EXHIBIT 10.10
EMPLOYMENT AGREEMENT
1. IDENTIFICATION
This Employment Agreement (the "Agreement"), dated for identification
purposes only March 5, 1998, is entered into by and between Hospitality
Marketing Consultants, LLC, a California limited liability company
("Company") and Philip G. Hirsch, an individual ("Executive").
2. RECITALS
2.1. Company is engaged in the data-based information services
business.
2.2. Executive has special skills and abilities in accounting and
financial management and administration.
2.3. Company desires to employ Executive and Executive is willing to
undertake such employment on the terms and conditions set forth in this
Agreement.
3. EMPLOYMENT, DUTIES AND COVENANTS
3.1. EMPLOYMENT. During the "Term" (as hereinafter defined), (i)
Company shall employ Executive as its Vice President-Finance and
Treasurer/Chief Financial Officer with powers and duties consistent with such
position, and (ii) Company shall also employ Executive, and Executive shall
so serve, in such substitute or additional offices or positions with Company
or any subsidiary or affiliate of Company (consistent with the position named
above) as may, from time to time, be determined by Company's Board of
Directors (the "Board") or President.
3.2. DUTIES. Executive hereby accepts employment in such capacity on
the terms and conditions set forth herein. The powers, duties and
responsibilities to be held or performed by Executive hereunder shall be such
as inhere in the position of Vice President-Finance and Treasurer/Chief
Financial Officer and such other powers, duties and responsibilities as may
be delegated or assigned to Executive by the President or the Board;
provided, however, that such other powers, duties and responsibilities shall
be consistent with Executive's position, experience and level of
compensation.
3.3. PERFORMANCE OF DUTIES. Executive shall discharge the duties
described herein in a diligent and professional manner. Executive shall
render services incidental to his position,
during normal business hours, primarily, at Company's present place of
business in Irvine, California, or at such other premises as may be occupied
by Company or where Company may conduct its business during the Term.
Company agrees that, notwithstanding that Executive may be required to
temporarily travel to other places in the course of performing his duties, in
the absence of Executive's consent, he shall not be required to move his
permanent residence outside of the Southern California area.
3.4. EXTENT OF SERVICES. Executive shall devote his full and
exclusive productive time, energy, effort, attention and ability solely to
the performance of his duties as set forth above, and to the proper and
efficient management and development of the business and operations of
Company. Executive shall perform industriously and to the best of his
ability, experience and talents all of the duties which may be required of
him from time to time, pursuant to the terms hereof, to Company's full and
complete satisfaction. During the Term, Executive shall not engage in any
other occupation, and without Company's prior written consent, Executive
shall not, directly or indirectly, at any time during the Term, render
services of a business, professional or commercial nature to any other
person, firm or entity whether without compensation or for any form of
compensation whatsoever. Notwithstanding the foregoing, Executive may act
for his own account in passive-type investments, or as a member of other
boards of directors, or engage in charitable activities, where the time
allocated for those activities does not materially interfere with the
discharge of his duties for Company.
3.5. COMPANY'S AUTHORITY. Executive shall observe and comply at all
times with the directions of the Board or the President regarding Executive's
performance of his duties and with Company's business policies, rules and
regulations as adopted by the Board. Executive shall carry out and perform
any and all orders, directions, and policies, consistent with Executive's
position, as may be so stated by the Board or President from time to time,
either orally or in writing.
3.6. RESULTS AND PROCEEDS. Company owns all right, title and interest
to all of the results and proceeds arising out of or as a result of all
services performed by Executive on behalf of Company.
3.7. NONSOLICITATION OF GIFTS. Without Company's prior written
consent in each instance, Executive shall not solicit or accept, for himself
or for the benefit of any third party or entity, any contribution, donation,
gift, discount or rebate or the like of material value or in violation of
applicable law from any person, firm or entity with whom Company maintains
any business relationship.
