EXHIBIT 10.6
EXECUTIVE EMPLOYMENT AGREEMENT
ENTERED INTO on February 28, 2005 by and between Xxxxx X. Xxxxxx
("EXECUTIVE"), an individual presently domiciled in Naples, Florida, and SOURCE
INTERLINK COMPANIES, INC. (the "COMPANY"), a Missouri corporation having its
principal executive offices at 00000 Xxxxxxxxx Xxxxxx Xxxx., Xxxxx 000, Xxxxxx
Xxxxxxx, Xxxxxxx 00000.
WHEREAS, Executive is currently employed by the Company pursuant to a
certain Employment and Non-Competition Agreement dated as of December 14, 1998
as amended by a certain Amendment to Employment and Non-Competition Agreement
dated as of August 3, 2000 and by a certain Second Amendment to Employment and
Non-Competition Agreement dated as of July 5, 2002 (collectively, the "Existing
Agreement"), and the Company desires to assure itself of the continued benefit
of Executive's services and experience, and
WHEREAS, Executive desires to continue in the employ of the Company under
the terms and provisions set forth in this Agreement following the merger
contemplated by the Merger Agreement (defined in Section 2), and
WHEREAS, the Existing Agreement shall remain in full force and effect
unless and until the Effective Time defined by the Merger Agreement and
concurrently with such Effective Time, this Agreement shall supercede the
Existing Agreement and each party shall be fully and finally released from all
obligation under the Existing Agreement.
NOW, THEREFORE, with the intent to be legally bound, the Company and
Executive do hereby covenant and agree as follows.
Section 1. Employment of Executive.
1.1. The Company hereby agrees to employ Executive in the positions
described in Section 1.2 below, and Executive hereby accepts such employment,
under the terms and provisions set forth in this Agreement.
1.2. During the Period of Employment (defined in Section 2. below),
Executive shall serve in the position of President and Chief Operating Officer
of the Company, based at the Company's corporate headquarters in Bonita Springs,
Florida, reporting directly to the Company's Chief Executive Officer. Executive
shall have the usual and customary duties, responsibilities and authority of
chief operating officer, and shall perform such other and additional duties and
responsibilities as are consistent with that position and as the Board of
Directors of Source Interlink Companies, Inc. (the "BOARD") or the Company's
Chief Executive Officer may reasonably require.
1.3. Executive shall devote all of his working time, attention and energy
using his best efforts to the performance of his duties and responsibilities,
and shall apply the level of skill, diligence, energy, and cooperation to
protecting and advancing the interests of the Company and
its subsidiaries as can be reasonably expected from a faithful, dedicated,
experienced and prudent corporate executive (as applicable under this Section 1)
under similar circumstances.
Section 2. Term of Employment.
The term of employment of Executive under this Agreement shall be a
five-year period commencing at the Effective Time defined by that certain
Agreement and Plan of Merger, dated November 18, 2004, by and among Source
Interlink Companies, Inc., Alliance Entertainment Corp. and Alligator
Acquisition, LLC (the "MERGER AGREEMENT") and expiring on the fifth annual
anniversary thereof (the "PERIOD OF EMPLOYMENT"). Not later than One Hundred
Eighty (180) days prior to the expiration of the Period of Employment, the
Company and the Executive will meet to discuss their respective intentions
concerning the continued employment of Executive following the expiration of the
Period of Employment.
Section 3. Early Termination.
3.1. Notwithstanding the provisions of Section 2 hereof, the Period of
Employment shall be subject to early termination at any time:
(a) at the Company's election, by dismissal of Executive from employment
with or without Proper Cause (defined in Section 3.2 below) pursuant to
resolution of the Board, or
(b) at the Company's election, upon determination of Disability of
Executive pursuant to Section 3.3 below, or
(c) upon death of Executive, or
(d) at Executive's election, by voluntary resignation upon 30 days' advance
written notice, with or without Good Reason (defined in Section 3.5 below).
