Employment Agreement
THIS AGREEMENT entered into as of the first day of March, 2000, by and
between DME INTERACTIVE HOLDINGS, INC., a Delaware corporation (the "Company"),
and Darien Dash (the "Executive").
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is essential and in the best interest of the Company and its
stockholders to enter into this Agreement to retain the services of the
Executive and to ensure his continued dedication and efforts; and
WHEREAS, in order to induce the Executive to enter into employment with
the Company, the Company desires to provide the Executive with certain benefits
during the term of his employment and, in the event his employment is
terminated, to provide the Executive with the benefits and payments described
herein.
NOW, THEREFORE, in consideration of the respective agreements of the
parties contained herein, it is agreed as follows:
1. Employment Term.
The "Employment Term" shall commence on the date hereof (the "Effective
Date") and shall expire on the third (3rd) anniversary of the Effective Date;
provided, however, that on each anniversary of the Effective Date, the
Employment Term shall automatically be extended for one (1) year unless either
the Company or the Executive shall have given written notice to the other at
least ninety (90) days prior thereto that the Employment Term shall not be so
extended.
2. Employment.
(a) Subject to the provisions of Section 8 hereof, the Company agrees
to continue to employ the Executive and the Executive agrees to remain in the
employ of the Company during the Employment Term. During the Employment Term,
the Executive shall be employed as the Chairman and Chief Executive Officer of
the Company. The Executive shall perform the duties, undertake the
responsibilities and exercise the authority customarily performed, undertaken
and exercised by persons situated in a similar executive capacity. He shall also
promote, by entertainment or otherwise, the business of the Company.
(b) During the Employment Term, excluding periods of vacation and sick
leave to which the Executive is entitled, the Executive agrees to devote
reasonable attention and time during usual business hours to the business and
affairs of the Company to the extent necessary to discharge the responsibilities
assigned to the Executive hereunder. The Executive may (1) serve on corporate,
civil or charitable boards or committees, (2) manage personal investments, (3)
deliver lectures and teach at educational institutions, and (4) engage in such
other lawful activities as the Executive in the exercise of his sole discretion
may choose, so long as such activities do not significantly interfere with the
performance of the Executive's responsibilities hereunder. It is expressly
understood and agreed that to the extent that any such activities have been
conducted by the Executive prior to the Effective Date, the continued conduct of
such activities (or the conduct of activities similar in nature and scope
thereto) subsequent to the Effective Date shall not thereafter be deemed to
interfere with the performance of the Executive's responsibilities to the
Company.
3. Compensation.
(a) Base Salary. During the Employment Term, the Company agrees to pay
or cause to be paid to the Executive an annual base salary of One Hundred Sixty
Thousand Dollars ($160,000), and as may be increased from time to time by the
Board or its Executive Committee (the "Executive Committee") (hereinafter
referred to as the "Base Salary"). Such Base Salary shall be payable in
accordance with the Company's customary practices applicable to its executives.
(b) Annual Bonus. In addition to Base Salary, the Executive may be
awarded, for each fiscal year ending during the Employment Term, an annual
discretionary bonus (the "Annual Bonus") in accordance with the terms and
conditions of the bonus plan approved by the Executive Committee and, if the
Executive Committee shall no longer exist, by the Compensation Committee. Any
actual payment or award under such annual bonus plan, and the size of any
payment or award, will be in accordance with the terms of the plan. Each such
Annual Bonus shall be paid no later than the end of the third month of the
fiscal year next following the fiscal year for which the Annual Bonus is
awarded, unless the Executive shall elect to defer the receipt of such Annual
Bonus.
4. Employee Benefits.
During the Employment Term, the Executive shall be entitled to
participate in all employee benefit plans, practices and programs maintained by
the Company and made available to employees generally, including, without
limitation, all pension, retirement, profit sharing, savings, medical,
hospitalization, disability, dental, life or travel accident insurance benefit
plans. Unless otherwise provided herein, the compensation and benefits under,
and the Executive's participation in, such plans, practices and programs shall
be on the same basis and terms as are applicable to employees of the Company
generally, but in no event on a basis less favorable in terms of benefit levels
and coverage than offered to other similarly situated executives of the Company.
The Company may reduce benefit levels if such changes are part of broad-based
changes in the Company's benefit programs offered generally to all employees.