3.8. COMPETITIVE ACTIVITIES PROHIBITED. During the Term, Executive
shall not, directly or indirectly (unless disclosed to Company and approved
by Company in its sole and absolute
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discretion):
3.8.(a) engage in any activity competitive with or adverse to
the business, activities or welfare of Company, whether alone, as an agent,
as a lender, as a general or limited partner of a partnership, as a member or
manager of a limited liability company, or as an officer, director or holder
of the outstanding shares of capital stock of any corporation;
3.8.(b) engage in any conduct or activity which would cause
Company or Executive to be in a position of conflict of interest or cause
Company to be in violation of any law, regulation, policy, statement or rule
of any applicable governmental authority; or
3.8.(c) undertake planning for or organization of any business
activity competitive with Company's business.
4. TERM AND TERMINATION OF AGREEMENT
4.1. TERM OF EMPLOYMENT. Executive's employment under this Agreement
shall be for three (3) years, commencing on April 1, 1998 and ending on March
31, 2001 (the "Term"). The Term shall automatically be extended for one (1)
additional year, unless either Executive or Company gives notice to the other
at least three (3) months prior to expiration of the Term that the Term shall
not be so extended.
4.2. TERMINATION.
4.2.(a) Executive's employment may be terminated without cause
or grounds therefor by Company or Executive upon thirty (30) days' prior
written notice from the terminating party. In addition, Company may
terminate Executive's employment for "Cause" as provided in Section 4.2(b) at
any time without prior notice.
4.2.(b) Company may terminate Executive for "Cause". Any
termination of Executive's employment hereunder shall be deemed to be for
"Cause" if:
4.2.(b)(i) Executive has materially breached a
provision of this Agreement, and if such breach is curable, Executive has
been provided written notice from Company identifying the alleged material
breach, and Executive has failed within ten (10) days thereafter to cure the
material breach;
4.2.(b)(ii) Executive is convicted of or pleads
guilty to a felony charge involving financial misconduct or moral turpitude;
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4.2.(b)(iii) Executive has misappropriated any funds
or property of Company;
4.2.(b)(iv) Executive fails to comply with the
reasonable oral or written directions of the Board or the President
consistent with Executive's position and such failure is not cured within
five (5) days after written notice from Company;
4.2.(b)(v) Executive is incompetent in performing
his assigned duties or responsibilities; or
4.2.(b)(vi) Executive commits any other act or fails
to take any action which a court or arbitrator of competent jurisdiction
could justify as grounds for dismissal for "Cause".
4.3. DEATH. In the event of Executive's death during the Term,
Executive's employment with Company shall terminate.
4.4. DISABILITY. If during the Term of this Agreement Executive
becomes "Totally Disabled" (which for the purposes of this Agreement shall be
deemed to occur if Executive is unable to perform his services and engage in
his regular occupation pursuant to this Agreement due to physical or mental
disability for a period of ninety (90) consecutive days, or for ninety (90)
days during any three hundred sixty five (365) day period, Company shall have
the right to terminate Executive's employment.
4.5. LEGAL OBLIGATIONS FOLLOWING TERMINATION.
4.5.(a) If Executive's employment hereunder is terminated by
Executive as provided in Section 4.2(a) or as provided in Sections 4.2(b),
4.3 or 4.4, then Company shall be liable to pay Executive ONLY the following
amounts: (i) Executive's salary through and including the "Effective Date of
Termination", which for purposes of this Agreement shall be the last day on
which Executive performed services pursuant to the terms of this Agreement,
unless the notice of termination of this Agreement provides for payment
through a later date; (ii) Executive's salary for the pro rata portion of any
vacation to which he was entitled but which he has not taken; (iii)
reimbursement of any expenses previously incurred pursuant to Section 5.4;
and (iv) any benefits to which Executive is actually entitled under Article 5
hereof. If Executive's employment hereunder is terminated prior to the end
of the Term of this Agreement by Company pursuant to Section 4.2(a) or as a
result of Company's material breach, in addition Executive shall be paid the
amount of his annual salary remaining for the balance of the Term of this
Agreement pursuant to Section 5.1, all stock options held by Executive, to
the extent not already vested or exercisable, shall become immediately
exercisable, and Executive shall be
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provided the life insurance, disability insurance and health insurance
benefits pursuant to Section 5.6 for the remainder of the Term. Executive
shall have an obligation to mitigate and seek other employment and the
payments required to be made hereunder shall be offset by any amounts
received in mitigation or as a result of other employment obtained by
Executive. All such benefits shall cease upon Executive obtaining other
employment.