In the event of early termination pursuant to the foregoing paragraphs (a), (b),
(c) or (d), the Company's obligations to Executive shall be as set forth in
Sections 3.2, 3.3, 3.4 or 3.5, respectively; and Executive shall have no other
rights or claims under this Agreement except for (i) reimbursement of previously
incurred expenses pursuant to Section 5.1 below and (ii) indemnification
pursuant to Section 5.2 below.
3.2. (a) In the event of early termination pursuant to Section 3.1(a)
without Proper Cause, the Company shall be and remain obligated to pay and
provide to Executive (or his estate) during the remainder of the Period of
Employment provided for under Section 2.:
(i) The Base Compensation provided for under Section 4.2 below at the
annual salary rates stated therein without further adjustment.
(ii) The Guaranteed Bonus provided for under Section 4.3 below for
each remaining year of the Period of Employment.
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(iii) The right to continued participation in the Company's healthcare
and medical expense reimbursement plan (referred to in Section 4.5 below) under
and subject to the same terms and provisions (including without limitation
contribution to premiums, deductibles, co-payments and caps) as are applicable
during such period to the Company's executive officers generally. For purposes
of Executive's eligibility to participate in the programs and plans described in
Section 4.5 during the remaining portion of the Period of Employment, Executive
shall be deemed to be an employee of the Company.
(b) In the event of early termination pursuant to Section 3.1(a) with
Proper Cause, the Company shall thereupon be relieved of its obligations to pay
or provide any and all compensation and benefits under Section 4 hereof (except
for accrued and unpaid items).
(c) The occurrence of any of the following events or circumstances
shall constitute "PROPER CAUSE" for dismissal of Executive from employment under
this Agreement:
(i) Disclosure to third parties of trade secrets or other Confidential
Information (defined in Section 6 below), or any other misuse or
misappropriation thereof, by Executive in violation of the obligations imposed
by Section 6 hereof;
(ii) Violation by Executive of the restrictions imposed by Section 7
of this Agreement on competitive activities by Executive;
(iii) Abandonment by Executive of his employment with the Company or
any subsidiary or repeated and deliberate failure or refusal by Executive to
fulfill his duties and responsibilities under this Agreement in any material
respect and Executive's failure or refusal to initiate corrective action within
10 days after written notice by the Company setting forth in reasonable detail
the conditions alleged to be encompassed by the foregoing clause;
(iv) Perpetration of any defalcations by Executive or any other act of
financial dishonesty or theft affecting the Company or any of its subsidiaries;
(v) Willful, reckless or grossly negligent conduct by Executive
entailing a material violation of the laws or governmental regulations or orders
applicable to the Company or its subsidiaries, or imposition by any court or
governmental agency of any material restriction upon Executive's ability to
perform his duties and responsibilities hereunder;
(vi) Repeated and deliberate failure or refusal by Executive to comply
with lawful policies of the Company or lawful directives of the Board;
(vii) Conviction of Executive of a crime in any federal, state or
foreign court, or entry of any governmental decree or order against Executive
based upon violation of any federal, state or foreign law, and the determination
by the Board, made in its reasonable discretion, that, in the circumstances, the
continued association of Executive with the Company will, more likely than not,
have a material adverse effect upon the Company, its business or its reputation.
