Exhibit 10.2
EMPLOYMENT AND
NON-COMPETITION AGREEMENT
BY AND BETWEEN
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
AND
\
MIDNIGHT HOLDINGS GROUP, INC
EMPLOYMENT
AND NON-COMPETITION AGREEMENT
THIS EMPLOYMENT AND NON-COMPETITION AGREEMENT (the "Agreement"), is
made and entered into as of January ___, 2007 (the "Effective Date"), by and
between Midnight Holdings Group, Inc, a Delaware corporation (the "Company"),
and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ("Executive").
PRELIMINARY RECITALS:
A. Executive is currently the Vice-president of Finance and Chief
Financial Officer for the Company and has knowledge and understanding of the
operations of the Company's business.
B. Company wishes to employ Executive and Executive wishes to continue his
employment with the Company on the following terms.
NOW, THEREFORE, in consideration of the premises and mutual covenants
of the parties hereinafter set forth, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. EMPLOYMENT.
1.1 ENGAGEMENT OF EXECUTIVE. The Company agrees to employ Executive
and Executive agrees to accept employment as the Executive Vice-president and
Chief Financial Officer of the Company in accordance with the terms and
conditions of this Agreement.
1.2 DUTIES AND POWERS. During the Employment Period, Executive will
serve as the Company's Vice-president and Chief Financial Officer, reporting
directly to the Chief Executive Officer (the "CEO") and will have such
responsibilities, duties and authorities, and will render such services of an
executive and administrative character or act in such other executive capacity
for the Company and its affiliates as the CEO shall from time to time direct,
which duties and responsibilities shall be consistent with those held by
Executive previously. Executive shall devote his best efforts, energies and
abilities and his full business time, skill and attention (except for permitted
vacation periods and reasonable periods of illness or other incapacity) to the
business and affairs of the Company. Executive acknowledges that his duties and
responsibilities will require his full-time business efforts and agrees that
during the Employment Period he will not engage in any other business activity
or have any business pursuits or interests which materially interfere or
conflict with the performance of Executive's duties hereunder, provided, that
nothing in this Section 1.2 shall be deemed to prohibit Executive from making
Permitted Investments (as hereinafter defined).
1.3 EMPLOYMENT PERIOD. Executive's employment under this Agreement
shall begin on the date hereof and shall continue through and until the third
anniversary of the date hereof (the "Initial Period") unless extended as
provided in this Section 1.3. This Agreement shall be automatically extended for
additional consecutive one (1) year periods ("Renewal Periods") unless either
party delivers to the other party written notice of such party's election not to
renew this Agreement at least ninety (90) days prior to the expiration of the
Initial Period or any Renewal Periods. The Initial Period and the Renewal
Periods are hereinafter
Employment Agreement - ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
referred to collectively as the "Employment Period." Notwithstanding anything to
the contrary contained herein, the Employment Period is subject to termination
pursuant to Section 1.4 and Section 1.5 below.
1.4 TERMINATION BY THE COMPANY. The Company has the right to
terminate Executive's employment under this Agreement, by notice to Executive in
writing at any time, (i) for Good Cause (as hereinafter defined), (ii) without
Good Cause for any or no reason, (iii) due to the death or Total Disability (as
hereinafter defined) of Executive and/or (iv) Termination Without Cause Pursuant
To A Merger (as hereinafter defined). Any such termination shall be effective
upon the date of service of such notice pursuant to Section 13. As used herein,
"Good Cause" means the occurrence of any of the following events:
(a) the failure of Executive to perform his duties or comply
with reasonable directions of the CEO which continues for a period of thirty
(30) days after the Company has given written notice to Executive specifying in
reasonable detail the manner in which Executive has failed to perform such
duties or comply with such directions;
(b) the determination by the Company in the exercise of its
reasonable judgment that Executive has committed an act or acts constituting (i)
a felony, (ii) dishonesty with respect to the Company, or (iii) fraud with
respect to the Company;
(c) the determination by the Company in the exercise of its
reasonable judgment that Executive suffers from habitual alcohol or drug abuse
that adversely affects his performance hereunder;
(d) a material breach by Executive of any of the terms and
conditions of this Agreement; or
(e) Executive's gross negligence or willful misconduct in the
performance of his duties hereunder.