4.5.(b) If Executive's employment is terminated, the vacation
to which Executive would be entitled for his last year of service shall be
prorated. If Executive has already taken more vacation than that to which he
is entitled, Company shall be entitled to offset any sums owed by it to
Executive against the amount of salary received by Executive for the number
of vacation days taken in excess of vacation days which he was entitled to
take.
4.5.(c) The termination of this Agreement and Executive's
employment hereunder shall not affect Executive's right to exercise any
vested stock options in accordance with the terms of Company's Stock Option
Plan, and shall not relieve either party from any liability or damage
directly or indirectly arising out of any breach of or default under this
Agreement or any failure to comply with or perform any obligations under this
Agreement, and termination of Executive's employment shall not affect
Company's rights under Article 6.
5. COMPENSATION AND OTHER BENEFITS
5.1. ANNUAL SALARY. As compensation for services rendered by
Executive to Company, Company shall pay Executive an annual salary in the
amount of One Hundred Seventy-Five Thousand Dollars ($175,000) for each year
of the Term, prorated for any partial period. The annual salary shall be
payable in accordance with Company's regular payroll practices.
5.2. EMPLOYMENT TAXES. All compensation shall be subject to the
customary withholding tax and other employment taxes as required with respect
to compensation paid by a company to an employee.
5.3. BONUS. As additional compensation for services rendered by
Executive to Company, Executive shall receive a bonus of at least
Seventy-Five Thousand Dollars ($75,000) but not more than One Hundred
Thousand Dollars ($100,000), the exact amount of which shall be determined by
the Board in its sole and absolute discretion, and paid within thirty (30)
days following Company's closing of its initial public offering. Company may
pay Executive such other discretionary bonuses as may be determined by the
Board in its sole and absolute discretion.
5.4. EXPENSES. Company and Executive hereby acknowledge that
Executive may be required, during the Term, to incur certain expenses in
connection with his employment
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hereunder including, but not limited to, parking, travel, entertainment, and
other expenses. Company shall reimburse Executive for ordinary and necessary
business expenses incurred by Executive in the performance of his duties
hereunder if such expenses have previously been approved by Company or if
reimbursement is otherwise appropriate in accordance with Company's
established policies and if Company receives such verification thereof as
Company may require.
5.5. LIFE INSURANCE. Executive currently owns a life insurance policy
on his life in the face amount of One Million Dollars ($1,000,000) issued by
Minnesota Mutual Life, Policy No. 50014-G (the "Life Insurance Policy"). The
monthly premium for such Life Insurance Policy is Four Hundred Twenty Dollars
($420). During the Term, Company shall pay the premiums on such Life
Insurance Policy, or shall reimburse Executive if Executive pays such
premiums himself.
5.6. STOCK OPTIONS. Executive understands that Company is currently
in the process of designing and implementing a stock option program for its
executives and employees. Upon adoption of such plan, Company shall grant to
Executive stock options, conditioned on the closing of the Company's initial
public offering, to purchase that number of shares of Common Stock of the
Company which are equal to two percent (2%) of the Company's issued and
outstanding prepublic offering capitalization on a fully diluted basis at the
lowest purchase price for which options are to be granted under the Company's
stock option plan prior to the initial public offering. Twenty percent (20%)
of the stock options granted to Executive will automatically vest and become
exercisable on that date which is ninety (90) days after the commencement
date of the Term. The balance of the stock options shall vest in three (3)
equal cumulative installments on the first anniversary date, second
anniversary date and third anniversary date, respectively, of Executive's
employment hereunder. If, Executive's unvested stock options would be
terminated as a result of a "Change in Control" then, all of Executive's
unvested options, if any, shall become immediately exercisable. For purposes
of this Agreement, the term "Change in Control" means: (a) the obtaining of
control by any person or "group" (other than the persons who own five percent
(5%) or more of the shares of the Company as identified in the Company's
Registration Statement on Form S-1 filed in connection with the Company's
initial public offering) within the meaning of Section 13(d) or Section
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), of beneficial ownership (within the meaning of the Rule 13d-3
promulgated under the Exchange Act), directly or indirectly, of voting
securities of the Company representing 50% or more of the combined voting
power of the Company's then outstanding voting securities entitled to vote
generally in the election of directors; or (b) such time as a majority of the
Board shall be comprised of persons who were not elected to such offices as
part of the "Company nominated slate" of directors (i.e. the slate of
nominees proposed by the Board in office immediately prior to the election;
provided, however, that this clause shall not apply in the event one or more
directors voluntarily
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resign from the Board. All other terms and conditions of Executive's stock
options shall be in accordance with the terms of the Company's stock option
plan.
