EXHIBIT 10.13
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is made and entered
into as of the ___ day of May, 1999 and effective as of the 1st day of July,
1999 (the "Effective Date") by and between HOB Entertainment, Inc. (the
"Company"), a Delaware corporation, and Xxx Xxxx (the "Executive").
WHEREAS, the operations of the Company and its Affiliates are a complex
business requiring direction and leadership in a variety of arenas, including
accounting, financial, regulatory and others; and
WHEREAS, subject to the terms and conditions hereinafter set forth, the
Company desires to employ the Executive as the President of the HOB Media
Properties ("Media Division") and the Executive desires to accept such
employment.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises, terms, provisions and conditions set forth in this Agreement, the
parties hereby agree:
1. Employment. Subject to the terms and conditions set forth in this
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Agreement, the Company hereby offers and the Executive hereby accepts
employment.
2. Term. The Executive's employment hereunder shall be for a term (the
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"Term") commencing on the Effective Date and extending through December 31,
2003, unless such Term shall terminate pursuant to any of the provisions of
Section 5 hereof.
3. Capacity and Performance.
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a. During the term hereof, the Executive shall serve the Company as
the President of Media Division, and his duties will be those customarily
attendant to an Executive holding such positions. As the President of Media
Division, Executive shall report to the Chief Executive Officer of the Company.
Executive will be based in the Company's headquarters which shall be located in
the Greater Los Angeles metropolitan area. The Company will provide Executive an
assistant and Executive will be directly involved in the hiring of such
assistant.
b. During the term hereof, at the request of the Chief Executive
Officer or the Board of Directors of the Company, Executive shall serve as an
executive of the affiliates of the Company without further compensation;
provided, however, that Executive's basic duties shall not be changed without
his consent. If the Company or any Affiliate of the Company shall make a public
offering of securities, (i) it will enter into an Indemnification Agreement
providing the fullest indemnification (including advancement of expenses)
legally possible and (ii) the Executive will have the benefit of officer and
director insurance and/or By-law and Certificate of Incorporation
indemnification provisions available to any other director or officer of such
entity.
c. During the term hereof, the Executive shall be employed by the
Company on a full-time basis and shall perform such duties and responsibilities
on behalf of the Company and its Affiliates as may be designated from time to
time by the Chief Executive Officer or the Board. During
the term hereof, the Executive shall devote his full business time and
his best efforts, business judgment, skill and knowledge exclusively to the
advancement of the business and interests of the Company and its Affiliates and
to the discharge of his duties and responsibilities hereunder. The Executive
shall not engage in any other business activity or serve in any industry, trade,
professional, governmental or academic position during the term of this
Agreement, except as may be expressly approved in writing, which approval shall
not be unreasonably withheld, by the Board, as the Company encourages
participation by the Executive in community and charitable activities generally
considered to be in the public interest and the Company's interest.
Notwithstanding the foregoing, the Company hereby approves the Executive's (i)
directorships and other activities set forth on Exhibit A hereto and (ii)
investments in public companies of less than one percent (1%) of the outstanding
shares of such companies.
4. Compensation and Benefits. As compensation for all services performed
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by the Executive under and during the term hereof:
a. Base Salary. During the term hereof, the Company shall pay the
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Executive a base salary, payable in accordance with the customary payroll
practices of the Company for its executives. Such base salary shall be $450,000
for the first year of the term hereof; $500,000 for the second year of the term
hereof; $550,000 for the third year of the term hereof; and $275,000 for the
last six months of the term hereof. Such base salary, as from time to time
increased, is hereafter referred to as the "Base Salary."
b. Bonus Compensation. During the Term hereof, Executive shall be
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eligible to receive a special performance bonus of up to $400,000 for the first
year of the term hereof; up to $350,000 for the second year of the term hereof;
up to $300,000 for the third year of the term hereof; and up to $150,000 for the
last six months of the term hereof, pursuant to a bonus plan attached hereto as
Exhibit B. All bonuses in this Section 4.b or portions thereof will be deemed
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earned at the times specified in Exhibit B and will be due and payable at the
end of the applicable one-year period or six-month period, in the case of the
final six months of the Agreement.
c. Stock Options.