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3.3. The term of employment of Executive under this Agreement may be
terminated at the election of the Company upon a determination by the Board,
made in its reasonable discretion, that Executive is, or will be, unable, by
reason of physical or mental incapacity ("DISABILITY") whether caused by
accident, illness, disease or otherwise, to substantially perform the material
duties and responsibilities assigned to him pursuant to this Agreement for a
period longer than 90 consecutive days or more than 180 days in any consecutive
12-month period. In the exercise of its discretion, the Board shall give due
consideration to, among such other factors as it deems appropriate to the best
interests of the Company, the opinion of Executive's personal physician or
physicians and the opinion of any physician or physicians selected by the Board
for these purposes. Executive shall submit to examination by any physician or
physicians so selected by the Board, and shall otherwise cooperate with the
Board in making the determination contemplated hereunder (such cooperation to
include without limitation consenting to the release of information by any such
physician(s) to the Board). In the event of early termination for Disability
pursuant to Section 3.1(b), the Company shall thereupon be relieved of its
obligations to pay or provide any and all compensation and benefits under
Section 4 hereof (except for accrued and unpaid items), but shall be obligated
to provide to Executive:
(a) For the period commencing on the date of early termination and
ending on the expiration of 24 full calendar months next following the date of
early termination, a disability income benefit, payable in monthly installments,
in an amount equal to 50% of the annual rate of Base Compensation provided for
under Sections 4.2 below, at the annual salary rate in effect on the date of
determination of Disability without further adjustment;
(b) For the period commencing on the date which is 24 full calendar
months following the date of early termination, a supplemental disability income
benefit equal to $12,000 per month for the period commencing on the date of
early termination and ending on January 4, 2018 or Executive's earlier death;
and
(c) The right to continued participation in the Company's healthcare
plan (referred to in Section 4.5 below) under and subject to the same terms and
provisions (including without limitation contribution to premiums, deductibles,
co-payments and caps) as are applicable during such period to the Company's
executive officers generally.
The Company shall be entitled to credit, against its obligation to pay the
foregoing benefits, the amounts received from time to time by Executive pursuant
to any disability income insurance policy maintained by the Company or under the
Source Interlink Companies, Inc. Supplemental Executive Retirement Plan dated as
of March 1, 2005.
3.4. In the event of early termination pursuant to Section 3.1(c), the
Company shall thereupon be relieved of its obligations to pay or provide any and
all compensation and benefits under Section 4 hereof (except for accrued and
unpaid items).
3.5 (a) In the event of early termination pursuant to Section 3.1(d) with
Good Reason, the provisions of Section 3.2(a) shall apply.
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(b) In the event of early termination pursuant to Section 3.1(d)
without Good Reason, the provisions of Section 3.2(b) shall apply.
(c) The occurrence of any of the following events or circumstances
shall constitute "GOOD REASON" under this Agreement.
(i) repeated and deliberate failure by the Company to substantially
comply with its obligations to pay or provide the compensation, benefits and
other amounts due and payable to Executive under Sections 4 and 5 below;
(ii) a material reduction in Executive's duties, responsibilities and
authority during the Period of Employment; and
in the case of clause (i) or (ii), the failure or refusal by the Company (and/or
any successor in interest to the Company) to initiate corrective action within
30 days after written notice by Executive to the Secretary of the Company
setting forth in reasonable detail the conditions alleged to be encompassed by
the foregoing clause (i) or (ii);
(iii) a Change of Control (defined in Section 3.5(d)).
(d) The occurrence of any of the following events or circumstances
shall constitute a "CHANGE OF CONTROL" under this Agreement.
(i) A change in the composition of the Board, as a result of which
fewer than one-half (1/2) of the incumbent directors are directors who either:
(A) had been directors of the Company on the first day of the Period of
Employment (the "ORIGINAL DIRECTORS"); or (B) were elected, or nominated for
election, to the Board with the affirmative votes of at least a majority of the
aggregate of the Original Directors who were still in office at the time of the
election or nomination and the directors whose election or nomination was
previously so approved (the "CONTINUING DIRECTORS"); or
(ii) Any "PERSON" (defined below) who by the acquisition or
aggregation of securities, is or becomes the "BENEFICIAL OWNER" (defined in Rule
13d-3 under the Securities Exchange Act of 1934, as amended), directly or
indirectly, of securities of the Company representing 50% or more of the
combined voting power of the Company's then outstanding securities ordinarily
(and apart from rights accruing under special circumstances) having the right to
vote at elections of directors (the "BASE CAPITAL STOCK"); except that any
change in the relative beneficial ownership of the Company's securities by any
person resulting solely from a reduction in the aggregate number of outstanding
shares of Base Capital Stock, and any decrease thereafter in such person's
ownership of securities, shall be disregarded until such person increases in any
manner, directly or indirectly, such person's beneficial ownership of any
securities of the Company; or
(iii) The consummation of a merger or consolidation of the Company
with or into another entity or any other corporate reorganization in which the
Company is not the acquiring entity for accounting purposes; or
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(iv) The consummation of a sale, transfer or other disposition of all
or substantially all of the Company's assets.
