Exhibit 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is made as of December 30, 1999, by
▇▇▇▇ & ▇▇▇▇▇▇, Inc., a Delaware corporation (the "EMPLOYER"), and ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, an individual (the "EXECUTIVE").
The parties, intending to be legally bound, hereby agree as
follows:
1. EMPLOYMENT TERMS AND DUTIES
1.1 EMPLOYMENT; DUTIES
The Employer hereby employs the Executive, and the Executive
hereby accepts employment by the Employer, as its President, with such duties
consistent with such position as are assigned or delegated to him by the Board
of Directors of Employer or any duly authorized committee thereof (the "Board").
If, in the good faith judgment of the Board, Executive is satisfactorily
performing his duties hereunder, then within one year from commencement of
Executive's employment under this Agreement, Executive shall be appointed to the
additional position of Chief Executive Officer of the Company. The Employer will
nominate the Executive to serve as a member of the Board. The Executive will
devote his entire business time, attention, skill and energy exclusively to the
business of the Employer, will use his best efforts to promote the success of
the Employer's business, and will cooperate fully with the Board in the
advancement of the best interests of the Employer.
1.2 TERM
The term of the Executive's employment under this Agreement
will be three years, beginning on a date to be mutually agreed by the Executive
and Employer and ending on the third anniversary of such date, subject to
Section 5.
2. COMPENSATION
2.1 BASIC COMPENSATION
(a) SALARY. The Executive will be paid an annual salary of
$500,000 (the "SALARY"), which will be payable in equal periodic installments
according to the Employer's customary payroll practices, but no less frequently
than monthly.
(b) OPTION GRANTS. Upon the execution of this Agreement, the
Employer will issue to the Executive options to acquire 450,000 shares of Common
Stock (900,000 shares after giving effect to a two-for-one stock split scheduled
for January 2000) at an exercise price of $4.18 ($2.09 after giving effect to a
two-for-one stock split scheduled for January 2000) per share, in the form of
Exhibit A.
(c) BENEFITS. The Executive will, during the term of his
employment be entitled to participate in such pension, profit sharing, bonus,
life insurance, hospitalization, major medical and other employee benefit plans
of the Employer as may be in effect from time to time, to the extent the
Executive is eligible under the terms of those plans (collectively, the
"BENEFITS"). The Benefits shall include (i) hospitalization and major medical
coverage effective from the first day of Executive's employment hereunder (if
the Employer's plans do not provide for immediately effective coverage, the
Employer may satisfy this requirement by reimbursing the Executive for the cost
of obtaining coverage under the Comprehensive Omnibus Budget Reconciliation Act
from his prior employer for the period prior to effectiveness of coverage under
Employer's plans) and (ii) $1,000,000 of term life insurance coverage, if
obtainable at normal rates. The Executive will also be entitled to be reimbursed
for the initiation fee to become a member of a club of his choice, in amount not
to exceed $75,000.
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2.2 BONUS COMPENSATION
Following consummation by Employer of a Qualified IPO (as
defined in Employer's certificate of incorporation), the Executive shall be paid
a bonus (the "BONUS") for each fiscal year (or pro rata portion thereof) during
the term of his employment, beginning with the fiscal year ending in 2001, in an
amount (not exceeding $275,000) determined by the Board, but not less than
$137,500, with the balance, if any, based upon the achievement of performance
criteria agreed upon in good faith by Executive and the Board. The bonus for a
fiscal year will be payable within 90 days after the end of that fiscal year.
2.3 NOTE REPLACEMENT
The Employer will advance to the Executive the amount of
approximately $68,000 payable by Executive to ▇▇▇▇ & ▇▇▇▇▇▇, Inc. under a
promissory note dated ___________ , such advance to be evidenced by the
Executive's promissory note in the form of Exhibit B.
3. EXPENSES
(A) The Employer will reimburse the Executive for reasonable
expenses incurred by the Executive at the request of, or on behalf of,
the Employer in the performance of his duties pursuant to this
Agreement, to the extent incurred and documented in accordance with the
Employer's policies.