Executive shall be deemed to have a "Total Disability" for purposes
of this Agreement if he is unable to perform, by reason of physical or mental
incapacity, his duties or obligations under this Agreement, for a total period
of ninety (90) consecutive or one hundred twenty (120) cumulative days in any
three hundred sixty (360) day period and such incapacity is continuing on the
date of notice of termination. The Company shall determine, according to the
facts then available and based upon the opinion provided to the Company by
Executive's personal physician, whether and when the Total Disability of the
Executive has occurred. Such determination shall not be arbitrary or
unreasonable.
1.5 TERMINATION BY EXECUTIVE. Executive has the right to terminate
his employment under this Agreement upon ninety (90) days prior written notice
to the Company.
2. COMPENSATION AND BENEFITS.
2.1 BASE COMPENSATION. During the Employment Period, the Company
will pay Executive a base salary at a rate of TWO HUNDRED THOUSAND ($200,000)
Dollars per annum (the "Base Salary"), payable in equal installments and in
accordance with the Company's regular payroll policy for salaries employees.
Executive's Base Salary shall be subject to review
Employment Agreement - ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
annually by the Company and may be increased or decreased based on: (a) salaries
being paid to executives at companies comparable to the Company, and (b)
achievement of gross and net profit management as established by the Company.
2.2 BONUS COMPENSATION. In addition to his Base Salary, during the
Employment Period, Executive may receive an annual cash bonus (the "Bonus
Compensation") in such amount as determined by the Company in its reasonable
discretion (Executive and Company each acknowledge that this annual bonus is not
guaranteed but shall be targeted at fifty percent (50%) of Executive's Base
Salary). If the Company shall adopt a bonus program or any other form of
profit-sharing participation for senior executive officers of the Company,
Executive shall be eligible to participate in such program as authorized by the
Company, in its sole discretion.
2.3 STOCK OPTIONS. Upon the signing of the Employment Agreement, the
Company shall grant Executive an option (the "Stock Option") to acquire shares
of Common Stock in an aggregate amount equal to _____ percent (__%) of the
Company's issued and outstanding stock (computed on a fully diluted basis) as of
the date of this Agreement. The Stock Option shall be governed by the Company's
the effective stock option plan and shall vest, if at all, in equal proportions
over the Initial Period, subject in each case to the provisions of Section 2.4
below. The Stock Option shall be exercisable for 5 years and shall have an
exercise price of 110% of the fair market value per share. In connection with
such grant, the Executive shall enter into the Company's standard stock option
agreement which will incorporate the foregoing vesting schedule and the Stock
Option related provisions contained in Section 2.4 below. Notwithstanding
anything to the contrary in this Agreement, the Stock Option may not be assigned
or otherwise transferred by Executive.
2.4 COMPENSATION AFTER TERMINATION.
(a) If the Employment Period is terminated (i) by the Company
for Good Cause, (ii) by Executive upon proper notice or (iii) upon expiration of
the Employment Period, then the Company shall have no further obligations
hereunder or otherwise with respect to Executive's employment from and after the
termination or expiration date (except payment of Executive's Base Salary
accrued through the date of termination or expiration and any other accrued and
unpaid benefits, if any), and the Company shall continue to have all other
rights available hereunder (including without limitation, all rights under
Section 3 at law or in equity). All Stock Options that have not vested as of the
date of termination shall be forfeited to the Company as of such termination
date. Stock Options that have vested as of the Executive's termination shall
remain exercisable for ninety (90) days following such termination.
(b) If the Employment Period is terminated by the Company
without Good Cause, the Executive shall be entitled to receive as severance pay:
(i) Executive's Base Salary for the remainder of the
Initial Period or then current Renewal Period) to be paid in the same manner as
if Executive had remained employed with the Company;
Employment Agreement - ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
(ii) Executive's employee benefit plans (as described
Section 2.5 below) for the remainder of any Initial Period or then current
Renewal Period to be maintained in the same manner as if Executive had remained
employed with the Company;
(iii) An amount equal to Executive's Base Salary for three
(3) months to be paid in cash, in full, within thirty (30) days of the effective
date of Executive's termination; and
(iv) Stock Options which have become vested as of the
date Executive's employment is terminated by the Company without Good Cause. All
Stock Options that have not vested, if any, shall be forfeited to the Company.
Stock Options that have vested as of the as of the date Executive's employment
is terminated by the Company without Good Cause shall remain exercisable for a
period of ninety (90) days following such termination.
