EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into as of the
15th
day of
September, 2005 by and between OUTCAST, INC. (the “Company”), a Nevada
corporation, and XXXXX XXXXX (the “Executive”), currently a resident of the
State of California,
W
I T
N E S S E T H:
WHEREAS, the
Company desires to employ the Executive as a Director and Secretary, and the
Executive desires to be employed by the Company as such, in accordance with
the
provisions of this Agreement; and
WHEREAS, in
addition to the employment provisions contained herein, the Company and the
Executive have agreed to certain restrictions, covenants, agreements and
severance payments, as set forth in this Agreement;
NOW,
THEREFORE, in consideration of the foregoing premises, the respective covenants,
agreements and obligations contained herein, the employment of the Executive
by
the Company pursuant to this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
Company and the Executive hereby agree as follows:
Section
1. Employment;
Term.
(a) Employment.
Unless
the Executive’s employment with the Company is terminated earlier as provided in
this Agreement, the Company hereby agrees to employ the Executive, and the
Executive hereby agrees to be employed by the Company, during the Term (as
hereinafter defined), on a full-time basis in accordance with the provisions
of
this Agreement.
(b) Term.
Unless
the Executive’s employment with the Company is terminated earlier in accordance
with Section 4 hereof, the initial term of the Executive’s employment with the
Company under this Agreement shall begin on September 15, 2005 and shall end
on
the three-year anniversary of such date (the “Initial Term”); provided, however,
that upon the expiration of the Initial Term, the Executive’s employment under
this Agreement shall thereafter be automatically extended upon the same terms
and conditions as set forth herein for successive one year terms (each, a
“Renewal Term”), unless the Company or the Executive shall have delivered to the
other a written notice not less than ninety (90) days prior to the expiration
of
the Initial Term or any Renewal Term stating that the term of this Agreement
shall not be so extended, in which case the Executive’s employment hereunder
shall terminate at the end of the Initial Term or a Renewal Term, as the case
may be. During any Renewal Term, the Executive’s employment hereunder is subject
to early termination in accordance with Section 4 hereof. The Initial Term
and a
Renewal Term may be referred to in this Agreement individually or collectively
as the “Term.”
Section
2. Position;
Duties; Responsibilities.
During
the Term, the Executive:
(a) shall
serve as a Secretary of the Company;
(b) shall
have general responsibility over the administrative function of the Company
and
its subsidiaries and affiliates, subject to the direction and oversight of
the
Board of Directors of the Company;
(c) shall
have such other executive level authority, duties and responsibilities at the
Company as may from time to time be reasonably prescribed by the Board of
Directors of the Company or by the By-Laws of the Company;
(d) shall
perform diligently and faithfully, and use her reasonable best efforts in the
performance of, her duties and responsibilities under this
Agreement;
(e) shall
devote all of her working time, attention, energies and skills to her duties
and
responsibilities under this Agreement and to the furtherance of the business
and
interests of the Company; and
(f) shall
maintain her office at which she performs her duties and responsibilities under
this Agreement at __________________________ and shall maintain her presence
during normal business hours at such office, other than for travel on Company
business.
Section
3. Compensation
and Employee Benefits.
(a) Base
Salary.
During
the Term, for all services rendered in all capacities by the Executive to or
on
behalf of the Company or any of the Company’s subsidiaries or affiliates, the
Company shall pay to the Executive an annual base salary of the Company’s of
$81,250 per calendar year, as may be increased from time to time by the Board
of
Directors (or a committee thereof) of the Company (the “Base Salary”). If an
increase in the Executive’s Base Salary is approved by the Board of Directors
(or a committee thereof) of the Company, the new salary shall become the
applicable Base Salary under this Agreement. The Base Salary shall be paid
to
the Executive in accordance with the Company’s usual and customary payroll
practices applicable to its employees generally (including, but not limited
to,
withholdings for taxes and other amounts) and shall be pro-rated for any partial
year of employment.
(b) Incentive
Compensation.
During
the Term, the Executive shall be entitled to participate in all incentive
compensation plans and programs generally available to executive officers of
the
Company (as currently are in effect or as may hereafter be established, amended
or in effect), subject to the terms and conditions of such plans and programs.
The performance factors, measures, goals or targets, the award levels and the
other terms and conditions of any award shall be determined in the discretion
of
the Board of Directors (or a committee thereof) or the Chairman of the Company;
provided, however, that during the Term, the “target” award level of any short
term incentive compensation award granted to the Executive shall not be less
than 5% of her Base Salary.
In
addition, the Company shall, within sixty (60) days following the commencement
of the Initial Term, grant to the Executive an award of Sixteen Thousand, Eight
Hundred and Twenty Eight (16,828) Founder’s shares of the Company.
(c) Employee
Benefits.
During
the Term, the Executive shall be entitled to participate in all employee benefit
plans and programs generally available to executive officers of the Company
(as
currently in effect or as may hereafter be established, amended or in effect),
subject to the terms, conditions and eligibility requirements of such plans
and
programs. The employee’s cost of participation in such plans and programs shall
be as determined by the Board of Directors (or a committee thereof) of the
Company, if not set forth in the plans and programs.
(d) Other
Policies.
All
other matters relating to the employment of the Executive by the Company not
specifically addressed in this Agreement or in the plans and programs referenced
in this Section (including, but not limited to, vacation, sick and other paid
time off) shall be subject to the employee handbooks, rules, policies,
procedures, corporate governance guidelines and codes of conduct and ethics
of
the Company, as
are
currently in effect or as may hereafter be in effect from time to time and
as
may be applicable to executive officers of the Company. The Executive shall
be
entitled to paid vacation in accordance with Company policy, but in no event
shall he be entitled to fewer than twenty (20) days of paid vacation per
calendar year (pro-rated for any partial years).
(e) Acknowledgment
by the Executive.
Notwithstanding anything in this Agreement to the contrary, the Executive
understands, acknowledges and agrees that the Company may, in its sole
discretion, amend, modify, replace, freeze, suspend or terminate any or all
of
the incentive compensation, employee benefit, retirement and other plans and
programs available, as well as any other rules, policies or procedures
applicable, to the Executive from time to time, but only so long as any such
actions are not designed to affect solely the Executive.
(f) Automobile
Allowance.
During
the Term, the Company shall provide to the Executive an automobile allowance
of
(no allowance) per month. The insurance, maintenance, fuel, license plates
and
other costs relating to this automobile shall be the responsibility of and
paid
by the Executive. The Executive shall not be entitled to any reimbursement
for
mileage relating to the use of such automobile, other than as set forth in
Section 3(g) and other than for Company business trips that are within 200
miles
of the Executive’s principal office location. The Executive shall not be
reimbursed for mileage between any of the Company’s offices or facilities and
the Executive’s residence.
(g) Taxes.
