EXHIBIT 10.7
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT dated as of , 1996 is
by and between Illuminated Media Inc., a Minnesota corporation (the
"Company"), and , a Minnesota resident (the "Executive").
Whereas, the Company desires to employ the Executive in the
capacity of ; and
Whereas, the Executive possesses certain unique skills, talents,
contacts, judgment and knowledge of the Company's businesses, strategies,
ethics and objectives; and
Whereas, in order to provide for continuity in the executive
management of the Company, which continuity is deemed to be vital to the
continued growth and success of the Company, and in order that the
Company may continue to avail itself of the unique skills, talents, contacts,
judgment and knowledge of Executive, the Company desires to ensure the
retention of Executive in the employ of the Company; and
Whereas, the Executive desires to be assured of a secure tenure with
the Company, duties and responsibilities commensurate with Executive's
education, experience and background, and salary, bonus, incentive
compensation and other benefits and perquisites at levels that reflect
Executive's anticipated future contributions to the Company;
In consideration of the foregoing premises and the parties' mutual
covenants and undertakings contained in this Agreement, the Company and
Executive agree as follows:
ARTICLE I. DEFINITIONS
Capitalized terms used in this Agreement shall have their defined
meaning throughout the Agreement. The following terms shall have the
meanings set forth below, unless the context clearly requires otherwise.
1.1 "Agreement" means this Executive Employment Agreement,
as from time to time amended.
1.2 "Base Salary" means the total annual cash compensation
payable on a regular periodic basis, without regard to voluntary or mandatory
deferrals, as set forth at paragraph 3.1 of this Agreement.
1.3 "Beneficiary" means the person or persons designated in
writing to the Company by Executive to receive benefits payable after
Executive's death pursuant to paragraph 3.5 of this Agreement. In the absence
of such designation or in the event that all of the persons so designated
predecease Executive, Beneficiary means the executor, administrator or
personal representative of Executive's estate.
1.4 "Board" means the Board of Directors of the Company.
1.5 "Cause" has the meaning set forth at paragraph 4.2 of this
Agreement.
1.6 "Company" means all of the following, jointly and
severally:
(a) Illuminated MediaInc.; (b) any Subsidiary; and (c) any Successor.
1.7 "Confidential Information" means information that is
proprietary to the Company or proprietary to others and entrusted to the
Company, whether or not trade secrets. Confidential Information includes,
but is not limited to, information relating to business plans and to business
as conducted or anticipated to be conducted, and to past or current or
anticipated products. Confidential Information also includes, without
limitation, information concerning research, development, purchasing,
accounting, marketing, selling and services. All information that Executive
has a reasonable basis to consider confidential is Confidential Information,
whether or not originated by Executive and without regard to the manner in
which Executive obtains access to this and any other proprietary information.
1.8 "Date of Termination" has the meaning set forth at paragraph
4.6(b) of this Agreement.
1.9 "Disability" means the unwillingness or inability of Executive
to perform Executive's duties under this Agreement because of incapacity due
to physical or mental illness, bodily injury or disease for a period of twelve
(12) months.
1.10 "Good Reason" has the meaning set forth at paragraph 4.3 of
this Agreement.
1.11 "Notice of Termination" has the meaning set forth at paragraph
4.6(a) of this Agreement.
1.12 "Plan" means any bonus or incentive compensation
agreement, plan, program, policy or arrangement sponsored, maintained or
contributed to by the Company, to which the Company is a party or under
which employees of the Company are covered, including,without limitation,
any stock option, restricted stock or any other equity-based compensation
plan, annual or long-term incentive (bonus) plan, and any employee benefit
plan, such as a thrift, pension, profit sharing, deferred compensation, medical,
dental, disability, accident, life insurance, automobile allowance, perquisite,
fringe benefit, vacation, sick or parental leave, severance or relocation plan
or policy or any other agreement, plan, program, policy or arrangement
intended to benefit employees or executive officers of the Company.
1.13 "Subsidiary" means any corporation at least a majority of
whose securities having ordinary voting power for the election of directors
(other than securities having such power only by reason of the occurrence of
a contingency) is at the time owned by the Company and/or one (1) or more
Subsidiaries.
1.14 "Successor" has the meaning set forth at paragraph 7.2 of this
Agreement.
