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EXHIBIT 10.7
FORM OF
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of _______________ 1999 by and between
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Living Omnimedia, Inc., a Delaware corporation (the "Company"),
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Executive").
WHEREAS, the Executive was the founder of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Living Omnimedia LLC, the predecessor entity to the Company ("MSLO LLC") and has
acted as the Chairman of the Board of Directors of MSLO LLC and served as its
Chief Executive Officer; and
WHEREAS, the Company recognizes that the Executive's talents
and abilities are unique, and have been integral to the success of MSLO LLC and
thus wishes to secure the ongoing services of the Executive on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants set forth below, the parties hereby agree as follows:
1. Employment. The Company hereby agrees to employ the Executive as the
Chief Executive Officer of the Company, and the Executive hereby accepts such
employment, on the terms and conditions set forth below.
2. Term. The Executive's employment by the Company hereunder (the
"Employment Period") shall begin on _______________ , 1999 (the "Effective
Date") and end on ___________, 2004.
3. Position and Duties. During the Employment Period, the Executive
shall serve as the Chief Executive Officer of the Company and the Chairman of
the Board of Directors of the Company (the "Board"), with such duties, authority
and responsibilities as are normally associated with and appropriate for such
positions. The Executive shall report directly to the Board. The Executive shall
devote substantially all of her working time, attention and energies during
normal business hours (other than absences due to illness or vacation) to the
performance of her duties for the Company. Notwithstanding the above, the
Executive shall be permitted, to the extent such activities do not substantially
interfere with her performance of her duties and responsibilities hereunder or
violate Section 9(a) or (b) of this Agreement, to (i) manage her personal,
financial and legal affairs, (ii) serve on civic or charitable boards or
committees (it being expressly understood and agreed that the Executive's
continuing to serve on any such board and/or committees on which she is serving,
or with which she is otherwise associated, as of the Effective Date, shall be
deemed not to interfere with her performance of her duties and responsibilities
under this Agreement), (iii) serve on boards of other companies and (iv) make
personal appearances and lectures, and the Executive shall be entitled to
receive and retain all remuneration received by her from the items listed in
clauses (i) through (iv) of this paragraph.
4. Place of Performance. During the Employment Period, the Company
shall maintain executive offices for the Executive in both New York City, New
York and Westport, Connecticut and the Executive shall not be required to
relocate to any other location. During the Employment Period, the Company shall
provide the Executive with an office and staff in each of
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the above offices consistent with the practices of MSLO LLC immediately prior to
the Effective Date.
5. Compensation and Related Matters.
(a) Base Salary. During the Employment Period, the Company shall pay
the Executive a base salary at the rate of not less than $900,000 per year
("Base Salary"). The Executive's Base Salary shall be paid in approximately
equal installments in accordance with the Company's customary payroll practices.
If the Executive's Base Salary is increased by the Company, such increased Base
Salary shall then constitute the Base Salary for all purposes of this Agreement.
(b) For each full fiscal year of the Company that begins and ends
during the Employment Period, and for the portion of the fiscal year of the
Company that begins in 2004 ("Fiscal Year 2004"), the Executive shall be
eligible to earn an annual cash bonus in such amount as shall be determined by
the Compensation Committee of the Board (the "Compensation Committee") (the
"Annual Bonus") based on the achievement by the Company of performance goals
established by the Compensation Committee for each such fiscal year (or portion
of Fiscal Year 2004), which may include targets related to the earnings before
interest, taxes, depreciation and amortization ("EBITDA") of the Company;
provided, that the Annual Bonus shall be no less than $300,000. The Compensation
Committee shall establish objective criteria to be used to determine the extent
to which performance goals have been satisfied.
(c) Automobiles. The Company shall provide the Executive with
automobiles and drivers, consistent with the practices of MSLO LLC immediately
prior to the Effective Date.
(d) Business, Travel and Entertainment Expenses. The Company shall
promptly reimburse the Executive for all business, travel and entertainment
expenses consistent with the Executive's titles and the practices of MSLO LLC in
effect immediately prior to the Effective Date, including, without limitation,
first class transportation or travel on a private plane.
(e) Vacation. The Executive shall be entitled to six weeks of vacation
per year. Vacation not taken during the applicable fiscal year (but not in
excess of three weeks) shall be carried over to the next following fiscal year.
