Exhibit 10.8
EXECUTIVE EMPLOYMENT AGREEMENT BETWEEN
M.G.A., INC.
AND
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
DATED
NOVEMBER 14, 1997
1
TABLE OF CONTENTS
EXECUTIVE EMPLOYMENT AGREEMENT
PARAGRAPH PAGE NO.
--------- --------
1. Background 3
2. Definitions 3
3. Employment 6
4. Responsibilities 6
5. Non-Stock Compensation and Reimbursements 7
6. Stock Based Compensation 9
7. [Intentionally Left Blank] 9
8. Termination 10
9. Proprietary Information 10
10. Covenant Not To Compete 11
11. Severability 12
12. Attorneys' Fees 12
13. Headings 12
14. Notices 12
15. General Provisions 13
16. Entire Agreement 13
2
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is entered
into this 14th day of November, 1997 by and between M.G.A., INC., a Delaware
corporation with its principal offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ (the "Company") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("Employee"), an individual, and shall
be effective on the Effective Date, as defined below.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements of the parties hereto, the parties do hereby covenant
and agree as follows:
1. Background.
A. The Company is engaged in the business of owning, managing,
and operating video specialty stores.
B. The Company desires to secure and retain the services of
Employee, and such services are considered by the Company to be valuable with
regard to the business of owning, managing and operating video specialty stores.
C. Employee has been serving as Vice President, Controller and
Chief Accounting Officer of the Company, and Employee desires to continue in the
full and active employ of the Company in accordance with the terms and
conditions herein set forth.
2. Definitions.
As used in this Agreement, the following terms shall have the
meaning as set forth below, and the parties hereto agree to be bound by the
provisions hereof:
A. Area means the geographic area of the forty-eight (48)
contiguous continental states of the United States which is the area in which
operations are performed, supervised, or assisted in by Employee on behalf of
the Company, both as of the date hereof and as are anticipated to be conducted
throughout the Term.
B. Board of Directors means the Board of Directors of the
Company.
C. Change of Control means the occurrence during the Term of
any of the following events:
(i) Merger or consolidation where the Company is not the
consolidated, continuing or surviving company, and the surviving or resulting
company does not expressly agree to be bound by and have the benefits of the
provisions of this Agreement, Employee's corporate position is eliminated, or
the scope of Employee's position, authority, duties or responsibilities is
materially diminished;
(ii) Transfer of all or substantially all of the assets or
stock of the Company, and the transferee of the Company's assets or stock does
not expressly agree to be bound by and have the benefits of the provisions of
this Agreement, Employee's corporate position is eliminated or the scope of
Employee's position, authority, duties or responsibilities is materially
diminished;
3
(iii) Change in control of Company of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934 as in effect on the
date thereof, and any person or persons acting in concert (as such term is used
in Section 13(d) and 14(d)(2) of the Exchange Act) is or becomes the beneficial
holder directly or indirectly of securities of the Company representing fifty
percent (50%) or more of the combined voting power of Company's then outstanding
securities, and the Employee's corporate position is eliminated, or the scope of
Employee's position, authority, duties or responsibilities is materially
diminished; or
(iv) discontinuation of the business by Company.
D. Chief Executive Officer means the Chief Executive Officer of
the Company from time to time.
E. Company means M.G.A., Inc., its parent corporation, Movie
Gallery, Inc., and successors.