For purposes of subsection (ii) above, the term "person" shall have the same
meaning as when used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended, but shall exclude (1) a trustee or other fiduciary holding
securities under an employee benefit plan maintained by the Company or a parent
or subsidiary and (2) a corporation owned directly or indirectly by the
shareholders of the Company in substantially the same proportions as their
ownership of the common stock of the Company.
Any other provision of this Section 3.5(d) notwithstanding, no event shall
constitute a Change of Control under this Agreement if: (A) the sole purpose of
the event was to change the state of the Company's incorporation or to create a
holding company that will be owned in substantially the same proportions by the
persons who held the Company's securities immediately before such transaction;
(B) the event was contemplated by the Merger Agreement; or (C) following such
event, S. Xxxxxx Xxxxxx is employed by the Company or any successor entity with
the duties and responsibilities of such entity's principal executive officer.
Section 4. Compensation and Benefits. As consideration for Executive's
undertakings set forth in this Agreement and his/her services hereunder, the
Company shall pay and provide to Executive during the Period of Employment
hereunder, and Executive hereby agrees to accept, the compensation and benefits
described in Sections 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7 and 4.8 below.
4.1 Concurrently with the execution and delivery of this Agreement, the
Company shall pay to Executive, in cash, the sum of Three Hundred Thousand
Dollars ($300,000).
4.2. The Company shall pay to Executive Base Compensation in the form of
salary at the following annual rates: (a) during the period from the first day
of the Period of Employment through and including January 31, 2006--Four Hundred
Seventy-Five Thousand Dollars ($475,000); (b) during the period from February 1,
2006 through and including January 31, 2007--Five Hundred Twenty-Five Thousand
Dollars ($525,000); (c) during the period from February 1, 2007 through and
including January 31, 2008--Six Hundred Thousand Dollars ($600,000); (d) during
the period from February 1, 2008 through and including January 31, 2009--Six
Hundred Twenty-Four Thousand Dollars ($624,000); and (e) during the period from
February 1, 2009 through and including the last day of the Period of
Employment--Six Hundred Forty-Nine Thousand Dollars ($649,000); provided
however, that such annual rates may be adjusted from time to time by the
Compensation Committee of the Board after having taken into account the
performance of the Executive and such other factors deemed relevant by such
committee. Base Compensation shall be payable in such installments and at
intervals prescribed from time to time under the Company's payroll policies and
practices, and shall be subject to such withholdings as are required thereunder
or by applicable law.
4.3 Executive also shall be entitled to receive a bonus (the "Annual
Bonus") each year during the Period of Employment in an amount equal to the
greater of:
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(a) 50% of Executive's Base Compensation as in effect for such year;
or
(b) Such other amount as the Company's Chief Executive Officer may
recommend, and the Compensation Committee of the Board of the Company may
approve, based on such criteria, as they shall have established in their sole
and absolute discretion.
Executive's Annual Bonus shall be payable as follows: (A) on the first day of
the Company's first fiscal quarter commencing after the first day of the Period
of Employment, and continuing thereafter on the first day of each succeeding
fiscal quarter, the Company shall pay to Executive a portion of the Annual Bonus
(the "Guaranteed Bonus") equal to 12.5% of Executive's Base Compensation as then
in effect except that during the period ending on January 31, 2006 no quarterly
payment shall be less than Sixty-Two Thousand Five Hundred Dollars ($62,500),
and (B) not more than 90 days after the end of each fiscal year concluded during
the Period of Employment, the Company shall pay to Executive a sum equal to the
positive difference, if any, between the Annual Bonus and the aggregate amounts
paid by the Company during the then most recently concluded fiscal year pursuant
to the immediately preceding clause (A).
4.4. The Company shall permit Executive to participate in all stock option,
stock purchase, stock bonus and other equity-based incentive plans and programs
(if any) as may be approved by the Board or its Compensation Committee and as
the Company chooses to maintain from time to time with respect to its executive
officers generally. Executive's level of participation and entitlements (if any)
thereunder shall be subject to the eligibility requirements and all other terms
and provisions of such plans and programs (including without limitation
amendment and termination), and the determinations of their duly appointed
administrators.