(f) Welfare, Pension and Incentive Benefit Plans. During the Employment
Period, the Executive (and her eligible spouse and dependents) shall be entitled
to participate in all the welfare benefit plans and programs maintained by the
Company from time to time for the benefit of its senior executives including,
without limitation, all medical, hospitalization, dental, disability, accidental
death and dismemberment and travel accident insurance plans and programs. In
addition, during the Employment Period, the Executive shall be eligible to
participate in all pension, retirement, savings and other employee benefit plans
and programs maintained from time to time by the Company for the benefit of its
senior executives, other than any annual cash incentive plan.
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(g) Dues. During the Employment Period, the Company shall pay or
promptly reimburse the Executive for annual dues for membership in the American
Federation of Television and Radio Artists, the Screen Actors Guild and similar
organizations.
6. Termination. The Executive's employment hereunder may be terminated
during the Employment Period under the following circumstances:
(a) Death. The Executive's employment hereunder shall terminate upon
her death.
(b) Disability. If, as a result of the Executive's incapacity due to
physical or mental illness as determined by a physician selected by the
Executive, and reasonably acceptable to the Company, (i) the Executive shall
have been substantially unable to perform her duties hereunder for six
consecutive months, or for an aggregate of 180 days during any period of twelve
consecutive months and (ii) within thirty days after written Notice of
Termination is given to the Executive after such six- or twelve- month period,
the Executive shall not have returned to the substantial performance of her
duties on a full-time basis, the Company shall have the right to terminate the
Executive's employment hereunder for "Disability".
(c) Cause. The Company shall have the right to terminate the
Executive's employment for "Cause." For purposes of this Agreement, the Company
shall have "Cause" to terminate the Executive's employment only upon the
Executive's:
(i) conviction of a felony or willful gross misconduct that,
in either case, results in material and demonstrable damage to the
business or reputation of the Company; or
(ii) willful and continued failure to perform her duties
hereunder (other than such failure resulting from the Executive's
incapacity due to physical or mental illness or after the issuance of a
Notice of Termination by the Executive for Good Reason) within ten
business days after the Company delivers to her a written demand for
performance that specifically identifies the actions to be performed.
For purposes of this Section 6(c), no act or failure to act by the Executive
shall be considered "willful" if such act is done by the Executive in the good
faith belief that such act is or was to be beneficial to the Company or one or
more of its businesses, or such failure to act is due to the Executive's good
faith belief that such action would be materially harmful to the Company or one
of its businesses. Cause shall not exist unless and until the Company has
delivered to the Executive a copy of a resolution duly adopted by a majority of
the Board (excluding the Executive for purposes of determining such majority) at
a meeting of the Board called and held for such purpose after reasonable (but in
no event less than thirty days') notice to the Executive and an opportunity for
the Executive, together with her counsel, to be heard before the Board, finding
that in the good faith opinion of the Board that "Cause" exists, and specifying
the particulars thereof in detail. This Section 6(c) shall not prevent the
Executive from challenging in any court of competent jurisdiction the Board's
determination that Cause exists or that the
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Executive has failed to cure any act (or failure to act) that purportedly formed
the basis for the Board's determination.
(d) Good Reason. The Executive may terminate her employment for "Good
Reason" after giving the Company detailed written notice thereof, if the Company
shall have failed to cure the event or circumstance constituting "Good Reason"
within ten business days after receiving such notice. Good Reason shall mean the
occurrence of any of the following without the written consent of the Executive
or her approval in her capacity as the Chairman of the Board:
(i) the assignment to the Executive of duties inconsistent with this
Agreement or a change in her titles or authority;
(ii) any failure by the Company to comply with Section 5 hereof in any
material way;
(iii) the requirement of the Executive to relocate to locations other
than those provided in Section 4 hereof;
(iv) the failure of the Company to comply with and satisfy Section
12(a) of this Agreement; or
(v) any material breach of this Agreement by the Company.
The Executive's right to terminate her employment hereunder for Good Reason
shall not be affected by her incapacity due to physical or mental illness. The
Executive's continued employment shall not constitute consent to, or a waiver of
rights with respect to, any act or failure to act constituting Good Reason
hereunder.
(e) Without Cause. The Company shall have the right to terminate the
Executive's employment hereunder without Cause by providing the Executive with a
Notice of Termination.
(f) Without Good Reason. The Executive shall have the right to
terminate her employment hereunder without Good Reason by providing the Company
with a Notice of Termination.