F. Constructive Termination means a termination of this
Agreement resulting from any material failure by the Company to fulfill its
obligations under this Agreement which is not cured within thirty (30) days
after receipt of written notice by the Company from Employee specifying the
nature of the failure, which failure shall include, but shall not be limited to,
(a) removal of Employee, other than removal as a result of a Termination With
Cause or a Voluntary Termination, as Controller and Chief Accounting Officer of
the Company or any material change by the Company in the position (including
status, offices, titles and reporting requirements), authority, duties or
responsibilities of Employee during the Term from those in which Employee was
engaged as Controller and Chief Accounting Officer of the Company on the
Effective Date, without the written consent of Employee, (b) a material, non
voluntary reduction in Employee's Base Salary and/or eligibility for bonus
amounts, or (c) the occurrence of a Change of Control. Constructive Termination
shall occur only (A) after receipt by the Company of written notice from
Employee specifying Employee's reasonable belief that an event of Constructive
Termination has occurred, as defined herein, and (B) if Employee provides such
notice to the Company and the Board of Directors within sixty (60) days after
the date of such event.
G. Effective Date means November 14, 1997.
H. [Intentionally Left Blank]
I. Initial Term means the period beginning on the Effective
Date and ending on the date which is twelve (12) months following the Effective
Date.
J. Permanent Disability means a physical or mental condition
which renders Employee incapable of performing his regular duties hereunder for
a period of one hundred twenty (120) consecutive days. In the event of any
disagreement between Employee and the Company as to whether Employee is
suffering from Permanent Disability, the determination of Employee's Permanent
Disability shall be made by one or more board certified licensed physicians
practicing the specialty of medicine applicable to Employee's disorder in
accordance with the provisions of this Subsection J. If either the Company or
Employee desires to initiate the procedure provided in this Section, such party
(the "Initiating Party") shall deliver written notice to the other party (the
"Responding Party") in accordance with the provisions of this Agreement
specifying that the Initiating Party desires to proceed with a medical
examination and the procedures specified in this Section. Such notice shall
include the name, address and telephone number of the physician selected by the
Initiating party (the "Disability Examination Notice"). If the Responding Party
4
fails within thirty (30) days after the receipt of the Disability Examination
Notice to designate a physician meeting the standards specified herein, the
physician designated by the Initiating Party in the Disability Examination
Notice shall make the determination of Permanent Disability as provided in this
Section. If the Responding Party by written notice notifies the Initiating Party
within thirty (30) days of the receipt by the Responding Party of the Disability
Examination Notice by notice specifying the physician selected by the Responding
Party for purposes of this Section, then each of the two physicians as so
designated by the respective parties shall each examine Employee. Examinations
shall be made by each such physician within thirty (30) days of such physician's
respective designation. Each physician shall render a written report as to
whether Employee is, in such physician's opinion, suffering Permanent
Disability. If the two physicians agree on the status of Employee for purposes
of this Section, such determination shall be conclusive and dispositive for all
purposes of this Section. If the two physicians cannot agree, the two physicians
shall jointly select a third physician meeting the standards specified in this
Section within thirty (30) days after the later report of the two physicians is
submitted. The third physician shall render a written report on the status of
Employee within thirty (30) days of selection and such report shall be
dispositive for purposes of this Section. For purposes of this Subsection J,
Employee agrees that he shall promptly submit to such examinations and tests as
such physicians shall reasonably request for purposes of making a determination
of Permanent Disability as provided herein. Failure or refusal of the Company to
designate a licensed physician to make a determination of Permanent Disability
as required in accordance with this Section or of Employee to submit to the
examination as required by this Section shall constitute a conclusive admission
by the Company or Employee, as appropriate, that Employee is suffering from a
Permanent Disability as provided herein.
K. Renewal Term means the period, if any, following the Initial
Term during which the Agreement is extended as set forth in Section 8B.
L. [Intentionally Left Blank]
▇. ▇▇▇▇▇▇▇▇▇ Amount shall have the meaning as set forth in
Section 5C.