(B) The Employer will reimburse (or, in the case of clause
(vi), advance to) the Executive for reasonable relocation expenses
incurred by the Executive, including, without duplication: (i)
temporary living and travel expenses for Executive during moving
transition period, not to exceed 8 months; (ii) real estate closing
expenses incurred by Executive in connection with the sale of his
current residence and the purchase of a new home, including fees on any
new mortgage of up to 2 points; (iii) costs of moving and/or storing
all of Executive's personal effects, including packing and unpacking,
and transport of automobiles; (iv) expenses for travel and first class
hotel accommodation for Executive, his spouse and family up to ten
trips to the San Francisco metropolitan area to search for a new home;
(v) travel expenses to move Executive's family to his new home; (vi)
costs of housing advance based on published index of housing cost
differentials in Seattle and the location of his new home, less the
amount of profits made by Executive on the sale of his residence in
Seattle, which advance shall not exceed $500,000; and (vii) if
necessary, temporary living expenses for family in new location while
searching for a home, for a period not to exceed 6 months. Employer
will advance $25,000 to Executive upon execution of this Agreement to
cover relocation incidentals. The advance referred to in clause (vi)
shall be evidenced by a promissory note in the form of Exhibit C, which
shall be forgiven as to 25% of the amount thereof on each annual
anniversary of the date of this Agreement if the Executive is then
employed by the Company. If the Executive purchases a new home prior to
the sale of his residence in Seattle, the Employer will also provide
the Executive with up to $3,000,000 of "bridge financing" for the
purchase of his new home through either (i) a guaranty of a short-term
(not to exceed 90 days) mortgage loan from a bank or other financial
institution or (ii) a short-term (not to exceed 90 days) mortgage loan
from the Employer. Should the Executive voluntarily leave the employ of
the Company (other than for Good Reason, as defined below) and obtain
new employment during the term of this Agreement, Executive shall
reimburse Company in full for the above relocation costs, plus the
amount of the executive recruitment fee paid by the Company in
connection with the Executive's recruitment.
(C) The Employer will reimburse the Executive for the
reasonable fees of legal counsel retained by the Executive in
connection with the negotiation of this Agreement, to the extent not
exceeding $10,000.
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4. VACATIONS, HOLIDAYS AND HOME LEAVE
4.1 The Executive will be entitled to four weeks' paid vacation each
calendar year in accordance with the vacation policies of the Employer in effect
for its executive officers from time to time.
5. TERMINATION
5.1 EVENTS OF TERMINATION
This Agreement and any and all benefits and rights of the
Executive under this Agreement or otherwise as an employee of the Employer will
terminate (except as otherwise provided in this Section 6):
(a) upon the death of the Executive;
(b) upon the Disability of the Executive immediately upon
notice from either party to the other;
(c) For Cause, immediately upon notice from the Employer to
the Executive, or at such later time as such notice may specify; or
(d) For Good Reason upon not less than thirty days' prior
notice from the Executive to the Employer.
5.2 DEFINITION OF DISABILITY
For purposes of Section 5.1, the Executive will be deemed to
have a "Disability" if, for physical or mental reasons, the Executive is unable
to perform the Executive's duties under this Agreement for 60 consecutive days,
or 120 days during any twelve month period, as determined by the Board in good
faith. In order to assist the Board in making that determination, the Executive
will submit to a reasonable number of examinations by a medical doctor
designated by the Board and the Executive hereby authorizes the disclosure and
release to the Employer of the results of such examinations and all supporting
medical records.
5.3 DEFINITION OF "FOR CAUSE"
For purposes of Section 5.1, the phrase "For Cause" means: (a)
the Executive's breach of this Agreement in any material respect; (b) the
Executive's failure to substantially perform his assigned duties hereunder or to
adhere to any written Employer policy if such failure continues uncured for at
least ten days after notice thereof; (c) the appropriation (or attempted
appropriation) of a material business opportunity of the Employer, including
attempting to secure or securing any personal profit in connection with any
transaction entered into on behalf of the Employer; (d) the misappropriation (or
attempted misappropriation) of any of the Employer's funds or property; (e) the
conviction of, the indictment for (or its procedural equivalent), or the
entering of a guilty plea or plea of no contest with respect to, a felony, the
equivalent thereof, or any other crime, involving fraud or falsehood, or with
respect to which imprisonment is a possible punishment; or (f) use of illegal
drugs or controlled substances or excessive and recurring consumption of
alcoholic beverages.
