Exhibit 99.13
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated June 27, 1997 (this "Agreement"), by and
between Pumpkin Ltd., a Delaware corporation (the "Company"), and Kea Bardeen
(the "Executive").
WHEREAS, pursuant to an Agreement dated June 27, 1997 (the "Asset
Purchase Agreement") among Pumpkin Ltd. d/b/a Pumpkin Masters, Inc., a Colorado
company ("Pumpkin"), the Company, Pumpkin Masters Holdings, Inc., a Delaware
corporation, and Security Capital Corporation, a Delaware corporation, the
Company has agreed to acquire substantially all the assets and business of
Pumpkin; and
WHEREAS, the Company desires to employ the Executive as Director of
Product Development, and the Executive desires to be retained in such capacities
on the terms and conditions set forth herein, effective upon the closing of the
transactions contemplated by the Asset Purchase Agreement, it being understood
that if no such closing shall occur, this Agreement shall have no force and
effect.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements made herein, the Company and the Executive agree as follows:
1. Prior Agreements. The Executive hereby releases the Company
and its affiliates from all payments and other obligations under all agreements,
plans or arrangements covering the Executive which are in effect prior to the
Commencement Date (as hereinafter defined) and which are not to be assumed by
the Company pursuant to the Asset Purchase Agreement, if any.
2. Employment; Duties. (a) The Company shall employ the Executive
as Director of Product Development for the "Employment Period" as defined in
Section 3. The Executive, in her capacity as Director of Product Development,
shall have such duties, responsibilities and authority normally incident to such
office, subject to the provisions of the Bylaws of the Company. Subject to the
foregoing, the precise duties, responsibilities and authority of the Executive
may be expanded, limited or modified, from time to time, at the discretion of
the Company. During the Employment Period, the Executive shall render her
business services solely in the performance of her duties hereunder. The
Executive, during the term of her employment hereunder, shall devote her full
working time, attention, knowledge and experience and give her best effort,
skill and abilities, exclusively to promote the business and interests of the
Company. The Executive may not serve as an officer or director of, make
investments in, or otherwise participate in, any other entity without the prior
written consent of the Board of Directors; provided, that the
foregoing shall not be deemed to prohibit the Executive from acquiring,
directly or indirectly, solely as an investment, not more than one percent
(1%) of any class of securities of or of the aggregate principal outstanding
indebtedness of any entity that is registered under Section 12(b) or 12(g) of
the Securities Exchange Act of 1934, as amended, including the regulations
issued thereunder; provided further, that such investment would not prevent,
directly or indirectly, the transaction of business by the Company with any
state, district, territory or possession of the United States of America or
any foreign country or any governmental subdivision, agency or
instrumentality thereof by virtue of any statute, law, regulation or
administrative practice; and provided further, that so long as it does not
interfere with the Executive's employment, the Executive may (i) with the
prior written consent of the Board of Directors, (which consent will not be
unreasonably withheld), serve as a director in a noncompeting company, (ii)
serve as an officer, director or otherwise participate in purely educational,
welfare, social, religious and civic organizations, and (iii) manage personal
and family investments.
(b) The Executive shall be employed at Denver, Colorado or such other
place as the Company and Executive shall mutually agree.
(c) It is the expectation of the Company and the Executive that the
Executive will work full time (40 hours per week, at a minimum) during the
months of September and October of each calendar year, and will work half
time (20 hours per week, at a minimum) during the months November through May
of each calendar year, in each case during the term of this Agreement. The
Executive shall not be required to perform any services for the Company
hereunder during the months of June, July and August of each calendar year,
but will be available during such months to assist the Company, at the
request and direction of the Board of Directors, for additional compensation
at the rate of $100.00 per hour. With the consent of the Company, the
Executive may reduce her working time during the period from September 1998
through May 1999, upon such terms and conditions as the Company and the
Executive shall mutually agree.
