Exhibit 10.7
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made in New York,
New York as of August 15, 2005 (the "Effective Date"), by and between Xxxxxx
Xxxxxxx Ventures LLC, a Delaware limited liability company (the "Company"), and
Xxxxxx Xxxxxxx III ("Employee").
WHEREAS, the Company desires to continue to employ Employee, and
Employee desires to accept such continued employment on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties, intending to be legally bound, hereby agree as follows:
1. Term.
Unless earlier terminated in accordance with Section 4 hereof,
the term of this Agreement shall be the five-year period commencing on the
Effective Date and ending on the fifth anniversary of the Effective Date (the
"Initial Term"). Thereafter, this Agreement shall automatically be extended for
one or more additional five-year periods unless Employee or the Company gives
written notice to the other party, not less than one hundred twenty (120) days
prior to the end of the Initial Term or any extension thereof (the Initial Term
and any and all extensions thereof, collectively, the "Term"), of his or its
election not to renew this Agreement.
2. Employment.
(a) Employment by the Company. During the Term, upon the terms
and subject to the conditions set forth in this Agreement, Employee shall serve
as an Executive Vice President of the Company, shall report solely to the Chief
Executive Officer of the Company (the "CEO"), or, in the event of the CEO's
absence, the Board of Directors of the Company (the "Board"), and shall serve as
an officer, director or manager of any subsidiary of the Company, if elected to
any such position.
(b) Duties. Throughout the Term, Employee shall faithfully and
diligently perform Employee's duties and responsibilities in conformity with the
directions of the CEO and the Board, shall devote such time and effort as is
necessary to fulfill such duties and responsibilities and shall serve the
Company to the best of Employee's ability. Employee's duties shall include but
shall not be limited to coordinating personal appearances and media interviews
by Xxxxxx Xxxxxxx, Xx., assisting the Company in raising capital, meeting with
customers and business associates, and assisting in development and
implementation of the Company's strategic plan. Employee shall perform all
duties in a professional, ethical and businesslike manner. In his capacity as an
Executive Vice President, Employee shall have such duties and responsibilities
as are customary for Employee's position and any other duties or
responsibilities he may be reasonably assigned by the CEO or, in the event of
the CEO's absence, the Board.
(c) Place of Performance. Employee shall be based in Houston,
Texas. Employee recognizes that his duties will require, from time to time and
at the Company's expense, travel to domestic and international locations in
accordance with the Company's standard policies.
3. Compensation and Benefits.
(a) Base Salary. The Company agrees to pay to Employee a
salary at the rate of $150,000 per annum (the "Initial Base Salary"), payable in
installments consistent with the Company's standard payroll policies, but in no
event less frequently than monthly. On January 1 of each year during the Term,
(i) Employee's Base Salary (as hereinafter defined) shall increase by five
percent (5%) and (ii) the Company shall review Employee's performance and may
make such additional increases to the Base Salary in its sole discretion. The
Initial Base Salary together with all such mandatory and discretionary increases
thereto shall hereinafter be referred to as the "Base Salary."
(b) Bonus. In addition, Employee shall be eligible for an
annual bonus at the sole discretion of the Board, in accordance with and subject
to any written bonus plan developed and approved by the Company applicable to
senior executives of the Company; provided that such bonus shall be paid no
later than March 14 of the year following the end of the year to which such
bonus relates.
(c) Benefits and Perquisites. Employee shall be entitled to
participate in, to the extent Employee is otherwise eligible under the terms
thereof, the benefit plans and programs, and receive the benefits and
perquisites, generally provided by the Company to employees of the Company,
including without limitation family medical insurance, health insurance and
disability insurance (in each case, subject to applicable employee
contributions). Employee shall be entitled to receive three weeks of annual paid
vacation. Employee shall receive holidays, sick days and personal days pursuant
to the Company's standard policies.
(d) Business Expenses. The Company will reimburse Employee for
all reasonable and necessary business expenses incurred by Employee in
connection with the performance of his duties under this Agreement. Such
reimbursements will be made by the Company on a timely basis upon submission by
Employee of reasonable documentation in accordance with the Company's standard
policies.
(e) No Other Compensation or Benefits; Payment. The
compensation and benefits specified in this Section 3 and in Section 5 of this
Agreement shall be in lieu of any and all other compensation and benefits.