Notwithstanding the foregoing, nothing herein shall obligate the Company to
adopt such plans, practices or programs.
5. Executive Benefits.
During the Employment Term, the Executive shall be entitled to
participate in all executive benefit or incentive compensation plans maintained
or established by the Company for the purpose of providing compensation and/or
benefits to executives of the Company including, but not limited to, any
supplemental retirement, salary continuation, stock option, deferred
compensation, supplemental medical or life insurance or other bonus or incentive
compensation plans. Unless otherwise provided herein, the compensation and
benefits under, and the Executive's participation in, such plans shall be on the
same basis and terms as other similarly situated executives of the Company. No
additional compensation provided under any of such plans shall be deemed to
modify or otherwise affect the terms of this Agreement or any of the Executive's
entitlements hereunder. Notwithstanding the foregoing, nothing herein shall
obligate the Company to adopt such plans, practices or programs.
6. Other Benefits.
(a) Fringe Benefits and Perquisites. During the Employment Term, the
Executive shall be entitled to all fringe benefits and perquisites (e.g.,
company cars, club dues, physical examinations, financial planning and tax
preparation services) generally made available by the Company to its executives.
Unless otherwise provided herein, the fringe benefits and perquisites provided
to Executive shall be on substantially the same basis and terms as other
similarly situated executives of the Company.
(b) Expenses. The Executive shall be entitled to receive reimbursement
of all expenses reasonably incurred by him in connection with the performance of
his duties hereunder or for promoting, pursuing or otherwise furthering the
business or interests of the Company in accordance with the accounting
procedures and expense reimbursement policies of the Company as it shall adopt
from time to time. In addition, the Company shall pay all expenses incurred by
the Executive in regard to the preparation of the Executive's annual tax
returns.
7. Vacation and Sick Leave.
During the Employment Term, at such reasonable times as the Board shall
in its discretion permit, the Executive shall be entitled without loss of pay,
to absent himself voluntarily from the performance of his employment under this
Agreement, provided that:
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(a) The Executive shall be entitled to annual vacation in accordance
with the policies as periodically established by the Board.
(b) The Executive shall be entitled to sick leave (without loss of pay)
in accordance with the Company's policies as in effect from time to time.
8. Termination.
During the Employment Term, the Executive's employment hereunder may be
terminated under the following circumstances:
(a) Cause. The Company may terminate the Executive's employment for
"Cause" as defined below. A termination of employment is for "Cause" if the
Executive:
(1) intentionally engaged in conduct which is demonstrably and
materially injurious to the Company monetarily and from which
he derives an improper material personal benefit; provided,
however, that no termination of the Executive's employment
shall be for Cause as set forth in this clause (1) until:
(i) there shall have been delivered to the Executive
a copy of a written notice setting forth that the
Executive was guilty of the conduct set forth in this
clause (1) and specifying the particulars thereof in
reasonable detail; and
(ii) the Executive shall have been provided an
opportunity to be heard by the Board (with the
assistance of the Executive's counsel if the
Executive so desires). No act, nor failure to act, on
the Executive's part, shall be considered
"intentional" unless he has acted, or failed to act,
with an absence of good faith and without a
reasonable belief that his action or failure to act
was in the best interest of the Company.
(2) commits gross malfeasance or intentionally fails to
perform the duties of the Executive's position; provided,
however, the Company shall first notify the Executive in
writing stating with reasonable specificity the action or
inaction of the Executive which forms the basis for such
notice and the Executive fails to cure such malfeasance or
failure within thirty (30) days of the date of such notice.
Notwithstanding anything contained in this Agreement to the contrary, no failure
to perform by the Executive after a Notice of Termination is given by the
Executive shall constitute Cause for purposes of this Agreement.
(b) Disability. The Company may terminate the Executive's employment
after having established the Executive's Disability. For purposes of this
Agreement, "Disability" means a physical or mental infirmity which impairs the
Executive's ability to substantially perform his material duties under this
Agreement which continues for a period of at least one hundred eighty (180)
consecutive days. The Executive shall be entitled to the compensation and
benefits provided for under this Agreement for any period during the Employment
Term and prior to the establishment of the Executive's Disability during which
the Executive is unable to work due to a physical or mental infirmity.