5.7. OTHER BENEFITS. During the Term of this Agreement, Executive
shall receive such other life insurance, pension, disability insurance,
health insurance, holiday, vacation and sick pay benefits which Company
extends, as a matter of policy, to its executive employees and, except as
otherwise provided herein, shall be entitled to participate in all deferred
compensation and other incentive plans of Company on the same basis as other
like employees of Company. Without limiting the generality of the foregoing,
Executive shall be entitled to three (3) weeks vacation during each year of
the Term of this Agreement, which shall be scheduled in Executive's
discretion, subject to and taking into account the business exigencies of
Company. Unused vacation may be accrued for one (1) year only. Vacation in
excess of two (2) consecutive weeks shall be subject to the reasonable
approval of the Board.
6. TRADE SECRETS; CONFIDENTIALITY
6.1. "CONFIDENTIAL INFORMATION". "Confidential Information" is all
information, data and knowledge of a business, professional or technical
nature relating to Company; its subsidiaries and affiliates; and Company's,
its subsidiaries' and affiliates' business, finances, operations, properties,
services and clients; information which is not generally known outside of
Company or information entrusted to Company by third parties; and includes
information known to Executive as confidential or secret or which Executive
shall have reason to know or reasonably should know is confidential or
secret, to the extent that such information derives potential or actual
independent economic value from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can obtain
economic value from this disclosure or use and is the subject of efforts
reasonable under the circumstances to maintain its secrecy. Confidential
Information may relate, for example, to trade secrets, client lists, clients'
names and requirements, client businesses, client profiles, client finances,
client accounts, employees, business methods, business or marketing plans,
personnel information, credit information, financial information, the names
and locations of vendors and suppliers, equipment, equipment design,
research, development, engineering, manufacturing, purchasing, accounting,
selling, marketing, contractors, compositions, computer software, computer
hardware, technology, research, infrastructures, products, procedures,
calculations, specifications, developments, formulae, compilations,
inventions, designs, plans, databases, database structure, data, accounts,
billing methods, pricing, costs, business methods, systems, plans, internal
affairs, legal affairs, security methods, creative ideas and concepts,
projects, advertising, merchandising techniques and any and all information
entrusted to the Company by third parties. This information may be contained
in materials ("Materials") such as books, records, files, notes, lists,
computer rograms, tapes, cd roms, hard disc and soft disc drive mechanisms,
other mechanisms
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for electronic or digital storage of information, computer printouts, data
input to computers, drawings, documents, data, reports, customer, price and
supplier lists, specifications, or other miscellaneous embodiments, or may be
in the nature of, or consist of, verbal communication or unwritten knowledge,
techniques, formulas, processes, practices or know-how.
6.2. ACKNOWLEDGMENT BY EXECUTIVE. Executive acknowledges that
Company will be required hereunder to make Confidential Information available
to Executive which has been developed at great expense and effort by Company
because knowledge of such Confidential Information will be essential to the
performance of Executive's duties under this Agreement. Executive
recognizes that Company has expert knowledge in its field and that many of
its methods, and much of its know-how is expert and unique and its customer
and potential customer contracts are of substantial commercial value.
Executive further acknowledges, without limiting the generality of the
foregoing, that the identity, business needs, desires and peculiarities of
customers and suppliers of Company constitutes valuable Confidential
Information. Executive also acknowledges that prior to or during his
employment with Company he may be given access to or become acquainted with
Confidential Information. Executive acknowledges that such Confidential
Information is a valuable, special, unique asset of Company's business.
6.3. NO USE OR DISCLOSURE. Without Company's prior written
authorization, Executive shall not communicate, use, divulge, or disclose to
any other person, firm or entity any Confidential Information or any copy,
reproduction or summary thereof, in any manner, at any time, whether during
the Term or after Executive's Employee's employment with Company has
terminated, other than as required by Company in Executive's work for Company.