Payment of all compensation and benefits to Employee specified in this Section 3
and in Section 5 of this Agreement (i) shall be made in accordance with the
relevant Company policies in effect from time to time to the extent the same are
consistently applied, including standard payroll practices, and (ii) shall be
subject to all legally required and customary withholdings.
(f) Cessation of Employment. In the event Employee shall cease
to be employed by the Company for any reason, then Employee's compensation and
benefits shall cease on the date of such event, except as otherwise specifically
provided herein or in any applicable employee benefit plan or program or as
required by law.
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4. Termination of Employment. Employee's employment hereunder may
be terminated prior to the end of the Term under the following circumstances:
(a) Death. Employee's employment hereunder shall terminate
upon Employee's death.
(b) Employee's Becoming Totally Disabled. The Company may
terminate Employee's employment hereunder at any time after Employee becomes
"Totally Disabled". For purposes of this Agreement, Employee shall be "Totally
Disabled" in the event Employee is unable to perform the duties and
responsibilities contemplated under this Agreement for a period of one hundred
twenty (120) consecutive days or one hundred eighty (180) days in any
consecutive 365-day period due to physical or mental incapacity or impairment.
During any period that Employee fails to perform Employee's duties hereunder as
a result of incapacity due to physical or mental illness (the "Disability
Period"), Employee shall continue to receive the compensation and benefits
provided by Section 3 of this Agreement until Employee's employment hereunder is
terminated; provided, however, that the amount of Base Salary, bonus and
benefits received by Employee during the Disability Period shall be reduced by
the aggregate amounts, if any, payable to Employee under any disability benefit
plan or program provided to Employee by the Company.
(c) Termination by the Company for Cause. The Company may
terminate Employee's employment hereunder for Cause at any time after providing
written notice to Employee. For purposes of this Agreement, the term "Cause"
shall mean any of the following: (i) the willful and repeated failure or refusal
of Employee to perform Employee's duties hereunder in material respects (other
than as a result of total or partial incapacity due to physical or mental
illness), provided that the Company notifies Employee in writing of such failure
or refusal and Employee fails to substantially cure same within ninety (90) days
of such notice; (ii) perpetration of an intentional and knowing fraud against or
affecting the Company or any affiliate, customer, client, agent, or employee
thereof; (iii) conviction (including, without limitation, conviction on a nolo
contendere plea) of a felony or any crime involving, in the good faith judgment
of the Company, fraud, dishonesty or moral turpitude; or (iv) the inability of
the Company or any Controlled Entity to exploit substantially all of the Xxxxxxx
Indicia and the Marks assigned to the Company pursuant to that certain
Assignment Agreement, dated as of the date hereof, by and between Xxxxxx Xxxxxxx
and Xxxxxx Xxxxxxx Productions, Inc. (together, "Xxxxxxx"), on the one hand, and
the Company on the other hand. For purposes of this Agreement, the term
"Controlled Entity" shall mean an entity (x) of which the Company or MM
Companies, Inc., a member of the Company, is the managing member, sole general
partner or sole director, or (y) which provides Xxxxxxx with the same management
rights provided to Xxxxxxx pursuant to Section 3 of that certain amended and
restated limited liability company agreement of the Company, dated as of the
date hereof.
(d) Termination by the Company without Cause. The Company may
terminate Employee's employment hereunder at any time for any reason or no
reason by giving Employee thirty (30) days prior written notice of the
termination; provided, however, that the Company may provide such notice of
termination and effect such termination only with the affirmative vote or
written consent of a majority of the members of the board of managers of the
Company (or the board of directors or equivalent governing body, in the event of
a successor to, or permitted assignee of, the Company). Following any such
notice, the Company may reduce or
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remove any and all of Employee's duties, positions and titles with the Company
and any of its subsidiaries.
(e) Termination by Employee for Good Reason. Employee may
terminate his employment hereunder for Good Reason at any time after providing
written notice to the Company. For purposes of this Agreement, the term "Good
Reason" shall mean any of the following: (i) a material breach by the Company of
this Agreement, provided that, if susceptible of cure, Employee notifies the
Company in writing of such breach and the Company fails to cure same within
thirty (30) days of such notice; (ii) any material change in Employee's duties
and responsibilities which would constitute a demotion, provided that Employee
notifies the Company of such reduction and the Company fails to cure same within
thirty (30) days of such notice and (iii) a Change of Control. For purposes of
this Agreement, a "Change in Control" shall be deemed to occur if any "person"
(as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")), other than persons who own ten
percent (10%) or more of voting securities of the Company on the Effective Date,
any member of the Xxxxxxx family or any entity controlled by the Xxxxxxx family
or any member of the Xxxxxxx family, becomes the beneficial owner (within the
meaning of Rule 13d-3 under the Exchange Act), directly or indirectly, of more
than fifty percent (50%) of the combined voting power of the then outstanding
securities of the Company.