3. Employment Period. This Agreement shall have a term of three
years, commencing as of the date of the closing of the transactions contemplated
by the Acquisition Agreement, as reference in the recitals above (the
"Commencement Date") and ending on the fourth anniversary of the Commencement
Date (the "Initial Period"), unless sooner terminated in accordance with the
provisions of Section 8 or Section 9. The term of this Agreement, as in effect
from time to time, is referred to herein as the "Employment Period."
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4. Compensation and Benefits.
(a) Base Compensation. The Executive shall be paid an aggregate
base salary (the "Base Salary") of $100,000 per annum, less statutory deductions
and withholdings. The Base Salary shall be payable in a manner consistent with
the normal payroll practices of the Company in effect from time to time. The
Board of Directors of the Company, in its sole discretion, or at the
recommendation of the Compensation Committee, may increase (but not decrease)
the Base Salary, at any time.
(b) Benefits. The Executive shall be entitled to participate,
to the extent eligible, in the employee benefit and group insurance programs
provided by the Company for its officers and employees generally and in
accordance with the terms of the applicable plan documents as they may be
revised from time to time. The Company shall reimburse the Executive on a
regular basis for all reasonable expenses incurred by the Executive in the
performance of her duties hereunder in furtherance of the business of the
Company during the Employment Period. The Executive shall provide the Company
an itemized account to substantiate all such expenditures. The Executive shall
be entitled to primary use of the vehicle, a 1993 Chrysler Town and Country
Minivan (Vehicle Identification No. 1C4GH54R4PX529529), currently owned by the
Company until the earlier of the termination of the Employment Period or
December 31, 1998 (the "Car Use Term"). Until the termination of the Car Use
Term, the Company shall maintain, at the current level, the insurance and pay
all costs and expenses with respect to the registration and normal and routine
repairs on such vehicle. At the termination of the Car Use Term, the Executive
may elect to purchase, for cash, the vehicle from the Company for its fair
market value or, if the Executive does not so elect to purchase the vehicle, the
Company may use, sell, transfer or otherwise dispose of such vehicle as it, in
its sole discretion, shall determine.
5. Trade Secrets. The Executive acknowledges that it is in the
legitimate business interest of the Company to prohibit her disclosure or use of
Trade Secrets and Confidential Information relating to the Company and its
direct or indirect subsidiaries for any purpose other than in connection with
her performance of her duties to the Company, and to prohibit any potential
appropriation of such Trade Secrets and Confidential Information by the
Executive. The Executive therefore agrees that all Trade Secrets and
Confidential Information relating to the Company and its direct or indirect
subsidiaries heretofore or in the future obtained by the Executive shall be
considered confidential and the proprietary information of the Company and its
direct or indirect subsidiaries. During the Employment Period the Executive
shall not use or disclose, or permit or authorize any other person or entity to
use or disclose, any Trade Secrets or other Confidential Information, other than
as necessary to further the business objectives of the Company in accordance
with the terms of her employment hereunder. The term "Trade Secrets or other
Confidential Information" includes, by way of example and without limitation,
matters of a technical nature, such as scientific, trade and engineering
secrets, "know-how", formulas, secret processes, drawings, patterns (whether or
not published), works of authorship, machines, inventions, computer programs
(including documentation of such programs), services, materials, unfiled
trademark applications, copyright applications, patent applications, new product
plans, other plans, technical information,
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technical improvements, manufacturing techniques, specifications,
manufacturing and test data, progress reports and research projects, and
matters of a business nature, such as business plans, prospects, financial
information, proprietary information about costs, profits, markets, sales,
lists of customers and suppliers of the Company and its direct or indirect
subsidiaries, procurement and promotional information, credit and financial
data concerning customers or suppliers of the Company and its direct or
indirect subsidiaries, information relating to the management, operation and
planning of the Company and its direct and indirect subsidiaries, and other
information of a similar nature to the extent not available to the public,
and plans for future development. After termination of the Executive's
employment with the Company for any reason, the Executive shall not use or
disclose Trade Secrets or other Confidential Information.