N. Term means the Initial Term and any Renewal Term.
0. Termination Date means the following: (a) with respect to
Termination With Cause, thirty (30) days after the date the Company notifies
Employee in writing of the actions described in Subsection 2P(i) and the
termination of this Agreement based thereon, or the date which is thirty (30)
days after written notice of violation to Employee pursuant to Subsection 2P(ii)
not cured by Employee; (b) with respect to the death of Employee, the date of
his death; (c) with respect to Termination Without Cause, thirty (30) days after
the date on which the Company gives Employee notice of Termination Without
Cause; (d) with respect to Voluntary Termination, thirty (30) days after the
date on which Employee unilaterally terminates his employment relationship with
the Company; (e) with respect to the Permanent Disability of Employee, the date
Employee is determined to be suffering from Permanent Disability, as provided in
Subsection 2J; and (f) with respect to Constructive Termination, the date which
is thirty (30) days after the receipt by the Company of the notice specified in
Subsection 2F.
P. Termination With Cause means the termination of this
Agreement and the employment relationship of Employee with the Company, only for
the following:
(i) Theft or embezzlement with regard to material property
of the Company; or
5
(ii) Continued neglect by Employee in fulfilling his duties
as Controller and Chief Accounting Officer of the Company as a result of
alcoholism, drug addiction or nervous breakdown, intentional neglect,
insubordination, or excessive unauthorized absenteeism by Employee, after
written notification thereof from the Chief Executive Officer or Board of
Directors, setting forth in detail the matters involved, and Employee's failure
to cure the problems or matters set forth in such notice within a reasonable
time.
Q. Termination Without Cause means any of the following:
(i) A termination by the Company of this Agreement and the
employment relationship of Employee with the Company during the Term which is
not a Termination With Cause, a Voluntary Termination or a Constructive
Termination, including the expiration of the Term as a result of the Company
electing not to renew this Agreement at the end of the Initial Term or any
Renewal Term which ends prior to Employee reaching the age of sixty-five (65)
years.
(ii) Any relocation of Employee by the Company, not agreed
to in writing by the Employee (which must reference this Agreement), to a
location other than Dothan, Alabama.
R. Triggering Event means (i) a termination of Employee's
employment by the Company during the Term due to a Termination Without Cause or
(ii) a Constructive Termination of Employee's employment with the Company.
S. Video Business means the business engaged in by the Company
in owning, managing and operating video specialty stores, and all ancillary
services relating to the ownership, management and operation of video specialty
stores.
T. Voluntary Termination means unilateral termination by
Employee of his employment with the Company prior to the end of the Term and in
the absence of a Triggering Event, or as a result of Employee electing not to
renew this Agreement at the end of the Initial Term or any Renewal Term. Notice
by Employee to the Company of a failure by the Company to fulfill its
obligations under this Agreement pursuant to Section 2F shall not constitute a
Voluntary Termination for purposes of this Agreement.
3. Employment. The Company, through its Board of Directors, agrees
to employ Employee in the office of Vice President, Controller and Chief
Accounting Officer of the Company for the Term, and Employee agrees to accept
such employment and office upon the terms and conditions set forth herein. The
Company may promote or elevate Employee to higher offices or positions in the
Company.
4. Responsibilities. Pursuant to this Agreement, Employee shall
assume the responsibilities, perform the duties, and exercise the powers as Vice
President, Controller and Chief Accounting Officer of the Company, as set forth
in the Bylaws of the Company or as designated, assigned or set forth by the
Chief Executive Officer or Board of Directors and consistent with the
responsibilities, duties and powers exercised by Employee as Vice President,
Controller and Chief Accounting Officer of the Company as of the Effective Date
and such other duties as may be assigned from time to time by the Chief
Executive Officer or Board of Directors. The Employee agrees to devote his full
time and efforts to the performance of his duties as Vice President, Controller
and Chief Accounting Officer of the Company. The Employee agrees that he will
not engage in any other gainful occupation during the term of this Agreement,
without the prior written consent of the Company. Nothing contained herein shall
6
be construed, however, to prevent the Employee from personal business,
charitable and professional activities, from trading, for his own account and
benefit, in stocks, bonds, securities, real estate, commodities, or other forms
of investments. Employee agrees to comply with the Company's policies, rules and
regulations as determined by the Chief Executive Officer or Board of Directors.