(f) Termination by Employee without Good Reason. Employee may
terminate his employment hereunder at any time for any reason or no reason by
giving the Company thirty (30) days prior written notice of the termination.
Following any such notice, the Company may reduce or remove any and all of
Employee's duties, positions and titles with the Company and any of its
subsidiaries.
5. Compensation Following Termination Prior to the End of the
Term and Upon Nonrenewal of this Agreement. In the event that Employee's
employment hereunder is terminated prior to the end of the Term or this
Agreement is not renewed, Employee shall be entitled only to the following
compensation and benefits upon such termination or nonrenewal:
(a) Termination by Reason of Death or Employee's Becoming
Totally Disabled; Termination by Employee for Good Reason. In the event that
Employee's employment is terminated prior to the expiration of the Term by
reason of Employee's death pursuant to Section 4(a) hereof, by the Company by
reason of Employee's becoming Totally Disabled pursuant to Section 4(b) hereof,
or by Employee for Good Reason pursuant to Section 4(e) hereof, the Company
shall pay the following amounts to Employee as soon as practicable following the
date of termination:
(i) any accrued but unpaid Base Salary (as determined
pursuant to Section 3 hereof) for services rendered to the
date of termination; provided, however, that in the event
Employee's employment is terminated pursuant to Section 4(b)
hereof, the amount of Base Salary received by Employee during
the Disability Period shall be reduced by the aggregate
amounts, if any, payable to Employee under any disability
benefit plan or program provided to Employee by the Company;
(ii) any accrued but unpaid bonus;
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(iii) any accrued but unpaid expenses required to be
reimbursed pursuant to Section 3(d) hereof;
(iv) any vacation accrued to the date of termination; and
(v) an amount equal to the lesser of (x) the amount of the
Base Salary that would have been payable by the Company to
Employee from the date of termination through the end of the
Term and (y) $250,000; provided, however, that if Employee
terminates his employment for Good Reason pursuant to Section
4(e) hereof prior to the third anniversary of the Effective
Date, the amount of the payment pursuant to this Section
5(a)(v) shall be the amount of the Base Salary that would have
been payable by the Company to Employee from the date of
termination through the end of the Term; provided further
that, notwithstanding the foregoing, if the Company determines
that Employee is a "specified employee" within the meaning of
Section 409A(a)(2)(B)(i) of the Internal Revenue Code of 1986,
as amended, and accompanying administrative guidance, (A) the
payment pursuant to this Section 5(a)(v) shall not be made for
a six-month period following the date of termination and (B)
such sum shall be paid in a lump sum payment as soon as
practicable after the date that is six months after the
termination of employment.
If, at the time of such termination or any time thereafter,
Employee is in material breach of any covenant contained in Section 6 hereof,
Employee shall not be entitled to any payment under clause (v) of this Section
5(a).
(b) Termination by the Company without Cause. In the event
that Employee's employment is terminated prior to the expiration of the Term by
the Company without Cause pursuant to Section 4(d) hereof, the Company shall pay
the following amounts to Employee as soon as practicable following the date of
termination:
(i) any accrued but unpaid Base Salary (as determined
pursuant to Section 3 hereof) for services rendered to the
date of termination;
(ii) any accrued but unpaid bonus;
(iii) any accrued but unpaid expenses required to be
reimbursed pursuant to Section 3(d) hereof;
(iv) any vacation accrued to the date of termination; and
(v) an amount equal to the greater of (x) the amount of
the Base Salary that would have been payable by the Company to
Employee from the date of termination through the end of the
Term and (y) $500,000; provided that, notwithstanding the
foregoing, if the Company determines that Employee is a
"specified employee" within the meaning of Section
409A(a)(2)(B)(i) of the Internal Revenue Code of 1986, as
amended, and accompanying administrative guidance, (A) the
payment
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pursuant to this Section 5(b)(v) shall not be made for a
six-month period following the date of termination and (B)
such sum shall be paid in a lump sum payment as soon as
practicable after the date that is six months after the
termination of employment; provided further that Employee
shall have the option, in his sole discretion, to receive
50,000 shares of the common stock, par value $0.01 per share,
of MM Companies, Inc. in lieu of the payment pursuant to this
Section 5(b)(v); provided further that, if, at the time of
such termination or any time thereafter, Employee is found to
be in material breach of any covenant contained in Section 6
hereof, the amount of the damages and costs resulting from
such breach shall be deducted from the amount of the payment
Employee would otherwise be entitled to receive under this
Section 5(b)(v).