6. Return of Documents and Property. Upon the termination of the
Executive's employment with the Company, or at any time upon the request of the
Company, the Executive (or her heirs or personal representatives) shall deliver
to the Company (a) all documents and materials (including, without limitation,
computer files) containing Trade Secrets or other Confidential Information
relating to the business and affairs of the Company and its direct and indirect
subsidiaries, and (b) all documents, materials and other property (including,
without limitation, computer files) belonging to the Company or its direct or
indirect subsidiaries, which in either case are in the possession or under the
control of the Executive (or her heirs or personal representatives); provided,
however, that the Executive shall not be required to return to the Company the
property designated on Schedule 1.7 of the Asset Purchase Agreement to be
retained by her.
7. Discoveries and Work. (a) Except as specifically set forth in
this Section 7, all Discoveries and Works made or conceived by the Executive
during her employment by the Company, whether during the Employment Period or at
any time prior thereto, jointly or with others, that relate to the then-current
present or anticipated activities of the Company or its direct or indirect
subsidiaries, or are used or usable by the Company or its direct or indirect
subsidiaries in connection with such activities shall be owned by the Company or
its direct or indirect subsidiaries, as appropriate. The term "Discoveries and
Works" includes, by way of example but without limitation, Trade Secrets and
other Confidential Information, patents and patent applications, trademarks and
trademark registrations and applications, service marks and service mark
registrations and applications, trade names, copyrights and copyright
registrations and applications and patterns (whether or not published). The
Executive shall (i) promptly notify, make full disclosure to, and execute and
deliver any documents requested by, the Company, as the case may be, to evidence
or better assure title to Discoveries and Works in the Company or its direct or
indirect subsidiaries, as so requested, (ii) renounce any and all claims,
including but not limited to claims of ownership and royalty, with respect to
all Discoveries and Works and all other property owned or licensed by the
Company or its direct or indirect subsidiaries, (iii) assist the Company or its
direct or indirect subsidiaries in obtaining or maintaining for itself at its
own expense United States and foreign patents, copyrights, trademarks, trade
secret protection or other protection of any and all Discoveries and Works, and
(iv) promptly execute, whether during her employment with the Company or
thereafter, all applications or other endorsements necessary or appropriate to
maintain patents and other rights for the Company or its direct or indirect
subsidiaries and to protect the title of the
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Company or its direct or indirect subsidiaries thereto, including but not
limited to assignments of such patents and other rights. Subject to the
limitations set forth in this Section 7, any Discoveries and Works which,
within two years after the termination of the Executive's employment with the
Company, are made, disclosed, reduced to a tangible or written form or
description, or are reduced to practice by the Executive and which pertain to
the business carried on or products or services being sold or developed by
the Company or its direct or indirect subsidiaries at the time of such
termination shall, as between the Executive and, the Company, be presumed to
have been made during the Executive's employment by the Company. The
Executive acknowledges that all Discoveries and Works shall be deemed "works
made for hire" under the Copyright Act of 1976, as amended, 17 U.S.C. Section
101.
(b) Notwithstanding the foregoing, the Company and the Executive
agree as follows:
(i) The Executive may develop the sole toy product (the "Toy")
described in a letter, dated June 27, 1997, from the Executive to the
Company (the "Letter). The Letter shall be kept, sealed, at the
offices of Morgan, Lewis & Bockius LLP, 101 Park Avenue, New York, New
York. The Executive represents and warrants to the Company that the
Toy does not relate in any manner to the now-current present or
anticipated activities of the Company and does not and will not, use,
reflect or in any manner incorporate or in any manner (in form, style
or otherwise) appear in any way similar to any image or pattern
currently or previously used or, to the best knowledge of the
Executive, curently usable by the Company.
When the Executive has an acceptable (as determined in her sole
discretion) prototype of the Toy, she shall deliver such prototype and
the Letter to the Company. The Company shall review the Letter and the
prototype and shall determine, in its sole reasonable discretion, if
they are substantially similar. If they are, the Toy shall be
excluded from the Discoveries and Works subject to this Section 7.