(c) If the Employment Period is terminated by reason of
Executive's death or Total Disability, Executive shall be entitled to receive
Executive's Base Salary accrued through the date of death or Total Disability
and for the six-month period immediately following the date of death or Total
Disability as well as any other accrued and unpaid benefits. All Stock Options
that are scheduled to vest on the next succeeding anniversary of the Effective
Date shall be accelerated and deemed to have vested as of the date of the
Executive's death or Total Disability. All Stock Options that have not vested,
if any, after the vesting described in the preceding sentence shall be forfeited
to the Company. Stock Options that have vested (or been deemed pursuant to this
Section 2.4(c) to have vested) as of the Executive's death or Total Disability
shall remain exercisable for one year following such date. All Stock Options
that have not vested (or been deemed pursuant to this Section 2.4(c) to have
vested) as of the date of the Executive's death or Total Disability shall be
forfeited to the Company as of such date.
(d) If the Employment Period is terminated by the Company by
reason of a Termination Without Cause Pursuant to Merger (as hereinafter
defined), Executive shall be entitled to receive:
(i) All Stock Options that are scheduled to vest during the
Employment Period shall be accelerated and deemed to have vested as of the date
of the Executive's Termination Without Cause Pursuant to Merger. Stock Options
that have vested (or been deemed pursuant to this Section 2.4(d)(i) to have
vested) as of the date of such termination shall remain exercisable for a period
of ninety (90) days;
(ii) Executives' base salary and Fringe Benefits through
the date of termination; and
(iii) An amount equal to the pro rata portion (based upon a
365 day year) of the Bonus Compensation which Executive would have received, if
any.
"Termination Without Cause Pursuant to Merger" means a termination of
Executive's employment with the Company as a result of a transaction or series
of related transactions in which (i) immediately following the transaction more
than eighty (80%) percent of the voting stock of the Company is transferred or
issued to, or acquired by, persons or entities who are neither the current
holders (nor any of their affiliates) of voting stock of the Company as of the
date hereof, (ii) there is a sale or other disposition of all or substantially
all of the assets of
Employment Agreement - ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
the Company other than to an affiliate of the Company, or (iii) the separate
existence of the Company ceases.
(e) Except as set forth in this Section 2.4, the Company shall
have no other obligations hereunder or otherwise with respect to Executive's
employment from and after the termination or expiration date, and the Company
shall continue to have all other rights available hereunder (including, without
limitation, all rights under Section 3 at law or in equity).
2.5 PROFIT SHARING, PENSION AND SALARY DEFERRAL BENEFITS. During the
Employment Period, Executive shall be entitled to participate in or accrue
benefits under any pension, salary deferral or profit sharing plan now existing
or hereafter created for employees of the Company upon terms and conditions
equivalent to those which the Company may provide for other key management
employees.
2.6 REIMBURSEMENT OF BUSINESS EXPENSES. The Company shall reimburse
Executive for all reasonable, ordinary and necessary travel, entertainment, meal
and lodging expenses incurred by him on behalf of the Company during the term of
his employment. On a quarterly basis, Executive shall provide the CEO with
itemized accounts, receipts, and other documentation for expenses for which he
seeks reimbursement, as reasonably required by the CEO.
2.7 TAXES, ETC. All compensation payable to Executive hereunder is
stated in gross amount and shall be subject to all applicable withholding taxes,
other normal payroll deductions and any other amounts required by law to be
withheld.
2.8 VACATION. Executive shall be entitled to 15 Business Days of
vacation per year to be scheduled after consultation with the CEO and in view of
the needs of the Company for Executive's services at the requested time. Unused
vacation time shall not be carried over to subsequent years.
2.9 INDEMNIFICATION FOR PERSONAL GUARANTEES. As an executive of the
company, it is understood that personal guarantees may need to be provided by
the Executive to various customers, clients, vendors, suppliers and others
(each, a "Guaranteed Party" and collectively, the "Guaranteed Parties") in order
to induce such Guaranteed Parties to initiate or to continue (i) relations with
the Company, (ii) services for the Company, and/or (iii) credit to or from the
Company. Such personal guarantees are considered normal and customary and as
such, require that the Company provide the Executive with full and complete
indemnification. Under no condition shall the Executive be held liable for such
personal guarantees made to Guaranteed Parties on behalf of the Company, and the
Company hereby indemnifies and holds Executive harmless from and against any
losses, claims, damages or liabilities to which the Executive may become subject
under such personal guarantees provided by the Executive to any Guaranteed Party
insofar as such loses, claims damages or liabilities arise out of a personal
guarantee provided to such Guaranteed Party by the Executive. Further, should
the Executive's Employment with the Company be terminated by the Company for any
reason, or, should the Executive leave the employment of the Company for any
reason, the Company shall immediately cause all Guaranteed Parties to who the
Executive provided personal guarantees to release the Executive from such
personal guarantees.