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(i) The Company hereby grants Executive stock options to purchase
approximately 2,675,000 shares of Common Stock (representing 3% of the fully
diluted in-force option, warrant and equity shares of the Company), for a
purchase price of $1.20 per share, which options shall expire on the tenth
anniversary of the Effective Date hereof (subject to earlier termination of such
options as provided in this Section 4.c. This grant of options is subject to
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any requisite shareholder approval which shall be obtained by the Company on or
prior to September 1, 1999. The stock options to be received by Executive shall
vest and become exercisable in four increments as follows: 25% of such option
shares on the Effective Date, 25% of such option shares each on the first,
second and third anniversary of the Effective Date hereof (each annual period
ending on an anniversary of the Effective Date hereof being referred to herein
as an "Option Year") of this Agreement. Except as specifically provided in this
Section 4.c, once options become exercisable, such options shall remain
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exercisable through the expiration date and may be exercised whether or not the
Executive's employment with the Company has terminated. Such options shall be
incentive stock options within the meaning of Section 422 of the Internal
Revenue Code of 1986 to the extent of the maximum number of such options which
may so qualify.
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In the event of a public offering of the Company' securities,
Executive agrees that he will execute the same form of agreement not to sell
securities ("Lock-Up Agreement") executed by the other executives of the Company
as required by the Company's underwriters.
In the event of a stock split, reverse split, stock dividend,
recapitalization or other reclassification in the Company's common stock, the
exercise price of any options granted pursuant to this Agreement shall be
adjusted appropriately to an amount that bears the same relationship to the
exercise price in effect immediately prior to such action as the total number of
shares of common stock (or shares of any security into which such common shares
have been reclassified, subdivided, split or otherwise changed) outstanding
immediately after such action; in such event, the number of shares for which an
option is exercisable shall be adjusted to a number obtained by dividing the
exercise price in effect prior to adjustment thereof by the new exercise price
after such adjustment. Such adjustments shall be made successively when any
event described above occurs. As used in this agreement, "Company" includes any
parent entity which at any time owns HOB Entertainment, Inc. or operates the
business theretofore operated by HOB Entertainment, Inc. and its Affiliates.
On the tenth (10th) day following the termination of the Executive's
employment pursuant to Section 5.c (By the Company for Cause), all options
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granted hereunder (including options which are then exercisable) shall
terminate. In the event of the termination of the Executive's employment by the
Executive, all options not exercisable upon such termination shall lapse and
terminate. In the event that the Executive's employment terminates pursuant to
Section 5.a (Death), Section 5.b (Disability) or Section 5.d (By the Company
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Other than for Cause), then in such event, the Options granted under Section 4.c
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which would become exercisable at the end of the Option Year in which such
termination occurs shall immediately vest and become exercisable and all other
options shall lapse and terminate. Upon a Change of Control as herein defined,
all options granted under this Agreement, including, without limitation, options
which are not then exercisable at the time of such Change of Control shall
immediately become exercisable. For the purposes hereof Change of Control is
defined as follows: (i) any sale, merger, consolidation, issuance of shares
(excluding a public offering of shares), or other transaction (each a
"Transaction") as a result of which at least 51 % the voting power of the
Company (or any parent entity of the Company) is not held, directly or
indirectly, by persons or entities who held at least 51% of the voting power
before such Transaction; (ii) a sale or other disposition of all or a
substantial part of the Company's assets, whether in one transaction or a series
of related transactions; (iii) any person or entity or group of persons or
entities (as defined in Section 13(d) of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder) acquires the power, through
ownership of securities or otherwise, to elect a majority of the Company's or
any parent entity's board of directors (or similar governing body) (such power
being called "voting power"); other than groups formed by existing Stockholders
of the Company on the date hereof, or (iv) individuals who on the date hereof
constitute the Company's board of directors and any new director (other than a
director designated by a person or entity who has entered into an agreement to
effect a transaction described in clause (i) or (ii) above) whose nomination
and/or election to the board was approved by a vote of at least a majority of
the directors then still in office who either were directors on the date hereof
or whose election or nomination for election was previously so approved, cease
for any reason to constitute a majority of the Company's or such parent's board
of directors. Notwithstanding the foregoing, any changes in ownership, voting
or otherwise resulting from the proposed UCI transaction shall not constitute a
Change of Control.