ARTICLE II. EMPLOYMENT DUTIES AND TERM
2.1 Employment. Upon the terms and conditions set forth in this
Agreement, the Company hereby employs Executive, and Executive accepts
such employment as of the Company. Except as expressly
provided herein, termination of this Agreement by either party or by mutual
agreement of the parties shall also terminate Executive's employment by the
Company.
2.2 Duties. During the term of this Agreement, and excluding
any periods of vacation, sick, disability or other leave to which Executive
is entitled, Executive agrees to devote, reasonable attention and time
during normal business hours to the business and affairs of the Company
to the extent necessary to discharge the responsibilities assigned to
Executive hereunder and in the Company's bylaws, as amended from time
to time, to use Executive's reasonable best efforts to perform faithfully and
efficiently such responsibilities.
2.3 Certain Proprietary and/or Confidential Information. If
Executive possesses any proprietary and/or confidential information of
another person or entity as a result of prior employment or professional
relationship, Executive shall honor any legal obligation that Executive has
with that person or entity with respect to such proprietary and/or confidential
information.
2.4 Term. Subject to the provisions of Article IV, the term of
employment of Executive under this Agreement shall continue until
2.5 Return of Proprietary Property. Executive agrees that all
property in Executive's possession belonging to Company, including without
limitation, all documents, reports, manuals, memoranda, computer print-outs,
customer lists, credit cards, keys, identification, products, access cards,
automobiles and all other property relating in any way to the business of the
Company are the exclusive property of the Company, even if Executive
authored, created or assisted in authoring or creating, such property.
Executive shall return to the Company all such documents and property
immediately upon termination of employment or at such earlier time as the
Company may reasonably request.
ARTICLE III. COMPENSATION, BENEFITS AND EXPENSES
3.1 Base Salary. Subject to paragraph 4.7(a), during the term of
Executive's employment under this Agreement and for as long thereafter as
required pursuant to Article IV, the Company shall pay Executive a Base
Salary at an annual rate that is not less than Dollars or such
other annual rate as may from time to time be approved by the Board, such
Base Salary to be paid in substantially equal regular periodic payments in
accordance with the Company's regular payroll practices. If Executive's Base
Salary is increased from time to time during the term of Executive's
employment under this Agreement, the increased amount shall become the
Base Salary for the remainder of the term and any extensions of Executive's
term of employment under this Agreement and for as long thereafter as
required pursuant to Article IV, subject to any subsequent increases.
3.2 Other Compensation and Benefits. During the term of
Executive's employment under this Agreement and for as long thereafter as
required pursuant to Article IV, the Company shall continue in full force and
effect all Plans in which Executive becomes entitled to participate and
thereafter the Company shall take no action adversely affecting Executive's
continued participation in any such Plans on at least as favorable a basis to
Executive as on the date as of which Executive first becomes entitled to
participate in such Plan, or which would materially reduce Executive's
benefits in the future under any such Plans or deprive Executive of any
material benefit enjoyed by Executive as of the date of this Agreement or the
date as of which Executive first becomes entitled to participate in such Plan,
as the case may be. Executive shall be entitled to participate in or receive
benefits under any Plan made available by the Company in the future to its
executives and key management employees, subject to and on a basis
consistent with the terms, conditions and overall administration of such
Plans. Nothing paid to Executive under any Plan made available in the future
shall be deemed to be in lieu of the Base Salary, bonuses, incentives or
compensation of any other nature otherwise payable to Executive.
3.3 Vacation. For each 12-month period during the term of
Executive's employment under this Agreement, Executive shall be entitled
to twenty (20) vacation days. The time or times at which such vacation
days are to be taken shall be reasonably determined by Executive
consistent with Executive's duties and obligations under this Agreement.
3.4 Business Expenses. During the term of Executive's
employment under this Agreement and for as long thereafter as required
pursuant to Article IV, the Company shall, in accordance with, and to the
extent of, its uniform policies in effect from time to time, bear all ordinary
and necessary business expenses incurred by Executive in performing
Executive's duties as an executive officer of the Company, including, without
limitation, all travel and living expenses while away from home on business
in the service of the Company, social and civic club membership and
participation expenses and entertainment expenses, provided that Executive
accounts promptly for such expenses to the Company in the manner
reasonably prescribed from time to time by the Company.