Employment Agreement - ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
3. COVENANT NOT TO COMPETE; CONFLICTS OF INTEREST; INVENTIONS.
3.1 EXECUTIVE'S ACKNOWLEDGMENT. Executive agrees and acknowledges
that in order to assure the Company that it will retain its value and that of
the Company's business as a going concern, it is necessary that Executive
undertake not to use his special knowledge of the Company's business and his
relationships with customers and suppliers to compete with the Company in the
manner prohibited hereby. Executive further acknowledges that:
(a) as of the date hereof, the Company is engaged in the
business of the sale of automotive aftermarket accessories and other automotive
related items at retail, the distribution of parts and automotive service center
support services, and the management and operation of automotive service
centers;
(b) Executive has occupied a position of trust and confidence
with the Company prior to the date of this Agreement and, during such period of
Executive's employment under this Agreement, Executive has, and will, become
familiar with the Company's trade secrets and with other proprietary and
confidential information concerning the Company and the Company's business;
(c) the agreements and covenants contained in this Section 3
are essential to protect the Company and the goodwill of the Company's business;
and
(d) Executive's employment with the Company has special, unique and
extraordinary value to the Company and the Company would be irreparably damaged
if Executive were to provide services to any person or entity in violation of
the provisions of this Agreement.
3.2 NON-COMPETE. Executive hereby agrees that for a period
commencing on the date hereof and ending one (1) year following the termination
of his employment with the Company (the "Restricted Period"), he will not,
directly or indirectly, as employee, agent, consultant, stockholder, director,
co-partner or in any other individual or representative capacity, own, operate,
manage, control, engage in, invest in or participate in any manner in, act as a
consultant or advisor to, render services for (alone or in association with any
person, firm, corporation or entity), or otherwise assist any person or entity
(other than the Company) that engages in or owns, invests in, operates, manages
or controls any venture or enterprise that directly or indirectly engages or
proposes to engage in the automotive repair business, or the sale of automotive
aftermarket parts or accessories (the "Business") anywhere within the
continental United States, Alaska or Hawaii (the "Territory"); PROVIDED,
HOWEVER, that nothing contained herein shall be construed to prevent Executive
from investing in the stock or other securities of any competing corporation or
entity listed on a national securities exchange or traded in the
over-the-counter market, but only if Executive is not actively involved in the
business of said corporation or entity and if Executive and his associates (as
such term is defined in Regulation 14(A) promulgated under the Securities
Exchange Act of 1934, as in effect on the date hereof), collectively, do not own
more than an aggregate of five (5%) percent of the stock of such corporation
("Permitted Investments"). Executive acknowledges and agrees that (i) the
Company is building a nationwide network of automotive repair centers and retail
stores focused on the automotive aftermarket and automotive accessories
segments; (ii) the Company is continuously investigating potential new
geographic markets in which to introduce its business
Employment Agreement - ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
model; and (iii) in light of (i) and (ii), the covenant against competition
provided for pursuant to this Section 3.2 is reasonable with respect to its
scope, the Restricted Period, and the Territory.
3.3 BLUE-PENCIL. If any court of competent jurisdiction shall at any
time deem the Restricted Period too long, the scope or the Business too broad,
or the Territory too extensive, the other provisions of this Section 3 shall
nevertheless stand, the Restricted Period shall be deemed to be the longest
period permissible by law under the circumstances, the scope of the Business
shall be deemed to be the broadest scope permissible by law under the
circumstances and the Territory shall be deemed to comprise the largest
territory permissible by law under the circumstances. The court in each case
shall reduce the Restricted Period, scope and/or Territory to permissible
duration or size.