(ii) The Executive may develop, produce and/or distribute kitchen
products for or in connection with Chef-on-the-Go that do not relate
in any manner to the then-current present or anticipated activities of
the Company or its direct or indirect subsidiaries, and do not use,
reflect or in any manner incorporate or in any manner (in form, style
or otherwise) appear in any way similar to any image or pattern then
used or usable by the Company or its direct or indirect subsidiaries.
(iii) The Executive may write, sell or produce books or
stories and retain the copyright to those works so long as they do not
directly relate to the activities of the Company. If, during the term
of this Agreement the Executive writes books or stories which relate
to the activities of the Company and/or may be effectively combined
with the images owned by the Company, the Executive agrees to present
them to the Company. If the Company wishes to publish such works, the
Executive will retain the copyright but will give the Company an
assignable, royalty-free
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license-to-use for a period of five years, or two years after the
termination of this Employment Agreement, whichever is longer. If,
t that time, the Company is still publishing the work, the Executive
agrees to negotiate a reasonable royalty based on market rates. The
Executive further agrees to assist in obtaining copyright registration
for the works so that the Company and/or the Executive can protect
such work from infringement. If the Company chooses not to publish
the work offered to it, the Company agrees to reasonably consider
whether publication of the work directly competes with the Company
or could in some way adversely affect its revenues and if ti does not,
will agree to allow the Executive to seek other means of publication,
should the Executive so desire. Two years after the termination of
this Employment Agreement, the Company will not retain any rights of
approval.
8. Termination.
(a) The Company or the Executive may terminate this Agreement,
with or without cause or for "EBITDA cause", with or without prior notice.
Except as provided in Sections 8(b) and 18, in the event the Company or the
Executive terminates this Agreement, the Executive's rights and the obligations
of the Company hereunder shall cease as of the effective date of the
termination, including, without limitation, the right to receive the Base
Salary, and all other compensation or benefits provided for in this Agreement.
(b) In the event the Company terminates this Agreement without
"cause" or for "EBITDA cause" or in the event that the Executive terminates
this Agreement upon notice for "Good Reason", and for so long as the
Executive continues to observe and perform the covenants contained in
Sections 5, 6, 7, 11, 12 and 13 of this Agreement, the Executive shall be
entitled to continue to receive payments of her Base Salary, subject to
applicable statutory deductions and withholdings and payable at such times
and in such amounts as if this Agreement were not terminated, and to the
continued provision of benefits referred to in Section 4(c), for the one year
period following such termination. All other compensation and benefits
provided for in Section 4 of this Agreement shall cease upon such
termination.
For purposes of this Agreement, "cause" shall mean (i) the willful
failure of the Executive to follow the directions of the Company (other than any
such failure resulting from her incapacity due to physical or mental illness or
disability which is subject to the provisions of Section 9), after written
notice of such failure from the Board of Directors and a 10-day opportunity to
cure, (ii) any act of fraud or dishonesty, misappropriation or embezzlement,
wilful misconduct or gross negligence in connection with the performance of the
Executive's duties hereunder, (iii) a breach by the Executive of any material
provision hereof or of any material contractual or material legal duty to the
Company (including, but not limited to, the unauthorized disclosure of Trade
Secrets or other Confidential Information, non-compliance with the written
policies, guidelines and procedures of the Company), after written notice
thereof from the Board of Directors and a 30-day opportunity to cure in the
event that such breach was not wilful, (iv) the conviction of the Executive of
the commission of a crime or offense involving moral turpitude (including
pleading guilty or no contest
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to such a crime or offense or a lesser charge which results from plea
bargaining) which results in the imprisonment of the Executive, whether or
not committed in connection with the business of the Company, (v) breach by
the Executive of the provisions of any stockholders agreement or other
agreement relating to the Executive's acquisition of an equity interest in
the Company to which the Executive may become a party on or after the date
hereof.
For purposes of this Agreement, "EBITDA cause" shall mean (i) the
failure of the Company to achieve EBITDA (as defined in the Asset Purchase
Agreement) of at least One Million Dollars ($1,000,000.00) in any one fiscal
year or (ii) the failure of the Company to achieve average EBITDA (as defined in
the Asset Purchase Agreement) of at least One Million Five Hundred Thousand
Dollars ($1,500,000.00) in any two consecutive fiscal years.