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5.4 DEFINITION OF "FOR GOOD REASON"
For purposes of Section 5.1, the phrase "For Good Reason"
means any of the following: (a) the Employer's breach of this Agreement in any
material respect that continues uncured for at least ten days after notice
thereof from the Executive; (b) the assignment of the Executive without his
consent to a position, responsibilities, or duties inconsistent with Section 1;
(c) the requirement by the Employer that the Executive's principal place of
employment be anywhere more than 75 miles from the City of San Francisco,
without the Executive's consent; or (d) the assignment of Employer's rights
under this Agreement pursuant to Section 8.6, without the Executive's consent .
5.5 TERMINATION PAY
Effective upon the termination of this Agreement, the Employer
will be obligated to pay the Executive (or, in the event of his death, his
estate) only such compensation as is provided in this Section 5.5, in lieu of
all other amounts and in settlement and complete release of all claims the
Executive may have against the Employer.
(A) TERMINATION FOR GOOD REASON OR OTHER THAN FOR CAUSE. If
the Executive's employment pursuant to this Agreement is terminated by
the Employer other than For Cause or by the Executive for Good Reason,
the Employer shall continue to pay to the Executive the Executive's
Salary and Bonus for the remainder of the term of this Agreement, and
(during such period or, if earlier, until he obtains new employment
providing health benefits coverage) the Employer shall provide such
continuation of health benefits coverage, including, without
limitation, medical and dental coverage, required to be provided to
employees, former employees and the beneficiaries or dependents of such
employees and former employees under Part 6 of Subtitle B of Title I of
the Employee Retirement Income Security Act of 1974, as amended, or, if
applicable, Section 4980B of the Internal Revenue Code of 1986, as
amended, on terms no less favorable to the Executive than the terms on
which such coverage was provided prior to termination of his
employment; provided that, although the Executive shall have no duty to
mitigate by obtaining new employment, if the Executive obtains new
employment or is otherwise compensated for the performance of services,
all compensation received by Executive from the new employer whether in
the form of a signing bonus, salary or otherwise, shall be deducted on
a going forward basis from the Salary and Bonus payable by Employer to
Executive pursuant to this Section 5.5(A).
(B) TERMINATION UPON DISABILITY. If the Executive's employment
pursuant to this Agreement is terminated by either party as a result of
the Executive's Disability, as determined under Section 4.2, (i) the
Employer will pay the Executive his Salary through the remainder of the
calendar month during which such termination is effective, and that
part of the Executive's Bonus for the calendar year during which his
disability occurs, in each case prorated through the end of the
calendar month during which his Disability occurs.
(C) TERMINATION UPON DEATH. If the Executive's employment
pursuant to this Agreement is terminated because of the Executive's
death, the Executive's estate will be entitled to receive Executive's
Salary through the end of the calendar month in which his death occurs,
and that part of the Executive's Bonus for the calendar year during
which his death occurs, in each case prorated through the end of the
calendar month during which his death occurs.
(D) BENEFITS. The Executive's accrual of, or participation in
plans providing for, the Benefits will cease at the effective date of
the termination of his employment pursuant to this Agreement, and the
Executive will be entitled to accrued Benefits pursuant to such plans
only as provided in this Agreement or in such plans. The Executive
shall receive upon termination of his employment payment, at the rate
of the Salary, for unused vacation that has accrued pursuant to Section
4.1 through the date of such termination (pro rated for the calendar
year in which such
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termination occurs). The Executive will not receive, as part of his
termination pay pursuant to this Section 5, any other payment or other
compensation for any vacation, holiday, sick leave, or other leave
unused on the date the notice of termination is given under this
Agreement.
6. NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
6.1 ACKNOWLEDGMENTS BY THE EXECUTIVE
The Executive acknowledges that (a) during the term of and as
a part of his employment, the Executive will be afforded access to Confidential
Information; (b) public disclosure of such Confidential Information could have
an adverse effect on the Employer and its business; (c) because the Executive
possesses substantial technical expertise and skill with respect to the
Employer's business, the Employer desires to obtain exclusive ownership of each
Employee Invention, and the Employer will be at a substantial competitive
disadvantage if it fails to acquire exclusive ownership of each Employee
Invention; and (d) the provisions of this Section 5 are reasonable and necessary
to prevent the improper use or disclosure of Confidential Information and to
provide the Employer with exclusive ownership of all Employee Inventions.
"CONFIDENTIAL INFORMATION" shall mean any and all:
(a) trade secrets concerning the business and affairs of the
Employer and its subsidiaries, product specifications, data, know-how, formulae,
compositions, processes, designs, sketches, photographs, graphs, drawings,
samples, inventions and ideas, past, current, and planned research and
development, current and planned manufacturing or distribution methods and
processes, customer lists, current and anticipated customer requirements, price
lists, market studies, business plans, computer software and programs (including
object code and source code), computer software and database technologies,
systems, structures, and architectures (and related formulae, compositions,
processes, improvements, devices, know-how, inventions, discoveries, concepts,
ideas, designs and methods and information), and any other information, however
documented, that is a trade secret under applicable law; and
(b) information concerning the business and affairs of the
Employer and its subsidiaries (which includes historical financial statements,
financial projections and budgets, historical and projected sales, capital
spending budgets and plans, the names and backgrounds of key personnel and
personnel training and techniques and materials), however documented; and
(c) notes, analysis, compilations, studies, summaries, and
other material prepared by or for the Employer or any of its subsidiaries
containing or based, in whole or in part, on any information included in the
foregoing.
"EMPLOYEE INVENTION" shall mean any idea, invention,
technique, modification, process or improvement (whether patentable or not), any
industrial design (whether registerable or not) and any work of authorship
(whether or not copyright protection may be obtained for it) created, conceived,
or developed by the Executive, either solely or in conjunction with others,
during the term of his employment, or a period that includes a portion of the
term of his employment, that relates in any way to, or is useful in any manner
in, the business then being conducted or proposed to be conducted by the
Employer or any of its subsidiaries, and any such item created by the Executive,
either solely or in conjunction with others, following termination of the
Executive's employment with the Employer, that is based upon or uses
Confidential Information.
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6.2 COVENANTS OF THE EXECUTIVE
In consideration of the compensation and benefits to be paid
or provided to the Executive by the Employer under this Agreement, the Executive
covenants as follows:
(A) CONFIDENTIALITY.
(i) During and following the term of his employment,
the Executive will hold in confidence the Confidential
Information and will not disclose it to any person except with
the specific prior written consent of the Employer or except
as otherwise expressly permitted by the terms of this
Agreement.
(ii) Any trade secrets of the Employer will be
entitled to all of the protections and benefits under
applicable law. If any information that the Employer deems to
be a trade secret is found by a court of competent
jurisdiction not to be a trade secret for purposes of this
Agreement, such information will, nevertheless, be considered
Confidential Information for purposes of this Agreement. The
Executive hereby waives any requirement that the Employer
submit proof of the economic value of any trade secret.
(iii) None of the foregoing obligations and
restrictions applies to any part of the Confidential
Information that the Executive demonstrates was or became
generally available to the public other than as a result of a
disclosure by the Executive.
(iv) The Executive will not remove from the
Employer's or any of its subsidiaries' premises (except to the
extent such removal is for purposes of the performance of the
Executive's duties at home or while traveling, or except as
otherwise specifically authorized by the Employer) any
document, record, notebook, plan, model, component, device, or
computer software or code, whether embodied in a disk or in
any other form (collectively, the "PROPRIETARY ITEMS"). The
Executive recognizes that, as between the Employer and the
Executive, all of the Proprietary Items, whether or not
developed by the Executive, are the exclusive property of the
Employer. Upon termination of this Agreement by either party,
or upon the request of the Employer during the Employment
Period, the Executive will return to the Employer all of the
Proprietary Items in the Executive's possession or subject to
the Executive's control, and the Executive shall not retain
any copies, abstracts, sketches, or other physical embodiment
of any of the Proprietary Items.