3.5 Death Benefits. If Executive dies during the term of
Executive's employment under this Agreement, in addition to any death
benefits payable to Executive's Beneficiary pursuant to any Plan, the
Company shall pay to Executive's Beneficiary a monthly benefit in the
amount of for a period of twelve (12) consecutive months
commencing with the month first following the month during which
Executive dies.
3.6 Status of Interest. To the extent that Executive or any other
person acquires a right to receive payments pursuant to paragraph 3.5, such
right shall be no greater than the right of any unsecured general creditor of
the Company.
3.7 Future Grant of Options. Conditioned on Executive remaining
employed by the Company, the Company shall grant to Executive options to
acquire shares of the Company's common stock, par value $.01 per share.
Such options shall be granted pursuant to the Company's Corporate Stock
Option Plan under a stock option agreement to be entered into between
Executive and the Company simultaneously with the execution of this
Agreement.
ARTICLE IV. EARLY TERMINATION
4.1 Early Termination. Subject to the respective continuing
obligations of the parties pursuant to Article V, this Article IV sets forth the
terms for early termination of Executive's employment under this Agreement.
4.2 Termination by the Company for Cause. The Company may
terminate this Agreement for Cause. For purposes of this Agreement,
"Cause" means (a) an act or acts of personal dishonesty taken by Executive
and intended to result in substantial personal enrichment of Executive at the
expense of the Company, (b) repeated violations by Executive of his
obligation under paragraph 2.2 which are demonstrably willful and deliberate
on Executive's part and are not remedied within a reasonable period after
Executive's receipt of notice of such violation from the Company or (c) the
willful engaging by Executive in illegal conduct that is materially
demonstrably injurious to the Company. For purposes of this paragraph 4.2,
no act, or failure to act, on Executive's part shall be considered "dishonest,"
"willful" or "deliberate" unless done, or omitted to be done, by Executive in
bad faith and without reasonable belief that Executive's action or omission
was in, or not opposed to, the best interest of the Company. Any act, or
failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or based upon the advice of counsel for the Company
shall be conclusively presumed to be done, or omitted to be done, by
Executive in good faith and in the best interests of the Company.
Notwithstanding.the foregoing, Executive shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to
Executive a copy of a resolution duly adopted by the affirmative vote of not
less than one-half of the entire membership of the Board at a meeting of the
Board called and held for the purpose (after reasonable notice to Executive
and an opportunity for Executive, together with Executive's counsel to be
heard before the Board), finding that in the good faith opinion of the Board,
Executive was guilty of the conduct set forth above in this paragraph 4.2 and
specifying the particulars thereof in detail.
4.3 Termination by Executive for Good Reason. Executive may
terminate Executive's employment under this Agreement for Good Reason
in accordance with the ensuing provisions of this paragraph 4.3. Termination
by Executive for "Good Reason" shall mean termination of employment
based on any one or more of the following:
(a) An adverse change in Executive's status or position as an
executive officer of the Company, including, without
limitation, any adverse change in Executive's status or
position as a result of a material diminution in Executive's
duties, responsibilities or authority as of the date of this
Agreement (or any status or position to which Executive may
be promoted after the date hereof) or the assignment to
Executive of any duties or responsibilities which, in
Executive's reasonable judgment, are inconsistent with
Executive's status or position, or any removal of Executive
from or any failure to reappoint or reelect Executive to such
positions (except in connection with the termination of
Executive's employment for Cause in accordance with
paragraph 4.2 hereof or Disability or death in accordance with
paragraph 4.4 hereof); or
(b) A reduction by the Company in Executive's Base Salary as in
effect under this Agreement or as the same may be increased
from time to time or a change in the eligibility requirements
or performance criteria under any Plan under which Executive
is covered under this Agreement, which adversely affects
Executive; or
(c) Without replacement by a Plan providing benefits to
Executive equal to or greater than those discontinued, the
failure by the Company to continue in effect, within its
maximum stated term, any Plan in which Executive is
participating or the taking of any action by the Company that
would adversely affect Executive's participation or materially
reduce Executive's benefits under any Plan; or
(d) The taking of any action by the Company that would
materially adversely affect the physical conditions in or under
which Executive performs his employment duties; or
(e) The Company requiring Executive to be based anywhere
other than where Executive's office is located as of the date
of this Agreement, except for required travel on the
Company's business to an extent substantially consistent
with the business travel obligations of executives similarly
employed in the advertising industry; or
(f) The failure by the Company to obtain from any Successor the
assent to this Agreement contemplated by paragraph 7.2; or
(g) Any purported termination by the Company of this
Agreement or the employment of the Executive by the
Company which is not expressly authorized by this
Agreement or any breach of this Agreement by the Company
other than an isolated, insubstantial and inadvertent failure
not occurring in bad faith and which is remedied by the
Company within a reasonable period after the Company's
receipt of notice thereof from the Executive; or
4.4 Termination in the Event of Death or Disability. The term of
Executive's employment under this Agreement shall terminate in the event
of Executive's death or Disability.