5. Non-Stock Compensation and Reimbursements. The Company shall
pay, and Employee agrees to accept, as partial compensation for services to be
rendered hereunder during the Term, the remuneration described below:
A. Annual Salary. The Company shall pay Employee a base annual
salary as of the Effective Date of Ninety Thousand and No/100 Dollars
($90,000.00) per year, subject to such increases as the Board of Directors (or
the Compensation Committee of the Board of Directors) in its sole discretion
deems appropriate in accordance with the Company's customary procedures
regarding the salaries of its executive officers ("Base Salary"). The Base
Salary shall not be reduced after any such increase and the term Base Salary as
utilized in this Agreement shall refer to Base Salary as so increased. The Base
Salary shall be payable according to the customary payroll practices of the
Company, but in no event less frequently than monthly.
B. Bonuses. During the Term, Employee shall be entitled to
participate in the Company's quarterly salaried employee bonus program, pursuant
to which Employee shall be eligible to receive bonuses of up to twenty percent
(20%) of Base Salary. Fifty percent (50%) of such bonus shall be discretionary
with the Chief Executive Officer, and fifty percent (50%) shall be based upon
the achievement of corporate earnings goals as set by the Chief Executive
Officer and Chief Financial Officer; provided, however, Employee shall receive a
guaranteed bonus of not less than Three Thousand and No/100 Dollars ($3,000.00)
per quarter. During the Term, Employee shall be entitled to participate in other
incentive and/or bonus, cash and equity compensation plans of the Company which
provide benefits to senior officers, as determined by the Board of Directors of
the Company.
▇. ▇▇▇▇▇▇▇▇▇ Payments and Agreements.
(i) Upon the occurrence of a Triggering Event, Employee
shall be deemed to have earned the Severance Amount, as defined below, on the
effective date of the Triggering Event. The obligation of the Company under this
Subsection 5C(i) shall take the place of any other obligations of the Company
under this Section 5 to pay to Employee for the balance of the Term Employee's
then Base Salary pursuant to Subsection 5A.
(ii) For purposes of this Agreement, the term Severance
Amount shall mean the following: (a) if a Triggering Event occurs as a result of
a Constructive Termination in connection with a Change of Control, the Severance
Amount shall be an amount equal to one and one half (1 1/2) times Employee's
Base Salary; (b) if a Triggering Event (other than a Constructive Termination in
connection with a Change of Control) occurs within one hundred eighty (180) days
prior or subsequent to the date of a Change of Control, or is in any way related
to, results from, arises out of, or is in connection with a Change of Control,
the Severance Amount shall be an amount equal to one and one half (1 1/2) times
Employee's Base Salary; or (c) if a Triggering Event otherwise occurs, the
Severance Amount shall be an amount equal to one (1) times Employee's Base
Salary.
(iii) If the Severance Amount payable pursuant to this
Section is an amount equal to one and one-half (1 1/2) times Employee's Base
Salary, then the Severance Amount shall be paid within thirty (30) days of the
date of the Triggering Event. Otherwise, the Severance Amount payable pursuant
7
to this Section shall be paid over the twelve (12) month period following the
Triggering Event according to the Company's payroll practices and procedures in
effect at the time of the Triggering Event.
(iv) Upon the occurrence of a Triggering Event, any and all
stock options to purchase shares of the Company's Common Stock which are held by
Employee shall become one hundred percent (100%) vested and immediately
exercisable as of the date of such Triggering Event, and shall be exercisable by
the Employee over the balance of the remaining stated term of any such stock
options (which term shall be the term applicable to the Employee in the absence
of termination of employment), notwithstanding any provision contained in the
stock option agreement to the contrary.