(c) Termination by Employee without Good Reason; Nonrenewal of
this Agreement. In the event that Employee's employment is terminated prior to
the expiration of the Term by Employee without Good Reason pursuant to Section
4(f) hereof or in the event that Employee or the Company gives written notice of
his or its election not to renew this Agreement pursuant to Section 1 hereof,
the Company shall pay the following amounts to Employee as soon as practicable
following the date of termination:
(i) any accrued but unpaid Base Salary (as determined
pursuant to Section 3 hereof) for services rendered to the
date of termination;
(ii) any accrued but unpaid bonus;
(iii) any accrued but unpaid expenses required to be
reimbursed pursuant to Section 3(d) hereof; and
(iv) any vacation accrued to the date of termination.
(d) Termination by the Company for Cause. In the event that
Employee's employment is terminated prior to the expiration of the Term by the
Company for Cause pursuant to Section 4(c) hereof, the Company shall pay the
following amounts to Employee as soon as practicable following the date of
termination:
(i) any accrued but unpaid Base Salary (as determined
pursuant to Section 3 hereof) for services rendered to the
date of termination;
(ii) any accrued but unpaid bonus;
(iii) any accrued but unpaid expenses required to be
reimbursed pursuant to Section 3(d) hereof;
(iv) any vacation accrued to the date of termination; and
(v) $250,000; provided that, notwithstanding the
foregoing, if the Company determines that Employee is a
"specified employee" within
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the meaning of Section 409A(a)(2)(B)(i) of the Internal
Revenue Code of 1986, as amended, and accompanying
administrative guidance, (A) the payment pursuant to this
Section 5(d)(v) shall not be made for a six-month period
following the date of termination and (B) such sum shall be
paid in a lump sum payment as soon as practicable after the
date that is six months after the termination of employment;
provided further that, if, at the time of such termination or
any time thereafter, Employee is found to be in material
breach of any covenant contained in Section 6 hereof, the
amount of the damages and costs resulting from such breach
shall be deducted from the amount of the payment Employee
would otherwise be entitled to receive under this Section
5(d)(v).
(e) Benefits Following Termination. The benefits to which
Employee (or, as applicable, his estate) may be entitled pursuant to the plans
and programs referred to in Section 3(d) hereof upon termination of Employee's
employment shall be determined and paid in accordance with the terms of such
plans and programs, or as may be required by applicable law.
(f) No Further Liability; Release. Payment made and
performance by the Company in accordance with this Section 5 shall operate to
fully discharge and release the Company and its directors, officers, employees,
subsidiaries, affiliates, stockholders, successors, assigns, agents and
representatives from any further obligation or liability with respect to
Employee's employment and termination of employment. Other than providing the
compensation and benefits provided for in accordance with this Section 5, the
Company and its directors, officers, employees, subsidiaries, affiliates,
stockholders, successors, assigns, agents and representatives shall have no
further obligation or liability to Employee or any other person under this
Agreement. The payment of any amounts pursuant to this Section 5 (other than
payments required by law) is expressly conditioned upon the delivery by Employee
to the Company of a release in form and substance satisfactory to the Company of
any and all claims Employee may have against the Company and its directors,
officers, employees, subsidiaries, affiliates, stockholders, successors,
assigns, agents and representatives arising out of or related to Employee's
employment by the Company and the termination of such employment.
6. Nonsolicitation; Nondisclosure of Proprietary Information;
Surrender of Records; Inventions and Patents.
(a) Nonsolicitation.
