Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, made and entered into as of the
23rd day of May, 1996, by and between SHOWPOWER, INC., a California corporation
(hereinafter the "Employer" or "Company"), Xxxx X. Xxxxxxx (hereinafter the
"Executive") and Modular Energy Systems (Ireland), Ltd. an Irish corporation
("MESL") controlled by Executive.
1. Employment. The Employer hereby employs the Executive and
the Executive hereby accepts employment upon the terms and conditions
hereinafter set forth.
2. Term. Subject to the provisions for termination as
hereinafter provided, the term of this Agreement shall begin on the date of
execution hereof and continue for a term of five (5) consecutive years.
3. Duties. Executive shall perform such duties and
responsibilities as may be assigned from time to time by the Board of Directors,
as President of the Employer. Executive shall also be responsible for and
perform any duties described on Exhibit "A," attached hereto.
4. Compensation and Benefits. For services rendered by the
Executive under this Agreement, the Executive shall receive a base salary and an
incentive salary, if any, as set forth on Exhibit "B," attached hereto.
Executive shall also receive all benefits including pension, group insurance and
participation plans which the Employer's Board of Directors may adopt from time
to time and make available to Employer's employees generally, and any other
benefits listed on Exhibit "B." Such salaries and benefits will be reviewed
annually, and an increase or bonus may be granted in the sole discretion of the
Employer's Board of Directors.
5. Equity interest.
x. Xxxxx of Equity Interest. For so long as he shall remain
an employee of Employer, Executive is hereby granted an option to
purchase shares equal to seven and sixty-four hundredths percent
(7.64%) of Employer, if such option is exercised prior to the sale of
equity in the Company to X. Xxxxx, or five and three hundredths
percent (5.03%) if exercised after the sale of such equity for $100.00
at any time. Executive agrees to execute the Shareholders' Agreement
of all the Shareholders of Employer. Such interest shall be purchased
equally from all shareholders, and shall be personal to Executive and
may not be assigned or transferred, except that Executive may assign
and/or transfer his interest to his spouse, provided that such spouse
executes the Shareholders' Agreement, and agrees to all the terms and
conditions of this Agreement, including Employer's right of repurchase
of such interest. If at any time Executive becomes eligible to hold
shares in a Sub-S corporation, the shares shall be automatically
transferred to Executive. In addition, Executive's spouse agrees to
execute a restrictive transfer
agreement acceptable to Employer. If at the time Executive exercises
his option to acquire such shares, Executive does not qualify as a
shareholder of an S corporation, Executive shall either take such
steps as may be necessary to so qualify, or cooperate in the formation
of a new entity which has substantially the same tax treatment as an S
corporation.
b. Employer's Right of Repurchase. Upon the termination of
Executive's employment hereunder for any reason, Employer shall have
the right, upon sixty days written notice to Executive, to purchase
the equity interest of Executive, for a price equal to its fair market
value, as determined by an independent M.A.I. certified appraiser,
provided however, that in the event the Executive voluntarily resigns
from his position in the Employer, the Employer shall be obligated
solely to pay to Executive the amount that Executive has paid for such
stock. If Employer and Executive are unable to jointly designate such
appraiser within sixty days following Employer's notice, then each of
Employer and Consultant shall designate an independent M.A.I.
certified appraiser, and the two appraisers so designated shall
jointly select a third independent M.A.I. certified appraiser, whose
valuation shall be binding on the parties. If the two appraisers so
designated shall be unable to agree on the designation of the third
appraiser, within sixty days following the appointment of the later of
the two, or if such third appraiser shall not submit his or her
valuation within ninety days following his or her appointment, then
the valuation shall be determined in a binding arbitration conducted
by the American Arbitration Association in Los Angeles, California,
according to the expedited rules of such Association. The closing of
the purchase shall take place within thirty days following the
determination of value, and the purchase price shall be payable 25% at
closing, and the balance by a promissory note (bearing interest at 10%
per annum), payable in three equal annual installments. The costs for
such appraisal shall be borne equally by the Employer and the
Executive.
6. Accounting terms. For each of the following terms, the
figures used shall be that utilized by the Employer financial in the normal
course of business consistently applied from year to year, and, if applicable,
in accordance with the audit procedures utilized by Employer's certified public
accounting firm.