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(ii) The Executive agrees to become a party to the Company's Amended
and Restated Stockholders Agreement, dated as of July 31, 1998, and execute a
joinder thereto as required by Section 20 of such agreement.
d. Other Benefits. During the term hereof and subject to any
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contribution therefor generally required of executives of the Company, the
Executive shall be entitled to participate in any and all employee benefit plans
from time to time in effect for executives of the Company generally, except to
the extent such plans are in a category of benefit otherwise provided to the
Executive. Such participation shall be subject to (i) the terms of the
applicable plan documents, (ii) generally applicable Company policies and (iii)
the discretion of the Board or any administrative or other committee provided
for in or contemplated by such plan. The Company may alter, modify, add to or
delete its employee benefit plans at any time as it, in its sole judgment,
determines to be appropriate, without recourse by the Executive. The travel
policy developed for all of the highest senior executives of the Company will be
applicable to Executive for travel arrangements and accommodations.
e. Vacations. During the term hereof, the Executive shall be
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entitled to four (4) weeks of vacation per annum, to be taken at such times and
intervals as shall be determined by the Executive, with the approval of the
Chief Executive Officer.
f. Business Expenses. The Company shall pay or reimburse the
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Executive for all reasonable and customary expenses incurred or paid by the
Executive in the performance of his duties and responsibilities hereunder,
subject to periodic review of the amount of such expenses from time to time by
the Board, and subject to such reasonable substantiation and documentation as
may be specified by the Board from time to time; provided, however, the
Executive shall only be reimbursed for travel consistent with the travel
reimbursement policy established by the Board for the Company's highest senior
management employees.
g. Car Allowance. During the term hereof, the Company shall pay or
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reimburse the Executive the sum of $1,500 per month as a car allowance.
h. Transaction Costs. The Company shall reimburse, or make payments
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on behalf of, Executive for up to $50,000 for transaction costs (including legal
fees) incurred by Executive in connection with entering into this Agreement.
5. Termination of Employment and Severance Benefits. Notwithstanding the
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provisions of Section 2 hereof, the Executive's employment hereunder shall
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terminate prior to the expiration of the term hereof under the following
circumstances:
a. Death. In the event of the Executive's death during the term
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hereof, the Executive's employment hereunder shall immediately and automatically
terminate. In the event of the Executive's death during the term hereof, the
Company shall pay to the Executive's designated beneficiary or, if no
beneficiary has been designated by the Executive, to his estate, any earned and
unpaid Base Salary and any earned and unpaid bonus.
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b. Disability.
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(i) The Company may terminate the Executive's employment
hereunder, upon notice to the Executive during the period of disability, in
the event that the Executive becomes disabled during his employment
hereunder through any illness, injury, accident or condition of either a
physical or psychological nature and, as a result, is unable to perform
substantially all of his duties and responsibilities hereunder for one
hundred eighty (180) days during any period of three hundred and sixty-five
(365) consecutive calendar days. In the event of such termination, then
until the earliest of (i) the conclusion of the Term of this Agreement or
(ii) the conclusion of a period of twelve (12) months following the date of
termination, the Company shall continue to pay the Executive the Base
Salary at the rate in effect on the date of termination, subject to any
employee contribution applicable to the Executive on the date of
termination, shall continue to contribute to the cost of the Executive's
participation in the Company's group medical and dental insurance plan, if
any, provided that the Executive is entitled to continue such participation
under applicable law and plan terms. The Company shall also pay to
Executive any bonus earned by Executive while employed, but unpaid as of
the date of his termination, in the same manner as if Executive were still
employed by the Company.
(ii) The Board may designate another employee to act in the
Executive's place during any period of the Executive's disability.