4.5 Termination by Mutual Agreement. The parties may
terminate Executive's employment under this Agreement at any time by
mutual written agreement.
4.6 Notice of Termination; Date of Termination; Offer of
Continued Employment. The provisions of this paragraph 4.6 shall apply in
connection with any early termination of Executive's employment under this
Agreement pursuant to this Article IV:
(a) For purposes of this Agreement, a "Notice of Termination"
shall mean a notice which shall indicate the specific
termination provisions in this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances
claimed to provide the basis for such termination. Any
purported termination by the Company or by Executive
pursuant to this Article IV (other than a termination by mutual
agreement pursuant to paragraph 4.5 or death) shall be
communicated by written Notice of Termination to the other
party hereto.
(b) For purposes of this Agreement, "Date of Termination" shall
mean: (1) if Executive's employment is terminated due to
death, the last day of the month first following the month
during which Executive's death occurs; (2) if Executive's
employment is to be terminated for Disability, thirty (30)
calendar days after Notice of Termination is given; (3) if
Executive's employment is terminated by the Company for
Cause or by Executive for Good Reason, the date specified in
the Notice of Termination; (4) if Executive's employment is
terminated by mutual agreement of the parties, the date
specified in such agreement; or (5) if Executive's employment
is terminated for any other reason, the date specified in the
Notice of Termination, which in no event shall be a date
earlier than ninety (90) calendar days after the date on which
a Notice of Termination is given, unless an earlier date has
been expressly agreed to by Executive in writing either in
advance of, or after, receiving such Notice of Termination;
provided, however, if within thirty (30) calendar days after
giving of a Notice of Termination the recipient of the Notice
of Termination notifies the other party that a dispute exists
concerning the termination, then the Date of Termination
shall be the date on which the dispute is finally determined,
whether by mutual written agreement of the parties, by final
and binding arbitration or by final judgment, order or decree
of a court of competent jurisdiction (the time for appeal
therefrom having expired or no appeal having been
perfected). During the pendency of any such dispute and until
the dispute is resolved in the manner provided in the
immediately preceding sentence, the Company will continue
to pay Executive all compensation and benefits to which he
was entitled pursuant to Article III immediately prior to the
time the Notice of Termination was given.
(c) If this Agreement is terminated other than by reason of (1) the
expiration of the term hereof as described at paragraph 2.4,
(2) Executive's Disability or death, (3) Executive's
termination for Cause pursuant to paragraph 4.2 which
termination for Cause has been agreed to by Executive or has
been determined in a proceeding as provided in paragraph 7.3
to have been proper or (4) by mutual agreement of the parties
pursuant to paragraph 4.5, Executive may, but shall not be
required to, not later than ten (10) days after the Date of
Termination, provide a written offer of continued
employment with the Company in accordance with the terms
of this Agreement which terms shall, in the case of a
termination by Executive for Good Reason pursuant to
paragraph 4.3, include the Company taking any such steps as
may be necessary to eliminate in a manner reasonably
satisfactory to Executive any conditions which created such
good reason for such termination. Within ten (10) days of its
receipt of such offer, the Company shall provide Executive
with a written acceptance or rejection of such offer. Failure
of the Company to so accept or reject such offer within such
period shall be deemed to be a rejection of such offer. The
parties hereby acknowledge that Executive's failure to provide
such offer to the Company shall in no way impair, affect or
constitute a waiver of Executive's right to enforce the
Company's obligations under this Agreement and the
Company shall not assert such failure as a defense in any
action or proceeding by Executive to enforce the Company's
obligation under this Agreement.
