrary, however, the
arbitrators shall not have the authority to add to, detract from, or modify any
provision hereof, nor to award punitive or special damages to any injured party.
Judgment may be entered on the arbitrators' award in any court having
jurisdiction. The arbitration proceeding shall be held in Dallas, Texas.
14. Governing Law. This Agreement shall in all respects be construed
according to the laws of the State of Texas without reference to its conflicts
of laws provisions.
15. Counterparts. This Agreement may be executed in any number of
counterparts and any party hereto may execute any such counterpart, each of
which when executed and delivered shall be deemed to be an original and all of
which counterparts taken together shall constitute but one and the same
instrument. This Agreement shall become binding when one or more counterparts
taken together shall have been executed and delivered (which deliveries may be
by telefax) by the parties. It shall not be necessary in making proof of this
Agreement or any counterpart hereof to produce or account for any of the other
counterparts.
16. Modifications. This Agreement may not be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought, or his or its duly authorized representative or officer. No waiver by
Executive or the Company of any breach of any provision hereof will be deemed a
waiver of any prior or subsequent breach of the same or any other provision. The
failure of Executive or the Company to exercise any right provided herein will
not be deemed on any subsequent occasions to be a waiver of any right granted
hereunder to either of them.
17. EXECUTIVE ACKNOWLEDGES THAT, BEFORE SIGNING THIS AGREEMENT, HE WAS
GIVEN AN OPPORTUNITY TO READ IT, CAREFULLY EVALUATE IT, AND ASK ANY QUESTIONS HE
MAY HAVE HAD REGARDING IT OR ITS PROVISIONS. EXECUTIVE ALSO ACKNOWLEDGES THAT HE
HAD THE RIGHT TO HAVE THIS AGREEMENT REVIEWED BY AN ATTORNEY OF HIS CHOOSING AND
THAT THE COMPANY GAVE HIM A REASONABLE PERIOD OF TIME TO DO SO IF HE SO WISHED.
EXECUTIVE FURTHER ACKNOWLEDGES THAT HE IS NOT BOUND BY ANY AGREEMENT THAT WOULD
PREVENT HIM FROM PERFORMING HIS DUTIES AS SET FORTH HEREIN, NOR DOES HE KNOW OF
ANY OTHER REASON WHY HE WOULD NOT BE ABLE TO PERFORM HIS DUTIES AS SET FORTH
HEREIN.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
COURTSIDE ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chairman
EXECUTIVE
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
XXXXXX X. XXXXXX
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