Notwithstanding any such designation, the Executive shall continue to
receive the Base Salary in accordance with Section 4.a, and benefits in
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accordance with Section 4.d, to the extent permitted by the then-current
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terms of the applicable benefit plans, if any, until the Executive becomes
eligible for disability income benefits under the Company's disability
income plan, if any, or until the termination of his employment, whichever
shall first occur.
(iii) While receiving disability income payments under the
Company's disability income plan, if any, the Executive shall be entitled
to receive the excess, if any, of Base Salary under Section 4.a hereof over
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such disability income payments and shall continue to participate in
Company benefit plans in accordance with Section 4.d and the terms of such
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plans, until the termination of his employment except to the extent
provided in Section 5.b(i).
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(iv) If any question shall arise as to whether during any
period the Executive is disabled through any illness, injury, accident or
condition of either a physical or psychological nature so as to be unable
to perform substantially all of his duties and responsibilities hereunder,
the Executive may, and at the request of the Company shall, submit to a
medical examination by a physician selected by the Executive or his duly
appointed guardian, if any, to whom the Board has no reasonable objection
to determine whether the Executive is so disabled and such determination
shall for the purposes of this Agreement be conclusive of the issue. If
such question shall arise and the Executive shall fail to submit to such
medical examination, the Board's determination of the issue shall be
binding on the Executive.
c. By the Company for Cause. The Company may terminate the
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Executive's employment hereunder for Cause upon notice to the Executive setting
forth the nature of such Cause in reasonable detail; provided, however, that, in
the case of subsections (i), (ii), (iv) and (v) immediately below, to the extent
that such breach is curable, the Executive shall have 14 days from the receipt
of
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such notice to cure such breach. The following, as determined by the Board
in its reasonable judgment, shall constitute "Cause" for termination:
(i) fraud, embezzlement or other material dishonesty with
respect to the Company or any of its Affiliates;
(ii) conviction of, or plea of nolo contendere to, a felony
or other crime involving moral turpitude;
(iii) conduct by the Executive that is intentionally
materially harmful to the business, interests or reputation of the Company
or any of its Affiliates;
(iv) the Executive's intentional failure to comply with any
material instructions of the Company's Chief Executive Officer to the
extent that such instructions do not violate the terms and provisions of
this Agreement; or
(v) the Executive executes a written contract, commitment or
obligation of the Company or personally takes actions which bind the
Company to an oral contract, commitment or obligation, which in either case
involves a commitment in excess of express written limits on authority
established by the Board with respect to such matters, which limits have
been made known to Executive. Notwithstanding the foregoing, the
Executive's carrying out of prior commitments made by other officers and/or
directors shall not constitute "Cause".
Upon the giving of notice of termination of the Executive's employment hereunder
for Cause (or upon the expiration of any applicable cure period, if such default
is not cured within such period), the Company shall have no further obligation
or liability to the Executive, other than for Base Salary and bonus, in each
case earned and unpaid at the date of termination.
d. By the Company Other than for Cause.
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(i) The Company may terminate the Executive's employment
hereunder other than for Cause at any time upon written notice to the
Executive. In the event of such termination, the Executive shall be
entitled to benefits under Section 4.d and a severance payment equal to
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Executive's Base Salary to the end of the Term of this Agreement payable in
the same manner and installments as if Executive were still employed by the
Company; provided however, that the Company shall be entitled to reduce
such severance payment by amounts earned by the Executive during the Term
as a result of employment by another employer after the date on which the
Executive's employment is terminated hereunder. The Company shall also pay
to Executive any bonus earned by Executive while employed, but unpaid as of
the date of his termination, in the same manner as if Executive were still
employed by the Company.
(ii) In addition, (x) a breach by the Company of any material
provision of this Agreement or (y) a material breach by the Company of the
provisions of this Agreement may be deemed by Executive a termination by
the Company other than for Cause if such breach is not cured by the Company
(if capable of being cured) within fourteen (14) days after Executive gives
the Company written notice of such breach.
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e. Post-Agreement Employment. In the event the Executive remains in
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the employ of the Company or any of its Affiliates beyond the term of this
Agreement, by the expiration of the term hereof or otherwise, then such
employment shall be at will. Any such employment shall be on the same monetary
terms as those existing under this Agreement on the last day of the Term.