7. Indemnification of Employer. Executive indemnifies
Employer against any liability relating to U.S. immigration and tax laws, and he
represents and warrants that he is authorized to enter into and perform this
Agreement under all applicable laws and regulations. Executive covenants to file
all necessary returns, and pay all taxes, that may become due under state or
federal law, arising out of this Agreement and their relationship with Employer.
8. Business Expenses. Executive will be entitled to prompt
reimbursement of ordinary and necessary business expenses incurred by the
Executive in performing the services hereunder, including all reasonable travel
and living expenses while away from home on business
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or at the request of and in the service of Employer, provided that such expenses
are incurred and accounted for in accordance with the policies and procedures
for Employer, as may be modified from time to time by the Board of Directors.
9. Inventions. In consideration of the sum of $65,995.48,
receipt of which is hereby acknowledged, MESL and Executive hereby assign to
Employer all discoveries, inventions, improvements and developments made or
conceived by them, alone or in collaboration with others, during and prior to
his employment, whether or not during regular working hours, and relating to any
methods, apparatus, products or components thereof, which, prior to the
termination of this Agreement are manufactured, sold, leased, used, or under
development by or pertain to the business of Employer, including those
inventions described on Exhibit "A" attached hereto and incorporated hereby. All
such items are works for hire and shall upon execution hereof become and remain
the property of Employer, its successors and assigns. MESL and Executive will
disclose promptly in writing to Employer all such discoveries, inventions,
improvements and developments and, at the request of Employers and without
expense to Employer, MESL and Executive will make, execute, and deliver all
application papers, assignments or instruments, and perform or cause to be
performed such other lawful acts, as Employer may deem necessary or desirable in
making or prosecuting applications, domestic or foreign, for patents, re-issues,
and extensions thereof, and, assist and cooperate with Employer or its
representative in any controversy or legal proceedings relating to such
discoveries, inventions, improvements and developments, or to the patents which
may be procured thereon. Executive and MESL hereby forever assign to Employer
all the right, title and interest to all inventions previously invented by
Executive, MESL or MES, including those included on Exhibit "A" attached hereto.
Modular Energy Systems, Inc., a California corporation, is executing this
Agreement to evidence its intention to be bound by each of the provisions of
this Agreement relating to inventions and Employer's rights with respect
thereto. As additional consideration to Employer, Executive shall cause MESL
shall conduct research and development services that may be requested by
Employer from time to time during the term of this Agreement. The obligations of
Executive and MESL shall survive any termination of this Agreement.
10. Termination. This Agreement may be terminated prior to
the scheduled expiration of its term as follows:
a. The Employer may terminate this Employment Agreement at
any time with good cause, whereupon all compensation to Executive
shall cease upon the effective date of termination. As used in this
Paragraph 5, the term "good cause" shall include, without limitation,
incompetency, neglect of duty, dishonesty, breach of any provision of
this Agreement, any other conduct which is contrary to the faithful
and diligent performance of Executive's duties, or Executive's failure
to adequately perform any duties reasonably assigned to Executive, and
specifically shall include (i) dishonesty by Executive detrimental to
the best interests of Employer or any of its affiliates, (ii)
continuing inattention to or neglect of the duties to be performed by
Executive, (iii) willful disloyalty of
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Executive to Employer, (iv) the death of Executive, (v) participation
by Executive in any fraud, (vi) the imparting of any material
confidential information by Executive in violation of this Agreement,
or (vii) any other material violation of this Agreement by Executive,
provided however, that no finding of good cause shall result from the
Executive's prudent exercise of his business judgement in the
performance of his duties hereunder.
b. The Employer may terminate this Employment Agreement at
any time without cause, provided however, if Employer wishes to
continue to enforce the covenant not to compete contained in the
Non-Solicitation and Non-Competition Agreement attached hereto as
Exhibit "C", Employer shall be required to continue to pay the
Executive his base compensation as provided herein commencing with the
date of termination and continuing for the term of the
Non-Solicitation and Non-Competition Agreement.
c. Upon the express written agreement of the parties.