(i) Employee acknowledges and recognizes the highly
competitive nature of the Company's business and that access
to the Company's confidential records and proprietary
information renders him special and unique within the
Company's industry. In consideration of the payment by the
Company to Employee of amounts that may hereafter be paid to
Employee pursuant to this Agreement (including, without
limitation, pursuant to Sections 3 and 5 hereof) and other
obligations undertaken by the Company hereunder, Employee
agrees that during (x) the Term and (y) the period beginning
on the date of termination of employment and ending twelve
(12) months after the date of termination of employment (the
"Covered Time"), Employee shall not: (A) directly or
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indirectly solicit, encourage or attempt to solicit or
encourage any of the employees, agents, consultants or
representatives of the Company or any of its affiliates to
terminate his, her, or its relationship with the Company or
any such affiliate; (B) directly or indirectly solicit,
encourage or attempt to solicit or encourage any of the
employees, agents, consultants or representatives of the
Company or any of its affiliates to become employees, agents,
representatives or consultants of any other person or entity;
(C) directly or indirectly solicit or attempt to solicit any
customer, vendor, distributor, supplier, independent
contractor, licensee, joint venturer or other business partner
(each, a "Business Associate") of the Company or any of its
affiliates with respect to any product or service being
furnished, made, sold, leased or licensed by the Company or
any such affiliate; or (D) persuade or seek to persuade any
Business Associate of the Company or any of its affiliates to
cease to do business or to reduce the amount of business which
such Business Associate has customarily done or contemplates
doing with the Company or any such affiliate, whether or not
the relationship between the Company or any such affiliate and
such Business Associate was originally established in whole or
in part through Employee's efforts. For purposes of this
Section 6(a)(i) only, a "Business Associate" shall mean a
Business Associate who has done business with the Company
within twelve (12) months preceding the termination of
Employee's employment. Notwithstanding anything herein to the
contrary, Employee shall have the absolute right to privately
consult with or advise Xxxxxx Xxxxxxx, Xx. or Xxxxxx Xxxxxxx,
Xx. as to whether such person or any entity controlled by the
Xxxxxxx family should form or continue a relationship, whether
contractual, employment or otherwise, with the Company or any
of its affiliates.
(ii) During the Term and the Covered Time, Employee agrees
that upon the earliest of Employee's (x) negotiating with any
Competitor (as defined below) concerning the possible
employment of Employee by the Competitor, (y) receiving an
offer of employment from a Competitor, and (z) becoming
employed by a Competitor, Employee will (A) immediately
provide notice to the Company of such circumstances and (B)
provide copies of Section 6 of this Agreement to the
Competitor. Employee further agrees that the Company may
provide notice to a Competitor of Employee's obligations under
this Agreement, including, without limitation, Employee's
obligations pursuant to Section 6 hereof. For purposes of this
Agreement, the term "Competitor" shall mean any entity (other
than the Company and its affiliates) that engages, directly or
indirectly, in any of the businesses in which the Company or
any of its affiliates is or has engaged.
(iii) Employee understands that the provisions of this
Section 6(a) may limit his ability to earn a livelihood in a
business similar to the business of the Company and its
affiliates but nevertheless agrees and hereby acknowledges
that the consideration provided under this Agreement,
including any amounts or benefits provided under Sections 3
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and 5 hereof and other obligations undertaken by the Company
hereunder, is sufficient to justify the restrictions contained
in such provisions. In consideration thereof and in light of
Employee's education, skills and abilities, Employee agrees
that he will not assert in any forum that such provisions
prevent him from earning a living or otherwise are void or
unenforceable or should be held void or unenforceable.
(b) Proprietary Information. Employee acknowledges that during
the course of his employment with the Company he will necessarily have access to
and make use of proprietary information and confidential records of the Company.
Employee covenants that he shall not during the Term or at any time thereafter,
directly or indirectly, use for his own purpose or for the benefit of any person
or entity other than the Company, nor otherwise disclose, any proprietary
information to any individual or entity, unless such disclosure has been
authorized in writing by the Company or is otherwise required by law. Employee
acknowledges and understands that the term "proprietary information" includes,
but is not limited to: (i) the software products, programs, applications, and
processes utilized by the Company; (ii) any information concerning the
transactions or relations of any Business Associate of the Company with the
Company or any of its or their partners, principals, directors, officers or
agents; (iii) any information concerning any product, technology, or procedure
employed by the Company but not generally known to its or their customers,
vendors or Competitors, or under development by or being tested by the Company
but not at the time offered generally to customers or vendors; (iv) any
information relating to the computer software, computer systems, pricing or
marketing methods, sales margins, cost of goods, cost of material, capital
structure, operating results, borrowing arrangements or business plans of the
Company; (v) any information which is generally regarded as confidential or
proprietary in any line of business engaged in by the Company; (vi) any business
plans, budgets, advertising or marketing plans; (vii) any information contained
in any of the written or oral policies and procedures or manuals of the Company;
(viii) any information belonging to Business Associates of the Company or any
other person or entity which the Company has agreed to hold in confidence; (ix)
any inventions, innovations or improvements covered by this Agreement; and (x)
all written, graphic and other material relating to any of the foregoing.
