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THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into this 16th
day of June 2000, by and between Mark Hirschhorn (the "Employee") and
SkyAuction.com, Inc. (the "Company").
RECITAL
This Agreement is made and entered into with reference to the following facts
and objectives:
The Company desires to employ Employee in the capacities described below,
on the terms and conditions hereinafter set forth, and Employee is willing
to accept such employment on such terms and conditions.
Therefore, in consideration of the mutual agreements hereinafter set forth,
Employee and Company have agreed and do hereby agree as follows:
AGREEMENT
Section 1: DUTIES
The Company does hereby hire, engage, and employ Employee as Chief Financial
Officer, and Employee does hereby accept and agree to such hiring, engagement,
and employment. Employee shall serve the Company in such position fully,
diligently, competently, and in conformity with the provisions of this Agreement
and the corporate policies of the Company as they presently exist, and as such
policies may be amended, modified, changed, or adopted during the Period of
Employment, as hereinafter defined. The Chief Financial Officer position shall
report to the Chief Executive Officer or President of the Company and will be
responsible for performing duties consistent with those of a Chief Financial
Officer.
Throughout the Period of Employment (as defined below) Employee shall devote his
full time, energy, and skill to the performance of his duties for the Company,
vacations and other leave authorized under this Agreement excepted. The
foregoing notwithstanding, Employee shall be permitted to (i) engage in
charitable and community affairs, (ii) act as a director of any corporations or
organizations outside Company not in competition with the Company and receive
compensation therefor, and (iii) to make investments of any character in any
business or businesses not in competition with the Company and to manage such
investments (but not be involved in the day to day operations of any such
business), provided, in each case and collectively, that the same does or do not
constitute or involve Employee in a conflict of interest vis-a-vis the Company
or interfere with the performance of Employee's duties under this Agreement.
Employee shall exercise due diligence and care in the performance of his duties
for and the fulfillment of his obligations to the Company under this Agreement.
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Employment Agreement - Mark Hirschborn Page 2
The Company shall furnish Employee with office, secretarial and other facilities
and services as are reasonably necessary or appropriate for the performance of
Employee's duties hereunder and consistent with his position as Chief Financial
Officer of the Company.
Section 2: TERM
Subject to Section 5 hereof, the initial term of employment by the Company of
the Employee pursuant to this Agreement (the "Initial Term") is for an initial
period commencing on June 26, 2000 (the "Commencement Date") and terminating on
June 25, 2003. The Initial Term shall automatically be extended for three
one-year renewal periods (in each case, a "Renewal Period") unless written
notification is given by either party to the other at least six (6) months prior
to the end of the Initial Term or the then current Renewal Period. For the
purposes of this Agreement, the "Period of Employment" shall be the Initial Term
plus any and all Renewal Periods.
Section 3: COMPENSATION
(a) BASE SALARY. In consideration of the Employee's services to be rendered
pursuant hereto and the Employee's agreement to the covenants and
restrictions set forth in Section 7 hereof, the Company shall pay to the
Employee an annual base salary of $250,000, subject to increases (the
"Base Salary"). Such Base Salary will be payable to the Employee in
installments in accordance with the Company's customary payroll practices.
The Company's Board of Directors at any time or times may, but shall have
no obligation to, increase Employee's Base Salary in its sole and absolute
discretion.
(b) ANNUAL INCENTIVE COMPENSATION. The Employee shall be entitled to an annual
bonus (the "Annual Bonus") as determined by the compensation committee of
the Company's Board of Directors (the "Compensation Committee"). Employee
shall participate in compensation packages, including, without limitation,
any bonus plan(s), offered to senior executives of the Company as approved
by the Compensation Committee; provided, however, that Employee's minimum
award (which shall also serve as Employee's minimum annual incentive
compensation) as determined by the Compensation Committee for the purposes
of your Annual Bonus shall be 35% of Base Salary.