All
taxes (other than the Company’s portion of any employment taxes) on the Base
Salary and other amounts payable to the Executive under this Agreement or any
plan or program shall be the responsibility of and paid by the Executive. The
Company shall be entitled to withhold from the Executive’s Base Salary and all
other amounts payable to her under this Agreement or any plan or program (i)
applicable income, employment and other taxes, (ii) such amounts authorized
by
the Executive, and (iii) other appropriate and customary amounts.
(i) Expense
Reimbursements.
The
Company shall reimburse the Executive for all reasonable and customary
out-of-pocket expenses incurred by the Executive related to the performance
of
her duties and responsibilities for the Company. The Executive shall comply
with
the Company’s standard expense reimbursement policies and procedures in effect
from time to time.
Section
4. Termination
of Employment.
In
addition to a termination of the Executive’s employment upon a determination by
the Company or the Executive not to extend the Term (as provided in Section
1(b)
hereof), the Executive’s employment with the Company may be terminated during
the Term in any of the following ways:
(a) Termination
by the Company for Cause.
The
Company, upon written notice to the Executive, may terminate the Executive’s
employment with the Company immediately for Cause. For purposes of this
Agreement, “Cause” is defined as any of the following:
(i) any
refusal by the Executive to follow the lawful directions of the Board of
Directors or the Chairman of the Company that are consistent with the
Executive’s duties and responsibilities under this Agreement; or
(ii) any
gross negligence by the Executive in managing the business or affairs of the
Company or in carrying out her duties and responsibilities under this Agreement
(or any negligence by any employee of the Company who reports to the Executive
in managing the business or affairs of the Company or in performing such
employee’s duties at the Company with the knowledge of the Executive and where
the Executive allows or fails to prevent such negligent acts or omissions);
or
(iii) any
dishonesty, fraud, theft or embezzlement by the Executive (or by any employee
of
the Company who reports to the Executive with the knowledge of the Executive
and
where the Executive allows or fails to prevent such dishonesty, fraud, theft
or
embezzlement by such employee) upon or against the Company or any of the
Company’s subsidiaries or affiliates or any customer of the Company or any of
the Company’s subsidiaries or affiliates; or
(iv) any
conviction of, or the entering of any plea of guilty or nolo contendere
by, the
Executive for any felony; or
(v) any
intentional or negligent violation by the Executive (or by any employee of
the
Company who reports to the Executive with the knowledge of the Executive and
where the Executive allows or fails to prevent such violation by such employee)
of any law, statute, rule, regulation or governmental requirement that has
or
may have a material adverse effect on the Company or any of the Company’s
subsidiaries or affiliates; or
(vi) any
material noncompliance by the Executive (or by any employee of the Company
who
reports to the Executive with the knowledge of the Executive and where the
Executive allows or fails to prevent such noncompliance by such employee) with
any provision of any employee handbook, code of business conduct and ethics
or
corporate governance guidelines, or any rule, policy or procedure, of the
Company or any of the Company’s subsidiaries or affiliates as are applicable to
the Executive and currently in effect or as may hereafter be in effect from
time
to time; or
(vii) any
breach by the Executive of any provision of this Agreement; or
(viii) any
inaccuracy in or breach of the Executive’s representation and warranty contained
in Section 13(r) hereof; or
(ix) any
refusal by the Executive to transfer her employment to a subsidiary or affiliate
of the Company, or any refusal by the Executive to relocate her principal place
of employment from the office or facility to which he may then be assigned
to a
different office or facility of the Company or any subsidiary or affiliate
of
the Company, following a request for such a transfer or relocation by the
Company.
(b) Termination
by the Company without Cause.
The
Company, upon not less than ninety (90) days’ prior written notice to the
Executive, may terminate the Executive’s employment with the Company without
Cause.
(c) Termination
by the Executive for Good Reason.
The
Executive, upon not less than ninety (90) days’ prior written notice to the
Company, may terminate her employment with the Company for Good Reason. For
purposes of this Agreement, “Good Reason” is defined as any material breach by
the Company of any provision of this Agreement.
(d) Termination
by the Executive without Good Reason.
The
Executive, upon not less than ninety (90) days’ prior
written notice to the Company, may terminate her employment with the Company
without Good Reason.
(e) Termination
in the Event of Death or Disability.
The
Executive’s employment with the Company shall terminate immediately upon the
death of the Executive. The Executive’s employment with the Company may be
terminated immediately by the Company in the event of the occurrence of a
Disability of the Executive. For purposes of this Agreement, a “Disability”
shall be defined as an illness or a physical or mental disability or incapacity
of the Executive such that the Executive has not been able to perform the
essential functions of her duties and responsibilities under this Agreement
(as
reasonably determined by the Company), with or without reasonable accommodation,
for at least sixty (60) days (whether consecutive or non-consecutive days)
during any one (1) year period, including, but not limited to, any reasonable
determination by the Company of alcoholism or drug, chemical or substance abuse
or addiction by the Executive. A Disability may, but is not required to, be
evidenced by a signed, written opinion of an independent, qualified medical
doctor selected by the Board of Directors or the Chairman of the Company and
paid for by the Company. The Executive hereby agrees to make herself promptly
available for examination by such medical doctor upon reasonable request by
the
Board of Directors or the Chairman and consents to provide promptly the results
of such examination and any diagnosis to the Company. Nothing in this Section
is
intended to be in violation of the Americans with Disabilities
Act.
(f) Termination
by the Executive in the Event of a Change in Control.
Following a Change in Control (as hereinafter defined), the Executive, upon
not
less than thirty (30) days’ prior written notice to the Company, may terminate
her employment with the Company upon the occurrence of any of the following
events during the six (6) month period immediately following a Change in
Control:
(i) a
material reduction in the Executive’s duties or responsibilities from those in
effect on the day before the Change in Control, or
(ii) a
material breach of any provision of this Agreement by the Company.
For
purposes of this Agreement, a “Change in Control” shall mean a transaction or
series of related transactions pursuant to which (i) at least fifty-one percent
(51%) of the outstanding shares of common stock of the Company, on a fully
diluted basis, shall subsequent to the date of this Agreement be acquired by
any
Person (as hereinafter defined) unrelated to or unaffiliated with the Company,
(ii) the Company merges into, consolidates with or effects any plan of share
exchange or other combination with any Person unrelated to or unaffiliated
with
the Company in a transaction where the holders of voting shares of the Company
immediately prior to the transaction do not hold a majority of the voting shares
of the surviving entity immediately following such transaction, or (iii) the
Company disposes of all or substantially all of its assets other than in the
ordinary course of business, to any Person unrelated to or unaffiliated with
the
Company.