Employee acknowledges and understands that information that is not novel or
copyrighted or patented may nonetheless be proprietary information. The term
"proprietary information" shall not include information generally available to
and known by the public or information that is or becomes available to Employee
on a non-confidential basis from a source other than the Company or the
directors, officers, employees, partners, principals or agents of the Company
(other than as a result of a breach of any obligation of confidentiality).
(c) Confidentiality and Surrender of Records. Employee shall
not during the Term or at any time thereafter (irrespective of the circumstances
under which Employee's employment with the Company terminates), except as
required by law, directly or indirectly publish, make known or in any fashion
disclose any confidential records to, or permit any inspection or copying of
confidential records by, any individual or entity other than in the course of
such individual's or entity's employment or retention by the Company. Upon
termination of employment for any reason or upon request by the Company,
Employee shall deliver promptly to the Company all property and records of the
Company, including, without limitation, all confidential records. For purposes
hereof, the term "confidential records" means all correspondence, reports,
memoranda, files, manuals, books, lists, financial, operating or marketing
records, magnetic tape, or electronic or other media or equipment of any kind
which
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may be in Employee's possession or under his control or accessible to him which
contain any proprietary information. All property and records of the Company
(including, without limitation, all confidential records) shall be and remain
the sole property of the Company during the Term and thereafter.
(d) Inventions and Patents. All inventions, innovations or
improvements (including, without limitation, policies, procedures, products,
improvements, software, ideas and discoveries, whether patent, copyright,
trademark, service xxxx, or otherwise) conceived or made by Employee, either
alone or jointly with others, in the course of his employment by the Company,
belong to the Company. Employee will promptly disclose in writing such
inventions, innovations or improvements to the Company and perform all actions
reasonably requested by the Company to establish and confirm such ownership by
the Company, including, without limitation, cooperating with and assisting the
Company in obtaining patents, copyrights, trademarks, or service marks for the
Company in the United States and in foreign countries.
(e) Enforcement. Employee acknowledges and agrees that, by
virtue of his position, his services and access to and use of confidential
records and proprietary information, any violation by him of any of the
undertakings contained in this Section 6 would cause the Company immediate,
substantial and irreparable injury for which it has no adequate remedy at law.
Accordingly, Employee agrees and consents to the entry of an injunction or other
equitable relief by a court of competent jurisdiction restraining any violation
or threatened violation of any undertaking contained in this Section 6. Employee
waives posting by the Company of any bond otherwise necessary to secure such
injunction or other equitable relief. Rights and remedies provided for in this
Section 6 are cumulative and shall be in addition to rights and remedies
otherwise available to the parties hereunder or under any other agreement or
applicable law.
7. Assignment and Transfer.
(a) Company. This Agreement shall inure to the benefit of and
be enforceable by, and shall be assigned by the Company to, any purchaser of all
or substantially all of the Company's business or assets, any successor to the
Company or any assignee thereof (whether direct or indirect, by purchase,
merger, consolidation or otherwise).
(b) Employee. The parties hereto agree that Employee is
obligated under this Agreement to render personal services during the Term of a
special, unique, unusual, extraordinary and intellectual character, thereby
giving this Agreement special value. Employee's rights and obligations under
this Agreement shall not be transferable by Employee by assignment or otherwise,
and any purported assignment, transfer or delegation thereof shall be void;
provided, however, that if Employee shall die, all amounts then payable to
Employee hereunder shall be paid in accordance with the terms of this Agreement
to Employee's estate.
8. Miscellaneous.
(a) Other Obligations. Employee represents and warrants that
neither Employee's employment with the Company nor Employee's performance of
Employee's obligations hereunder will conflict with or violate or otherwise are
inconsistent with any other
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obligations, legal or otherwise, which Employee may have. Employee covenants
that he shall perform his duties hereunder in a professional manner and not in
conflict or violation, or otherwise inconsistent with other obligations legal or
otherwise, which Employee may have.
(b) Nondisclosure. Employee will not disclose to the Company,
use, or induce the Company to use, any proprietary information, trade secrets or
confidential business information of others.
(c) Cooperation. Following termination of employment with the
Company for any reason, Employee shall cooperate with the Company, as requested
by the Company, to effect a transition of Employee's responsibilities and to
ensure that the Company is aware of all matters being handled by Employee.