(c) EQUITY COMPENSATION. On (or as of) the Commencement Date, the Company
shall issue to the Employee options (the "Options") to purchase 2% of the
Company's shares (shares calculation shall include all common and
preferred stock equilivents, i.e. options, warrants) outstanding (or
20,000 Options based on one million shares outstanding) irrespective of
dilution of the Company's Common Stock under the Company's 2000 Omnibus
Plan (the
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Employment Agreement - Mark Hirschborn Page 3
"Plan"). Options will be granted with a strike price equal to the fair
market value of the stock on the date of grant, as determined by the Board
of Directors. Options covering 40% of the Options shall become exercisable
(i.e., vest) on the date of the Company's initial public offering. Options
covering an additional 30% and 30% shall vest on each of the two
succeeding anniversaries of the date of the initial public offering,
respectively. The Options shall be represented by the form of an option
agreement used by the Company pursuant to the Plan with such changes as
shall be required to conform to this Agreement. Notwithstanding anything
to the contrary, in the event the Initial Term of Employee's employment is
not extended by the Company for any reason other than those described in
Section 5(c) herein, all Options shall immediately vest, and Employee
shall have 18 months to exercise such Options. In addition, Employee will
have a pre-emptive right to buy additional stock, in the event there are
any additional offerings prior to the Initial Public Offering (IPO), to
retain his 2% ownership interest. In the event that such investment for
Employee shall exceed $200,000 to retain Employee's 2% ownership, the
Company shall make available to Employee a 5% interest bearing loan for a
period of two years in the amount to be determined based on the additional
share issuances. Purchases will be at the then fair market value.
The Employee shall be entitled to participate in an equity-based plan or
arrangement that allows for awards, including but not limited to, stock
options, stock appreciation rights, restricted stock, and other equity
incentive plans or arrangements for executive officers of the Company,
including Employee, or for Employee alone, in accordance with the terms,
conditions, and provisions as the same may be changed, amended, or
terminated, from time to time.
(d) BENEFITS. During the Term, the Company shall provide the Employee with
health, welfare, and insurance benefits to the extent and on the same
terms as it provides such benefits to its executive officers. The Employee
shall also be entitled to participate in and receive any fringe benefits
or perquisites which may become available to the Company's executive
officers. Anything in this Agreement or in such plan or arrangement to the
contrary notwithstanding, the inclusion in such plan or arrangement of any
provision(s) addressing participation by Employee in such plan or
arrangement for a period of years shall not be interpreted as a promise of
continued employment by the Company for such period of years or any other
period of time. The Company will pay the Employee's COBRA payments under
the Employee's existing health insurance plan until a comparable policy is
available from the Company.
(e) VACATION AND OTHER LEAVE. Employee shall be entitled to such amounts of
paid vacation and other leave in accordance with Company policy as from
time to time may be allotted to the Company's executive officers
generally, with such
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Employment Agreement - Mark Hirschborn Page 4
vacation to be scheduled and taken in accordance with the Company's
standard vacation policies applicable to such personnel, but in no case
will it be less three (3) weeks per year.
(f) SIGN-ON BONUS. Employee shall be entitled to $100,000 in cash which shall
constitute a sign-on bonus, and is not contingent on the performance of
services for SkyAuction and does not represent compensation for services
rendered. The sign-on bonus shall be payable as follows: (I) $25,000 on
the Commencement Date; (ii) $25,000 on October 1, 2000; and (iii) $50,000
on January 2, 2001.
Section 4: BUSINESS EXPENSES
The Employee shall be reimbursed for all direct, out-of-pocket business expenses
incurred by him in connection with his employment (including, without
limitation, expenses for travel and entertainment incurred in conducting or
promoting business for the Company) upon timely submission by the Employee of
receipts and other documentation and in accordance with the normal expense
reimbursement policy of the Company.
Section 5: TERMINATION
(a) DEATH. The employment by the Company of the Employee pursuant to this
Agreement shall be terminated upon the death of the Employee. In the event
that this Agreement is terminated pursuant to this Section 5(a), the
Employee's spouse or heirs shall be entitled to:
1. the Base Salary, through the Date of Termination (as defined below),
a pro rata annual incentive award based on Employee's then current
targeted award level, if any, and benefits otherwise due and payable
or provided to the Employee's estate under this Agreement through
the Date of Termination;
2. All options shall vest immediately.
(b) DISABILITY. The employment by the Company of the Employee pursuant to this
Agreement may be terminated by written notice to the Employee by the
Company, in the event that the Employee becomes unable to perform his
duties and responsibilities by reason of physical or mental illness or
accident for any six (6) consecutive month period. In the event that this
Agreement is terminated by the Company pursuant to this 5(b), the Employee
shall be entitled to:
1. the Base Salary, through the Date of Termination, a pro rata annual
incentive award based on Employee's then current targeted award
level
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Employment Agreement - Mark Hirschborn Page 5
and benefits otherwise due and payable or to be provided to the
Employee under this Agreement through the Date of Termination;
2. the rights, if any, available under the Options, in accordance with
the terms and conditions of the Plan and agreement governing the
Options, provided that Employee will have 18 months to exercise any
vested Options.