For purposes of this Agreement, "Good Reason" shall mean (i) the
Company changes the Executive's status, title or position as an officer of the
Company and such change represents a material reduction in such status, title or
position conferred hereunder, and/or (ii) the Company changes its principal
location of business or Employee's place of employment, without Employee's
consent, from the Denver, Colorado area. If the Executive terminates this
Agreement for "Good Reason", her notice thereof shall include the specific
section of this Agreement which was relied upon and the reason that the Company
act has given rise to her termination for Good Reason.
(c) In the event the Company terminates this Agreement for cause
or the Executive terminates this Agreement (other than for Good Reason), the
Executive's rights hereunder shall cease as of the effective date of the
termination, including, without limitation, the right to receive the Base
Salary, and all other compensation or benefits provided for in this Agreement.
9. Disability; Death.
(a) If, prior to the expiration of the Employment Period or the
termination of this Agreement, the Executive shall be unable to perform her
duties by reason of mental or physical disability for at least one-hundred
eighty (180) consecutive days or any one-hundred eighty (180) days (whether or
not consecutive) in any three-hundred sixty (360) consecutive day period, the
Company shall have the right to terminate this Agreement and the remainder of
the Employment Period by giving written notice to the Executive to that effect.
Immediately upon the giving of such notice, the Employment Period shall
terminate.
(b) Upon termination of this Agreement pursuant to Section 9(a),
the Executive shall be entitled to continue to receive payments of her Base
Salary, subject to applicable statutory deductions and withholdings and payable
at such times and in such amounts as if this Agreement were not terminated, for
the six-month period following such termination; provided, however, that any
such payments shall be offset by the amount of all proceeds of disability
insurance maintained for the Executive as an employee benefit from the Company
paid to the Executive. In the event of a dispute as to whether the Executive is
disabled within the meaning of Section 9(a), either party may from time to time
request a medical examination of the Executive by a doctor
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appointed by the Chief of Staff of a hospital selected by mutual agreement of
the parties, or as the parties may otherwise agree, and the written medical
opinion of such doctor shall be conclusive and binding upon the parties as to
whether the Executive has become disabled and the date when such disability
arose. The cost of any such medical examination shall be borne by the
Company. If, prior to the expiration of the Employment Period or the
termination of this Agreement, the Executive shall die, the Employment Period
shall terminate without further notice. The Executive's estate shall be
entitled to continue to receive payments of her Base Salary, subject to
applicable statutory deductions and withholdings and payable at such times
and in such amounts as if this Agreement were not terminated, for the
six-month period following such termination; provided, however, that any such
payments shall be offset by the amount of all proceeds of life insurance
maintained for the Executive as an employee benefit from the Company paid to
the Executive's estate.
10. No Conflicts. The Executive represents to the Company that the
execution, delivery and performance by the Executive of this Agreement do not
conflict with or result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default under any contract, agreement
or understanding, whether oral or written, to which the Executive is a party or
of which the Executive is or should be aware.