11. Disclosure of information and Restrictive Covenants. It
is noted by the parties hereto that in the regular performance of the duties
encompassed by this Agreement, Executive will become familiar with and have
access to Employer's business methods and operation, its clients, customer lists
and accounts and its trade secrets and other confidential information
(collectively the "Information"). Therefore, as part of the consideration to
Employer for entering into this Agreement, the Executive hereby covenants and
agrees:
a. That Executive shall hold the Information in strictest
confidence and shall not disclose to any person, firm or company, the
Information, or any part thereof, except where authorized by the
Employer, and shall not use the Information, or any part thereof, in
any way which shall be detrimental to the Employer, it being
understood that the Executive shall not use any such information for
Executive's own benefit or the benefit of any other party, firm or
company.
b. That the relationship between the Executive and the
accounts, customers and clients of Employer results in a unique and
special situation whereby the Executive is placed in a position to
either further the business of the Employer or to deleteriously affect
such business and, accordingly, during the term of this Agreement and
for a period of thirty-six (36) months after the expiration or
termination of this Agreement, (i) the Executive shall not, in any way
or for any reason, encourage any customer, client or account of
Employer to sever or alter the relationship of such customer, client
or account with Employer; (ii) Executive shall not aid anyone else to
take or secure from Employer, its customers, clients or accounts;
(iii) directly or indirectly solicit, take away, divert, interfere or
conduct business with any account or customer of Employer with respect
to services or products which are competitive with those of the
Employer; or (iv) directly or indirectly, alone or with any third
party, solicit, hire or retain
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any person employed by the Employer (or any person under contract as
an independent contractor).
c. That Executive shall, concurrent with the execution of
this Agreement, execute and be bound by the terms of a
Non-Solicitation and Non-Competition Agreement, in form substantially
as attached hereto as Exhibit "C", with such modifications thereto as
Employer may elect.
12. Extent of Services. The Executive shall devote his or her
entire time, attention and energies to the business of the Employer or to such
other business as the Employer shall designate. The Executive shall not, during
the term of this Agreement, be engaged in any other business activity whether or
not such business activity is pursued for gain, profit, or other pecuniary
advantage, except as otherwise specifically approved in writing by the Board of
Directors of Employer. In no event shall the Executive be prevented from
investing his or her assets in such form or manner as will not require any
services on the part of the Executive in the operation of the affairs of the
companies in which such investments are made.
13. Employer's Employment Policies. Executive's employment
hereunder shall be subject to and governed by such employment practices and
policies as Employer may adopt at any time or from time to time.
14. Remedies. The remedies provided herein shall be deemed
cumulative, and the exercise of one shall not preclude the exercise of any other
remedy based upon any particular occurrence or contingency, nor shall the
specification of remedies herein exclude any rights or remedies at law or in
equity which may be available hereto, including any rights to damages or
injunctive relief. Executive acknowledges and agrees that the remedy at law for
breach of this Agreement, including the provisions under paragraph 6 above, is
inadequate because a breach would result in irreparable harm and damage to
Employer which cannot be adequately compensated by a monetary award, and the
covenants and restrictions contained in this Agreement are reasonable as to
scope and duration, and necessary, fundamental and required for the protection
of Employer's business. Accordingly, Executive agrees that Employer shall be
entitled to an ex parte temporary restraining order and preliminary injunction
for breach of this Agreement or such other form of injunctive or equitable
relief as may be used by any court of competent jurisdiction to restrain or
enjoin Executive from breaching any such covenant or restriction or to
specifically enforce this Agreement, and Employer shall not be required to post
any bond.
15. Executive's Restrictions. Executive represents and
warrants to Employer that there are no existing agreements or covenants
whatsoever which would inhibit or prevent Executive from entering into and
performing this Agreement and working for Employer.
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16. Miscellaneous.
a. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing, and if sent by certified
mail to Executive's residence in the case of the Executive, or to its
principal office in the case of the Employer.
b. The waiver by the Employer of a breach of any provision of
this Agreement by the Executive shall not operate or be construed as a
waiver of any subsequent breach by the Executive.
c. The rights and obligations of the Employer under this
Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Employer. This Agreement may not be
assigned by Executive.
d. Employer shall be the owner of all discoveries, concepts,
ideas, processes, methods, formulas, techniques, trademarks, trade
names, copyrights, patents, improvements and know-how developed,
produced or conceived by Executive (either solely or jointly with
other persons) during the initial term and any renewal terms of this
Agreement, regardless of whether the same arise during the hours of
Executive's employment or with the use of Employer's facilities,
materials or personnel. Executive agrees, upon request, to execute any
and all documents necessary or desirable to evidence Employer's
ownership of any of such property or rights and to deliver copies of
any related items to Employer. All properties and rights of Employer
described in this subparagraph 11d. shall be deemed to be within the
scope of the restrictions of Paragraph 6 of this Agreement.