Notwithstanding
the foregoing, for purposes of the definition of “Change in Control,” (x) a
Person shall not include any subsidiary or affiliate of the Company. Employee
Stock Ownership Plan (collectively, the “ESOP”), or any other employee benefit
plan currently or hereafter sponsored by the Company or any subsidiary or
affiliate of the Company, (y) the outstanding shares of common stock of the
Company, on a fully diluted basis, shall include all shares owned by the ESOP,
whether allocated or unallocated to the accounts of participants, and (z) a
transaction or a series of transactions pursuant to which the Company is taken
private or no longer has shares of stock that are listed for trading on any
securities exchange or market shall not constitute a Change in
Control.
(g) Limited
Right to Cure.
In the
event that the Company desires to terminate the Executive’s employment for Cause
pursuant to Sections 4(a)(i), 4(a)(vi) or 4(a)(vii) hereof, the Company shall
first deliver to the Executive a written notice which shall (i) indicate the
specific provisions of this Agreement relied upon for such termination, (ii)
set
forth in reasonable detail the facts and circumstances claimed to provide the
grounds for such termination, and (iii) describe the steps, actions, events
or
other items that must be taken, completed or followed by the Executive to
correct or cure the grounds for such termination. The Executive shall then
have
thirty (30) days following the effective date of such notice to fully correct
and cure the grounds for the termination of her employment to the reasonable
satisfaction of the Board of Directors of the Company. If the Executive does
not
fully correct and cure such grounds within such thirty (30) day period, then
the
Company shall have the right to terminate the Executive’s employment with the
Company immediately for Cause upon delivering to the Executive written notice
of
such fact, and the Executive shall have no further cure period with respect
thereto. Notwithstanding the foregoing and regardless of the grounds for the
termination, the Executive shall be entitled to so correct and cure only one
(1)
time during the Term, unless the Board of Directors of the Company has
reasonably determined that the grounds for termination were incorrect or
inapplicable, in which case the Executive shall still have the ability to
correct and cure one (1) time during the Term.
In
the
event that the Executive desires to terminate her employment with the Company
for Good Reason pursuant to Section 4(c) hereof, the Executive shall first
deliver to the Company a written notice which shall (A) indicate the specific
provisions of this Agreement relied upon for such termination, (B) set forth
in
reasonable detail the facts and circumstances claimed to provide the grounds
for
such termination, and (C) describe the steps, actions, events or other items
that must be taken, completed or followed by the Company to correct or cure
the
grounds for such termination. The Company shall then have thirty (30) days
following the effective date of such notice to fully correct and cure the
grounds for the Executive’s termination of her employment to the reasonable
satisfaction of the Executive. If the Company does not fully correct and cure
such grounds within such thirty (30) day period, then the Executive shall have
the right to terminate her employment with the Company immediately for Good
Reason upon delivering to the Company written notice of such fact, and the
Company shall have no further cure period with respect thereto. Notwithstanding
the foregoing and regardless of the grounds for the termination, the Company
shall be entitled to so correct and cure only one (1) time during the Term,
unless the Board of Directors of the Company has reasonably determined that
the
grounds for termination were incorrect or inapplicable, in which case the
Company shall still have the ability to correct and cure one (1) time during
the
Term.
Section
5. Payment
Upon Termination of Employment.
Upon
the termination of the Executive’s employment with the Company pursuant to
Section 1(b) or Section 4 hereof, the Executive shall receive, subject to
Sections 5(g) and 5(h), the following in accordance with the appropriate
subsection below:
(a) Termination
by the Company for Cause or by the Executive without Good Reason.
Upon
the termination of the Executive’s employment by the Company for Cause pursuant
to Section 4(a) hereof or by the Executive without Good Reason pursuant to
Section 4(d) hereof, the Company shall pay to the Executive (i) that portion
of
her Base Salary earned through her last day of employment with the Company
on
its next regularly scheduled payroll date, (ii) a severance payment in a single
lump sum equal to the Executive’s Base Salary (calculated as a monthly amount)
for three (3) months (provided, however, that if the Company terminates the
Executive’s employment for Cause pursuant to Section 4(a)(viii), then the
Company shall not be required to make any severance payment to the Executive),
(iii) all amounts that are fully vested and properly payable on or before her
last day of employment with the Company under all retirement plans sponsored
by
the Company in accordance with the provisions of such plans, and (iv) all other
amounts that are properly payable to the Executive by the Company that have
not
been paid to her on or before her last day of employment. The foregoing amounts
shall be paid to the Executive within sixty (60) days following her last day
of
employment with the Company, unless provided otherwise by the ESOP or by a
retirement, incentive compensation or other plan of the Company.
In
addition, all outstanding awards of cash bonuses, stock options, restricted
stock and other incentive compensation (whether cash or equity based) shall
vest
and be paid or distributed to, or be exercisable by, as the case may be, the
Executive in accordance with (I) the incentive compensation plan applicable
to
such award (an “Incentive Plan”), (II) the applicable written agreement between
the Company and the Executive relating to an incentive compensation award (an
“Award Agreement”), or (III) in the absence of an Incentive Plan or an Award
Agreement relating to a particular award, as determined by the Board of
Directors (or a committee thereof) or the Chairman of the Company.
(b) Termination
by the Company Without Cause or by the Executive for Good Reason.
Upon
the termination of the Executive’s employment by the Company without Cause
pursuant to Section 4(b) hereof or by the Executive for Good Reason pursuant
to
Section 4(c) hereof, the Company shall pay to the Executive (i) that portion
of
her Base Salary earned through her last day of employment with the Company
on
its next regularly scheduled payroll date, (ii) a severance payment equal to
the
Executive’s Base Salary (calculated as a monthly amount) for a period of the
earlier of twelve (12) months following the Executive’s last day of employment
with the Company or the Executive’s first day of a new position with another
Person, (iii) all amounts that are fully vested and properly payable on or
before her last day of employment under all retirement plans sponsored by the
Company in accordance with the provisions of such plans, and (iv) all other
amounts that are properly payable to the Executive by the Company that have
not
been paid to her on or before her last day of employment. The foregoing monthly
severance payment shall begin within thirty (30) days following the Executive’s
last day of employment with the Company and all other amounts shall be paid
to
the Executive within sixty (60) days of her last day of employment with the
Company, unless provided otherwise by the ESOP or by a retirement, incentive
compensation or other plan of the Company.
In
addition, all outstanding awards of cash bonuses, stock options, restricted
stock and other incentive compensation (whether cash or equity based) shall
vest
and be paid or distributed to, or be exercisable by, as the case may be, the
Executive in accordance with (I) the applicable Incentive Plan, (II) the
applicable Award Agreement, or (III) in the absence of an Incentive Plan or
an
Award Agreement relating to a particular award, as determined by the Board
of
Directors (or a committee thereof) or the Chairman of the Company.
(c) Termination
Upon Death of the Executive.