Notwithstanding anything contained in this Agreement to the contrary, until the
Termination Date specified in a Notice of Termination (as each term is
hereinafter defined) relating to the Executive's Disability, the Executive will
be entitled to return to his position with the Company as set forth in this
Agreement in which event no Disability of the Executive will be deemed to have
occurred.
(c) Good Reason.
(1) The Executive may terminate his employment for "Good
Reason." For purposes of this Agreement, "Good Reason" shall
mean the occurrence of any of the events or conditions
described in Subsections (i) through (vii) hereof:
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(i) If the Executive shall cease to be the Chairman
and Chief Executive Officer of the Company (or any
successor or parent thereof) or if he shall not be
elected to the Company's Board or upon the assignment
to the Executive of any material duties or
responsibilities which are inconsistent with his
position or responsibilities; or any removal of the
Executive from or failure to reappoint or reelect him
to any of such offices or positions, except during a
period of disability or in connection with the
termination of his employment for Disability, Cause,
as a result of his death, or by the Executive other
than for Good Reason;
(ii) a reduction in the Executive's Base Salary or
any failure to pay the Executive any compensation or
benefits to which he is entitled within thirty (30)
days of the date due;
(iii) the Company requiring the Executive to be based
at any place outside a one hundred (100) mile radius
from the Company's location in New York, New York,
except for reasonably required travel on the
Company's business;
(iv) a voluntary termination by the Executive
pursuant to a Notice of Termination delivered to the
Company within the first year of a Change In Control.
(v) any material breach by the Company of any
provision of this Agreement: provided, however, the
Executive shall first notify the Company in writing
stating with reasonable specificity the breach by the
Company and the Company fails to cure such breach
within thirty (30) days of the date of such notice;
(vi) any purported termination of the Executive's
employment for Cause by the Company which is found by
a court of competent jurisdiction or an arbitrator
not to comply with the terms of Section 8(a); or
(vii) the failure of the Company to obtain an
agreement, reasonably satisfactory to the Executive,
from any successor or assign of the Company to assume
and agree to perform this Agreement, as contemplated
in Section 13 hereof.
(2) The Executive's right to terminate his employment pursuant
to this Section 8(c) shall not be affected by his incapacity
due to physical or mental illness.
(d) Voluntary Termination. Upon one hundred and twenty (120) days prior
written notice, either the Executive or the Company (only upon majority vote of
the Company's Board of Directors excluding Executive) may voluntarily terminate
the Executive's employment hereunder at any time; provided, however, in the
event of any such termination by the Company, the Company shall pay to the
Executive the amounts set forth in Section 9(c) hereof.
9. Compensation Upon Termination.
Upon termination of the Executive's employment during the Employment
Term, the Executive shall be entitled to the following benefits:
(a) If the Executive's employment with the Company shall be terminated
by the Company for Cause or by the Executive other than for Good Reason, the
Company shall pay the Executive all amounts earned or accrued through the
Termination Date but not paid as of the Termination Date, including:
(1) Base Salary,
(2) reimbursement for reasonable and necessary expenses
incurred by the Executive on behalf of the Company during the
period ending on the Termination Date,
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(3) vacation pay, and
(4) sick leave (collectively, "Accrued Compensation").
(b) If the Executive's employment with the Company shall be terminated
by the Company for Disability or by reason of the Executive's death, the Company
shall pay the Executive or his beneficiaries all amounts earned or accrued
through the Termination Date but not paid as of the Termination Date, including
the Accrued Compensation. In addition, the Company shall pay to the Executive or
his beneficiaries the following:
(1) the Base Salary for a period of three (3) years from the
date of such Disability or death, and
(2) an amount equal to the "Pro Rata Bonus" (as hereinafter
defined). The "Pro Rata Bonus" is an amount equal to the
target bonus amount the Executive would have been entitled to
in the fiscal year which includes the Termination Date (the
"Bonus") multiplied by a fraction, the numerator of which is
the number of days in such fiscal year through the Termination
Date and the denominator of which is 365. The Executive's
entitlement to any other compensation or benefits shall be
determined in accordance with the Company's employee benefit
plans and other applicable programs and practices then in
effect.