6.4. RESTRICTION ON REMOVAL AND REPRODUCTION. Executive agrees that
all Confidential Information, and the tangible or intangible embodiments
thereof including, without limitation, all Materials relating to Company's
business, whether or not prepared or conceived by Executive during his
employment with Company or by another, or which may be in Executive's
possession or control, are and shall remain Company's exclusive property, and
Executive shall not copy, summarize or remove from Company's premises such
Confidential Information or Materials in whole or in part at any time prior
to or after termination, except as otherwise permitted by Company in
accordance with Company's rules and regulations. Executive shall not permit
such Confidential Information or Materials to be used in any way for the
benefit of Executive or any other person or business entity. Executive
shall immediately return all such Confidential Information and Materials, and
any and all copies or summaries thereof to Company when they are no longer
required by Executive in order for Executive to perform his services for
Company, when Executive's employment with Company terminates for any reason,
or whenever Company may require that they be returned.
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6.5. OWNERSHIP. Executive acknowledges and agrees that all results
and proceeds of Executive's services hereunder, including all Confidential
Information, Materials, work product and other materials of any kind or
character which Executive has made or conceived, either solely or with
others, during his employment by the Company which are applicable directly or
indirectly to any phase of the Company's business shall automatically become
the Company's sole and exclusive property and the Company shall be the owner
and author thereof. Executive further acknowledges that all such results and
proceeds shall constitute "works made for hire" within the meaning of the
copyright laws of the United States. Executive hereby irrevocably assigns to
the Company all rights, title and interest in and to all such results and
proceeds including, without limitation, all copyrights and patents pertaining
thereto and all renewals, extensions, subdivisions and
continuations-in-interest thereof. Except as required in order to enable
Executive to perform his job duties, no such results and proceeds, Materials
or Confidential Information will be made available by Executive to others
during or following his employment with the Company without the advance
written permission of an officer of the Company.
6.6. NO SOLICITATION. While employed by the Company and for a period
of one (1) year thereafter, without the express prior written approval of an
officer of the Company, Executive shall not: (a) solicit or attempt to
solicit any clients of Company, either for himself or for any other person,
firm or corporation; (b) employ, attempt to employ, entice, encourage or
solicit for employment by others, any of the Company's employees; (c) induce
or attempt to induce a consultant, independent contractor, licensee or other
third party to sever his, her or its relationship with the Company; or (d)
assist any other person, firm or entity in the solicitation of any of the
Company's consultants, independent contractors, licensees, or employees.
6.7. RETURN OF CONFIDENTIAL INFORMATION. Executive shall return
immediately to the Company all Confidential Information and Materials,
including copies, duplicates, summaries or reproductions thereof when he
leaves its employ or whenever Company may otherwise require that such
Confidential Information or Materials be returned.
7. SPECIFIC PERFORMANCE; SURVIVABILITY.
7.1. SPECIFIC PERFORMANCE. Without in any manner limiting the
provisions of Article 6, Executive recognizes and acknowledges that all of
the Confidential Information, as it may exist from time to time, is a
valuable, special and unique trade secret asset of Company. Executive
agrees that the remedy at law for a breach of the covenants contained in
Article 6 is inadequate and that therefore in the event of a breach, or
threatened breach by Executive of the provisions of Article 6, Company shall
be entitled to an injunction or restraining order restraining Executive from
disclosing in whole or in part any Confidential Information, or from
rendering
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any services to any person, firm, corporation, association or other entity to
whom such Confidential Information, in whole or in part, may have been
disclosed or is threatened to be disclosed or from breaching the covenants
contained in Article 6. Nothing herein shall be construed as prohibiting
Company from pursuing any other remedies available to Company for such breach
or threatened breach, including the recovery of damages from Executive. To
the extent permissible by law, Executive specifically waives the necessity
for Company to post bond in any injunctive or similar proceeding, and in any
event, consents to the posting of the smallest bond allowed by law.
7.2. REASONABLENESS OF RESTRICTIONS. Executive acknowledges that
his covenants contained in Article 6 are a material part of the consideration
for this Agreement, are reasonably necessary to protect legitimate interests
of Company, are reasonable in scope and duration and are not unduly
restrictive.