6. Effect of Termination. The provisions of this Section 6 shall apply to
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termination due to the expiration of the Term hereof, pursuant to Section 5 or
otherwise. ---------
a. Payment by the Company in full of Base Salary, bonus and
contributions to the cost of the Executive's continued participation in the
Company's group health and dental plans, in each case if any, that may be due
the Executive in each case under the applicable termination provision of Section
5 shall constitute the entire obligation of the Company to the Executive.
Acceptance by the Executive of such performance by the Company shall constitute
full settlement of any claim that the Executive might otherwise assert against
the Company, its Affiliates or any of their shareholders, directors, officers,
employees or agents on account of such termination. The Executive shall promptly
give the Company notice of all facts necessary for the Company to determine the
amount and duration of its obligations in connection with any termination
pursuant to Section 5.d hereof.
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b. Except for medical and dental insurance coverage continued
pursuant to the terms hereof, and subject always to applicable law, including
COBRA, benefits shall terminate pursuant to the terms of the applicable benefit
plans based on the date of termination of the Executive's employment without
regard to any continuation of Base Salary or other payment to the Executive
following such date of termination.
c. Upon the expiration of the Term hereof, the Company shall remain
obligated to pay to the Executive any earned and unpaid Base Salary, together
with any earned and unpaid bonus.
d. Provisions of this Agreement shall survive any termination if so
provided herein or if necessary or desirable to fully accomplish the purposes of
such provision, including without limitation the obligations of the Executive
under Sections 7 and 8 hereof. The obligation of the Company to make payments
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to or on behalf of the Executive under Section 5.a, 5.b, 5.d, or 6.c hereof is
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expressly conditioned upon the Executive's continued full performance of his
obligations under Sections 7 and 8 hereof. The Executive recognizes that,
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except as expressly provided in Section 5.a, 5.b, 5.d, or 6.c, no compensation
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is earned after termination of employment.
7. Confidential Information.
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a. The Executive acknowledges that the Company and its Affiliates
continually develop Confidential Information, that the Executive may develop
Confidential Information for the Company or its Affiliates and that the
Executive may learn of Confidential Information during the course of employment.
The Executive will comply with the policies and procedures of the Company and
its Affiliates for protecting Confidential Information and shall never disclose
to any Person (except as required by applicable law or for the proper
performance of his duties and responsibilities to the Company and its
Affiliates), or use for his own benefit or gain, any Confidential Information.
The Executive understands that this restriction shall continue to apply after
his employment terminates, regardless of the reason for such termination.
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b. All documents, records, tapes and other media of every kind and
description relating to the business, present or otherwise, of the Company or
its Affiliates and any copies, in whole or in part, thereof (the "Documents"),
whether or not prepared by the Executive, shall be the sole and exclusive
property of the Company and its Affiliates. The Executive shall safeguard all
Documents and shall surrender to the Company at the time his employment
terminates, or at such earlier time or times as the Board or its designee may
specify, all Documents then in the Executive's possession or control.
8. Restricted Activities. The Executive agrees that some restrictions on
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his activities during and after his employment are necessary to protect the
goodwill, Confidential Information and other legitimate interests of the Company
and its Affiliates:
a. While the Executive is employed by the Company and during any
period where Executive is paid by the Company pursuant to Section 5(d)(i), the
Executive shall not, directly or indirectly, whether as owner, partner,
investor, consultant, agent, employee, co-venturer or otherwise, compete with
the Media Division of the Company, or discuss with any person or persons, the
planning for any business competitive with the Media Division of the Company.
Specifically, but without limiting the foregoing, the Executive agrees not to
engage in any manner in any activity that is directly or indirectly competitive
or potentially competitive with the business of the Media Division of the
Company as conducted or under consideration at any time during the Executive's
employment.
b. The Executive agrees that, except as provided in Section 3.c,
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during his employment with the Company, he will not undertake any outside
activity, whether or not competitive with the business of the Company or its
Affiliates, that could give rise to a conflict of interest or otherwise
interfere with his duties and obligations to the Company or any of its
Affiliates.
c. The Executive further agrees that while he is employed by the
Company or paid by the Company pursuant to Section 5(d)(i), the Executive will
not hire or attempt to hire any employee of the Company or any of its
Affiliates, assist in such hiring by any Person, encourage any such employee to
terminate his or her relationship with the Company or any of its Affiliates, or
solicit or encourage any customer or vendor of the Company or any of its
Affiliates to terminate its relationship with them; provided that this provision
shall not apply to anyone whose employment is terminated by the Company.