(c) If the Executive's employment with the Company shall be terminated
(other than by reason of death) by the Company other than for Cause or
Disability or by the Executive for Good Reason, the Company shall pay to the
Executive the following:
(1) the Company shall pay the Executive all Accrued
Compensation and a Pro Rata Bonus;
(2) the Company shall pay the Executive as severance pay and
in lieu of any further compensation for periods subsequent to
the Termination Date, an amount equal to the sum of (A) the
Executive's Base Salary; and (B) the cash value of the
Executive's most recent Annual Bonus (including the Fair
Market Value of any securities included as a part of such
annual bonus) multiplied by a factor of five (5);
(3) during the twelve (12) month period immediately following
the Termination Date (the "Continuation Period"), the Company
shall at its expense continue on behalf of the Executive and
his dependents and beneficiaries the life insurance,
disability, medical, dental and hospitalization benefits
provided (i) to the Executive immediately prior to the Notice
of Termination or (ii) to other similarly situated executives
who continue in the employ of the Company during the
Continuation Period. The coverage and benefits (including
deductibles and costs) provided in this Section 9(c)(3) during
the Continuation Period shall be no less favorable to the
Executive and his dependents and beneficiaries, than most
favorable of such coverages and benefits provided to the
Executive during any of the periods referred to in clauses (i)
and (ii) above. The Company's obligation hereunder with
respect to the foregoing benefits shall terminate in the event
the Executive obtains any such benefits (regardless of level
and scope of coverage) pursuant to a subsequent employer's
benefit plans. This Section 9(c)(3) shall not be interpreted
so as to limit any benefits to which the Executive, his
dependents or beneficiaries may be entitled under any of the
Company's employee benefit plans, programs or practices
following the Executive's termination of employment, including
without limitation, retiree medical and life insurance
benefits;
(4) the restrictions on any outstanding stock options
(including restricted stock and granted performance shares or
units) granted to the Executive under any stock option plans
or under any other incentive plan or arrangement shall lapse
and such incentive award shall become 100% vested, all stock
options and stock appreciation rights granted
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to the Executive shall become immediately exercisable and
shall become 100% vested, and all performance units granted to
the Executive shall become 100% vested;
(5) the Company shall reimburse to the Executive the costs of
any outplacement services incurred by Executive, up to a
maximum amount of Fifty Thousand Dollars ($50,000).
(d) The amounts provided for in Sections 9(a), 9(b)(2), 9(c)(1) and
9(c)(2) shall be paid within thirty (30) days after the Executive's Termination
Date; provided, however, in the event of the determination of the Fair Market
Value of a security pursuant to Section 11(a)(4) hereof, payment of the Fair
Market Value thereof pursuant to Section 9(c)(2) hereof shall occur not later
than fifteen (15) days after the date of such determination. Expenses incurred
by Executive under Section 9(c)(5) shall be paid within thirty (30) days of the
receipt by the Company of a claim for reimbursement submitted by the Executive.
(e) The Executive hereby acknowledges that full payment and/or
performance by the Company of its obligations as set forth in Sections 9(b) or
9(c) hereof shall be in lieu of any other remedy or cause of action the
Executive may have, either at law or in equity as a result of the termination of
the Executive's employment pursuant to such Sections.
10. Covenant Not to Compete.
(a) Non-Competition. Executive hereby expressly covenants and agrees
that he shall not, without the express written consent of the Company, for his
own account or jointly with any other person, during the Term of this Agreement
and for a period of one year thereafter, for any reason, directly or indirectly,
(i) establish or manage any business, or enter into the employ of, or render any
services to, any person, firm or corporation engaged in any business competitive
with the Company and its Affiliates in such state or states as the Company
conducts business during the Employment Term (the "Territory"); (ii) own,
manage, operate, join, control, loan money to, invest in, or otherwise
participate in, or be connected with, or become or act as an officer, employee,
consultant, representative or agent of any business, individual, partnership,
firm or corporation (other than the Company) which is a customer of the Company
or was at any time during the Term of this Agreement a customer of the Company
("Competitive Activities"); or (iii) intervene in or interfere with any
relationships between the Company and its vendors or customers (including
potential customers identified by the Company during the Term of this Agreement)
or disrupt its customer markets, anywhere in the world in which the Company
conducts Company business. Notwithstanding the foregoing, the Executive may at
any time own, solely as an inactive investor, securities of any entity, whether
or not in competition with the Company, if (i) such securities are publicly
traded on a nationally-recognized stock exchange or on NASDAQ, and (ii) the
aggregate holdings of such securities by the Executive and his immediate family
do not exceed two percent (2%) of the voting power or two percent (2%) of the
capital stock of such entity.