11. Non-Competition. From and after the Commencement Date, the
Executive will not, except pursuant to the terms hereof, directly or indirectly,
own, manage, operate, join, finance, control or participate in the ownership,
management, operation or control of, or be employed or engaged by or be
otherwise connected in any manner with, any business under a name similar to the
name of any of the Company or any direct or indirect subsidiary thereof. Prior
to the termination of the Executive's employment hereunder and for a period
after any such termination or expiration of this Agreement equal to the greater
of (i) twelve (12) months and (ii) the balance of the then existing Employment
Period (as if this Agreement were not terminated), the Executive will not
(except as an officer, director, employee, agent or consultant of the Company)
directly or indirectly, own, manage, operate, join, or have a financial interest
in, control or participate in the ownership, management, operation or control
of, or be employed as an employee, agent or consultant, or in any other
individual or representative capacity whatsoever, or use or permit her name to
be used in connection with, or be otherwise connected in any manner with (i) any
business or enterprise engaged (wherever located) in the design, development,
manufacture, distribution or sale of any products, or the provision of any
services, which the Company or its direct or indirect subsidiaries were
designing, developing, manufacturing, distributing, selling or providing at any
time up to an including the date of termination of this Agreement or (ii) any
business which is similar to or competitive with the business carried on or
planned by the Company or its direct or indirect subsidiaries at any time during
the period of the Executive's employment by the Company, whether during or prior
to the Employment Period, unless the Executive shall have obtained the prior
written consent of the Board of Directors, provided that the foregoing
restriction shall not be construed to prohibit the ownership by the Executive of
not more than one percent (1%) of any class of securities of or of the aggregate
principal outstanding indebtedness of any corporation which is engaged in any of
the foregoing businesses, that is registered pursuant to the Securities Exchange
Act of 1934, which securities are publicly owned and regularly traded on any
national exchange or in the over-the-
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counter market, provided further, that such ownership represents a passive
investment and that neither the Executive nor any group of persons including
the Executive in any way, either directly or indirectly, manages or exercises
control of any such corporation, guarantees any of its financial obligations,
otherwise takes part in its business other than exercising her rights as a
shareholder, or seeks to do any of the foregoing.
12. Non-Solicitation. Prior to the termination of the Executive's
employment hereunder and for a period after any such termination or expiration
of this Agreement equal to the greater of (i) twelve (12) months and (ii) the
balance of the then existing Employment Period (as if this Agreement were not
terminated), the Executive agrees, directly or indirectly, whether for her own
account or for the account of any other individual or entity, not to solicit,
divert, appropriate, accept or canvas the trade, business or patronage of, or
sell any products or services which are the same as or similar to those
designed, developed, manufactured, distributed or sold by the Company or its
direct or indirect subsidiaries to, any individuals or entities that were either
customers of the Company or any of its direct or indirect subsidiaries during
the time the Executive was employed by the Company, whether during or prior to
the Employment Period, or prospective customers with respect to whom a sales
effort, presentation or proposal was made by the Company or any of its direct or
indirect subsidiaries during the twelve months preceding the date of termination
or expiration, as the case may be. The Executive further agrees that prior to
the termination of the Executive's employment hereunder and for a period of two
years thereafter, she shall not, directly or indirectly, (i) solicit, induce,
enter into any agreement with, or attempt to influence any individual who is
then currently or was an employee or consultant of the Company or any of its
direct or indirect subsidiaries at any time during the time the Executive was
employed by the Company, whether during or prior to the Employment Period, to
terminate his or her employment relationship with the Company or any of its
direct or indirect subsidiaries or to become employed by the Executive or any
individual or entity by which Executive is employed or (ii) interfere in any
other way with the employment, or other relationship, of any employee or
consultant of the Company or any of its direct or indirect subsidiaries.
13. Enforcement. (a) The Executive agrees that the remedies at law
for any breach or threat of breach by her of any of the provisions of Sections
5, 6, 7, 11 and 12 hereof will be inadequate, and that, in addition to any other
remedy to which the Company may be entitled at law or in equity, the Company
shall be entitled to a temporary or permanent injunction or injunctions or
temporary restraining order or orders to prevent breaches of the provisions of
Sections 5, 6, 7, 11 and 12 hereof and to enforce specifically the terms and
provisions thereof, in each case without the need to post any security or bond.
Nothing herein contained shall be construed as prohibiting the Company from
pursuing, in addition, any other remedies available to the Company for such
breach or threatened breach. A waiver by the Company of any breach of any
provision hereof shall not operate or be construed as a waiver of a breach of
any other provision of this Agreement or of any subsequent breach by the
Executive.