7. Termination Procedure.
(a) Notice of Termination. Any termination of the Executive's
employment by the Company or by the Executive during the Employment Period
(other than pursuant to Section 6(a)) shall be communicated by written Notice of
Termination to the other party. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice indicating the specific termination provision
in this Agreement relied upon and setting forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the Executive's
employment under that provision.
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(b) Date of Termination. "Date of Termination" shall mean (i) if the
Executive's employment is terminated by her death, the date of her death, (ii)
if the Executive's employment is terminated pursuant to Section 6(b), thirty
(30) days after the date of receipt of the Notice of Termination (provided that
the Executive does not return to the substantial performance of her duties on a
full-time basis during such thirty (30) day period), and (iii) if the
Executive's employment is terminated for any other reason, the date on which a
Notice of Termination is given or any later date (within thirty (30) days after
the giving of such notice) set forth in such Notice of Termination.
8. Compensation Upon Termination or During Disability. In the event the
Executive is disabled or her employment terminates during the Employment Period,
the Company shall provide the Executive with the payments and benefits set forth
below. The Executive acknowledges and agrees that the payments set forth in this
Section 8 constitute liquidated damages for termination of her employment during
the Employment Period.
(a) Termination By Company without Cause or By Executive for Good
Reason. If the Executive's employment is terminated by the Company without Cause
(other than Disability) or by the Executive for Good Reason:
(i) the Company shall pay to the Executive, on or before the
Date of Termination, a lump sum payment equal to the sum of (A) Base
Salary and accrued vacation pay through the Date of Termination, (B)
three times the Base Salary and (C) the higher of $5,000,000 or three
times the highest Annual Bonus paid with respect to any fiscal year
beginning during the Employment Period;
(ii) the Company shall continue to provide the Executive and
her eligible spouse and dependents for a period equal to the greater of
(A) the remaining term of the Employment Period, or (B) three (3) years
following the Date of Termination, the medical, hospitalization, dental
and life insurance programs provided for in Section 5(f), as if she had
remained employed; provided, that if the Executive, her spouse or her
eligible dependents cannot continue to participate in the Company
programs providing such benefits, the Company shall arrange to provide
the Executive and her spouse and dependents with the economic
equivalent of the benefits they otherwise would have been entitled to
receive under such plans and programs; and provided, further, that such
benefits shall terminate on the date or dates the Executive becomes
eligible to receive equivalent coverage and benefits under the plans
and programs of a subsequent employer at an equivalent cost to the
Executive (such coverage and benefits to be determined on a
coverage-by-coverage, or benefit-by-benefit, basis);
(iii) the Company shall, consistent with past practice,
reimburse the Executive pursuant to Section 5(d) for business expenses
incurred but not paid prior to such termination of employment;
(iv) until the third anniversary of the Date of Termination,
the Company shall continue to provide the Executive with (A) the
benefits set forth in Sections 5(c) and
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5(g) hereof and (B) an office and an assistant in each of New York, New
York and Westport, Connecticut; and
(v) the Executive shall be entitled to any other rights,
compensation and/or benefits as may be due to the Executive in
accordance with the terms and provisions of any agreements, plans or
programs of the Company (other than any severance-based plan or
program).
The payments and benefits provided for as subclause (A) of clause (i) above and
in clause (iii) above are hereinafter referred to as the "Accrued Obligations".
(b) Cause or By Executive Without Good Reason. If the Executive's
employment is terminated by the Company for Cause or by the Executive other than
for Good Reason, then the Company shall provide the Executive with her Accrued
Obligations and shall have no further obligation to the Executive hereunder.
(c) Disability. During any period that the Executive fails to perform
her duties hereunder as a result of incapacity due to physical or mental illness
("Disability Period"), the Executive shall continue to receive her full Base
Salary set forth in Section 5(a) until her employment is terminated pursuant to
Section 6(b). In the event the Executive's employment is terminated for
Disability pursuant to Section 6(b), the Company shall provide the Executive
with the excess, if any, of her full Base Salary over the amount of any
long-term disability benefits that she receives under the Company's welfare
benefit plans and programs, payable in accordance with the normal payroll
practices of the Company, for the remainder of the Employment Period and shall
have no further obligations to the Executive hereunder.
(d) Death. If the Executive's employment is terminated by her death,
the Company shall provide to the Executive's beneficiary, legal representatives
or estate, as the case may be, the Executive's full Base Salary, payable in
accordance with the normal payroll practices of the Company, for a period equal
to the remaining term of the Employment Period and shall have no further
obligations hereunder.