4.5 The Company shall permit Executive to participate in all healthcare,
supplemental medical expense reimbursement, retirement, life insurance and
disability income plans and programs as may be duly adopted and as the Company
chooses to maintain from time to time with respect to its executive officers
and/or employees generally. Executive's level of participation and benefits
thereunder shall be subject to the eligibility requirements and all other terms
and provisions of such plans and programs (including without limitation
amendment and termination), and the determinations of their duly appointed
administrators.
4.6. Executive shall be entitled to 20 business days vacation on an annual
basis and all holidays provided under Company policy. For any calendar year
during which Executive is employed for only a portion of the year, Executive
shall be entitled to the appropriate proportion of the vacation days. Vacation
days will not be cumulative, will accrue only for the current year, and must be
taken by Executive during the calendar year in which the vacation time accrues.
Vacation days will not be converted into cash. Executive shall arrange his
vacation so as not to conflict with the needs of the Company.
4.7. The Company shall pay directly, or shall reimburse Executive for, such
all items of expense incurred by Executive in the operation and maintenance
(including, without limitation, all reasonably necessary insurance premiums) of
one automobile.
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4.8. The Company shall pay directly, or shall reimburse Executive for, such
all dues and other charges of one country club incurred by Executive in
furtherance of the Company's business.
Section 5. Expenses and Indemnification.
5.1. The Company shall pay directly, or shall reimburse Executive for, such
items of reasonable and necessary expense as are incurred by Executive in the
interest of the business of the Company. All such expenses paid by Executive
shall be reimbursed by the Company upon the presentation by Executive of an
itemized account of such expenditures, sufficient to support their deductibility
by the Company for federal income tax purposes (without regard to whether or not
the Company's deduction for such expenses is limited for federal income tax
purposes), such submissions to be made within thirty (30) days after the date
such expenses are incurred.
5.2. In addition to such rights of indemnification as are provided to
Executive by the Certificate of Incorporation and/or Bylaws of the Company and
its subsidiaries, the Company agrees that, absent a written opinion of
independent legal counsel that it would be unlawful to do so, the Company shall
promptly pay or advance all costs and expenses (including without limitation
attorneys fees) reasonably incurred by Executive in defense of any and all
claims, causes of action and charges which may be threatened, asserted or filed
against him/her in any judicial, governmental or arbitration proceedings,
inquiry or investigation (whether of a civil or criminal nature), arising out of
his/her employment under this Agreement or the performance in good faith of
his/her duties hereunder, other than such claims, causes of action or charges
that may be initiated against Executive upon approval by the Board or the Chief
Executive Officer. Executive hereby agrees to promptly reimburse to the Company
all such costs and expenses as have been paid or advanced by the Company if it
is finally determined as a matter of law that Executive was not entitled to be
indemnified for them by the Company. In addition, Executive shall remit to the
Company the proceeds of any insurance received by him to defray such costs and
expenses as have been paid or advanced by the Company.
Section 6. Protection of Confidential Information and Property.
6.1. Executive acknowledges that, except for information that from time to
time has been properly disclosed by the Company in public filings and
announcements and commercial dealings, the Company has or may have a legitimate
need for and/or interest in protecting the confidentiality of all information
and data pertaining to the business and affairs of the Company and its
subsidiaries, including without limitation information and data relating to (i)
manufacturing operations and costs, (ii) distribution and servicing methods and
costs, (iii) merchandising techniques, (iv) sales and promotional methods, (v)
customer, vendor and personnel relationships and arrangements, (vi) research and
development projects, (vii) information and data processing technologies, and
(viii) strategic and tactical plans and initiatives (all such information and
data, other than that which has been properly disclosed as aforesaid, being
hereinafter referred to as "CONFIDENTIAL INFORMATION").
6.2. Executive acknowledges that, in the course of his employment, (i) he
has participated and/or will participate in the development of Confidential
Information, (ii) he has
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been and/or will be involved in the use and application of Confidential
Information for corporate purposes, and (iii) he otherwise has been and/or will
be given access to and entrusted with Confidential Information for corporate
purposes.