e. This Agreement contains the entire agreement of the
parties, and all other agreements, understandings, contracts, whether
written or oral, are null and void and of no force and effect,
provided, however, that the parties may also execute an agreement of
non-solicitation governing some of the matters set forth in Paragraph
6, in which case all of such terms are incorporated herein. This
Agreement may not be changed orally but only by an agreement in
writing signed by, respectively, Xx. Xxxxxxx and, in the case of
binding the Corporation, an executed board resolution, against whom
enforcement of any waiver, change, modification, extension, or
discharge is sought. Except for a deferred bonus from 1995, the
outstanding balance of which, as of the date hereof , is $53,000.00,
Executive is not owed any other monies or thing by Employer, and
Employer has no other liability to Executive, except as specifically
provided herein.
f. In the event that any section, paragraph, sentence, clause
or phrase of this Agreement shall be declared invalid for any reason,
such invalidity shall not thereby affect the remainder of said
agreement.
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g. This Agreement is to be governed by and construed under
the laws of the state of California, and the venue for such dispute
shall be in Los Angeles, California.
IN WITNESS WHEREOF, the parties have executed this Employment
Agreement as of the date and year first above written.
Employer:
SHOWPOWER, INC., a California
Attest: corporation, Employer
/s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
----------------------------- ----------------------------
Secretary Chairman of the Board
Executive:
/s/ Xxxx X. Xxxxxxx
----------------------------
MESL
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Its: Authorized Representative
---------------------------
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EXHIBIT "A"
ADDITIONAL SPECIFIC DUTIES
Executive shall be employed as the Chief Executive Officer of
the Employer. His duties shall include primary responsibility for the marketing,
administration, financing, strategic planning, capital expenditures and human
resource management of Employer. It is specifically agreed however, that the
Board of Directors may, at any time, with respect to the title of President, and
the performance of administration, financing and human resource management
("Excepted Duties") of the Employer, relieve Executive of his title as President
and his responsibilities for the Excepted Duties and delegate such title and the
Excepted Duties to other employees of Employer, or to such persons as the Board
of Directors may otherwise elect, provided however, that (a) Xxxxx X. Button,
shall not, under any circumstances be named as President and (b) Executive shall
be required to report only to the Board of Directors, or its duly authorized
representative. A delegation shall not in an way be deemed a breach by Employer
under this Employment Agreement.
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EXHIBIT "B"
COMPENSATION AND BENEFITS PACKAGE
Base Salary: $200,000 per year, payable in twenty six equal
installments on every other Wednesday, provided
however, that upon the payment by Employer of all
existing shareholder debt, including any additional
shareholder debt incurred during the term of the
agreement, Executive's base salary shall become
$240,000 per annum.
Incentive Compensation: Executive shall be entitled to receive additional
compensation each year equal to six and sixty-seven
hundredths (6.67%) percent of the "Free Cash Flow" of
the Employer. For purposes of this Agreement, Free Cash
Flow shall mean the amount equal to Employer's EBITDA
(as defined in accordance with generally accepted
accounting principals GAAP) in any fiscal year, minus
the sum of amounts paid for (i) principal repayments,
(ii) interest expense, (iii) capital lease payments and
(iv) the cash portion of capital investments, excluding
investments funded with proceeds of any offerings of
the equity securities of the Employer.
Automobile: Employer shall provide Executive with an automobile of
his choosing and shall reimburse Executive for the cost
of reasonable and proper maintenance and insurance
expenses for such automobile, provided however, that
such reimbursement shall not exceed $2,500 per month.
Other Benefits:
a. Life Insurance. Employee shall be eligible to participate
in the Employer's Group Life Insurance Plan, which provides a life insurance
policy with a death benefit of ten times base compensation. The value of the
insurance premium will be reported as taxable compensation to Employee. The
separate key man policy in the amount of $2 million on the Executive's life
shall be for the benefit the Employer.
b. 401 (K) Plan. Employee shall be eligible to participate in
Employer's 401 (K) Plan, which provides that all contributions by Employee up to
the first six percent (6%)
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of base compensation shall be matched by Employer at the rate of fifty cents for
each Employee dollar contributed. The vesting period under such plan shall
commence as of the first date of Employee's employment with the Company.
c. Health insurance. Employee shall be eligible to
participate in Employer's group health insurance plans which provides for
medical and dental coverages.