(d) Protection of Reputation. During the Term and thereafter,
Employee agrees that he will take not action that is intended, or would
reasonably be expected, to harm the Company or any of its affiliates or its or
their reputation or that would reasonably be expected to lead to unwanted or
unfavorable publicity to the Company or any of its affiliates. During the Term
and thereafter, the Company agrees that it will not make any public statement,
and will cause the CEO and the President of the Company not to take any action,
that is intended, or would reasonably be expected, to harm Employee, his family
(including Xxxxxx Xxxxxxx, Xx.) or any entity controlled by the Xxxxxxx family
or its or their reputation or that would reasonably be expected to lead to
unwanted or unfavorable publicity to Employee, his family (including Xxxxxx
Xxxxxxx, Xx.) or any entity controlled by the Xxxxxxx family.
(e) Governing Law. This Agreement shall be governed by and
construed (both as to validity and performance) and enforced in accordance with
the internal laws of the State of New York applicable to agreements made and to
be performed wholly within such jurisdiction, without regard to the principles
of conflicts of law or where the parties are located at the time a dispute
arises.
(f) Arbitration; Consent to Jurisdiction.
(i) General. Except in the event injunctive or other
equitable relief is sought pursuant to Section 6(e), Employee
and the Company specifically, knowingly, and voluntarily agree
that they shall use final and binding arbitration to resolve
any dispute (an "Arbitrable Dispute") between Employee, on the
one hand, and the Company (or any affiliate of the Company),
on the other hand. The provisions of this Section 8(f) applies
to all matters relating to this Agreement and Employee's
employment with and/or termination of employment from the
Company, including disputes about the validity,
interpretation, or effect of this Agreement, or alleged
violations of it, any payments due hereunder and all claims
arising out of any alleged discrimination, harassment or
retaliation, including, but not limited to, those covered by
Title VII of the Civil Rights Act of 1964, as amended, the Age
Discrimination in Employment Act of 1967, as amended, and the
Americans With Disabilities Act or any other federal, state or
local law relating to discrimination in employment.
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(ii) Injunctive Relief. Notwithstanding anything to the
contrary contained herein, the Company and any affiliate of
the Company (if applicable) shall have the right to seek
injunctive or other equitable relief from a court of competent
jurisdiction to enforce Section 6 of this Agreement. For
purposes of seeking enforcement of Section 6, the Company and
Employee hereby consent to the co-exclusive jurisdiction of
the state and federal courts located in the County of New
York, New York, U.S.A.; provided, however, that if such courts
object to the laying of venue in such jurisdiction, for
purposes of seeking enforcement of Section 6, the Company and
Employee hereby consent, with respect to such seeking of
injunctive or other equitable relief, to the co-exclusive
jurisdiction of the courts of the State of Pennsylvania
located in Luzerne County and the United States District Court
for the Middle District of Pennsylvania.
(iii) Arbitration. Any arbitration pursuant to this
Section 8(f) will take place in the County of New York, New
York, U.S.A. (provided, however, that if arbitrators so
located object to the laying of venue in such jurisdiction,
such arbitration will take place in the County of Luzerne,
Pennsylvania, U.S.A.), under the auspices of the American
Arbitration Association, in accordance with the National Rules
for the Resolution of Employment Disputes of the American
Arbitration Association then in effect, and before a panel of
three (3) arbitrators selected in accordance with such rules.
Judgment upon the award rendered by the arbitrators may be
entered in any state or federal court sitting in the County of
New York, New York, U.S.A.; provided, however, that if, on
account of the proviso in the first sentence of this Section
8(f)(iii), such arbitration has taken place in the County of
Luzerne, Pennsylvania, U.S.A., judgment upon the award
rendered by the arbitrators may be entered in any state or
federal court sitting in the County of Luzerne, Pennsylvania,
U.S.A.
(iv) Fees and Expenses. In any arbitration pursuant to
this Section 8(f), each party shall be responsible for the
fees and expenses of its own attorneys and witnesses, and the
fees and expenses of the arbitrators shall be divided equally
between the Company, on the one hand, and Employee, on the
other hand.
(v) Exclusive Forum. Except as permitted by Section 6(e),
arbitration in the manner described in this Section 8(f) shall
be the exclusive forum for any Arbitrable Dispute. Except as
permitted by Section 6(e), should Employee or the Company
attempt to resolve an Arbitrable Dispute by any method other
than arbitration pursuant to this Section 8(f), the responding
party shall be entitled to recover from the initiating party
all damages, expenses, and attorneys' fees incurred as a
result of that breach.