Upon
the death of the Executive, the Company shall pay to the Executive’s estate (i)
that portion of the Executive’s Base Salary earned through the date of her death
on its next regularly scheduled payroll date, (ii) all amounts that are fully
vested and properly payable on or before her date of death under all retirement
plans of the Company in accordance with the provisions of such plans, and (iii)
all other amounts that are properly payable to the Executive by the Company
that
have not been paid to her on or before her date of death. The foregoing amounts
shall be paid to the Executive’s estate or authorized representative within
sixty (60) days following her death, unless provided otherwise by the ESOP
or by
a retirement, incentive compensation or other plan of the Company.
In
addition, all outstanding awards of cash bonuses, stock options, restricted
stock and other incentive compensation (whether cash or equity based) shall
vest
and be paid or distributed to, or be exercisable by, as the case may be, the
Executive’s estate or authorized representative in accordance with (I) the
applicable Incentive Plan, (II) the applicable Award Agreement, or (III) in
the
absence of an Incentive Plan or an Award Agreement relating to a particular
award, as determined by the Board of Directors (or a committee thereof) of
the
Company.
(d) Termination
Upon a Disability.
Upon
the termination of the Executive’s employment by the Company upon the occurrence
of a Disability pursuant to Section 4(e) hereof, the Company shall pay to the
Executive (i) that portion of the Executive’s Base Salary earned through the
date of her last day of employment with the Company on its next regularly
scheduled payroll date, (ii) a severance payment, payable in a lump sum, equal
to the Executive’s Base Salary (calculated as a monthly amount) for three (3)
months, (iii) all amounts that are fully vested and properly payable on or
before her last day of employment under all retirement plans of the Company
in
accordance with the provisions of such plans, and (iv) all other amounts that
are properly payable to the Executive by the Company that have not been paid
to
her on or before her last day of employment. The foregoing amounts shall be
paid
to the Executive within sixty (60) days following her last day of employment
with the Company, unless provided otherwise by the ESOP or by a retirement,
incentive compensation or other plan of the Company.
In
addition, all outstanding awards of cash bonuses, stock options, restricted
stock and other incentive compensation (whether cash or equity based) shall
vest
and be paid or distributed to, or be exercisable by, as the case may be, the
Executive in accordance with (I) the applicable Incentive Plan, (II) the
applicable Award Agreement, or (III) in the absence of an Incentive Plan or
an
Award Agreement relating to a particular award, as determined by the Board
of
Directors (or a committee thereof) or the Chairman of the Company.
(e) Termination
Upon No Extension of Term.
Upon
the termination of the Executive’s employment upon either the Company or the
Executive providing the notice contemplated by Section 1(b) hereof that the
Term
of the Executive’s employment shall not be extended, the Company shall pay to
the Executive (i) that portion of her Base Salary earned through her last day
of
employment with the Company on its next regularly scheduled payroll date, (ii)
in the event the Company elects not to extend the Term of the Executive’s
employment, a severance payment equal to the Executive’s Base Salary (calculated
as a monthly amount) for a period of the earlier of twelve (12) months following
the Executive’s last day of employment with the Company or the Executive’s first
day of a new position with another Person, or in the event the Executive elects
not to extend the Term of the Executive’s employment, a severance payment in a
single lump sum equal to the Executive’s Base Salary (calculated as a monthly
amount) for three (3) months, (iii) all amounts that are fully vested and
properly payable on or before her last day of employment under all retirement
plans sponsored by the Company in accordance with the provisions of such plans,
and (iv) all other amounts that are properly payable to the Executive by the
Company that have not been paid to her on or before her last day of employment.
The foregoing monthly severance payment shall begin within thirty (30) days
following the Executive’s last day of employment with the Company and other
amounts shall be paid to the Executive within sixty (60) days of her last day
of
employment, unless provided otherwise by the ESOP or by a retirement, incentive
compensation or other plan of the Company.
In
addition, all outstanding awards of cash bonuses, stock options, restricted
stock and other incentive compensation (whether cash or equity based) shall
vest
and be paid or distributed to, or be exercisable by, as the case may be, the
Executive in accordance with (I) the applicable Incentive Plan, (II) the
applicable Award Agreement, or (III) in the absence of an Incentive Plan or
an
Award Agreement relating to a particular award, as determined by the Board
of
Directors (or a committee thereof) or the Chairman of the Company.
(f) Termination
by the Executive following a Change in Control.
Upon
the termination of the Executive’s employment by the Executive following a
Change in Control pursuant to Section 4(f) hereof, the Company shall pay to
the
Executive (i) that portion of her Base Salary earned through her last day of
employment with the Company, (ii) a severance payment equal to the Executive’s
Base Salary (calculated as a monthly amount) for a period of the earlier of
twelve (12) months following the Executive’s last day of employment with the
Company or the Executive’s first day of a new position with another Person,
(iii) all amounts that are fully vested and properly payable on or before her
last day of employment under all retirement plans sponsored by the Company
in
accordance with the provisions of such plans, and (iv) all other amounts that
are properly payable to the Executive by the Company that have not been paid
to
her on or before her last day of employment. The foregoing monthly severance
payment shall begin within thirty (30) days following the Executive’s last day
of employment with the Company and other amounts shall be paid to the Executive
within sixty (60) days of her last day of employment with the Company, unless
provided otherwise by the ESOP or by a retirement, incentive compensation or
other plan of the Company.
In
addition, all outstanding awards of cash bonuses, stock options, restricted
stock and other incentive compensation (whether cash or equity based) shall
vest
and be paid or distributed to, or be exercisable by, as the case may be, the
Executive simultaneously with a Change in Control unless expressly provided
otherwise in (I) the applicable Incentive Plan, or (II) the applicable Award
Agreement.
(g) COBRA
Coverage.
If the
Executive is participating in the Company’s group health plan at the time of her
termination of employment and he elects to continue such coverage for herself
and/or her spouse and legal dependents under the Consolidated Omnibus Budget
Reconciliation Act of 1986, as amended (“COBRA”), the Executive shall pay the
premiums associated with such continued coverage and the Company shall reimburse
the Executive only for the premiums actually paid by her associated with such
continued coverage until the earlier of (i) the expiration of the period of
time
that the Executive has elected to receive continued coverage under the Company’s
group health plan pursuant to COBRA (but, in any event, not to exceed twelve
(12) months following her last day of employment with the Company), or (ii)
the
date on which the Executive becomes eligible to receive health insurance
benefits from a new employer or another Person. The foregoing reimbursement
of
premiums shall be paid to the Executive only if her employment with the Company
is terminated by the Company without Cause, by the Executive for Good Reason,
by
the Company in the event of a Disability of the Executive, by the Company in
the
event the Company elects not to extend the Term of the Executive’s employment or
by the Executive following a Change in Control, and upon the condition that
the
Executive makes an appropriate election under COBRA.