(c) BY THE COMPANY FOR CAUSE. This Agreement may be terminated by the Company
by written notice to the Employee ("Notice of Termination") upon the
occurrence of any of the following events (each of which shall constitute
"Cause" for termination):
1. The willful and continued failure by the Employee substantially to
perform his or her duties and obligations to the Company (other than
any such failure resulting from his or her incapacity due to
physical or mental illness);
2. the willful engaging by the Employee in misconduct which is
materially injurious to the Company;
3. the commission by the Employee of a felony;
4. the commission by the Employee of a crime against the Company.
For purposes of this Section 5(c), no act or failure to act, on the Employee's
part shall be considered willful unless done, or omitted to be done, by the
Employee in bad faith and without reasonable belief that his action or omission
was in the best interest of the Company. Determination of Cause shall be made by
the Board of Directors in its sole discretion.
In the event the Company determines the occurrence of any of the events noted
above Employee shall have be provided a notice from the Company's Board of
Directors no less than 30 days prior to the effective date of such termination
stating that any event that had occurred constitutes Cause and that the Board of
Directors intends to terminate Employee's employment for Cause pursuant to this
Section 5(c) and describing in reasonable detail, the reasons therefor, and
Employee shall have had the opportunity to cure such Cause.
In the event the employment by the Company of the Employee is terminated
pursuant to this Section 5(c), the Employee shall be entitled to the Base Salary
through the Date of Termination and benefits otherwise due and payable or to be
provided to the Employee through the Date of Termination. The Options and other
long-term incentive
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Employment Agreement - Mark Hirschborn Page 6
awards, excluding those currently exercisable, may not be exercised at any time
on or after the Date of Termination.
(d) BY THE COMPANY WITHOUT CAUSE. The employment by the Company of the
Employee pursuant to this Agreement may be terminated by the Company at
any time without Cause by delivery of a Notice of Termination to the
Employee. In the event that the employment by the Company of the Employee
pursuant to this Agreement is terminated by the Company pursuant to this
Section 5(d), the Employee shall be entitled to:
1. the Base Salary through the Date of Termination, a pro rata annual
incentive award based on the Employee's current targeted award level
and benefits otherwise due and payable or to be provided to the
Employee through the Date of Termination;
2. the Base Salary, the Employee's current targeted annual incentive
award and benefits to be paid or provided to the Employee under this
Agreement for the period commencing on the day after the Date of
Termination and ending on the later of (a) the one (1) year
anniversary of the Date of Termination and (b) the last day of the
Period of Employment; and
3. all Options shall vest immediately and Employee will have 18 months
to exercise all such vested Options.
(e) BY THE EMPLOYEE FOR GOOD REASON. The employment of the Employee by the
Company pursuant to this Agreement may be terminated by the Employee for
"Good Reason". Good Reason shall mean any of the following other than in
connection with the termination of employment for Cause (as defined above)
or in connection with the Employee's disability:
1. the assignment to the Employee by the Company of duties materially
inconsistent with the positions, duties, responsibilities, titles,
or offices set forth herein;
2. a material reduction by the Company in the Employee's Base Salary or
target bonus as in effect at the date hereof or as the same may be
increased from time to time during the Period of Employment;
3. the material breach by the Company of its material obligations
hereunder.