(B) EMPLOYEE INVENTIONS. Each Employee Invention will belong
exclusively to the Employer. The Executive acknowledges that all of the
Executive's writing, works of authorship, specially commissioned works
and other Employee Inventions are works made for hire and the property
of the Employer, including any copyrights, patents, or other
intellectual property rights pertaining thereto. If it is determined
that any such works are not works made for hire, the Executive hereby
assigns to the Employer all of the Executive's right, title, and
interest, including all rights of copyright, patent, and other
intellectual property rights, to or in such Employee Inventions. The
Executive covenants that he will promptly:
(i) disclose to the Employer in writing any Employee
Invention;
(ii) assign to the Employer or to a party designated
by the Employer, at the Employer's request and without
additional compensation, all of the Executive's right to the
Employee Invention for the United States and all foreign
jurisdictions;
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(iii) execute and deliver to the Employer such
applications, assignments and other documents as the Employer
may request in order to apply for and obtain patents or other
registrations with respect to any Employee Invention in the
United States and any foreign jurisdictions;
(iv) sign all other papers necessary to carry out the
above obligations; and
(v) give testimony and render any other assistance in
support of the Employer's rights to any Employee Invention.
6.3 DISPUTES OR CONTROVERSIES
The Executive recognizes that should a dispute or controversy
arising from or relating to this Agreement be submitted for adjudication to any
court, arbitration panel or other third party, the preservation of the secrecy
of Confidential Information may be jeopardized. All pleadings, documents,
testimony and records relating to any such adjudication will be maintained in
secrecy and will be available for inspection by the Employer, the Executive and
their respective attorneys and experts, who will agree, in advance and in
writing, to receive and maintain all such information in secrecy, except as may
be limited by them in writing.
7. NON-COMPETITION AND NON-INTERFERENCE
7.1 ACKNOWLEDGMENTS BY THE EXECUTIVE
The Executive acknowledges that: (a) the services to be
performed by him under this Agreement are of a special, unique, unusual,
extraordinary and intellectual character; (b) the Employer's business is
international in scope and its products are marketed throughout the United
States and internationally; (c) the Employer competes with other businesses that
are or could be located in any part of the world; and (d) the provisions of this
Section 7 are reasonable and necessary to protect the Employer's business.
7.2 COVENANTS OF THE EXECUTIVE
In consideration of the acknowledgments by the Executive, and
in consideration of the compensation and benefits to be paid or provided to the
Executive by the Employer, the Executive covenants that he will not, directly or
indirectly:
(a) during the term of his employment, except in the course of
his employment hereunder, and during the Post-Employment Period (as defined
below), engage or invest in, own, manage, operate, finance, control or
participate in the ownership, management, operation, financing or control of, be
employed by, associated with, or in any manner connected with, lend the
Executive's name or any similar name to, lend Executive's credit to or render
services or advice to, any business engaged in any aspect of Employer's
Business; PROVIDED, HOWEVER, that the Executive may purchase or otherwise
acquire up to (but not more than) one percent of any class of securities of any
enterprise (but without otherwise participating in the activities of such
enterprise) if such securities are registered under Section 12 of the Securities
Exchange Act of 1934, as amended;
(b) whether for the Executive's own account or for the account
of any other person, at any time during the term of his employment and the
Post-Employment Period, solicit business related to the Employer's Business from
any person known by the Executive to be a customer of the Employer or any of its
subsidiaries, whether or not the Executive had personal contact with such person
during and by reason of the Executive's employment with the Employer;
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(c) whether for the Executive's own account or the account of
any other person (i) at any time during the term of his employment and the
Post-Employment Period, solicit, employ or otherwise engage as an employee,
independent contractor, or otherwise, any person who is or was an employee of
the Employer or any of its subsidiaries at any time during the term of his
employment or in any manner induce or attempt to induce any employee of the
Employer or any of its subsidiaries to terminate his employment with the
Employer or any of its subsidiaries; or (ii) at any time during the term of his
employment and for three years thereafter, interfere with the Employer's or any
of its subsidiaries' relationships with any person, including any person who at
any time during the Employment Period was an employee, contractor, supplier, or
customer of the Employer or any of its subsidiaries; or
(d) at any time during or after the term of his employment,
disparage the Employer or any of its subsidiaries, shareholders, directors,
officers, employees or agents.