(v) [Intentionally Left Blank]
(vi) Any controversy or claim arising out of or relating to
whether termination of Employee's employment is due to a Triggering Event, or is
a Termination With Cause, a Termination Without Cause, a Constructive
Termination or a Voluntary Termination as provided herein, shall be settled by
arbitration in accordance with the Commercial Arbitration Rules ("Rules") of the
American Arbitration Association ("AAA"). Arbitration shall be initiated by a
party by giving notice in the manner set forth herein to the other party of its
intention to arbitrate, which notice shall contain a statement setting forth the
nature of the dispute, the amount claimed, if any, and the remedy sought. The
initiating party shall then file a copy or copies of the notice as set forth
under the Rules. Dothan, Alabama shall be the location where the arbitration is
held. The parties shall agree upon and appoint three (3) arbitrators in
accordance with the Rules within thirty (30) days of the effective date of
notice of arbitration; however, if the parties fail to make such designation
within thirty (30) days, the AAA shall make the appointment. The determinations
of such arbitrators will be final and binding upon the parties to the
arbitration, and judgment upon the award rendered by the arbitrators may be
entered in any such court having jurisdiction, or application may be made to
such court for a judicial acceptance of the award and an order of enforcement,
as the case may be. The arbitrators shall apply the laws of the State of Alabama
as to both substantive and procedural questions.
D. Car Allowance. The Company shall pay Employee a monthly car
allowance payable monthly in advance in accordance with customary practices of
the Company of not less than Five Hundred and No/100 Dollars ($500.00) per
month.
E. Insurance and Benefits.
(i) Employee shall be entitled to participate in or receive
benefits under all employee and executive benefit plans or arrangements and
perquisites of employment, including, without limitation, plans or arrangements
providing for health and disability insurance coverage, life insurance for the
benefit of Employee's beneficiaries, deferred compensation and pension benefits,
and personal financial, investment, legal or tax advice, all at the highest
level that is available through the Company to other peer executive officers of
the Company subject to the same terms and conditions as apply to such other peer
executive officers.
(ii) Employee shall be entitled to all holidays recognized
by the Company and paid vacation time in accordance with the most favorable
plans, policies, programs and practices of the Company as in effect for Employee
at any time during the ninety (90) day period immediately preceding the
Effective Date, or if more favorable to Employee, as in effect generally at any
time thereafter with respect to other peer executive officers of the Company,
but in no event less than three (3) weeks per year. Employee shall be reimbursed
8
by the Company for all expenses incurred on behalf of the Company in accordance
with the then current reimbursement policies of the Company. Nothing paid to
Employee under any plan, arrangement or perquisite presently in effect or made
available in the future shall be deemed to be in lieu of the salary and other
compensation or payments paid or payable to Employee under this Agreement.
(iii) In the event of a termination of Employee's employment
with the Company as a result of or in connection with a Triggering Event, and
Employee elects under COBRA to continue his individual and/or family group
health coverage, then for a twelve (12) month period following the Termination
Date, the Company shall pay Employee (on a monthly basis) an amount equal to the
actual premium cost to Employee for such continuation coverage.
F. Expenses. During the Term, Employee shall be entitled to
receive prompt reimbursement for all reasonable employment expenses incurred by
Employee in accordance with the most favorable policies, practices and
procedures of the Company in effect for Employee at any time during the ninety
(90) day period immediately preceding the Effective Date or, if more favorable
to Employee, as in effect generally at any time thereafter with respect to other
peer executive officers of the Company.
G. Fringe Benefits. During the Term, Employee shall be entitled
to fringe benefits in accordance with the most favorable policies, practices,
programs and procedures of the Company in effect for Employee at any time during
the ninety (90) day period immediately preceding the Effective Date or, if more
favorable to Employee, as in effect generally at any time thereafter with
respect to other peer executive officers of the Company.
H. Office and Support Staff. During the Term, Employee shall be
entitled to an office or offices of a size and with furnishings and other
appointments, and to exclusive personal secretarial and other assistance, at
least equal to the most favorable of the foregoing provided to Employee by the
Company at any time during the ninety (90) day period immediately preceding the
Effective Date or, if more favorable to Employee, as provided generally at any
time thereafter with respect to other peer executive officers of the Company.