9. Enforcement of Covenants. The Executive acknowledges that he has
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carefully read and considered all the terms and conditions of this Agreement,
including the restraints imposed upon him pursuant to Sections 7 and 8 hereof.
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The Executive agrees that said restraints are necessary for the reasonable and
proper protection of the Company and its Affiliates and that each and every one
of the restraints is reasonable in respect to subject matter, length of time and
geographic area. The Executive also acknowledges that, were he to breach any of
the covenants contained in Sections 7 or 8 hereof, the damage to the Company
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would be irreparable. The Executive therefore agrees that the Company, in
addition to any other remedies available to it, shall be entitled to preliminary
and permanent injunctive relief against any breach or threatened breach by the
Executive of any of said covenants, without having to post bond. The parties
further agree that, in the event that any provision of Section 7 or 8 hereof
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shall be determined by any court of competent jurisdiction to be unenforceable
by reason of its being extended over too great a time, too large a geographic
area or too great a range of activities, such provision shall be deemed to be
modified to permit its enforcement to the maximum extent permitted by law.
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10. Conflicting Agreements. The Executive hereby represents and warrants
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that the execution of this Agreement and the performance of his obligations
hereunder will not breach or be in conflict with any other agreement to which
the Executive is a party or is bound and that the Executive is not now subject
to any covenants against competition or similar covenants that would affect the
performance of his obligations hereunder. The Executive will not disclose to or
use on behalf of the Company any proprietary information of a third party
without such party's consent.
11. Definitions. Words or phrases which are initially capitalized or are
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within quotation marks shall have the meanings provided in this Section 11 and
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as provided elsewhere herein. For purposes of this Agreement, the following
definitions apply:
"Affiliates" means all persons and entities directly or indirectly
controlling, controlled by or under common control with the Company, where
control may be by either management authority or equity interest.
"Confidential Information" means any and all information of the
Company and its Affiliates that is not generally known by others with whom
they compete or do business, or with whom they plan to compete or do
business and any and all information, not publicly known, which, if
disclosed by the Company or its Affiliates would assist in competition
against them. Confidential Information includes without limitation such
information relating to (i) the development, research, testing,
manufacturing, marketing and financial activities of the Company and its
Affiliates, (ii) the costs, sources of supply, financial performance and
strategic plans of the Company and its Affiliates, (iii) recipes, designs,
product names, staffing plans, operations objectives, equipment
configurations and customer and supplier lists. Confidential Information
also includes comparable information that the Company or any of its
Affiliates have received belonging to others or which was received by the
Company or any of its Affiliates with any understanding that it would not
be disclosed. Notwithstanding the foregoing, Confidential Information does
not include information which becomes publicly known through no fault of
the Executive.
"Person" means an individual, a corporation, an association, a
partnership, an estate, a trust and any other entity or organization, other
than the Company or any subsidiary of the Company.
12. Mechanics of Combined Health Care Coverage. Whenever any provision
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hereof requires the continuation of contributions by the Company on Executive's
behalf to its group medical and dental insurance plan after termination of
Executive's employment with the Company, the Company will only be required to so
contribute if Executive elects to continue his participation in such group
health and dental plans under applicable federal law ("COBRA") by signing and
returning the election form to be provided prior to Executive's last day of
employment, in which case, for a period of twelve months following termination
of Executive's employment or, if earlier, until the date Executive becomes
eligible for coverage under the group health plan of another employer, the
Company will continue to contribute to the cost of Executive's participation in
the Company's group health and dental plans at the same percentage rate as the
Company contributes to the cost of coverage for Executive prior to termination.