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EXHIBIT "C"
NON-SOLICITATION and NON-COMPETITION AGREEMENT
THIS NON-SOLICITATION and NON-COMPETITION AGREEMENT is
entered into as of this 23rd day of May 1996, between Xxxx X. Xxxxxxx
("Executive") and SHOWPOWER, INC., a corporation organized and existing under
the laws of the state of California (hereinafter called "Employer" or
"Company"), and is made with reference to the following facts:
A. Employer is engaged in the business of providing temporary
electrical power and/or heating, ventilation and air conditioning and cooling
("HVAC") and related services for private, public and spectator events, power
generation and HVAC and distribution equipment for such events and related
engineering, design and consulting services on an international basis and enjoys
a fine international reputation, which could be irreparably damaged should
Employee compete with Employer in violation of this Non-Solicitation Agreement;
and
B. Employer conducts its sales, marketing, services and
promotion on a worldwide basis and, accordingly, the geographic scope of this
Non-Solicitation Agreement shall be all states of the United States and all
countries of the world (the "Territory"); and
C. Executive is presently employed by Employer, and through
such employment relationship has been and will be provided with information
concerning Employer's business and shall receive training in such business and
will continue to come in contact with Employer's customers throughout the
duration of the employment relationship.
D. Employer and Executive recognize that Employer's business
methods, operations and information and its relationship with its customers,
clients and accounts are confidential and proprietary having been developed at
considerable time and expense to Employer.
NOW, THEREFORE, in consideration of and mutually in reliance
on the premises, representations, covenants, undertakings and agreements herein
set forth, and for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
17. Non-Solicitation. During the three (3) year period
beginning with the date of termination of Executive's employment with Employer
or any of its subsidiaries or affiliates, Executive shall not for any reason,
either directly or indirectly, (a) make known to any person, firm or
corporation, the names and addresses of any of Employer's clients or any other
information pertaining to them; (b) call on, solicit, take away, or attempt to
call on, solicit or take away, any of Employer's clients on whom Executive
called or with whom Executive became acquainted during Executive's employment
with Employer or induce any such client to patronize
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any competitor of Employer, either on Executive's behalf or that of another
person, firm or corporation or (c) call on, solicit, take away, or attempt to
call on, solicit, or take away, any of Employer's Executives, consultants and
independent contractors with whom Executive became acquainted during Executive's
employment with Employer or induce any such employee, consultant or independent
contractor to become an employee, consultant or independent contractor to any
competitor of Employer, either on Executive's behalf or that of another person,
firm or corporation. The foregoing is not intended to restrict Executive's right
to call on persons in connection with matters that are exclusively personal or
social.
18. Covenant Not to Compete. To accord to Company the full
value of the Executive's time and as a material inducement to Company to enter
into and perform the transactions contemplated by the Employment Agreement and
this Covenant Not to Compete and by Purchaser to enter into and perform the
transactions contemplated by the Stock Purchase Agreement, as such terms are
defined in that certain Stock Purchase Agreement dated May 23, 1996 between
Company and Purchaser, except as otherwise provided hereinbelow, during the
three (3) year period beginning with the date of termination of Employee's
employment with Employer or any of its subsidiaries or affiliates, Executive
shall not for any reason engage or become interested, own, purchase, organize or
take preparatory steps for the organization of, build, finance, acquire, lease,
operate, manage, or invest in any business or permit his name or any part
thereof to be used or employed in connection with any business in competition
with or otherwise similar to Company's Business (as defined below), directly or
indirectly (as legal or beneficial owner, stockholder, partner, director,
officer, Executive, consultant, manager, agent or associate, or otherwise),
anywhere in the Territory, except that Executive may hold, as a passive investor
only, not more than five percent (5%) of the outstanding securities of any class
of any publicly held company engaged in such business or related business.
19. Employer's Business. For purposes of this
Non-Solicitation Agreement, the parties agree that Employer's Business is a full
service company which provides and/or operates temporary electric power supply,
service personnel, chillers, air handlers, heaters, mobile generators and
distribution equipment to provide temporary electrical power and distribution
and/or heating, air conditioning and cooling and ventilation services and
equipment for a variety of functions, throughout the United States and overseas
on an international basis, and the provision of engineering, design and
consulting services related to such equipment and of or in connection with:
19.1 Clients engaged in the trade show, event, motion
picture, television, product launch, entertainment and music
industries, including by way of example but not limited to: broadcast
and cable television companies; record companies; production
companies; live stage shows for paying audiences;
19.2 Live sporting events, automobile rallies and races;
product launches, trade shows and exhibitions; amateur athletic
events; all video/satellite broadcast companies; corporate and
industrial theatre;
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19.3 Any musical event where a "musical term" is included in
the name of the event. As used herein, "musical term" shall included
by way of example, but not by way of limitation: jazz; punk; rock; and
roll; country music; rap music; gospel music; and Christian music;
19.4 Any event which takes place in a temporary structure and
for which either temporary electrical power or environmental controls
are utilized; and
19.5 All existing, prospective and former customers of
Employer in the businesses and industries described above;
"Prospective customers" are limited to those industries and businesses
described above.