4.7 Compensation upon Termination, Death or During Disability.
(a) During any period that Executive fails to perform Executive's
duties hereunder as a result of incapacity due to physical or
mental illness, Executive shall continue to receive all Base
Salary and other compensation and benefits to which
Executive is otherwise entitled under this Agreement and any
Plan until Executive's Date of Termination.
(b) If Executive's employment under this Agreement is
terminated on account of Disability or death, the Company
shall, within ten (10) calendar days following the Date of
Termination, pay any amounts due to Executive for Base
Salary through the Date of Termination, together with any
other unpaid and pro rata amounts to which Executive is
entitled as of the Date of Termination pursuant to Article IV
hereof, including, without limitation, amounts to which
Executive is entitled under any Plan in accordance with the
terms of such Plan, and further, including, without limitation,
a pro rata portion (prorated through the Date of Termination)
of any annual or long-term bonus or incentive payments (for
performance periods in effect at the Date of Termination) to
which Executive would have been entitled had Executive
remained continuously employed through the end of such
performance periods and continued to perform Executive's
duties in the same manner as performed immediately prior to
the Executive's death or Disability.
(c) If Executive's employment under this Agreement is
terminated by the Company for Cause or by Executive for
other than Good Reason, the Company shall pay Executive
the Base Salary through the Date of Termination and any
amounts to which the Executive is entitled under any Plan in
accordance with the terms of such Plan. The Company shall
also pay any retirement benefits to which Executive is or
becomes entitled pursuant to paragraph 3.5 of this Agreement.
(d) If Executive's employment under this Agreement is
terminated by the mutual agreement of the parties under
paragraph 4.5, the Company shall provide Executive with the
payments and benefits specified in the agreement.
(e) If, in breach of this Agreement, the Company terminates
Executive's employment hereunder (it being understood that
a purported termination for Disability or for Cause which is
disputed and may be determined not to have been proper shall
be a termination by the Company in breach of this
Agreement) or if Executive terminates his employment
hereunder for Good Reason for the unexpired term of this
Agreement as determined in accordance with paragraph 2.4,
unless earlier terminated pursuant to paragraph 4.4 or
paragraph 4.5, the Company shall, as damages for such
breach:
(1) continue to pay any amounts due to Executive for
Base Salary in accordance with paragraph 3.1. at the
annual rate in effect thereunder immediately prior to
the Date of Termination (but determined without
regard to any purported reduction in Base Salary
which gave rise to such termination of employment)
in the same manner as if Executive had remained
continuously employed throughout the period
described above;
(2) cause Executive's continued participation in all Plans
in accordance with paragraph 3.2 of this Agreement as
if Executive remained continuously employed with
the Company throughout the period described above
for all purposes, including without limitation grants,
awards, accruals and vesting thereunder; provided,
that, if such continued participation is not permissible
under applicable law, the Company shall provide
Executive with benefits substantially similar to those
to which Executive would have been entitled under
those Plans in which Executive's continued
participation is not permissible;
(3) continue to (i) provide Executive with paid vacation
in accordance with paragraph 3.3 of this Agreement,
and (ii) bear business expenses of Executive in
accordance with paragraph 3.4 with respect to matters
reasonably undertaken by Executive on behalf of the
Company, and in the same manner as if Executive had
remained continuously employed throughout the
period described above; and
(4) pay any retirement and death benefits to which
Executive is or became entitled pursuant to paragraph
3.5 of this Agreement.
(f) Executive shall not be required to mitigate the Company's
payment obligations pursuant to this paragraph 4.7 by making
any efforts to secure other employment for which Executive
is reasonably qualified by education, experience or
background, and Executive's commencement of employment
with another employer shall not reduce the obligations of the
Company pursuant to paragraph 4.7 hereof.
ARTICLE V. CONFIDENTIAL INFORMATION
5.1 Prohibitions Against Use. Executive will not during or
subsequent to the termination of Executive's employment under this
Agreement use or disclose, other than in connection with Executive's
employment with the Company, any Confidential Information to any person
not employed by the Company or not authorized by the Company to receive
such Confidential Information, without the prior written consent of the
Company. Executive will use reasonable and prudent care to safeguard and
protect and prevent the unauthorized use and disclosure of Confidential
Information. The obligations contained in this paragraph 5.1 will survive for
as long as the Company in its sole judgment considers the information to be
Confidential Information. The obligations under this paragraph 5.1 will not
apply to any Confidential Information that is now or becomes generally
available to the public through no fault of Executive or to Executive's
disclosure of any Confidential Information required by law or judicial or
administrative process.