7.3. SURVIVABILITY. All covenants and agreements contained in Article
6 shall survive the termination of this Agreement and Executive's employment
with Company.
80 INDEMNIFICATION
Company shall, to the maximum extent permitted by law, indemnify and
hold Executive harmless from and against all claims, actions, causes of
actions, judgments, liabilities, obligations and expenses, including without
limitation, attorneys' fees, court costs, judgments, fines, settlements, and
other amounts actually incurred arising out of, relating to or in connection
with Executive's employment by Company, his services as an officer of
Company, or the discharge of his duties hereunder; provided, however, that
the foregoing indemnity shall not apply to any activity which is beyond the
scope of his employment or agency authority. Company shall advance to
Executive any expenses incurred in defending any such proceeding to the
maximum extent permitted by law.
90 ARBITRATION
Any controversy or claim arising out of or relating to this Agreement
including, but not limited to, any claim relating to its validity,
interpretation, enforceability or breach, or any other claim or controversy
arising out of the employment relationship or the commencement or termination
of that relationship, including, but not limited to, claims for breach of
covenant, breach of an implied covenant or intentional infliction of
emotional distress, which are not settled by agreement between the parties,
shall be settled by final and binding arbitration to be heard on an expedited
basis by a retired California Superior Court or Appellate Court judge in
Orange County, California in accordance with the employment dispute
resolution rules of the American
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Arbitration Association ("AAA") in effect at the time a claim is filed. In
consideration of each party's agreement to submit to arbitration all disputes
with regard to this Agreement or with regard to any alleged contract or tort
or other claim arising out of the employment relationship or the commencement
or termination of that employment relationship, and in consideration of the
anticipated expedition and the minimizing of expense of this arbitration
remedy, each party agrees that the arbitration provisions of this Agreement
shall provide it with its exclusive remedy and each party expressly waives
any right it might have to seek redress in any other forum except as provided
in Article 7 and Section 10.1. The parties agree that this means that they
are giving up their right to a jury trial and to trial in a court of law in
favor of the right to arbitrate. The parties further agree that the
arbitrators acting hereunder shall be empowered to assess any remedy
including, but not limited to, injunctive orders (including temporary,
preliminary and permanent relief) when appropriate. It is specifically
contemplated and agreed by the parties hereto that discovery may be conducted
by any party pursuant to the provisions of Section 1283.05 of the California
Code of Civl Procedure which are hereby incorporated into, and made a part
of, and made applicable to this Agreement, and the arbitrators shall have the
full power of a Court of the State of California to issue and enforce
subpoenas. A judgment upon any award rendered by the arbitrator may be
entered in any court having jurisdiction. In reaching a decision, the
arbitrator shall be required to apply substantive California and federal law
and, shall have no authority to change, extend, modify or suspend any of the
terms of this Employment Agreement.
100 GENERAL PROVISIONS.
10.1. INJUNCTIVE RELIEF. In the event of a breach by Executive of any
of his undertakings hereunder, Executive agrees that in addition to any other
rights or remedy provided by law or equity, a restraining order or an
injunction may issue against Executive to enforce compliance with this
Agreement.
10.2. NO PERSONAL INTEREST. Executive shall not have any personal
interest, direct or indirect, in any supplier of, or in any transaction
between, any supplier and Company.
10.3. ASSIGNMENT. Neither this Agreement nor any rights or benefits
hereunder shall be subject to execution, attachment or similar process and
Executive may not assign, transfer, pledge or hypothecate this Agreement or
any rights or benefits hereunder without the prior written consent of
Company. Any such assignment, transfer, pledge or hypothecation hereof by
Executive in violation of this provision shall be null, void and of no
effect. Subject to the foregoing, this Agreement and all of the terms and
conditions hereof shall benefit and bind Company and its successors and
assigns and shall benefit and bind Executive and his successors. Company's
rights hereunder shall accrue to the benefit of any person, firm, or
corporation which
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may succeed to its business by merger, purchase of stock or assets, or
otherwise.
10.4. INTEGRATION. Neither of the parties hereto have made any
representations, statements, warranties or other agreements other than those
expressed herein. This Agreement embodies the entire understanding of the
parties with respect to the subject matter contained in it and supersedes all
prior and contemporaneous agreements, representations, or understandings,
written or oral, between the parties. This Agreement may be amended or
modified only by a written agreement, signed by the parties hereto.