For purposes of this Section 7.2, (i) the term
"Post-Employment Period" means the two-year period beginning on the date of
termination of the Executive's employment with the Employer, unless the
Executive's employment pursuant to this Agreement is terminated by the Employer
other than For Cause or by the Executive for Good Reason, in which event it
shall end on the date of termination of the Executive's employment and (ii) the
term "Employer's Business" means the development, marketing, distribution and
sale of gourmet and specialty foods, premium wines and beverages and housewares,
including, but not limited to, through the Internet, direct mail catalogue and
specialty food markets and cafes.
If any covenant in this Section 7.2 is held to be
unreasonable, arbitrary or against public policy, such covenant will be
considered to be divisible with respect to scope, time and geographic area, and
such lesser scope, time or geographic area, or all of them, as a court of
competent jurisdiction may determine to be reasonable, not arbitrary, and not
against public policy, will be effective, binding and enforceable against the
Executive.
The period of time applicable to any covenant in this Section
7.2 will be extended by the duration of any violation by the Executive of such
covenant.
The Executive will, while the covenant under this Section 7.2
is in effect, give notice to the Employer, within ten days after accepting any
other employment, of the identity of the Executive's employer. The Employer may
notify such employer that the Executive is bound by this Agreement and, at the
Employer's election, furnish such employer with a copy of this Agreement or
relevant portions thereof.
8. GENERAL PROVISIONS
8.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY
The Executive acknowledges that the injury that would be
suffered by the Employer as a result of a breach of the provisions of this
Agreement (including any provision of Sections 6 and 7) would be irreparable and
that an award of monetary damages to the Employer for such a breach would be an
inadequate remedy. Consequently, the Employer will have the right, in addition
to any other rights it may have, to obtain injunctive relief to restrain any
breach or threatened breach or otherwise to specifically enforce any provision
of this Agreement, and the Employer will not be obligated to post bond or other
security in seeking such relief. In any action to obtain such relief, if the
Executive is the prevailing party he shall be entitled to recover from the
Employer the reasonable costs incurred by him in defending such action,
including, without limitation, reasonable attorneys' fees.
Without limiting the Employer's rights under this Section 8 or
any other remedies of the Employer, if the Executive breaches any of the
provisions of Section 6 or 7, the Employer will have the right
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to cease making any payments otherwise due to the Executive under this
Agreement. If the Employer ceases making any such payments to the Executive by
reason of the preceding sentence and it is finally judicially determined that
the Executive had not breached any of the provisions of Section 6 or 7 and that
the Employer's failure to make such payments was not authorized by the preceding
sentence, the Executive shall be entitled to recover, in addition to the
payments that the Employer improperly failed to make, interest on each such
payment from the date it was due until it is made at the prime rate of The Chase
Manhattan Bank.
8.2 COVENANTS OF SECTIONS 6 AND 7 ARE ESSENTIAL AND
INDEPENDENT COVENANTS
The covenants by the Executive in Sections 6 and 7 are
essential elements of this Agreement, and without the Executive's agreement to
comply with such covenants, the Employer would not have entered into this
Agreement or employed or continued the employment of the Executive. The Employer
and the Executive have independently consulted their respective counsel and have
been advised in all respects concerning the reasonableness and propriety of such
covenants, with specific regard to the nature of the business conducted by the
Employer.
The Executive's covenants in Sections 6 and 7 are independent
covenants and the existence of any claim by the Executive against the Employer
under this Agreement or otherwise will not excuse the Executive's breach of any
covenant in Section 6 or 7.
If the Executive's employment hereunder expires or is
terminated, this Agreement will continue in full force and effect as is
necessary or appropriate to enforce the covenants and agreements of the
Executive in Sections 6 and 7.