ARTICLE VI. NON-COMPETITION
6.1 Non-Competition. Subject to paragraph 6.2 and 6.3,
Executive agrees that during the term of this Agreement and for a period of
two (2) years following termination of employment for any reason, Executive
will not directly or indirectly, alone or as a partner, officer, director,
shareholder or employee of any other firm or entity, engage in any
commercial activity in competition with any part of the Company's business
as conducted during the term of the Agreement or as of the date of such
termination of employment or with any part of the Company's contemplated
business with respect to which Executive has Confidential Information as
governed by Article V. For purposes of this clause (a), "shareholder" shall
not include beneficial ownership of less than five percent (5%) of the
combined voting power of all issued and outstanding voting securities of a
publicly held corporation whose stock is traded on a major stock exchange
or quoted on NASDAQ.
6.2 Early Termination. Notwithstanding paragraph 6.1, if
Executive's employment terminates under circumstances which entitle him
to receive damages for breach of this Agreement pursuant to paragraph 4.7(e)
and the Company fails to provide Executive with any compensation or
benefits due him pursuant to paragraph 4.7(e) and does not remedy such
failure within ten (10) days after receipt of notice of such failure from
Executive, the restrictions set forth in paragraph 6.1 shall cease to apply to
Executive for the remainder of the period to which such restrictions would
otherwise apply notwithstanding any subsequent remedy of such failure by
the Company.
6.3 Employer's Option to Revise. At its sole option, the Company
may, by written notice to Executive within thirty (30) days after the effective
date of the termination of Executive's employment, waive or limit the time
and/or geographic area in which Executive is prohibited from engaging in
competitive activity.
6.4 Agreement Not to Recruit. Executive recognizes that the
Company's workforce constitutes an important and vital aspect of its business
on a world-wide basis. Executive agrees that for a period of 1 year following
the termination of this Agreement for any reason whatsoever, he shall not
solicit, or assist anyone else in the solicitation of, any of the Company's
then-current employees to terminate their employment with the Company and
to become employed by any business enterprise with which the Executive
may then be associated, affiliated or connected.
ARTICLE VII. GENERAL PROVISIONS
7.1 No Adequate Remedy. Notwithstanding paragraph 4.7, the
parties declare that it is impossible to accurately measure in money the
damages which will accrue to either party by reason of a failure to perform
any of the obligations under this Agreement. Therefore, if either party shall
institute any action or proceeding to enforce the provisions hereof, other than
a claim by Executive for a payment pursuant to paragraph 4.7, the party
against whom such action or proceeding is brought hereby waives the claim
or defense that such party has an adequate remedy at law, and such party shall
not assert in any such action or proceeding the claim or defense that such
party has an adequate remedy at law.
7.2 Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the benefit
of any Successor of the Company and each Subsidiary, and
any such Successor shall absolutely and unconditionally
assume all of the Company's and any Subsidiary's obligations
hereunder. Upon Executive's written request, the Company
will seek to have any Successor, by agreement in form and
substance satisfactory to Executive, assent to the fulfillment
by the Company of their obligations under this Agreement.
Failure to obtain such assent at least three (3) business days
prior to the time a person or entity becomes a Successor (or
where the Company does not have at least three (3) business
days' advance notice that a person or entity may become a
Successor, within one (1) business day after having notice
that such person or entity may become or has become a
Successor) shall constitute Good Reason for termination by
Executive of employment pursuant to paragraph 4.3. For
purposes of this Agreement, "Successor" shall mean any
corporation, individual, group, association, partnership, firm,
venture or other entity or person that, subsequent to the date
hereof, succeeds to the actual or practical ability to control
(either immediately or with the passage of time), all or
substantially all of the Company's business and/or assets,
directly or indirectly, by merger, consolidation,
recapitalization, purchase, liquidation, redemption,
assignment, similar corporate transaction, operation of law or
otherwise.
(b) This Agreement and all rights of Executive hereunder shall
inure to the benefit of and be enforceable by Executive's
personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If
Executive should die while any amounts would still be
payable to Executive hereunder if Executive had continued to
live, all such amounts, unless otherwise provided herein, shall
be paid in accordance with the terms of this Agreement to
Executive's devisee, legatee, or other designee or, if there be
no such designee, to Executive's estate. Executive may not
assign this Agreement, in whole or in any part, without the
prior written consent of the Company.