20. Information Use. Executive shall use the information and
training provided by Employer as governed by this Non-Solicitation Agreement
during the employment relationship with Employer only for the purposes of
carrying out and completing the obligations of Executive's position, and shall
not use such information or training for any other purpose. Executive agrees
that, during the term of Executive's employment with Employer, Executive shall
refer any inquiries and prospects exclusively to Employer. In addition,
Executive shall comment favorably regarding Employer and Employer's conduct of
Employer's Business if asked by any third party.
21. Confidentiality.
21.1 Executive will hold in strictest confidence, not
disclose to any person, firm or corporation, and not exploit or use,
without the express authorization of an officer of Employer, the
nature of Executive's duties and responsibilities on behalf of
Employer, any information, process, development or experimental work,
work in process, client list, pricing policy and financial data, or
any other secret or confidential matter relating to the sales or
business of Employer or its affiliates or subsidiaries.
21.2 Executive acknowledges and agrees that the names,
addresses, preferences and all documentation of Employer, whether
prepared by Executive or otherwise, relating to identity, preferences,
purchasing patterns, modes of operation, program designs and sales and
contact details of Employer's clients, and the identity of any and all
suppliers of goods or services, forwarding agents, referral sources
constitute trade secrets of Employer; and that the sale or
unauthorized use or disclosure of any of Employer's trade secrets
obtained by Executive during Executive's employment with Employer
shall constitute unfair competition and a violation of applicable
state law. Employer competes and will compete in the marketplace by
virtue of its ability to formulate and maintain secrecy of the
information described herein. Executive shall not, in any way,
infringe upon this secrecy by engaging in unfair competition with
Employer.
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21.3 All records of the accounts of clients, route books,
itineraries, costing sheets, prices, schedules, other documentation,
computer hardware and software, and any other records and books
relating in any manner whatsoever to the clients of Employer, whether
prepared by Executive or otherwise, and whether situated inside or
outside the offices of Employer, shall be the exclusive property of
Employer, regardless of who actually purchased, prepared, entered, or
in any manner worked on the original document and/or record.
21.4 All obligations of Executive under this Section 4 shall
survive for an indefinite period following the execution and delivery,
and any termination, of this Non-Solicitation Agreement. The trade
secrets and information referred to in this Non-Solicitation Agreement
gravely affect the effective and successful conduct of Employer's
business and its good will, and any breach of this Section 4 is a
material breach.
22. Remedies. The parties to this Non-Solicitation Agreement
acknowledge and agree that (a) the remedy at law for a breach of this
Non-Solicitation Agreement is inadequate because a breach would result in
irreparable harm and damage to Employer which cannot be adequately compensated
by a monetary award, and (b) the covenants and restrictions contained in this
Non-Solicitation Agreement are reasonable as to scope and duration and
necessary, fundamental and required for the protection of Employer's Business.
Accordingly, Executive agrees that Employer shall be entitled to an ex parte
temporary restraining order and preliminary injunction for breach of this
Non-Solicitation Agreement, or such other form of injunctive or equitable relief
as may be used by any court of competent jurisdiction to restrain or enjoin
Executive from breaching any such covenant or restriction or to specifically
enforce this Non-Solicitation Agreement, and Employer shall not be required to
post any bond. Further, Executive agrees that Employer's right to equitable
relief hereunder is in addition to any other relief or remedy to which Employer
is entitled at law and in equity.
23. Successors and Assigns. This Non-Solicitation Agreement
and the respective rights and obligations of the parties hereunder shall be
binding upon, inure to the benefit of, and be enforceable by the parties hereto
and their respective parent, affiliate and subsidiary corporations, successors
(including but not limited to, any successor in interest to all or substantially
all of the asset of Employer's Business), heirs, assigns and legal and personal
representatives; it being understood that Employer may freely assign its rights
hereunder to any corporation, entity, business or person into which or with
which Employer shall merge, combine, affiliate or consolidate, or which
controls, is controlled by or is under common control with Employer.