(h) Certain
Other Matters.
Notwithstanding the foregoing provisions of this Section 5, the following shall
apply:
(i) The
Executive understands and agrees that the severance payments and the
reimbursement for the premiums associated with the COBRA continuation coverage
under this Section 5 shall constitute adequate consideration for her
covenants and agreements set forth in Section 6 (Non-Disclosure, etc.), Section
7 (Non-Competition), Section 8 (Non-Solicitation) and Section 9 (Intellectual
Property) of this Agreement.
(ii) Upon
any termination of the Executive’s employment, the Executive shall execute (and
not subsequently rescind or revoke) a release substantially similar to the
release attached to this Agreement as Exhibit
A.
(iii) Any
termination of the Executive’s employment with the Company in accordance with
Section 1(b) or Section 4 hereof shall not affect either the Company’s
obligation to make the payments and reimbursements required under this Section
5
(except as expressly provided in this Agreement) or the Executive’s covenants
and agreements under Sections 6, 7, 8 or 9 of this Agreement. The Company’s
obligation to make any severance payment or to make any reimbursement for the
premiums associated with the COBRA continuation coverage to the Executive under
this Section 5 shall terminate immediately without reinstatement of any
obligation of the Company to resume paying or reimbursing the Executive
hereunder if the Executive breaches any of the provisions of this Agreement
(including, but not limited to, any of the provisions of Sections 6, 7, 8 or
9)
or refuses to execute (or rescinds or revokes) the release attached to this
Agreement as Exhibit
A.
Notwithstanding any such termination of the Company’s obligation to pay or
reimburse, (a) the covenants of the Executive set forth in Sections 6, 7, 8
and
9 hereof shall continue in full force and effect and be binding upon the
Executive, and (b) the Company shall be entitled to the remedies specified
in
Section 12 hereof, among others.
(iv) In
the event of any termination of the Executive’s employment that requires prior
written notice from either party, the Company shall during such thirty (30)
or
ninety (90) day notice period, as applicable, continue to pay the Executive
her
Base Salary but may, in its discretion, elect to direct the Executive not to
report to work.
(v) In
the event the Company gives notice to the Executive of its intent to terminate
the Executive’s employment because the Company (or the division to which he has
been assigned) will cease operations, then the Executive shall be entitled
to
receive the severance payments provided by this Section 5 only if the Executive
remains as an employee of the Company (or the division to which he has been
assigned) until such time as the Company (or the division) has actually ceased
operations.
(vi) If
the Company becomes obligated to make monthly severance payments to the
Executive pursuant to this Section 5 (the “Monthly Severance Payments”) and the
Executive obtains an employee, consulting or other position with another Person
without breaching any of her covenants set forth in this Agreement (including,
but not limited to, her covenants set forth in Sections 6, 7, 8 or 9 hereof),
then the Monthly Severance Payments shall terminate or be reduced as set forth
in this paragraph. For purposes of this paragraph, the “New Monthly
Compensation” shall mean the monthly base salary, consulting fee or other
compensation associated with the Executive’s new position with another Person.
In the event that the Executive’s New Monthly Compensation is equal to or
greater than the Executive’s monthly Base Salary on her last day of employment
with the Company, then the Company’s obligation to pay additional Monthly
Severance Payments shall immediately terminate. In the event that the
Executive’s New Monthly Compensation is less than the Executive’s monthly Base
Salary on her last day of employment, then the Monthly Severance Payments shall
be reduced for the period that the Company is obligated to make any severance
payments such that the Monthly Severance Payments shall equal solely the amount
by which the Executive’s monthly Base Salary on her last day of employment
exceeds the New Monthly Compensation.
If
the
Company’s obligation to pay Monthly Severance Payments has been terminated or
reduced as provided in the foregoing paragraph, such obligation shall not
thereafter be reinstated or increased, in whole or in part, and shall not affect
the Executive’s covenants under Sections 6, 7, 8 or 9 of this Agreement. The
Executive shall promptly provide written notice to the Company of her new
position with another Person, which shall include an adequate confirmation
of
her New Monthly Compensation. If the Executive’s employment with the Company is
terminated for any reason (whether by the Company or the Executive), he shall
use her best efforts to obtain a new position (but without breaching her
non-competition covenants set forth in Section 7 hereof) with another Person.
In
addition, the Executive shall not do any act or thing relating to any new
position or her New Monthly Compensation to circumvent the operation of the
foregoing paragraph.
Section
6. Non-Disclosure;
Return of Confidential Information and Other Property; Compliance with
Laws.
(a) Confidential
Information; Non-Disclosure.
At all
times while the Executive is employed by the Company or any of the Company’s
subsidiaries or affiliates and at all times thereafter, the Executive shall
not
(i) directly or indirectly disclose, provide or discuss any Confidential
Information with or to any Person other than those directors, officers,
employees, representatives and agents of the Company or any of the Company’s
subsidiaries or affiliates who need to know such Confidential Information for
a
proper corporate purpose, and/or (ii) directly or indirectly use any
Confidential Information (A) to compete against the Company or any of the
Company’s subsidiaries or affiliates, (B) to the detriment of the Company or any
of the Company’s subsidiaries or affiliates, or (C) for the Executive’s own
benefit or for the benefit of any Person other than the Company or any of the
Company’s subsidiaries or affiliates. The Executive agrees that all Confidential
Information is and at all times shall remain the property of the Company or
any
of the Company’s subsidiaries or affiliates, as applicable.
For
purposes of this Agreement, the term “Confidential Information” means any and
all of the following, whether provided or disclosed to the Executive, prepared
by the Executive or to which the Executive has been provided access by the
Company or any of its representatives or agents, regardless of whether on,
before or after the date of this Agreement:
(i) any
and all materials, records, data, documents, lists and information (whether
in
writing, printed, verbal, electronic, computerized, on disk, CD, DVD or
otherwise) (A) relating or referring in any manner to the business, operations,
affairs, financial condition, results of operation, assets, liabilities, sales,
revenues, income, estimates, projections, budgets, policies, strategies,
techniques, methods, products, developments, suppliers, vendors, relationships
and/or customers of the Company or any of the Company’s subsidiaries or
affiliates that are confidential, proprietary or not otherwise publicly
available (other than through a breach of this Agreement by the Employee or
any
other impermissible disclosure), or (B) that the Company or any of the Company’s
subsidiaries or affiliates has deemed confidential, proprietary or nonpublic;
and
(ii) without
limiting the foregoing, any and all material nonpublic information of the
Company within the meaning and intent of the federal securities laws;
and
(iii) without
limiting the foregoing, any and all trade secrets of the Company or any of
the
Company’s subsidiaries or affiliates; and
(iv) any
and all copies, summaries, analyses, extracts, documents or information (whether
prepared by the Company, the Employee or otherwise) which relate or refer to
or
reflect any of the items set forth in (i), (ii) or (iii) above.