In order to be eligible for these contributions from the Company, however,
Executive must continue to pay his percentage share of the cost of coverage. If
COBRA or similar laws do not at the time exist and the terms of any such plans
would not allow the continued coverage of the Executive, the Company shall
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pay the Executive a portion of the reasonable cost of health care insurance
providing similar benefits as the group medical and dental insurance plans
covering Executive immediately prior to the termination of his employment in the
same proportion as paid by the Company prior to such termination.
13. Withholding. All payments made by the Company under this Agreement
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shall be reduced by any tax or other amounts required to be withheld by the
Company under applicable law.
14. Assignment. Neither the Company nor the Executive may make any
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assignment of this Agreement or any interest herein, by operation of law or
otherwise, without the prior written consent of the other; provided, however,
that the Company may assign its rights and obligations under this Agreement
without the consent of the Executive in the event that the Company shall
hereafter effect a reorganization, consolidate with, or merge into, any other
Person or transfer all or substantially all of its properties or assets to any
other Person. This Agreement shall inure to the benefit of and be binding upon
the Company and the Executive, their respective successors, executors,
administrators, heirs and permitted assigns.
15. Severability. If any portion or provision of this Agreement shall to
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any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
16. Waiver. No waiver of any provision hereof shall be effective unless
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made in writing and signed by the waiving party. The failure of either party to
require the performance of any term or obligation of this Agreement, or the
waiver by either party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
17. Notices. Any and all notices, requests, demands and other
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communications provided for by this Agreement shall be in writing and shall be
effective when delivered in person or deposited in the United States mail,
postage prepaid, registered or certified, and addressed to the Executive at his
last known address on the books of the Company with a notice to Xxxxx Xxxxxxx,
Xxxxxxx & Xxxxxxxx, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or, in the
case of the Company, at its principal place of business, to the attention of the
Chief Executive Officer of the Company, or to such other address as either party
may specify by notice to the other.
18. Entire Agreement. This Agreement constitutes the entire agreement
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between the parties and supersedes all prior communications, agreements and
understandings, written or oral, with respect to the terms and conditions of the
Executive's employment.
19. Amendment. This Agreement may be amended or modified only by a
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written instrument signed by the Executive and by an expressly authorized
representative of the Company.
20. Headings. The headings and captions in this Agreement are for
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convenience only and in no way define or describe the scope or content of any
provision of this Agreement.
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21. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument.
22. Expenses in Case of Dispute. If the event of a dispute between the
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parties related to or in connection with this Agreement shall result in
litigation, then, in such event, the party prevailing in such litigation shall
have his or its expenses (including reasonable legal fees) related to such
litigation reimbursed by the non-prevailing party.
23. Governing Law. This is a Delaware contract and shall be construed and
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enforced under and be governed in all respects by the laws of the State of
Delaware, without regard to the conflict of laws principles thereof.
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IN WITNESS WHEREOF, this Executive Employment Agreement has been executed
as a sealed instrument by the Company, by its duly authorized representative,
and by the Executive, as of the date first above written.
THE EXECUTIVE HOB ENTERTAINMENT, INC.
/s/ Xxx Xxxx /s/ Xxxxxxx X. Trojan
--------------------------------- -------------------------------
Xxx Xxxx By: Xxxxxxx X. Trojan
Title: Chief Executive Officer
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Exhibit A
Approved Directorships and Other Activities
President: Xxxx Xxxxxx Foundation
Member of the Executive Board
and Board of Directors: X.X. Xxxxxxx Foundation
Fundraising Chairperson: Valley United Club Soccer Team
Involved in various community and civic functions.
Exhibit B
Bonus Plan
The Company and the Executive agree to negotiate and establish in good
faith mutually agreeable special performance bonus criteria for the first year
of the term hereof within 15 days of the date of the Agreement, which criteria
shall be attached hereto as Exhibit B and form part of the Agreement. On or
prior to each subsequent anniversary date of the Agreement during the term
hereof, the Company and the Executive agree to establish in good faith mutually
agreeable special performance bonus criteria for the applicable one-year period
of the term hereof or six-month period of the term hereof following such
anniversary date, which criteria shall be attached hereto as Exhibit B and form
part of the Agreement.