3.4 CONFLICTS OF INTEREST. While employed by the Company, Executive
shall not, directly or indirectly, unless approved in writing by the Company,
which approval may be granted or withheld in its sole discretion:
(a) participate in any way in the benefits of transactions
between the Company and its suppliers or customers or have personal financial
transactions with any of the Company's suppliers or customers, including,
without limitation, having a financial interest in the Company's suppliers or
customers, or making loans to, or receiving loans from, the Company's suppliers
or customers;
(b) realize the personal gain or advantage from a transaction
in which the Company has an interest or use information obtained in connection
with Executive's employment with the Company for the Executive's personal
advantage or gain; or
(c) accept any offer to serve as an officer, director, partner,
consultant, agent or manager with, or to be employed in a technical or sales
capacity by, a person or entity which does business with the Company.
3.5 INVENTIONS. (a) The Executive agrees that all inventions,
discoveries, improvements and patentable or copyrightable works ("INVENTIONS")
initiated, conceived or made by him, either alone or in conjunction with others,
during the Employment Period shall be the sole property of the Company to the
maximum extent permitted by applicable law and, to the extent permitted by law,
shall be "works made for hire" as that term is defined in the United States
Copyright Act (17 U.S.C.A., Section 101). The Company shall be the sole owner of
all patents, copyrights, trade secret rights, and other intellectual property or
other rights in connection therewith. The Executive hereby assigns to the
Company all right, title and interest he may have or acquire in all such
Inventions; provided, however, that the Company may in its sole discretion agree
to waive the Company's rights pursuant to this Section 3.5 with respect to any
Invention that is not directly or indirectly related to the Company's business.
The Executive further agrees to assist the Company in
every proper way (but at the Company's expense) to obtain and from time to time
enforce patents, copyrights or other rights on such Inventions in any and all
countries, and to that end the Executive will execute all documents necessary:
(i) to apply for, obtain and vest in the name
of the Company alone (unless the Company otherwise directs) letters patent,
copyrights or other
Employment Agreement - ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
analogous protection in any country throughout the world and when so obtained or
vested to renew and restore the same; and
(ii) to defend any opposition proceedings in
respect of such applications and any opposition proceedings or petitions or
applications for revocation of such letters patent, copyright or other analogous
protection.
(b) The Executive acknowledges that while performing the
services under this Agreement the Executive may locate, identify and/or evaluate
patented or patentable inventions having commercial potential in the fields of
automotive repair or retail sales of automotive aftermarket products and other
fields which may be of potential interest to the Company or one of its
affiliates (the "THIRD PARTY INVENTIONS"). The Executive understands,
acknowledges and agrees that all rights to, interests in or opportunities
regarding, all Third-Party Inventions identified by the Company, any of its
affiliates or either of the foregoing persons' officers, directors, employees
(including the Executive), agents or consultants during the Employment Period
shall be and remain the sole and exclusive property of the Company or such
affiliate and the Executive shall have no rights whatsoever to such Third-Party
Inventions and will not pursue for himself or for others any transaction
relating to the Third-Party Inventions which is not on behalf of the Company
unless the Company has expressly abandoned its interest in such Third Party
Inventions in writing.
(c) The Executive agrees that he will promptly disclose to the
Company, or any persons designated by the Company, all improvements, Inventions
made or conceived or reduced to practice, either alone or jointly with others,
during the Employment Period.
3.5 CONFIDENTIAL INFORMATION. During the term of this Agreement and
continuously thereafter, Executive shall keep secret and retain in strictest
confidence, and shall not, without the prior written consent of the Company,
furnish, make available or disclose to any third party or use for the benefit of
himself or any third party, any Confidential Information, except as may be
necessary to carry out his duties hereunder or as may legally be required. As
used in this Section 4, "Confidential Information" shall mean any information
relating to the business or affairs of the Company or the Business, including,
but not limited to, information relating to financial statements, customer
identities, potential customers, employees, suppliers, servicing methods,
equipment, programs, strategies and information, analyses, profit margins or
other proprietary information used by the Company in connection with the
Business; provided, however, that Confidential Information shall not include any
information which is in the public domain or becomes known in the industry
through no wrongful act on the part of Executive. Executive acknowledges that
the Confidential Information is vital, sensitive, confidential and proprietary
to the Company.
4. INTERFERENCE WITH RELATIONSHIPS. During the Restricted Period,
Executive shall not, directly or indirectly, as employee, agent, consultant,
stockholder, director, co-partner or in any other individual or representative
capacity without the prior written consent of the Company (i) employ or engage,
recruit or solicit for employment or engagement, any person who is (or was
within six months of the date such employment, engagement or solicitation
commences or occurs, as the case may be) employed or engaged by the Company, or
otherwise seek to influence or alter any such person's relationship with the
Company, or (ii) solicit or encourage
Employment Agreement - ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
any present or future customer or supplier of the Company to terminate or
otherwise alter his, her or its relationship with the Company.