(e) Mitigation. The Executive shall not be required to mitigate damages
with respect to the termination of her employment under this Agreement by
seeking other employment or otherwise, and there shall be no offset against
amounts due the Executive under this Agreement on account of subsequent
employment except as specifically provided in this Section 8. Additionally,
amounts owed to the Executive under this Agreement shall not be offset by any
claims the Company may have against the Executive, and the Company's obligation
to make the payments provided for in this Agreement, and otherwise to perform
its obligations hereunder, shall not be affected by any other circumstances,
including, without limitation, any counterclaim, recoupment, defense or other
right which the Company may have against the Executive or others.
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9. Confidential Information; Non-Competition; Nonsolicitation.
(a) Confidential Information. Except as may be required or appropriate
in connection with her carrying out her duties under this Agreement, the
Executive shall not, without the prior written consent of the Company or as may
otherwise be required by law or any legal process, or as is necessary in
connection with any adversarial proceeding against the Company (in which case
the Executive shall cooperate with the Company in obtaining a protective order
at the Company's expense against disclosure by a court of competent
jurisdiction), communicate, to anyone other than the Company and those
designated by the Company or on behalf of the Company in the furtherance of its
business or to perform her duties hereunder, any trade secrets, confidential
information, knowledge or data relating to the Company and its businesses and
investments, obtained by the Executive during the Executive's employment by the
Company and MSLO LLC that is not generally available public knowledge (other
than by acts by the Executive in violation of this Agreement).
(b) Noncompetition. During the Employment Period and until the 12-month
anniversary of the Executive's Date of Termination if the Executive's employment
is terminated by the Company for Cause or the Executive terminates employment
without Good Reason, the Executive shall not engage in or become associated with
any Competitive Activity. For purposes of this Section 9(b), a "Competitive
Activity" shall mean any business or other endeavor that engages in any country
in which the Company has significant business operations as of the Date of
Termination to a significant degree in a business that directly competes with
all or any substantial part of the Company's business of (i) producing
television and other video programs related to the subject matter of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Living Magazine (the "Magazine") or other magazines of the Company, (ii)
designing, developing, licensing, promoting and selling merchandise through
catalogs, direct marketing, Internet commerce and retail stores of the product
categories in which the Company so participates as of the Date of Termination or
using the Executive's name, likeness, image, or voice to promote or market any
such product or service or (iii) the creation, publication or distribution of
regular or special issues of a magazine in the genre or magazine category of the
Magazine (the activities described in clauses (i) through (iii), the
"Business"); provided, that, a Competitive Activity shall not include (i) any
speaking engagement to the extent such speaking engagement does not promote or
endorse a product or service of the Business, (ii) the writing of any book or
article relating to subjects other than the Business (e.g., nonfiction relating
to the Executive's career or general business advice) or (iii) the television,
video or movie business so long as such business does not relate to the
Business. The Executive shall be considered to have become "associated with a
Competitive Activity" if she becomes involved as an owner, employee, officer,
director, independent contractor, agent, partner, advisor, or in any other
capacity calling for the rendition of the Executive's personal services, with
any individual, partnership, corporation or other organization that is engaged
in a Competitive Activity and her involvement relates to a significant extent to
the Competitive Activity of such entity; provided, however, that the Executive
shall not be prohibited from (a) owning less than one percent (1%) of any
publicly traded corporation, whether or not such corporation is in competition
with the Company or (b) serving as a director of a corporation or other entity
the primary business of which is not a Competitive Activity. If, at any time,
the provisions of this Section 9(b) shall be determined to be invalid or
unenforceable, by reason of
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being vague or unreasonable as to area, duration or scope of activity, this
Section 9(b) shall be considered divisible and shall become and be immediately
amended to only such area, duration and scope of activity as shall be determined
to be reasonable and enforceable by the court or other body having jurisdiction
over the matter; and the Executive agrees that this Section 9(b) as so amended
shall be valid and binding as though any invalid or unenforceable provision had
not been included herein.
(c) Nonsolicitation. During the Employment Period, and for 12 months
after the Executive's Date of Termination if the Executive's employment is
terminated by the Company for Cause or the Executive terminates employment
without Good Reason, the Executive will not, directly or indirectly, solicit for
employment by other than the Company any person (other than any personal
secretary or assistant hired to work directly for the Executive) employed by the
Company or its affiliated companies, nor will the Executive, directly or
indirectly, solicit for employment by other than the Company any person known by
the Executive (after reasonable inquiry) to be employed at the time by the
Company or its affiliated companies.