In the event that the employment by the Company of the Employee pursuant to
this Agreement is terminated by the Company pursuant to this Section 5(e),
the Employee shall be entitled to:
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Employment Agreement - Mark Hirschborn Page 7
1. the Base Salary through the date of Termination, a pro rata annual
incentive award based on the Employee's current targeted award level
and benefits otherwise due and payable or to be provided to the
Employee through the Date of Termination;
2. the Base Salary, the Employee's current targeted annual incentive
award and benefits to be paid or provided to the Employee under this
Agreement for the period commencing on the day after the Date of
Termination and ending on the later of (a) the one (1) year
anniversary of the Date of Termination and (b) the last day of the
Period of Employment; and
3. the rights, if any, available under the Options, in accordance with
the terms and conditions of the Plan and agreement governing the
Options provided that Employee shall have 18 months to exercise any
vested Option.
(f) EMPLOYEE WITHOUT GOOD REASON. The employment of the Employee by the
Company pursuant to this Agreement may be terminated by the Employee at
any time by delivery of a written notice of resignation to the
Company("Notice of Resignation"). In the event the employment by the
Company of the Employee pursuant to this Agreement is terminated by the
Employee pursuant to this Section 5(f), the Employee shall be entitled to
the Base Salary and benefits due to the Employee under this Agreement
through the Date of Termination. Any Options and long-term incentive
awards shall immediately terminate on the Date of Termination, except that
Employee shall retain all vested Options and shall have 18 months to
exercise such Options.
(g) BY THE EMPLOYEE IN THE EVENT OF A CHANGE-IN-CONTROL. In the event that the
Company terminates the employment of the Employee within two (2) years of
a Change-in-Control as defined below, the Employee is entitled to those
payments defined in Section 5(d), provided, however, that is such Change
of Control occurs prior to an Initial Public Offering of the Company's
shares (the "IPO"), all Options shall immediately vest and become
exercisable and if such Change of Control occurs after the IPO, the
vesting date of each portion of the Options shall be accelerated by 12
months.
A Change-in-Control is defined as the occurrence of any one (1) of the
following events:
1. The following individuals cease for any reason to constitute a
majority of the number of directors then serving: individuals who,
on the
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Employment Agreement - Mark Hirschborn Page 8
commencement date of this Agreement, constitute the Board and any
new director (other than a director whose initial assumption of
office is in connection with an actual or threatened election
contest, including but not limited to a consent solicitation,
relating to the election of directors of the Company) whose
appointment or election by the Board or nomination for election by
the Company's stockholders was approved or recommended by a vote of
at least two-thirds (2/3) of the directors then still in office who
either were directors on the commencement date of this Agreement or
whose appointment, election or nomination for election was
previously so approved or recommended;
2. there is consummated a merger or consolidation of the Company or any
direct or indirect subsidiary of the Company with any other
corporation, other than an intercompany transaction or
reorganization.
3. a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving or parent entity)
more than 65% of the combined voting power of the voting securities
of the Company or such surviving or parent entity outstanding
immediately after such merger or consolidation;
4. a merger or consolidation effected to implement a recapitalization
of the Company (or similar transaction) in which no person, directly
or indirectly, acquired 35% or more of the combined voting power of
the Company's then outstanding securities (not including in the
securities beneficially owned by such person any securities acquired
directly from the Company or its affiliates); or
5. the stockholders of the Company approve a plan of complete
liquidation of the Company or there is consummated an agreement for
the sale or disposition by the company of all or substantially all
of the Company's assets (or any transaction having a similar
effect), other than a sale or disposition by the Company of all or
substantially all of the Company's assets to an entity, at least 65%
of the combined voting power of the voting securities of which are
owned by stockholders of the Company in substantially the same
proportions as their ownership of the Company immediately prior to
such sale.
(h) DATE OF TERMINATION. The Employee's Date of Termination shall be:
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Employment Agreement - Mark Hirschborn Page 9
1. if the Employee's employment by the Company is terminated pursuant
to Section 5(a) hereof, the date of his death;
2. if the Employee's employment by the Company is terminated pursuant
to Section 5(b) hereof, the last day the Employee worked;
3. if the Employee's employment by the Company is terminated pursuant
to Sections 5(c), 5(d) or 5(g) hereof, the date on which a Notice of
Termination is given; and
4. if the Employee's employment by the Company is terminated pursuant
to Sections 5(e) or 5(f) hereof, the date on which a Notice of
Resignation is given.