5. EFFECT ON TERMINATION. If the Company or the Executive should
terminate Executive's employment pursuant to Section 1 above for any reason,
then, notwithstanding such termination, those provisions contained in Section
2.4, 3, 4, 5, 6,7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 hereof shall remain in
full force and effect for the duration of the Restricted Period.
6. REMEDIES. Executive acknowledges and agrees that the covenants set
forth in Section 3, 4, and 5 of this Agreement (collectively, the "Restrictive
Covenants") are reasonable and necessary for the protection of the Company's
business interests, that irreparable injury will result to the Company if
Executive breaches any of the terms of the Restrictive Covenants, and that in
the event of Executive's actual or threatened breach of any such Restrictive
Covenants, the Company will have no adequate remedy at law. Executive
accordingly agrees that in the event of any actual or threatened breach by him
of any of the Restrictive Covenants, the Company shall be entitled to seek
immediate temporary injunctive and other equitable relief, without the necessity
of showing actual monetary damages, subject to hearing as soon thereafter as
possible. Nothing contained herein shall be construed as prohibiting the Company
from pursuing any other remedies available to it for such breach or threatened
breach, including the recovery of any damages which it is able to prove. In the
event of a breach by the Company hereunder, Executive shall be entitled to
pursue all remedies available to him, whether at law or in equity (including
specific performance), any and all of which may be cumulative and which are not
exclusive.
7. INCOME TAX TREATMENT. Executive and the Company acknowledge that it
is the intention of the Company to deduct all amounts paid under Section 2
hereof as ordinary and necessary business expenses for income tax purposes.
Executive agrees and represents that he will treat all amounts paid hereunder as
ordinary income for income tax purposes, and should he report such amounts as
other than ordinary income for income tax purposes, he will indemnify and hold
the Company harmless from and against any and all taxes, penalties, interest,
costs and expenses, including reasonable attorneys' and accounting fees and
costs, which are incurred by Company directly or indirectly as a result thereof.
8. ASSIGNMENT. This Agreement, and the Executive's rights and
obligations hereunder, may not be assigned by the Executive. The Company may
assign its rights, together with its obligations, hereunder in connection with
any sale, transfer or other disposition of all or substantially all of its
business or assets.
9. SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
10. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same Agreement.
Employment Agreement - ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
11. DESCRIPTIVE HEADINGS: INTERPRETATION. The descriptive headings in
this Agreement are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this
Agreement. The use of the word "including" in this Agreement shall be by way of
example rather than by limitation.
12. NOTICES. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been duly given if (i) delivered personally
to the recipient, (ii) sent to the recipient by reputable express courier
service (charges prepaid) or mailed to the recipient by certified or registered
mail, return receipt requested and postage prepaid, or (iii) transmitted by
telecopy to the recipient with a confirmation copy to follow the next day to be
delivered by overnight carrier. Such notices, demands and other communications
shall be sent to the addresses indicated below:
(a) If to Executive:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(b) If to the Company:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chief Executive Officer
Midnight Holdings Group, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party. Date
of service of such notice shall be (w) the date such notice is personally
delivered, (x) three days after the date of mailing if sent by certified or
registered mail, (y) one day after the date of delivery to the overnight courier
if sent by overnight courier or (z) the next business day after the date of
transmittal by telecopy.
13. PREAMBLE; PRELIMINARY RECITALS. The Preliminary Recitals set forth
in the Preamble hereto are hereby incorporated and made part of this Agreement.
14. ENTIRE AGREEMENT. Except as otherwise expressly set forth herein,
this Agreement sets forth the entire understanding of the parties, and
supersedes and preempts all prior oral or written understandings and agreements,
with respect to the subject matter hereof.
15. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and all questions concerning the construction, validity,
interpretation and performance of this Agreement shall be governed by, the laws
of the State of Michigan, without giving effect to provisions thereof regarding
conflict of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Employment Agreement - ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
COMPANY:
MIDNIGHT HOLDINGS GROUP, INC.
By:
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President and Chief Executive Officer
EXECUTIVE:
---------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Employment Agreement - ▇▇▇▇▇▇▇ ▇. ▇▇▇▇