6. Stock Based Compensation. In addition to the remuneration
described in Section 5, upon the execution of this Agreement and pursuant to the
Movie Gallery, Inc. 1994 Stock Plan, As Amended, the Company shall grant to the
Employee non-qualified stock options to purchase Forty Thousand (40,000) shares
of the Company's Common Stock, at an exercise price per share of three and
seven-eighths (3 7/8), and vesting over a two (2) year period with thirty-three
and one-third percent (33 1/3%) vesting immediately and thirty-three and
one-third percent (33 1/3%) vesting on the first (1st) and second (2nd)
anniversary of the Effective Date.
7. [Intentionally Left Blank]
8. Termination.
A. This Agreement will commence on the Effective Date and shall
continue during the Initial Term.
9
B. In addition to the Initial Term, this Agreement shall be
renewed for additional one (1) year periods (the "Renewal"), ad infinitum,
unless either party gives notice of non-renewal at least thirty (30) days prior
to the expiration of the Initial Term or the then current Renewal Term.
C. During the Term, the Company or Employee may terminate this
Agreement, subject to the terms, conditions and obligations hereof, by any of
the following events:
(i) Mutual written agreement expressed in a single document
signed by both the Company and Employee;
(ii) Voluntary Termination by Employee;
(iii) Death of Employee;
(iv) Termination Without Cause;
(v) Termination With Cause;
(vi) Constructive Termination; or
(vii) Permanent Disability.
Upon termination for any of the foregoing reasons, Employee
shall continue to render services and shall be paid his Base Salary and benefits
up to the Termination Date. In the event of such termination, this Agreement
shall be deemed terminated for all purposes, except to the extent otherwise
herein provided.
D. The obligations of Employee under Sections 8 and 9 shall
survive termination or expiration of this Agreement. The obligations of the
Company under Section 8, and those obligations under Section 5 that by their
terms are to be paid or to continue after termination of this Agreement, shall
also survive such termination.
9. Proprietary Information.
A. In performance of services under this Agreement, Employee
may have access to:
(i) information which derives economic value, actual or
potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use, and is the subject of efforts that are reasonable
under the circumstances to maintain its secrecy (hereinafter "Trade Secrets" or
"Trade Secret"); or
(ii) information which does not rise to the level of a Trade
Secret, but is valuable to the Company and provided in confidence to Employee
(hereinafter "Confidential Information").
B. Employee acknowledges and agrees with respect to Trade
Secrets and Confidential Information provided to or obtained by Employee
(hereinafter collectively the "Proprietary Information"):
(i) that the Proprietary Information is and shall remain the
exclusive property of the Company;
(ii) to use the Proprietary Information exclusively for the
purpose of fulfilling the obligations under this Agreement;
10
(iii) to return the Proprietary Information, and any copies
thereof, in his possession or under his control, to the Company upon request of
the Company, or expiration or termination of this Agreement for any reason; and
(iv) to hold the Proprietary Information in confidence and
not to copy, publish, or disclose to others or allow any other party to copy,
publish, or disclose to in any form, any Proprietary Information without the
prior written approval of an authorized representative of the Company.
C. The obligations and restrictions set forth in this section 9
shall survive expiration or termination of this Agreement, for any reason, and
shall remain in full force and effect as follows:
(i) as to Trade Secrets, for so long as such information
remains subject to protection under applicable law;
(ii) as to Confidential Information, for a period of two (2)
years after expiration or termination of this Agreement for any reason.
D. The obligations set forth in this Section 9 shall not apply
or shall terminate with respect to any particular portion of the Proprietary
Information which:
(i) was in Employee's possession, free of any obligation of
confidence, prior to his receipt of the Confidential Information from the
Company;
(ii) is in the public domain at the time the Company
communicates it to Employee, or becomes available to the public through no
breach of this Agreement by Employee; or
(iii) is received by Employee independently and in good
faith from a third party lawfully in possession thereof and having no obligation
to keep such information confidential.