(b) Return
of Confidential Information and Other Property.
The
Executive covenants and agrees (i) to return promptly to the Company, at the
Company’s headquarters, all Confidential Information that is still in the
Executive’s possession or control on her last day of employment with the Company
or the location of which the Employee knows (including, but not limited to,
any
Confidential Information contained on the Executive’s personal or home
computer), and (ii) to return promptly to the Company, at the Company’s
headquarters, all vehicles, equipment, computers, credit cards, keys, access
cards, passwords and other property of the Company that are still in the
Executive’s possession or control on her last day of employment or the location
of which the Employee knows, and to cease using any of the foregoing on and
after her last day of employment.
(c) Compliance
with Laws.
The
Executive agrees, and shall ensure, that her performance of her duties and
responsibilities under this Agreement shall be in compliance with all laws,
rules, regulations and other legal requirements. The Executive also agrees
to
comply with the Company’s code of business conduct and ethics as currently in
effect or as may hereafter be in effect from time to time. In addition, the
Executive acknowledges and understands that, in the course of her performance
of
duties and responsibilities under this Agreement, he may be provided or have
access to Confidential Information. Accordingly, the Executive shall not use
such information as a basis to purchase, sell, hold or otherwise deal in any
securities of the Company or to otherwise violate any federal or state
securities laws.
Section
7. Non-Competition.
(a) The
Executive hereby understands, acknowledges and agrees that, by virtue of her
position at the Company, he has or will have advantageous familiarity and
personal contacts with the suppliers, vendors, employees and customers (wherever
located) of the Company and its subsidiaries or affiliates and has and will
have
advantageous familiarity with the Confidential Information and the business,
operations, affairs and strategies of the Company and its subsidiaries or
affiliates.
(b) For
a period of one (1) year following her last day of employment with the Company,
the Executive shall not, in any location within the United States of America,
directly or indirectly, or individually or together with any other Person,
as
owner, shareholder, investor, member, partner, proprietor, principal, director,
officer, employee, manager, agent, representative, independent contractor,
consultant or otherwise:
(i) engage
in, or assist another Person in engaging in, any business, operation or activity
which competes with any business, operation or activity that is conducted or
actively being developed or pursued by the Company or any of its subsidiaries
or
affiliates (or which is in the same or a similar line of business as the Company
or any of its subsidiaries or affiliates) on her last day of employment with
the
Company or during such one year non-competition period or that was conducted
or
actively being developed or pursued by the Company or any of its subsidiaries
or
affiliates at any time during the one (1) year period preceding her last day
of
employment with the Company; or
(ii) finance,
operate or control any business, operation or activity which competes with
any
business, operation or activity that is conducted or actively being developed
or
pursued by the Company or any of its subsidiaries or affiliates (or which is
in
the same or a similar line of business as the Company or any of its subsidiaries
or affiliates) on her last day of employment with the Company or during such
one
year non-competition period or that was conducted or actively being developed
or
pursued by the Company or any of its subsidiaries or affiliates at any time
during the one (1) year period preceding her last day of employment with the
Company; or
(iii) offer
or provide employment, hire or engage (whether on a full-time, part-time or
consulting basis or otherwise) any individual who is an employee of the Company
or any of its subsidiaries or affiliates on the last day of the Executive’s
employment with the Company or who was such an employee at any time during
the
one (1) year period preceding the Executive’s last day of employment with the
Company.
(c) The
Executive acknowledges the nationwide scope of the business of the Company
and
its subsidiaries or affiliates. Nevertheless, in the event that any provision
of
Section 7(b) is found by a court of competent jurisdiction to exceed the
geographic or other restrictions permitted by applicable law, then the court
shall have the power to reduce, limit or reform (but not to increase or make
greater) such provision to make it enforceable to the maximum extent permitted
by law, and such provision shall then be enforceable against the Executive
in
its reduced, limited or reformed manner.
In
addition, the Company and the Executive agree that the provisions of this
Section 7 shall be severable in accordance with Section 13(e)
hereof.
(d) At
all times while the Executive is employed by the Company, he shall not engage
in, or assist another Person in engaging in (or finance, operate or control)
any
business, operation or activity which is conducted or proposed to be conducted
by the Company or any of its subsidiaries or affiliates (or which is in the
same
or a similar line of business as or competes with the Company or any of its
subsidiaries or affiliates).
Section
8. Non-Solicitation.
(a) The
Executive hereby understands, acknowledges and agrees that, by virtue of her
position at the Company, he has and will have advantageous familiarity and
personal contacts with the suppliers, vendors, employees and customers (wherever
located) of the Company and its subsidiaries or affiliates and has and will
have
advantageous familiarity with the Confidential Information and the business,
operations, affairs and strategies of the Company and its subsidiaries or
affiliates.
(b) For
a period of one (1) year following her last day of employment with the Company,
the Executive shall not, directly or indirectly, or individually or together
with any other Person, as owner, shareholder, investor, member, partner,
proprietor, principal, director, officer, employee, manager, agent,
representative, independent contractor, consultant or otherwise:
(i) solicit
in any manner, seek to obtain, service or accept any business of any Person
who
is a customer of the Company or any of its subsidiaries or affiliates on the
Executive’s last day of employment with the Company or during such one year
non-solicitation period or who was an existing or prospective customer of the
Company or any of its subsidiaries or affiliates at any time during the one
(1)
year period preceding the Executive’s last day of employment; or
(ii) request,
encourage or advise any Person who is a customer, supplier, vendor or otherwise
doing business with the Company or any of its subsidiaries or affiliates on
the
Executive’s last day of employment with the Company or during such one year
non-solicitation period, or who was an existing or prospective customer of
the
Company or any of its subsidiaries or affiliates at any time during the one
(1)
year period preceding the Executive’s last day of employment, to terminate,
reduce, limit or change their business or relationship with the Company or
any
of its subsidiaries or affiliates; or
(iii) induce,
request or attempt to influence any Person who is employed by the Company or
any
of its subsidiaries or affiliates on the Executive’s last day of employment with
the Company to terminate the employee’s employment with the Company or any of
its subsidiaries or affiliates.
(c) The
Executive acknowledges the nationwide scope of the business of the Company
and
its subsidiaries or affiliates. Nevertheless, in the event that any provision
of
Section 8(b) is found by a court of competent jurisdiction to exceed the time,
geographic or other restrictions permitted by applicable law, then the court
shall have the power to reduce, limit or reform (but not to increase or make
greater) such provision to make it enforceable to the maximum extent permitted
by law, and such provision shall then be enforceable against the Executive
in
its reduced, limited or reformed manner.