7.3 Disputes. Any dispute, controversy or claim for damages
arising under or in connection with this Agreement shall, in Executive's sole
discretion, be settled exclusively by such judicial remedies as Executive may
seek to pursue or by arbitration in Minneapolis, Minnesota by a panel of three
(3) arbitrators in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrators' award
in any court having jurisdiction; provided, however, that Executive shall be
entitled to seek specific performance of Executive's right to be paid until the
Date of Termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement. The Company shall bear
all costs and expenses, including attorney's fees, arising in connection with
any arbitration proceeding pursuant to this paragraph 7.3. The Company shall
be entitled to seek an injunction or restraining order in a court of competent
jurisdiction to enforce the provisions of Articles V and VI.
7.4 No Offsets. In no event shall any amount payable to
Executive pursuant to this Agreement be reduced for purposes of offsetting,
either directly or indirectly, any indebtedness or Liability of Executive to the
company.
7.5 Notice. All notices, requests and demands given to or made
pursuant hereto shall, except as otherwise specified herein, be in writing and
be personally delivered or mailed postage prepaid, registered or certified U.S.
mail to any party at its address set forth on the last page of this Agreement.
Either party may, by notice hereunder, designate a changed address. Any
notice hereunder shall be deemed effectively given and received: (a) if
personally delivered, upon delivery; or (b) if mailed, on the registered date
or the date stamped on the certified mail receipt.
7.7 Withholding. To the extent required by any applicable law,
including, without limitation, any federal or state income tax or excise tax
law or laws, the Federal Insurance Contributions Act, the Federal
Unemployment Tax Act or any comparable federal, state or local laws, the
Company retains the right to withhold such portion of any amount or
amounts payable to Executive under this Agreement as the Company (on the
written advice of counsel) deems necessary.
7.8 Captions. The various headings or captions in this Agreement
are for convenience only and shall not affect the meaning or interpretation of
this Agreement.
7.9 Governing Law. The validity, interpretation, construction,
performance, enforcement and remedies of or relating to this Agreement, and
the rights and obligations of the parties hereunder, shall be governed by the
substantive laws of the State of Minnesota (without regard to the conflict of
laws rules or statutes of any jurisdiction), and .any and every legal proceeding
arising out of or in connection with this Agreement shall be brought in the
appropriate courts of the State of Minnesota, each of the parties hereby
consenting to the exclusive jurisdiction of said courts for this purpose.
7.10 Construction. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining portions of this
Agreement.
7.11 Waivers. No failure on the part of either party to exercise, and
no delay in exercising, any right or remedy hereunder shall operate as a
waiver thereof; nor shall any single or
partial exercise of any right or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right or remedy granted
hereby or by any related document or by law.
7.12 Modification. This Agreement may not be modified or
amended except by written instrument signed by the parties hereto.
7.13 Entire Agreement. This Agreement constitutes the entire
agreement and understanding between the parties hereto in reference to all of
the matters herein agreed upon. This Agreement replaces all prior
employment agreements or understandings of the parties hereto, and any and
all such prior agreements or understandings are hereby rescinded by mutual
agreement.
7.14 Counterparts. This Agreement may be executed in one (1) or
more counterparts, each of which shall be deemed to be an original but all of
which together will constitute one (1) and the same instrument.
7.15 Survival. The parties expressly acknowledge and agree that
the provisions of this Agreement which by their express or implied terms
extend beyond the termination of Executive's employment hereunder
(including, without limitation, the provisions of paragraph 3.5 (relating to
death benefits) and 4.7 (relating to compensation) or beyond the termination
of this Agreement (including, without limitation, the provisions of paragraph
5.1 (relating to confidential information) and Article VI (relating to
non-competition)), shall continue in full force and effect notwithstanding
Executive's termination of employment hereunder or the termination of this
Agreement, respectively.
IN WITNESS WHEREOF, the parties hereto have caused this
Executive Employment Agreement to be duly executed and delivered as of
the day and year first above written.
EXECUTIVE: COMPANY
__________________ ILLUMINATED
MEDIA INC., a
Minnesota corporation
By:
_______________________
Chairman of the
Board
Address: Address:
_______________________ _______________________
_______________________ _______________________
_______________________ _______________________