10.5. NOTICES.
10.5.(a) All notices, requests, payments, statements, demands or
other communications given under this Agreement (collectively
"Communications") shall be in writing. Notice shall be sufficiently given
for all purposes as follows:
(1) PERSONAL DELIVERY. When personally delivered
to the recipient. Notice is effective on delivery.
(2) FIRST-CLASS MAIL. When mailed first class to
the last address of the recipient known to the party giving notice. Notice
is effective three (3) mail delivery days after deposit in a United States
Postal Service office or mailbox.
(3) CERTIFIED MAIL. When mailed certified mail,
return receipt requested. Notice is effective on receipt, if delivery is
confirmed by a return receipt.
(4) OVERNIGHT DELIVERY. When delivered by
(overnight delivery Federal Express/Airborne/United Parcel Service/DHL
WorldWide Express), charges prepaid or charged to the sender's account.
Notice is effective on delivery, if delivery is confirmed by the delivery
service.
(5) TELEX OR FACSIMILE TRANSMISSION. When sent by
telex or fax to the last telex or fax number of the recipient known to the
party giving notice. Notice is effective on receipt, provided that (a) a
duplicate copy of the notice is promptly given by first-class or certified
mail or by overnight delivery, or (b) the receiving party delivers a written
confirmation of receipt. ; Any notice given by telex or fax shall be deemed
received on the next business day if it is received after 5:00 p.m.
(recipient's time) or on a nonbusiness day.
10.5.(b) Addresses for purpose of giving notice are as follows:
If to Company: Hospitality Marketing Consultants,
LLC
12
15751 Rockfield Blvd., Suite 200
Irvine, CA 92618
Attention: Mokhtar Ramadan,
President
Fax: (714) 747 454-1888
If to Executive: Philip G. Hirsch
121 29th Street
Newport Beach, CA 92663
10.5.(c) Any correctly addressed notice that is refused,
unclaimed, or undeliverable because of an act or omission of the party to be
notified shall be deemed effective as of the first date that said notice was
refused, unclaimed, or deemed undeliverable by the postal authorities,
messenger, or overnight delivery service.
10.5.(d) Either party may change its address or telex or fax
number for purposes of this Section 10.5 by notifying the other party of its
new address in the manner set forth in this Section 10.5.
10.6. GOVERNING LAW; SEVERABILITY. This Agreement is made under and
shall be construed in accordance with the laws of the State of California.
Nothing in this Agreement shall be construed to require the commission of any
act contrary to law, and wherever there is any conflict between any provision
of this Agreement and any present or future statute, law, ordinance or
regulation contrary to which the parties have no legal right to contract, the
latter shall prevail, but in such event the provision of this Agreement so
affected shall be curtailed and limited only to the extent necessary to bring
it within the requirement of the law. If any term or provision of this
Agreement is determined by a Court of competent jurisdiction to be illegal,
invalid, or unenforceable for any reason whatsoever, such illegality,
invalidity, or unenforceability shall not affect the remaining terms and
provisions of this Agreement, which remaining terms and provisions shall
remain in full force and effect.
10.7. WAIVER. A waiver of any of the terms and conditions hereof by
Company or Executive shall not constitute a waiver of any other term or
condition hereof, nor shall it constitute a general waiver by the waiving
party, and the waiving party shall be free to reinstate any such term or
condition without notice to the other party.
10.8. HEADINGS. The Article and Section headings used herein are for
convenience only and are not a part of this Agreement.
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10.9. GENDER. Whenever required by the context hereof, the singular
shall be deemed to include the plural and the plural to include the singular,
and the masculine, feminine and neuter gender shall each be deemed to include
the others.
10.10. COUNTERPARTS. This instrument may be executed in counterparts,
each of which shall be deemed an original, but all of which taken together
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and at the place indicated opposite their respective signatures
below.
"COMPANY"
HOSPITALITY MARKETING CONSULTANTS,
LLC
a California limited liability
company
Executed at ____________,
this ____ day of ________. By:_________________________
Its:________________________
"EXECUTIVE"
Executed at ____________,
this ____ day of ________. ____________________________
Philip G. Hirsch
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