In
addition, the Company and the Executive agree that the provisions of this
Section 8 shall be severable in accordance with Section 13(e)
hereof.
(d) At
all times while the Executive is employed by the Company, he shall not solicit
in any manner, seek to obtain, service or accept any business for or on behalf
of a Person other than the Company or any of its subsidiaries or
affiliates.
Section
9. Intellectual
Property.
The
Executive understands, acknowledges and agrees that each and every invention,
idea, concept, discovery, improvement, device, design, apparatus, practice,
process, method, technique or product (whether or not patentable or
copyrightable) made, created, developed, perfected, devised, conceived, worked
on or first reduced to practice by the Executive, either solely or in
collaboration with others, during the period of the Executive’s employment with
the Company (whether or not during regular working hours) relating, directly
or
indirectly, to the business, operations, affairs, products, practices,
techniques or methods of the Company or any of its subsidiaries or affiliates
(the “Intellectual Property”) is and shall be the exclusive property of the
Company or its subsidiaries or affiliates, as applicable. The Executive hereby
forever, unconditionally and irrevocably releases and relinquishes any and
all
right, title and interest that he may have in and to the Intellectual Property
worldwide and hereby forever, unconditionally and irrevocably assigns to the
Company or any of its subsidiaries or affiliates any and all of the Executive’s
right, title and interest in and to the Intellectual Property worldwide. At
the
Company’s request and expense, the Executive shall (a) execute any and all
assignments, documents and other writings that the Company determines are
necessary to evidence ownership of the Intellectual Property in the Company,
(b)
execute any and all applications and registrations of the Company for patents,
trademarks and/or copyrights relating to the Intellectual Property, and (c)
assist the Company in obtaining any and all patents, trademarks and copyrights
that it desires relating to the Intellectual Property.
Section
10. Periods
of Noncompliance and Reasonableness of Periods.
The
restrictions and covenants contained in Sections 7 and 8 of this Agreement
shall
be deemed not to run during all periods of noncompliance, the intention of
the
parties hereto being to have such restrictions and covenants apply during the
full periods specified in Sections 7 and 8 of this Agreement. The Company and
the Executive understand, acknowledge and agree that the restrictions and
covenants contained in Section 7 and Section 8 of this Agreement are
reasonable in view of the Executive’s position at the Company, the competitive
and confidential nature of the information of which the Executive has or will
have knowledge and the competitive and the nature of the business in which
the
Company and its subsidiaries and affiliates are or may be engaged.
Section
11. Survival
of Certain Provisions.
Upon
any termination of the Executive’s employment with the Company, both the Company
and the Executive hereby agree that Sections 1, 2, 3 and 4 of this Agreement
shall terminate and be of no force or effect (except for the definitions of
capitalized terms specified in such sections) and that Sections 5, 6, 7, 8,
9,
10, 11, 12 and 13 hereof shall continue to be in full force and effect and
binding upon the Company or the Executive, as the case may be, in accordance
with the respective provisions of such Sections.
Section
12. Certain
Remedies.
The
Executive agrees that the Company will suffer irreparable damage and injury
and
will not have an adequate remedy at law in the event of any actual, threatened
or attempted breach by the Executive of any provision of Sections 6, 7, 8 or
9.
Accordingly, in the event of a breach or a threatened or attempted breach by
the
Executive of any provision of Sections 6, 7, 8 or 9, in addition to all other
remedies to which the Company is entitled at law, in equity or otherwise, the
Company shall be entitled to a temporary restraining order, a permanent
injunction and/or a decree of specific performance of any provision of Sections
6, 7, 8 or 9. In addition, in the event of any breach by the Executive of any
provision of Sections 6, 7, 8, or 9, the Executive shall immediately repay
to
the Company all severance payments paid to her under Section 5 hereof, as well
as all incentive compensation vested or paid to her and all profits from her
exercise of options to purchase Company securities following the Executive’s
last day of employment. The parties agree that a bond posted by the Company
in
the amount of One Thousand Dollars ($1,000) shall be adequate and appropriate
in
connection with such restraining order or injunction and that actual damages
need not be proved by the Company prior to it being entitled to obtain such
restraining order, injunction or specific performance. The foregoing remedies
shall not be deemed to be the exclusive rights or remedies of the Company for
any breach of or noncompliance with this Agreement by the Executive but shall
be
in addition to all other rights and remedies available to the Company at law,
in
equity or otherwise.
Section
13. Miscellaneous.
(a) Binding
Effect; Assignment.
This
Agreement shall be binding upon and inure to the benefit of the Company and
the
Executive and their respective heirs, executors, representatives, successors
and
assigns; provided, however that neither party may assign this Agreement without
the prior written consent of the other party hereto except that the Company
may,
without the consent of the Executive, assign this Agreement in connection with
any transfer of the Executive to a subsidiary or affiliate of the Company or
in
connection with any merger, consolidation, share exchange, combination, sale
of
stock or assets, dissolution or similar transaction involving the Company.
In
the event of any such permitted assignment of this Agreement, all references
to
the “Company” shall thereafter mean and refer to the assignee of the
Company.
(b) Waiver.
Either
party hereto may, by a writing signed by the waiving party, waive the
performance by the other party of any of the covenants or agreements to be
performed by such other party under this Agreement. The waiver by either party
hereto of a breach of or noncompliance with any provision of this Agreement
shall not operate or be construed as a continuing waiver or a waiver of any
other or subsequent breach or noncompliance hereunder. The failure or delay
of
either party at any time to insist upon the strict performance of any provision
of this Agreement or to enforce its rights or remedies under this Agreement
shall not be construed as a waiver or relinquishment of the right to insist
upon
strict performance of such provision, or to pursue any of its rights or remedies
for any breach hereof, at a future time.
(c) Amendment.
This
Agreement may be amended, modified or supplemented only by a written agreement
executed by all of the parties hereto.
(d) Headings.
The
headings in this Agreement have been inserted solely for ease of reference
and
shall not be considered in the interpretation or construction of this
Agreement.
(e) Severability.
In case
any one or more of the provisions (or any portion thereof) contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement, but this Agreement shall be construed as
if
such invalid, illegal or unenforceable provision or provisions (or portion
thereof) had never been contained herein; provided, however, if any provision
of
Section 7 or 8 of this Agreement shall be determined by a court of competent
jurisdiction to be unenforceable because of the provision’s scope, duration,
geographic restriction or other factor, then such provision shall be considered
divisible and the court making such determination shall have the power to reduce
or limit (but not increase or make greater) such scope, duration, geographic
restriction or other factor or to reform (but not increase or make greater)
such
provision to make it enforceable to the maximum extent permitted by law, and
such provision shall then be enforceable against the appropriate party hereto
in
its reformed, reduced or limited form.
(f) Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
an original, but such counterparts shall together constitute one and the same
agreement.