6.3. Executive agrees that, during the term of his employment under this
Agreement, he shall possess and use the Confidential Information solely and
exclusively to protect and advance the interests of the Company and its
subsidiaries; and that at all times thereafter, he (i) shall continue to treat
the Confidential Information as proprietary to the Company, and (ii) shall not
make use of, or divulge to any third party, all or any part of the Confidential
Information unless and except to the extent so authorized in writing by the
Company or required by judicial, legislative or regulatory process.
6.4. Executive acknowledges that, in the course of his employment, he will
create and/or be furnished with (i) materials that embody or contain
Confidential Information (in written and electronic form) and (ii) other
tangible items that are the property of the Company and its subsidiaries.
Executive agrees that, upon expiration or other termination of his term of
employment under this Agreement, or sooner if the Company so requests, he shall
promptly deliver to the Company all such materials and other tangible items so
created and/or furnished, including without limitation drawings, blueprints,
sketches, manuals, letters, notes, notebooks, reports, lists of customers and
vendors, personnel lists, computer disks and printouts, computer hardware and
printers, and that he shall not retain any originals or copies of such
materials, or any of such tangible items, unless and except to the extent so
authorized in writing by the Company.
6.5. Executive agrees to inform all prospective employers of the content of
this Section 6 and of Section 7 of this Agreement prior to his acceptance of
future employment.
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Section 7. Restrictions against Competition and Solicitation.
7.1. Executive agrees that, during the term of his employment hereunder and
during the Restricted Period (defined in Section 7.2 below), he shall not in any
way, directly or indirectly, manage, operate, control, accept employment or a
consulting position with or otherwise advise or assist or be connected with, or
own or have any financial interest in, any Competitive Enterprise (defined in
Section 7.2 below).
7.2. For purposes of this Section 7:
(a) "RESTRICTED PERIOD" means the greater of:
(i) Period of Employment plus the period of twelve months next
following expiration of the Period of Employment; or
(ii) the period during which Executive is receiving payments or
benefits from the Company pursuant to Section 3.2(a), 3.3, or 3.5(a) of this
Agreement; or
(iii) the period of 24 months next following early termination of
the Period of Employment other than without Proper Cause or for Good Reason.
(b) "COMPETITIVE ENTERPRISE" means any person or business organization
engaged, directly or indirectly, in the business of (i) designing, manufacturing
and marketing front-end fixtures, shelving and other display equipment and
accessories for use by retail stores; (ii) designing, manufacturing and
marketing custom wood fixtures, furnishings and millwork for use by commercial
enterprises, (iii) distribution and fulfillment of magazines, books,
pre-recorded music, video and video games, and other merchandise, (iv) rendering
third party billing and collection services with respect to claims for
manufacturer rebates and incentive payments payable to retailers respecting the
sale of magazines, periodicals, confections and general merchandise, and/or (v)
providing sales and marketing data and analyses to retailers and vendors of
products distributed by the Company.
7.3. Without limitation of the Company's rights and remedies under this
Agreement or as otherwise provided by law or in equity, it is understood and
agreed between the parties that the right of Executive to receive and retain any
payments otherwise due under this Agreement shall be suspended and canceled if
and for so long as he is in violation of the foregoing covenant not to compete.
7.4. If the Period of Employment hereunder shall have been terminated
without Proper Cause pursuant to Section 3.1(a) or 3.1(d) for Good Reason, and
if Executive shall have duly complied with and observed the covenants of Section
6 and this Section 7, Executive may, at his election, be discharged from the
covenants of Section 7.1 at any time on or before the thirtieth (30th) day
following such termination by filing with the Company a duly executed statement
(in form and content reasonably satisfactory to the Board) releasing the Company
and its
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subsidiaries (and, if applicable, its insurance carriers) from any and all
obligations it (or they) may have by reason of such termination (except for
accrued and unpaid items).