(d) Injunctive Relief. In the event of a breach or threatened breach of
this Section 9, the Executive agrees that the Company shall be entitled to
injunctive relief in a court of appropriate jurisdiction to remedy any such
breach or threatened breach, the Executive acknowledging that damages would be
inadequate and insufficient.
10. Indemnification.
(a) General. The Company agrees that if the Executive is made a party
or is threatened to be made a party to any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "Proceeding"), by reason of
the fact that the Executive is or was a trustee, director or officer of the
Company, MSLO LLC, or any predecessor to MSLO LLC (including any sole
proprietorship owned by the Executive) or any of their affiliates or is or was
serving at the request of the Company, MSLO LLC, any predecessor to MSLO LLC
(including any sole proprietorship owned by the Executive), or any of their
affiliates as a trustee, director, officer, member, employee or agent of another
corporation or a partnership, joint venture, limited liability company, trust or
other enterprise, including, without limitation, service with respect to
employee benefit plans, whether or not the basis of such Proceeding is alleged
action in an official capacity as a trustee, director, officer, member, employee
or agent while serving as a trustee, director, officer, member, employee or
agent, the Executive shall be indemnified and held harmless by the Company to
the fullest extent authorized by Delaware law, as the same exists or may
hereafter be amended, against all Expenses incurred or suffered by the Executive
in connection therewith, and such indemnification shall continue as to the
Executive even if the Executive has ceased to be an officer, director, trustee
or agent, or is no longer employed by the Company and shall inure to the benefit
of her heirs, executors and administrators.
(b) Expenses. As used in this Agreement, the term "Expenses" shall
include, without limitation, damages, losses, judgments, liabilities, fines,
penalties, excise taxes, settlements, and costs, attorneys' fees, accountants'
fees, and disbursements and costs of
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attachment or similar bonds, investigations, and any expenses of establishing a
right to indemnification under this Agreement.
(c) Enforcement. If a claim or request under this Section 10 is not
paid by the Company or on its behalf, within thirty (30) days after a written
claim or request has been received by the Company, the Executive may at any time
thereafter bring suit against the Company to recover the unpaid amount of the
claim or request and if successful in whole or in part, the Executive shall be
entitled to be paid also the expenses of prosecuting such suit. All obligations
for indemnification hereunder shall be subject to, and paid in accordance with,
applicable Delaware law.
(d) Partial Indemnification. If the Executive is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of any Expenses, but not, however, for the total amount thereof, the
Company shall nevertheless indemnify the Executive for the portion of such
Expenses to which the Executive is entitled.
(e) Advances of Expenses. Expenses incurred by the Executive in
connection with any Proceeding shall be paid by the Company in advance upon
request of the Executive that the Company pay such Expenses, but only in the
event that the Executive shall have delivered in writing to the Company (i) an
undertaking to reimburse the Company for Expenses with respect to which the
Executive is not entitled to indemnification and (ii) a statement of her good
faith belief that the standard of conduct necessary for indemnification by the
Company has been met.
(f) Notice of Claim. The Executive shall give to the Company notice of
any claim made against her for which indemnification will or could be sought
under this Agreement. In addition, the Executive shall give the Company such
information and cooperation as it may reasonably require and as shall be within
the Executive's power and at such times and places as are convenient for the
Executive.
(g) Defense of Claim. With respect to any Proceeding as to which the
Executive notifies the Company of the commencement thereof:
(i) The Company will be entitled to participate therein at its
own expense;
(ii) Except as otherwise provided below, to the extent that it
may wish, the Company will be entitled to assume the defense thereof,
with counsel reasonably satisfactory to the Executive, which in the
Company's sole discretion may be regular counsel to the Company and may
be counsel to other officers and directors of the Company or any
subsidiary. The Executive also shall have the right to employ her own
counsel in such action, suit or proceeding if she reasonably concludes
that failure to do so would involve a conflict of interest between the
Company and the Executive, and under such circumstances the fees and
expenses of such counsel shall be at the expense of the Company.