(g) Construction.
This
Agreement shall be deemed to have been drafted by both parties hereto. This
Agreement shall be construed in accordance with the fair meaning of its
provisions and its language shall not be strictly construed against, nor shall
ambiguities be resolved against, any party.
(h) Voluntary
Execution.
The
Executive hereby understands and agrees that he has executed this Agreement
voluntarily.
(i) Entire
Agreement.
This
Agreement, and the plans, programs, policies, procedures, rules, agreements
and
other documents referenced herein, as well as the Release attached hereto,
constitute the entire understanding and agreement between the parties hereto
relating to the subject matter hereof and thereof and supersede all other prior
understandings, commitments, representations, negotiations, contracts and
agreements, whether oral or written, between the parties hereto relating to
the
matters contemplated hereby and thereby.
(j) Certain
References.
Whenever in this Agreement a singular word is used, it also shall include the
plural wherever required by the context and vice-versa. All references to the
masculine, feminine or neuter genders herein shall include any other gender,
as
the context requires. Unless expressly provided otherwise, all references in
this Agreement to days shall mean calendar, not business, days.
(k) Governing
Law.
Because
the Company maintains its principal place of business in the State of Florida,
this Agreement shall be governed by and construed in accordance with the laws
of
the State of Florida, without reference to any choice of law provisions,
principles or rules thereof (whether of the State of Florida or any other
jurisdiction) that would cause the application of any laws of any jurisdiction
other than the State of Florida. Any claim, demand or action relating to this
Agreement shall be brought only in a court of competent jurisdiction in the
State of Florida. In connection with the foregoing, the parties hereto
irrevocably consent to the jurisdiction and venue of such court and expressly
waive any claims or defenses of lack of jurisdiction of or proper venue by
such
court.
(l) Notices.
All
notices, requests and other communications hereunder shall be in writing (which
shall include facsimile communication) and shall be deemed to have been duly
given if (i) delivered by hand; (ii) sent by certified United States Mail,
return receipt requested, first class postage pre-paid; (iii) sent by overnight
delivery service; or (iv) sent by facsimile transmission if such fax is
confirmed immediately thereafter by also mailing a copy of such notice, request
or other communication by regular (not certified or registered) United States
Mail, first class postage pre-paid, as follows:
|
If
to the Company:
|
Outcast,
Inc.
|
|
Attention:
Secretary
|
|
|
Xxxxx
Xxxxx
|
|
| ________________________________ | |
|
|
________________________________ |
|
Telephone:
|
|
|
Facsimile:
|
|
|
|
|
|
If
to the Executive:
|
Xxxx
Xxxxxxx
|
| ________________________________ | |
| ________________________________ | |
|
Telephone:
(___) __________
|
|
|
Facsimile:
(___) __________
|
or
to
such other address or facsimile number as either party hereto may have furnished
to the other in writing in accordance herewith. The Executive shall promptly
provide any changes to her address, telephone number and facsimile number to
the
Company.
All
such
notices, requests and other communications shall be effective (i) if delivered
by hand, when delivered; (ii) if sent by mail in the manner provided herein,
two
(2) business days after deposit with the United States Postal Service; (iii)
if
sent by overnight delivery service, on the next business day after deposit
with
such service; or (iv) if sent by facsimile transmission or electronic mail,
on
the date indicated on the fax confirmation page or the electronic mail of the
sender, respectively, if such fax or electronic mail also is confirmed by mail
in the manner provided herein.
(m) Attorneys’
Fees.
The
prevailing party in any claim or action (or any settlement thereof) under this
Agreement shall, in addition to such other relief that a court may award, be
entitled to recover its or hers, as the case may be, reasonable attorneys’ fees,
costs and expenses from the non-prevailing party.
(n) Recitals.
The
recitals, premises and “Whereas” clauses contained on page 1 of this Agreement
are expressly incorporated into and made a part of this Agreement.
(o) Definition
of Person.
For
purposes of this Agreement, the term “Person” shall mean any natural person,
proprietorship, partnership, corporation, limited liability company,
organization, firm, business, joint venture, association, trust or other entity,
but shall not include the Company or any of its subsidiaries or
affiliates.
(p) Non-disparagement.
Following any termination of the Executive’s employment with the Company, the
Executive shall not publicly disparage or make or publish any negative
statements or comments about the Company, any of the Company’s subsidiaries or
affiliates or any of their respective products, directors or employees.
Following any termination of the Executive’s employment with the Company, and
subject to applicable law, no executive officer of the Company or member of
the
Company’s Board of Directors shall publicly disparage or make or publish any
negative statements or comments about the Executive.
(q) Cooperation.
For a
period of five (5) years following any termination of the Executive’s employment
with the Company and upon the request of the Company or any of its subsidiaries
or affiliates, the Executive shall reasonably cooperate, assist and make herself
available (for testimony or otherwise) at appropriate times and places as
reasonably determined by the Company or any of its subsidiaries or affiliates
in
connection with any claim, demand, action, suit, proceeding, examination,
investigation or litigation by, against or affecting the Company or any of
its
subsidiaries or affiliates. In connection with the foregoing, if the Executive
has obtained employment or a position with another Person and has to take time
away from such employment or position, then the Company shall pay the Executive
a fee of $1,000 for each day that the Company or any subsidiary or affiliate
of
the Company requests the Executive to cooperate, assist or make herself
available, and shall also reimburse the Executive for her reasonable
out-of-pocket travel expenses that are approved in advance by the Chairman
of
the Company; provided, however, that the Company shall not pay such fee or
reimburse for such expenses in connection with any claim, demand, action, suit
or proceeding relating to this Agreement.
(r) No
Other Agreements.
The
Executive hereby represents and warrants to the Company that he is not a party
to or bound by any other employment agreement, noncompetition agreement or
covenant, nonsolicitation agreement or covenant or any other agreement or
covenant that would restrict, limit or prevent her from performing her duties
and responsibilities for the Company under this Agreement. In the event the
foregoing representation and warranty is inaccurate or breached in any respect,
the Company may, in its discretion, terminate the Executive’s employment with
the Company in accordance with Section 4(a)(viii) hereof. In addition, the
Executive shall indemnify and reimburse the Company for any and all claims,
demands, damages, liabilities, costs and expenses (including, but not limited
to, its reasonable attorneys fees) incurred by the Company arising out of or
relating to such inaccuracy or breach in the event that any liability is imposed
on the Company by virtue of the Executive being a party to or bound by any
other
employment, noncompetition, nonsolicitation or other agreement or
covenant.
IN
WITNESS WHEREOF, the Company and the Executive have made, entered into, executed
and delivered this Agreement as of the day and year first above
written.
|
OUTCAST,
INC.
|
||
|
Xxxx
Xxxxxxx
|
||
|
Chairman
and CEO
|