(b) It is expressly understood and agreed that although the Company
and the Executive consider the restrictions contained in Sections 5, 6, 7, 11
and 12 hereof to be reasonable
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for the purpose of preserving the goodwill, proprietary rights and going
concern value of the Company, if a final judicial determination is made by a
court having jurisdiction that the time or territory or any other restriction
contained in such Sections 5, 6, 7, 11 and 12 is an unenforceable restriction
on the Executive's activities, the provisions of such Sections 5, 6, 7, 11
and 12 shall not be rendered void but shall be deemed amended to apply as to
such maximum time and territory and to such other extent as such court may
judicially determine or indicate to be reasonable. Alternatively, if the
court referred to above finds that any restriction contained in Sections 5,
6, 7, 11 or 12 or any remedy provided herein is unenforceable, and such
restriction or remedy cannot be amended so as to make it enforceable, such
finding shall not affect the enforceability of any of the other restrictions
contained therein or the availability of any other remedy. The provisions of
Sections 5, 6, 7, 11 and 12 shall in no respect limit or otherwise affect the
Executive's obligations under other agreements with the Company.
14. Assignment. The rights and obligations of the parties under this
Agreement shall not be assignable by either the Company or the Executive,
provided that this Agreement is assignable by the Company to any affiliate of
the Company, to any successor in interest to any business of the Company, or to
a purchaser of all or substantially all of the assets of any business of the
Company.
15. Notices. Any notice required or permitted under this Agreement
shall be deemed to have been effectively made or given if in writing and
personally delivered, mailed properly addressed in a sealed envelope, postage
prepaid by certified or registered mail, delivered by a reputable overnight
delivery service or sent by facsimile. Unless otherwise changed by notice,
notice shall be properly addressed to the Executive if addressed to:
Kea Bardeen
201 South Franklin Street
Denver, CO 80209
with a copy to:
Moye, Giles, O'Keefe, Vermeire & Gorrell LLP
1225 Seventeenth Street # 2900
Denver, CO 80202
Attention: John E. Moye, Esq.
and properly addressed to the Company if addressed to:
Pumpkin Ltd.
427 East Bayaud
Denver, CO 80209
Attention: President and Chief Executive Officer
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with a copy to:
Capital Partners, Inc.
One Pickwick Plaza
Suite 310
Greenwich, CT 06830
Attention: Calvin Neider
with a copy to:
Morgan Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178
Attention: Christopher T. Jensen, Esq.
16. Severability. Wherever there is any conflict between any
provision of this Agreement and any statute, law, regulation or judicial
precedent, the latter shall prevail, but in such event the provisions of this
Agreement thus affected shall be curtailed and limited only to the extent
necessary to bring them within the requirements of the law. In the event that
any provision of this Agreement shall be held by a court of proper jurisdiction
to be indefinite, invalid, void or voidable or otherwise unenforceable, the
balance of the Agreement shall continue in full force and effect unless such
construction would clearly be contrary to the intentions of the parties or would
result in an unconscionable injustice.
17. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
18. Effect of Termination. Notwithstanding anything to the contrary
contained herein, if this Agreement or the Executive's employment is validly
terminated pursuant to Section 8 or Section 9 or expires by its terms, the
provisions of Sections 5, 6, 7, 11, 12, 13, 14, 16 and 19 shall continue in full
force and effect.
19. Miscellaneous; Choice of Law. This Agreement constitutes the
entire agreement, and supersedes all prior agreements, of the parties hereto
relating to the subject matter hereof, and there are no written or oral terms or
representations made by either party other than those contained herein. This
Agreement shall be governed by and construed in accordance with the domestic
laws of the State of Colorado, without giving effect to any choice of law or
conflict of law provision or rule (whether of the State of Colorado or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Colorado, except to the extent that the General
Corporation Law of the State of Delaware (the "GCL") applies as a result of the
Company being incorporated in the State of Delaware, in which case such GCL
shall apply.
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IN WITNESS WHEREOF, the parties have executed this Employment
Agreement as of the day and year first above written.
PUMPKIN LTD.
By: /s/ Calvin Neider
---------------------------------
Name: Calvin Neider
Title: Vice President
/s/ Kea Bardeen
---------------------------------
Kea Bardeen