(b) Reasonableness of Restrictions. The Executive acknowledges and
agrees that the covenants contained herein with respect to non-competition are
reasonable in scope, geographic application and duration, in view of the
economic bargain contained herein. The Executive represents and warrants to the
Company that his experience, background and skills are such that he is able to
obtain employment on reasonable terms and conditions without violation of the
restrictive covenant contained herein with respect to non-competition; and that
such covenant does not and will not pose any undue hardship to the Executive.
11. Definitions.
(a) Fair Market Value. For the purposes of this Agreement, the "Fair
Market Value" of a security shall be determined as follows:
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(1) the average closing bid price of the security for the ten
trading days ending on the day immediately preceding the day
of the event triggering the obligation to make a payment based
on the Fair Market Value of a security; or, if not applicable,
(2) the Fair Market Value of the security shall be the price
established, determined in good faith, in the most recently
completed arm's-length transaction between the Company and a
person other than an affiliate of the Company, the closing of
which shall have occurred within the six month period
immediately preceding such Termination Date; or
(3) if no transaction shall have occurred within such
six-month period, the Fair Market Value of the security shall
be determined by reference to the price established by the
Board within the six (6) months preceding the Termination Date
for the purpose of granting any options under an incentive
stock option plan maintained by the Company; or
(4) if the Board has failed to establish such price with such
six month period, the Fair Market Value of the security shall
be determined by negotiation, in good faith, between the
Executive and the Company; or
(5) in the event the Executive and the Company have been
unable to agree under Section 11(a)(4) above within thirty
(30) days of the Termination Date as to the Fair Market Value
of the security, the Executive and the Company shall mutually
select, at the expense of the Company, a nationally recognized
firm possessing expertise in the valuation of similar
companies who shall render its opinion to the Company and the
Executive as to the Fair Market Value of the security.
(b) Notice of Termination. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which indicates the specific termination
provision in this Agreement, if any, relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated. Any
purported termination by the Company or by the Executive shall be communicated
by written Notice of Termination to the other. For purposes of this Agreement,
no such purported termination of employment shall be effective without such
Notice of Termination.
(c) Termination Date, Etc. For purposes of this Agreement, "Termination
Date" shall mean in the case of the Executive's death, his date of death, or in
all other cases, the date specified in the Notice of Termination subject to the
following:
(1) If the Executive's employment is terminated by the Company
for Cause, the date of the Notice of Termination;
(2) If the Executive's employment is terminated by the Company
due to Disability, the date specified in the Notice of
Termination shall be at least thirty (30) days from the date
the Notice of Termination is given to the Executive, provided
that the Executive shall not have returned to the full-time
performance of his duties during such period of at least
thirty (30) days; and
(3) If the Executive's employment is terminated for Good
Reason, the date specified in the Notice of Termination shall
not be more than sixty (60) days from the date the Notice of
Termination is given to the Company.