(g) Entire Agreement. This Agreement contains the entire
agreement and understanding between the parties hereto in respect of Employee's
employment and
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supersedes, cancels and annuls any prior or contemporaneous written or oral
agreements, understandings, commitments and practices between them respecting
Employee's employment.
(h) Amendment. This Agreement may be amended only by a writing
which makes express reference to this Agreement as the subject of such amendment
and which is signed by Employee and, on behalf of the Company, by its duly
authorized officer.
(i) Severability. If any provision of this Agreement or the
application of any such provision to any party or circumstances shall be
determined by any court of competent jurisdiction or arbitration panel to be
invalid or unenforceable to any extent, the remainder of this Agreement, or the
application of such provision to such person or circumstances other than those
to which it is so determined to be invalid or unenforceable, shall not be
affected thereby, and each provision hereof shall be enforced to the fullest
extent permitted by law. If any provision of this Agreement, or any part
thereof, is held to be invalid or unenforceable because of the scope or duration
of or the area covered by such provision, the parties hereto agree that the
court or arbitration panel making such determination shall reduce the scope,
duration and/or area of such provision (and shall substitute appropriate
provisions for any such invalid or unenforceable provisions) in order to make
such provision enforceable to the fullest extent permitted by law and/or shall
delete specific words and phrases, and such modified provision shall then be
enforceable and shall be enforced. The parties hereto recognize that if, in any
judicial or arbitral proceeding, a court or arbitration panel shall refuse to
enforce any of the separate covenants contained in this Agreement, then that
invalid or unenforceable covenant contained in this Agreement shall be deemed
eliminated from these provisions to the extent necessary to permit the remaining
separate covenants to be enforced. In the event that any court or arbitration
panel determines that the time period or the area, or both, are unreasonable and
that any of the covenants is to that extent invalid or unenforceable, the
parties hereto agree that such covenants will remain in full force and effect,
first, for the greatest time period, and second, in the greatest geographical
area that would not render them unenforceable.
(j) Nonwaiver. Neither any course of dealing nor any failure
or neglect of either party hereto in any instance to exercise any right, power
or privilege hereunder or under law shall constitute a waiver of any other
right, power or privilege or of the same right, power or privilege in any other
instance. All waivers by either party hereto must be contained in a written
instrument signed by the party to be charged and, in the case of the Company, by
its duly authorized officer.
(k) Notices. Any notice required or permitted hereunder shall
be in writing and shall be sufficiently given if personally delivered or if sent
by registered or certified mail, postage prepaid, with return receipt requested,
addressed: (a) in the case of the Company, to x/x XX Xxxxxxxxx, Xxx., 000 X.
Xxxxxx-Xxxxx Blvd., 4th Floor, Xxxxxx-Xxxxx, Pennsylvania 18702, Attention:
President, with a copy to Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, 0000 Xxxxxx xx
xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxx, Esq.; and (b)
in the case of Employee, to Employee's last known address as reflected in the
Company's records, or to such other address as Employee shall designate by
written notice to the Company, with a copy to Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx
Xxxxxx LLP, 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
Attention: Xxxxxx X. Xxxxx, Esq. Any notice given hereunder shall be deemed to
have been given at the time of receipt thereof by the person to whom such notice
is given if personally delivered or at the time of mailing if sent by registered
or certified mail.
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(l) Assistance in Proceedings, Etc. Employee shall, without
additional compensation, during and after expiration of the Term, upon
reasonable notice, furnish such information and proper assistance to the Company
as may reasonably be required by the Company in connection with any legal or
quasi-legal proceeding, including, without limitation, any external or internal
investigation, involving the Company or any of its affiliates.
(m) Survival. Cessation or termination of Employee's
employment with the Company shall not result in termination of this Agreement.
The respective obligations of Employee and rights and benefits afforded to the
Company as provided in this Agreement shall survive cessation or termination of
Employee's employment hereunder.
(n) Headings. The section headings and captions of this
Agreement are for reference purposes only and are intended to have no effect in
the construction or interpretation of this Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement as of the date first written above.
XXXXXX XXXXXXX VENTURES LLC
By: MM Companies, Inc., its Managing
Member
By:
---------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President
XXXXXX XXXXXXX III
-------------------------------------
Xxxxxx Xxxxxxx III
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