7.5. Executive agrees further that, during the Restricted Period, he will
not, directly or indirectly, either for himself or on behalf of any other person
or entity, employ or attempt to employ or solicit the employment or services of
any person who is at that time, or has been within six months immediately prior
thereto, employed by the Company or any subsidiary of the Company.
Section 8. Injunctive Relief and Costs.
8.1. Executive acknowledges that any violation of or failure to comply with
the provisions of Sections 6, 7.1 and 7.5 of this Agreement may cause
substantial and irreparable harm to the Company and its subsidiaries (and their
constituencies), and that the nature and magnitude of the harm may be difficult
or impossible to measure precisely or to compensate adequately with monetary
damages.
8.2. Executive agrees that the Company shall have the right to enforce
his/her performance of and compliance with any and all provisions of Sections 6,
7.1 and 7.5 by seeking a restraining order and/or an order of specific
performance and/or other injunctive relief against Executive from a court of
competent jurisdiction, at any time or from time to time, if it appears that
Executive has violated or is about to violate any such provision.
8.3. Executive further agrees that he/she shall be liable for reimbursement
of all costs and expenses incurred by the Company and its subsidiaries
(including without limitation reasonable attorneys' fees) in connection with any
judicial proceeding or arbitration arising out of any violation of or failure to
comply with the provisions of Sections 6, 7.1 and 7.5.
8.4. The provisions of this Section 8 are in addition to, and not in lieu
of, any other rights and remedies that may be available to the Company for
breach of any portion of this Agreement.
Section 9. Compliance with Law and Company Policies.
9.1. Executive warrants and represents to the Company that he/she is not
now under any legal or contractual duty or obligation which could prevent, limit
or impair in any way his/her full and faithful performance of this Agreement.
Executive shall indemnify and hold the Company harmless from and against any
claim, loss, damage, liability, cost or expense (including without limitation
reasonable attorneys' fees) incurred by or asserted against the Company arising
out of or in connection with any breach of this representation and warranty.
9.2. Executive acknowledges that he/she has received and read and
understands the intent and purposes of the Company's Code of Business Code and
Ethics. Executive shall comply with all lawful rules and policies of the
Company, as in effect from time to time.
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9.3. Nothing contained in this Agreement shall be interpreted, construed or
applied to require the commission of any act contrary to law and whenever there
is any conflict between any provision of this Agreement and any statute, law
ordinance, order or regulation, the latter shall prevail; but in such event any
such provision of this Agreement shall be curtailed and limited only to the
extent necessary to bring it within applicable legal requirements.
9.4. Executive acknowledges and agrees that, notwithstanding anything to
the contrary in this Agreement, he/she shall not be entitled to, and this
Agreement does not confer on Executive, any benefits that constitute (or which,
in the Company's good faith determination based on the advice of counsel, would
likely constitute) a personal loan in violation of Section 402 of the
Xxxxxxxx-Xxxxx Act of 2002, including any implementing regulations thereunder,
or any similar provision of applicable law (collectively, "Section 402"). In the
event that the Company, in good faith and upon the advice of counsel, determines
that any provision of this Agreement would, absent this Section, give rise to a
potential violation of Section 402, Executive and the Company shall promptly
negotiate, in good faith, towards an appropriate amendment to this Agreement
that would eliminate such potential violation, but which would, as closely as
reasonably possible, afford both the Company and Executive, the same relative
economic benefits of their bargain hereunder prior to such amendment.
Section 10. Effect of Business Combination Transactions. In the event of the
merger or consolidation of the Company with any unrelated corporation or
corporations, or of the sale by the Company of a major portion of its assets or
of its business and good will to an unrelated third party, this Agreement shall
remain in effect and be assigned and transferred to the Company's successor in
interest as an asset of the Company, and the Company shall cause such assignee
to assume the Company's obligations hereunder; and in such event Executive
hereby confirms his/her agreement to continue to perform his/her duties and
responsibilities according to the terms and conditions hereof for such assignee
or transferee of this Agreement. It is understood and agreed, however, that the
scope of Executive's services under Section 1.1 hereof shall be appropriately
modified, at the election of such successor, to cover the segment of such
successor's enterprise represented by the Company's assets and operations at the
time of such aforementioned transaction.