Notwithstanding the above, however, Executive may not assign any rights, nor
delegate any duties under, this Non-Solicitation Agreement.
24. Severability. The covenants and other provisions
contained herein shall cover the activities of Executive in every part of the
Territory; and such covenants shall be construed as if each covenant is divided
into separate and distinct covenants in respect of
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Employer's Business, each capacity in which Executive is prohibited from
soliciting, each portion of the Term and each part of the Territory. Each such
covenant shall constitute separate and several covenants distinct from all other
such covenants. Each of the parties hereto recognizes that the territorial
restrictions contained in this Non-Solicitation Agreement are properly required
for adequate protection of Employer's Business and that in the event any
covenant or other provision contained herein shall be deemed to be illegal,
unenforceable or unreasonable by a court or other tribunal of competent
jurisdiction with respect to any part of the Territory, the Term or any other
provision of this Non-Solicitation Agreement, such covenant shall not be
affected with respect to any other part of the Territory or with respect to any
other jurisdiction, and each of the parties hereto agrees and submits to the
reduction of said territorial restriction to such an area, to the Term as said
court or tribunal shall deem reasonable.
25. Notices. All notices hereunder to the parties hereto
shall be in writing and sent by certified or registered mail, and by air mail if
mailed to an addressee outside of the continental United States, return receipt
requested, postage prepaid, or by telegraph or telex, addressed to the
respective parties, in the case of Executive, to Executive's last known
residential address as reflected in the records of Employer; and if to Employer,
to the principal business office of Employer.
Any party may by written notice complying with the
requirements of this Section specify another or different person or address for
the purpose of notification hereunder. All notices hereunder shall be deemed to
have been given and received on the next day following the sending of such
telegram or telex and, if mailed, on the fifth business day following such
mailing.
26. Other Restrictions. The restrictions, covenants and
agreements contained herein, are in addition to, and Executive shall further be
subject to and restricted by, any other restrictions, covenants and agreements
set forth in any other agreement of the parties relating to the subject matter
hereof, including without limitation any employment agreement or covenant not to
compete. In the event the terms of such other agreement(s) is more or less
restrictive than those contained herein, and a conflict exists between such
agreements, it is the parties' intent and their agreement that the more
restrictive terms shall apply to Executive.
27. Entire Agreement. Except as may otherwise be referred to,
referenced or incorporated herein, this Non-Solicitation Agreement contains the
entire and only agreements of the parties hereto respecting the matters herein
set forth, supersedes or incorporates all prior agreements and understandings
between the parties hereto regarding the matters herein contemplated, and this
Non-Solicitation Agreement may not be changed or terminated orally, nor shall
any change, termination or attempted waiver of any of the provisions herein
contained be binding unless in writing signed by the party against whom the same
is sought to be enforced, nor shall this paragraph itself be waived verbally.
This Non-Solicitation Agreement may be amended only by a written instrument duly
executed by or on behalf of the parties hereto.
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28. Counterparts. This Non-Solicitation Agreement may be
executed by the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all of such counterparts together shall
constitute one and the same instrument.
29. Governing Law. This Non-Solicitation Agreement is made
and intended to be performed in the State of California, and shall take effect
under, be construed and enforced according to, and the rights and obligations of
the parties shall be governed in all respects by, the laws of the State of
California applicable to agreements made and to be performed in that State.
30. Attorneys' Fees. In the event of any controversy, claim
or dispute between the parties hereto arising out of or relating to this
Non-Solicitation Agreement, including but not limited to a controversy settled
by arbitration, the prevailing party shall be entitled to recover from the
losing party reasonable expenses, attorneys' fees and costs.
31. Headings. The headings in this Non-Solicitation Agreement
have been inserted for convenience of reference only, and shall in no way affect
the interpretation of the terms or provisions of this Non-Solicitation
Agreement.
32. No Waiver. Employer's failure to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver or deprive Employer of its right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
Any waiver must be in writing.
IN WITNESS WHEREOF, this Non-Solicitation and Non-Competition
Agreement has been duly executed on the date first above written.
EXECUTIVE: EMPLOYER:
SHOWPOWER, INC.
/s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxx
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Its: Chairman of the Board
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