(d) Change in Control. For purposes of this Agreement, a "Change in
Control" shall mean any of the following events:
(1) An acquisition (other than directly from the Company) of
any voting securities of the Company (the "Voting Securities")
by any "Person" (as the term person is used for purposes of
Section 13(d) or 14(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")), immediately after which such
Person has "Beneficial Ownership"
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(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of more than fifty percent (50%) of the combined
voting power of the Company's then outstanding Voting
Securities; provided, however, in determining whether a Change
in Control has occurred, Voting Securities which are acquired
in a "Non-Control Acquisition" (as hereinafter defined) shall
not constitute an acquisition which would cause a Change in
Control. A "Non-Control Acquisition" shall mean an acquisition
by (i) an employee benefit plan (or a trust forming a part
thereof) maintained by (A) the Company or (B) any corporation
or other Person of which a majority of its voting power or its
voting equity securities or equity interest is owned, directly
or indirectly, by the Company (for purposes of this
definition, a "Subsidiary") (ii) the Company or its
Subsidiaries, or (iii) any Person in connection with a
Non-Control Transaction" (as hereinafter defined);
(2) The individuals who, as of the date this Agreement is
approved by the Board, are members of the Board (the
"Incumbent Board"), cease for any reason to constitute at
least two-thirds of the members of the Board; provided,
however, that if the election, or nomination for election by
the Company's common stockholders, of any new directors was
approved by a vote of the members of the Board, such new
directors shall, for purposes of this Plan, be considered as
members of the Incumbent Board; provided, however, that no
individual shall be considered a member of the Incumbent Board
if such individual initially assumed office as a result of
either an actual or threatened "Election Contest" (as
described in Rule 14a-11 promulgated under the Exchange Act)
or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board (a
"Proxy Contest") including by reason of any agreement intended
to avoid or settle any Election Contest or Proxy Contest; or
(3) Approval by stockholders of the Company of:
(i) A merger, consolidation or reorganization
involving the Company, unless such merger,
consolidation or reorganization is a "Non-Control
Transaction." A "Non-Control Transaction" shall mean
a merger, consolidation or reorganization of the
Company where:
(A) the stockholders of the Company,
immediately before such merger,
consolidation or reorganization, own
directly or indirectly immediately following
such merger, consolidation or
reorganization, at least eighty percent
(80%) of the combined voting power of the
outstanding voting securities of the
corporation resulting from such merger or
consolidation or reorganization (the
"Surviving Corporation") in substantially
the same proportion as their ownership of
the Voting Securities immediately before
such merger, consolidation or
reorganization;
(B) the individuals who were members of the
Incumbent Board immediately prior to the
execution of the agreement providing for
such merger, consolidation or reorganization
constitute at least two-thirds of the
members of the board of directors of the
Surviving Corporation, or a corporation
beneficially directly or indirectly owning a
majority of the Voting Securities of the
Surviving Corporation; and
(C) no Person other than (i) the Company,
(ii) any Subsidiary, (iii) any employee
benefit plan (or any trust forming a part
thereof) maintained by the Company, the
Surviving Corporation, or any Subsidiary, or
(iv) any Person who, immediately prior to
the merger, consolidation or reorganization
had Beneficial Ownership of thirty percent
(30%) or more of the then outstanding Voting
Securities), has Beneficial Ownership of
thirty percent (30%) or more of the combined
voting power of the Surviving Corporation's
then outstanding voting securities.
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(ii) A complete liquidation or dissolution of the
Company; or
(iii) An agreement for the sale or other disposition
of all or substantially all of the assets of the
Company to any Person (other than a transfer to a
Subsidiary or a parent in a Non-Control Transaction).
(4) Notwithstanding the foregoing, a Change in Control shall
not be deemed to occur solely because any Person (the "Subject
Person") acquired Beneficial Ownership of more than the
permitted amount of the then outstanding Voting Securities as
a result of the acquisition of Voting Securities by the
Company which, by reducing the number of Voting Securities
then outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Persons, provided that if a
Change in Control would occur (but for the operation of this
sentence) as a result of the acquisition of Voting Securities
by the Company, and after such share acquisition by the
Company, the Subject Person becomes the Beneficial Owner of
any additional Voting Securities Beneficially Owned by the
Subject Person, then a Change in Control shall occur.
12. Excise Tax Payments.
(a) In the event that the Company determines that a portion of any
payment or benefit to the Executive or for his benefit payable or distributable
pursuant to the terms of this Agreement will be deemed to be an "excess
parachute payment" within the meaning of Section 280G(b)(1) of the Internal
Revenue Code of 1986, as amended (the "Code") (a "Payment" or "Payments"), then
the Company shall have the right to reduce the Payment by the amount of such
excess.
(b) An initial determination as to whether all or a portion of a
Payment represents an excess parachute payment and the amount thereof shall be
made at the Company's expense by its accounting firm (the "Accounting Firm").
The Accounting Firm shall provide its determination (the "Determination"),
together with detailed supporting calculations and documentation to the Company
and the Executive within ten (10) days of the Termination Date. Within thirty
(30) days of the delivery of the Determination to the Executive, the Executive
shall have the right to dispute the Determination.