Section 11. Successors and Assigns.
11.1. This Agreement shall be binding upon, and shall inure to the benefit
of, Executive and the Company and their respective permitted successors,
assigns, heirs, legal representatives and beneficiaries.
11.2 Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge or hypothecation or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall be null, void
and of no effect; provided, however, that nothing in this Section 10 shall
preclude the assumption of such rights by executors, administrators or other
legal representatives of Executive or his estate and their assigning any rights
hereunder to the person or persons entitled thereto.
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Section 12. Notices. Any and all notices required or permitted to be given
under this Agreement shall be sufficient if furnished in writing and personally
delivered, or if sent by registered or certified mail to the last known
residence address of Executive or to the Company, Attention: Chief Executive
Officer, 00000 Xxxxxxxxx Xxxxxx Xxxx., Xxxxx 000, Xxxxxx Xxxxxxx, Xxxxxxx 00000,
or such other place as Executive or the Company may designate in writing to the
other for these purposes.
Section 13. Miscellaneous.
13.1. The waiver by either party of a breach or violation of any provision
of this Agreement shall not operate as or be construed to be a waiver of any
subsequent breach hereof.
13.2. The headings to the Sections hereof are for convenience of reference
only, and in case of any conflict, the text of this Agreement, rather than the
headings, shall control.
13.3. This Agreement sets forth the entire understanding of the parties in
respect of the subject matter contained herein and supersedes all prior
agreements, arrangements and understandings relating to the subject matter and
may only be amended by a written agreement signed by both parties hereto or
their duly authorized representatives. Except as expressly stated herein,
however, nothing in this Agreement shall be deemed to affect the Company's
duties and obligations, or Executive's rights and benefits, under the Company's
existing under the Company's existing Source Interlink Companies 401(k).
13.4. Should a court or arbitrator declare any provision hereof to be
invalid, such declaration shall not affect the validity of the Agreement as a
whole or any part thereof, other than the specific portion declared to be
invalid.
13.5. This Agreement shall be interpreted, construed and governed according
to the laws of the State of Florida.
13.6. Any claim, controversy or dispute arising with respect to this
Agreement between the parties hereto or anyone claiming under or on behalf of
either of the parties (a " Dispute"), other than a Dispute to which Section 8
hereof applies, shall be submitted to final and binding arbitration in
accordance with the following:
(a) Any party to an unresolved Dispute may file a written Demand for
Arbitration pursuant to this Section 13.5 with the Regional Office of the
American Arbitration Association nearest to Xxxxxx Springs, and shall
simultaneously send a copy of such Demand to the other party or parties to such
Dispute;
(b) Arbitration proceedings under this Section 13.6 shall be conducted in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association, except that all decisions and awards rendered shall be accompanied
by a written opinion setting forth the rationale for such decisions and awards;
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(c) Venue for all evidentiary hearings conducted in such proceedings shall
be in Xxx or Xxxxxxx County, Florida, as determined by the Arbitrator.
(d) Unless otherwise agreed by the parties thereto, arbitration proceedings
under this Section 13.6 shall be conducted before one impartial arbitrator
selected through the procedures of the American Arbitration Association. On all
matters, the decisions and awards of the arbitrator shall be determinative.
(e) To the extent practicable, the arbitration proceedings under this
Section 13.6 shall be conducted in such manner as will enable completion within
sixty (60) days after the filing of the Demand for Arbitration hereunder.
(f) The arbitrator may award attorney's fees and costs of arbitration to
the substantially prevailing party. Unless and except to the extent so awarded,
the costs of arbitration shall be shared equally by the parties, and each party
shall bear the fees and expenses of its own attorney. Punitive damages shall not
be allowed by the arbitrator. The award may be enforced in such manner as
allowed by law.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
SOURCE INTERLINK COMPANIES, INC.
By: /s/ S. Xxxxxx Xxxxxx
------------------------------------
Name: S. Xxxxxx Xxxxxx
Title: Chairman & Chief Executive
Officer
/s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
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