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(iii) The Company shall not be liable to indemnify the
Executive under this Agreement for any amounts paid in settlement of
any action or claim effected without its written consent. The Company
shall not settle any action or claim in any manner which would impose
any penalty that would not be paid directly or indirectly by the
Company or limitation on the Executive without the Executive's written
consent. Neither the Company nor the Executive will unreasonably
withhold or delay their consent to any proposed settlement.
(h) Non-exclusivity. The right to indemnification and the payment of
expenses incurred in defending a Proceeding in advance of its final disposition
conferred in this Section 10 shall not be exclusive of any other right which the
Executive may have or hereafter may acquire under any statute or certificate of
incorporation or by-laws of the Company or any subsidiary, agreement, vote of
shareholders or disinterested directors or trustees or otherwise.
11. Legal Fees and Expenses. If any contest or dispute shall arise
between the Company and the Executive regarding any provision of this Agreement,
the Company shall reimburse the Executive for all legal fees and expenses
reasonably incurred by the Executive in connection with such contest or dispute,
but only if the Executive prevails to a substantial extent with respect to the
Executive's claims brought and pursued in connection with such contest or
dispute. Such reimbursement shall be made as soon as practicable following the
resolution of such contest or dispute (whether or not appealed) to the extent
the Company receives reasonable written evidence of such fees and expenses.
12. Successors; Binding Agreement.
(a) Company's Successors. No rights or obligations of the Company under
this Agreement may be assigned or transferred, except that the Company shall
require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company to expressly assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. As used in this Agreement,
"Company" shall include any successor to its business and/or assets (by merger,
purchase or otherwise) which executes and delivers the agreement provided for in
this Section 12 or which otherwise becomes bound by all the terms and provisions
of this Agreement by operation of law.
(b) Executive's Successors. No rights or obligations of the Executive
under this Agreement may be assigned or transferred by the Executive other than
her rights to payments or benefits hereunder, which may be transferred only by
will or the laws of descent and distribution. Upon the Executive's death, this
Agreement and all rights of the Executive hereunder shall inure to the benefit
of and be enforceable by the Executive's beneficiary or beneficiaries, personal
or legal representatives, or estate, to the extent any such person succeeds to
the Executive's interests under this Agreement. If the Executive should die
following her Date of Termination while any amounts would still be payable to
her hereunder if she had continued to live, all such amounts unless otherwise
provided herein shall be paid in accordance with the
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terms of this Agreement to such person or persons so appointed in writing by the
Executive, or otherwise to her legal representatives or estate.
13. Notice. For the purposes of this Agreement, notices, demands and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered either personally or by
United States certified or registered mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive:
At her residence address most recently filed with the Company.
If to the Company:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Living Omnimedia LLC
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
with a copy to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
14. Miscellaneous. No provisions of this Agreement may be amended,
modified, or waived unless such amendment or modification is agreed to in
writing signed by the Executive and by a duly authorized officer of the Company,
and such waiver is set forth in writing and signed by the party to be charged.
No waiver by either party hereto at any time of any breach by the other party
hereto of any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. The respective rights and obligations of the
parties hereunder of this Agreement shall survive the Executive's termination of
employment and the termination of this Agreement to the extent necessary for the
intended preservation of such rights and obligations. Except or otherwise
provided in Section 10 hereof, the validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of New
York without regard to its conflicts of law principles.
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15. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
17. Entire Agreement. This Agreement and the Location Rental Agreement
set forth the entire agreement of the parties hereto in respect of the subject
matter contained herein and supersedes all prior agreements, promises,
covenants, arrangements, communications, representations or warranties, whether
oral or written, by any officer, employee or representative of any party hereto
in respect of such subject matter including, without limitation, the Integrated
Agreement with Respect to Employment and Property Services, License and
Noncompetition Matters by and between MSLO LLC and the Executive, dated February
3, 1997, the License Agreement by and between MSLO LLC and the Executive, dated
February 3, 1997, and the Non-Competition Agreement by and between the Executive
and MSLO LLC, dated February 3, 1997. Any prior agreement of the parties hereto
in respect of the subject matter contained herein is hereby terminated and
canceled.
18. Withholding. All payments hereunder shall be subject to any
required withholding of Federal, state and local taxes pursuant to any
applicable law or regulation.
19. Section Headings. The section headings in this Employment Agreement
are for convenience of reference only, and they form no part of this Agreement
and shall not affect its interpretation.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LIVING
OMNIMEDIA, INC.
By:
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EXECUTIVE
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