13. Successors and Assigns.
(a) This Agreement shall be binding upon and shall inure to the benefit
of the Company, its successors and assigns and the Company shall require any
successor or assign 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 if no such succession or assignment had taken place. The term "Company"
as used herein shall include such successors and assigns. The term "successors
and assigns" as used herein shall mean a corporation or other entity acquiring
all or substantially all the assets and business of the Company (including this
Agreement) whether by operation of law or otherwise.
(b) Neither this Agreement nor any right or interest hereunder shall be
assignable or transferable by the Executive, his beneficiaries or legal
representatives, except by will or by the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal personal representative.
14. Fees and Expenses.
The Company shall pay all legal fees and related expenses (including
the costs of experts, evidence and counsel) incurred by the Executive as a
result of the breach or default by the Company of the terms hereof.
15. Notice.
For the purposes of this Agreement, notices and all other
communications provided for in the Agreement (including the Notice of
Termination) shall be in writing and shall be deemed to have been duly
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given when personally delivered or sent by certified mail, return receipt
requested postage prepaid, addressed to the respective addresses last given by
each party to the other, provided that all notices to the Company shall be
directed to the attention of the Board with a copy to the Secretary of the
Company. All notices and communications shall be deemed to have been received on
the date of delivery thereof or on the third business day after the mailing
thereof, except that notice of change of address shall be effective only upon
receipt.
16. Non-exclusivity of Rights.
Nothing in this Agreement shall prevent or limit the Executive's
continuing or future participation in any benefit, bonus, incentive or other
plan or program provided by the Company or any of its subsidiaries and for which
the Executive may qualify, nor shall anything herein limit or reduce such rights
as the Executive may have under any other agreements with the Company or any of
its subsidiaries. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan or program of the Company or any of
its subsidiaries shall be payable in accordance with such plan or program,
except as explicitly modified by this Agreement.
17. Settlement of Claims.
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 circumstances, including, without limitation, any set-off
(except against amounts actually owed by the Executive to the Company as
evidenced by promissory notes, loan agreements and similar documents executed by
the Executive), counterclaim, defense, recoupment, or other right which the
Company may have against the Executive or others.
18. Miscellaneous.
No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification, or discharge is agreed to in writing and
signed by the Executive and the Company. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, 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 agreement or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not expressly set forth in this
Agreement.
19. Governing Law.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York without giving effect to the
conflict of law principles thereof. Subject to Section 22 of this Agreement, any
action brought by any party to this Agreement shall be brought and maintained in
a court of competent jurisdiction in the County of New York, in the State of New
York.
20. Severability.
The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof.
21. Entire Agreement.
This Agreement constitutes the entire agreement between the parties
hereto and supersedes all prior agreements, if any, understandings and
arrangements, oral or written, between the parties hereto with respect to the
subject matter hereof.
22. Arbitration.
Any dispute or controversy arising out of or relating to this Agreement
shall be determined and settled by arbitration in the City of New York, State of
New York, in accordance with the Employment
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Dispute Resolution Rules of the American Arbitration Association then in effect,
and judgment upon the award rendered by the arbitrator may be entered in any
court of competent jurisdiction. Such arbitrator shall have no power to modify
any of the provisions of this Agreement, and his or her jurisdiction is limited
accordingly. A party requesting arbitration hereunder shall give ten (10) days'
written notice to the other party prior to requesting such arbitration. Unless
the arbitrator decides otherwise, the successful party in any such arbitration
shall be entitled to reasonable attorneys' fees and costs associated with such
arbitration. If the parties hereto cannot agree upon an arbitrator, then one
shall be appointed by the governing official of the New York Chapter of the
American Arbitration Association. Any arbitrator so appointed shall have
extensive experience in a profession connected with the subject matter of the
dispute. Whenever any action is required to be taken under this Agreement within
a specified period of time and the taking of such action is materially affected
by a matter submitted to arbitration, such period shall automatically be
extended by the number of days plus ten (10) that are taken for the
determination of that matter by the arbitrator.
IN WITNESS WHEREOF, the company has caused this agreement to be
executed by its duly authorized officer and the Executive has executed this
Agreement as of the day and year first above written.
DME INTERACTIVE HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxx
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Title Executive Vice-President
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Executive
/s/ Darien Dash
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