8.3 REPRESENTATIONS AND WARRANTIES BY THE EXECUTIVE
The Executive represents and warrants to the Employer that the
execution and delivery by the Executive of this Agreement do not, and the
performance by the Executive of the Executive's obligations hereunder will not,
with or without the giving of notice or the passage of time, or both: (a)
violate any judgment, writ, injunction or order of any court, arbitrator or
governmental agency applicable to the Executive; or (b) conflict with, result in
the breach of any provisions of or the termination of, or constitute a default
under, any agreement to which the Executive is a party or by which the Executive
is or may be bound.
8.4 OBLIGATIONS CONTINGENT ON PERFORMANCE
Except as otherwise specifically provided herein, the
obligations of the Employer hereunder, including its obligation to pay the
compensation provided for herein, are contingent upon the Executive's
performance of the Executive's obligations hereunder.
8.5 WAIVER
The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by either
party in exercising any right, power or privilege under this Agreement will
operate as a waiver of such right, power or privilege, and no single or partial
exercise of any such right, power or privilege will preclude any other or
further exercise of such right, power or privilege or the exercise of any other
right, power or privilege. To the maximum extent permitted by applicable law,
(a) no claim or right arising out of this Agreement can be discharged by one
party, in whole or in part, by a waiver or renunciation of the claim or right
unless in writing signed by the other party; (b) no waiver that may be given by
a party will be applicable except in the specific instance for which it is
given; and (c) no notice to or demand on one party will be deemed to be a waiver
of any obligation of such party
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or of the right of the party giving such notice or demand to take further action
without notice or demand as provided in this Agreement.
8.6 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED
This Agreement shall inure to the benefit of, and shall be
binding upon, the parties hereto and their respective successors, assigns, heirs
and legal representatives, including any entity with which the Employer may
merge or consolidate or to which all or substantially all of its assets may be
transferred. The duties and covenants of the Executive under this Agreement,
being personal, may not be delegated.
8.7 NOTICES
All notices, consents, waivers, and other communications under
this Agreement must be in writing and will be deemed to have been duly given
when (a) delivered by hand (with written confirmation of receipt), (b) sent by
facsimile (with written confirmation of receipt), provided that a copy is mailed
by registered mail, return receipt requested or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile numbers as a
party may designate by notice to the other parties):
If to Employer:
▇▇▇▇ & ▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Executive Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇, Scholer, Fierman, ▇▇▇▇ & Handler, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
If to the Executive:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
8.8 ENTIRE AGREEMENT; AMENDMENTS
This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings, oral or written, between the parties hereto with
respect to the subject matter hereof. This Agreement may not be amended orally,
but only by an agreement in writing signed by the parties hereto.
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8.9 GOVERNING LAW
This Agreement will be governed by the laws of the State of
New York without regard to conflicts of laws principles.
8.10 JURISDICTION
Any action or proceeding seeking to enforce any provision of,
or based on any right arising out of, this Agreement may be brought against
either of the parties in the courts of the State of New York, County of New
York, or, if it has or can acquire jurisdiction, in the United States District
Court for the Southern District of New York, and each of the parties consents to
the jurisdiction of such courts (and of the appropriate appellate courts) in any
such action or proceeding and waives any objection to venue laid therein.
Process in any action or proceeding referred to in the preceding sentence may be
served on either party anywhere in the world.
8.11 SECTION HEADINGS, CONSTRUCTION
The headings of Sections in this Agreement are provided for
convenience only and will not affect its construction or interpretation. All
references to "Section" or "Sections" refer to the corresponding Section or
Sections of this Agreement unless otherwise specified. All words used in this
Agreement will be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word "including" does not
limit the preceding words or terms.
8.12 SEVERABILITY
If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
8.13 COUNTERPARTS
This Agreement may be executed in one or more counterparts,
each of which will be deemed to be an original copy of this Agreement and all of
which, when taken together, will be deemed to constitute one and the same
agreement.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date above first written above.
▇▇▇▇ & ▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
EXECUTIVE:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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