10. Covenant Not To Compete. Employee hereby agrees that during
the term hereof, and for a period of one (1) year from the date of expiration or
termination of this Agreement for any reason, and within the Area, Employee will
not:
A. compete with the Company in the Video Business, or engage in
or carry on the Video Business, directly or indirectly, through any person or
entity, or in any capacity, including, without limitation, agent, lender,
trustee, consultant, shareholder, director, officer, employee, or partner;
B. be employed by, or perform any services as employee,
consultant, or otherwise for, any person, firm, partnership, joint venture,
corporation or other entity that competes with the Company in the Video
Business, or that is engaged in the Video Business within the Area.
C. employ, solicit for employment, or advise or recommend to
any other person or entity that such person or entity employ, or solicit for
employment, any employee of the Company; or
11
D. deal with, invest in (other than as a stockholder of less
than one percent (1%) of the issued and outstanding stock of a publicly traded
corporation having assets in excess of $25,000,000.00), lend money to, guarantee
loans of, make gifts to, advise, or by any other means assist any other person
or entity that competes with the Company, or that is engaged in the Video
Business within the Area.
11. Severability. If any provision of this Agreement is held to be
invalid or unenforceable by any court of competent jurisdiction, such holdings
shall not affect the enforceability of any other provision of this Agreement,
and all other provisions shall continue in full force and effect.
12. Attorneys' Fees. If a dispute between the parties arises in
connection with this Agreement, the prevailing party as determined through
arbitration or final judgment of a court of competent jurisdiction (which
arbitration or judgment is not subject to further appeal due to the passage of
time or otherwise) shall be entitled to reimbursement from the other party for
reasonable attorneys' fees and expenses incurred by the prevailing party in
connection with the resolution of the dispute.
13. Headings. The headings of the several paragraphs in this
Agreement are inserted for convenience of reference only and are not intended to
affect the meaning or interpretation of this Agreement.
14. Notices. All notices, consents, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given or delivered if (i) delivered personally; (ii) mailed by certified
mail, return receipt requested, with proper postage prepaid; or (iii) delivered
by recognized courier contracting for same day or next day delivery with signed
receipt acknowledgment to:
(a) To the Company:
M.G.A., Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇
(b) To Employee:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
or at such other address as the parties hereto may have last designated by
notice to the other parties. Any item delivered personally or by recognized
courier contracting for same day or next day delivery shall be deemed delivered
on the date of delivery. Any item mailed shall be deemed to have been delivered
on the date evidenced on the return receipt.
15. General Provisions. This Agreement shall be governed by and
construed under the laws of the State of Alabama, without giving effect to its
conflict of law principles. The terms of this Agreement shall be binding upon
and inure to the benefit of the Company and its successors and assigns. Neither
party may assign his or its rights and obligations under this Agreement to any
other party.
12
16. Entire Agreement. This Agreement contains the entire agreement
between the parties hereto, and except as otherwise provided in this Agreement,
supersedes and cancels all previous and contemporaneous written and oral
agreements, including all prior employment agreements between the Company and
Employee and amendments thereto. No amendment or modification of this Agreement
shall be valid or binding unless in writing and signed by the party to be bound.
IN WITNESS WHEREOF, the parties hereto have affixed their seals
and executed this Agreement effective as of the date first above written.
COMPANY
ATTEST: M.G.A., INC.
/s/ S. Page ▇▇▇▇ By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------- ----------------------------
Secretary ▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman and
Chief Executive Officer
Date: November 14, 1997
EMPLOYEE:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------- -------------------------------
Witness ▇▇▇▇▇▇ ▇ ▇▇▇▇▇, Individual
Date: November 14, 1997
13