Section 6: GROSS-UP
If and to the extent any payment made under this Agreement, either alone or in
conjunction with other payments the Employee has the right to receive either
directly or indirectly from Company (the "Total Payments"), would constitute an
excess parachute payment under Section 280G of the Internal Revenue Code of
1986, as amended (the "Code"). Company agrees to pay Employee an amount (the
"Gross-up Payment"), such that after payment by Employee of all taxes, including
interest and penalties imposed with respect to such taxes, including any excise
tax imposed by Section 4999 of the Code (the "Excise Tax"), Employee retains an
amount of the Gross-up Payment equal to the Excise Tax imposed upon the Total
Payments.
Section 7: CONFIDENTIALITY; NON-COMPETITION
As a condition to the Company's willingness to enter into this Agreement, the
Employee agrees to the covenants and restrictions set forth in this Section 7.
(a) The Employee agrees that, during the Employment Period and for a period of
two (2) years thereafter, he shall not, directly or indirectly, induce or
solicit (or authorize or assist in the taking of any such actions by any
third party) any employee or consultant of the Company to leave his or her
business association with the Company.
(b) The Employee acknowledges and agrees that, during the course of the
provision of the Employee's services to the Company, the Employee may be
exposed to confidential, proprietary or sensitive data and information
concerning the business and affairs of the Company, and that all such data
and information constitutes a protectable business interest of the
Company. In furtherance of such business interest, the Employee agrees not
to, during the Period of
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Employment Agreement - Mark Hirschborn Page 10
Employment or at any time thereafter, use for the Employee's purposes, or
disclose to or for the benefit of any third party, any trade secret or
other confidential information of the Company or any of its affiliates
(except as may be required by law or in the performance of duties
hereunder consistent with the Company's policies) and the Employee will
comply with any confidentiality obligations of the Company to a third
party, whether under agreement or otherwise. Notwithstanding the
foregoing, confidential information shall be deemed not to include
information which (i) is or becomes generally available to the public
other than as a result of a disclosure by the Employee or any other person
who directly or indirectly receives such information from the Employee or
at the Employee's discretion or (ii) is or becomes available to the
Employee on a non-confidential basis from a source which is entitled to
disclose it to the Employee.
(c) The Employee agrees that he will not at any time during the Employment and
for a period two (2) years thereafter, directly or indirectly, own any
interest in, operate, join, control or participate as a director,
stockholder, owner, partner, principal, officer or agent of, enter into
the employment of, act as a consultant to, or perform any services for,
any entity that is engaged anywhere in the United States of America in the
online travel auction business or any other business entered into by the
Company which makes up a minimum of 20%of the Company's overall revenues
or invested capital. Notwithstanding anything herein to the contrary, this
Section 7(c) shall not prevent the Employee from acquiring securities
representing not more than one percent (1%) of the outstanding voting
securities of any publicly held corporation. It is the desire and intent
of the parties that the provisions of this Section 7(c) shall be enforced
to the fullest extent permitted under applicable law. If all or part of
this Section 7(c) is held invalid, illegal or incapable of being enforced
by any law or public policy, all other terms and provisions of this
Agreement shall nevertheless remain in full force and effect. If any part
of this Section 7(c) is ultimately determined to be excessively broad as
to duration, scope, activity or subject, such part will be construed by
limiting and reducing it so as to be enforceable to the maximum extent
compatible with applicable law.
(d) The Employee acknowledges and agrees that each of the covenants set forth
in this Section 7 are reasonable and necessary for the protection of the
Company business interests, that irreparable injury will result to the
Company if the Employee breaches any of the terms of said covenants, and
that in the event of the Employee's actual or threatened breach of any
such covenants, the Company will have no adequate remedy at law. The
Employee accordingly agrees that in the event of any actual or threatened
breach by the Employee of any of said covenants, the Company shall be
entitled to immediate injunctive and other equitable relief without bond
and without the necessity of showing actual
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Employment Agreement - Mark Hirschborn Page 11
monetary damages. Nothing contained herein shall be construed as
prohibiting the Company from pursuing any other remedies available to it
for such breach or threatened breach, including the recovery of any
damages which it is able to prove.
(e) The provisions of this Section 7 shall survive the expiration or
termination of this Agreement, and any of the arrangements contained
herein, and shall be binding upon the Employee's corporate or personal
successors and assigns.
Section 8: INDEMNIFICATION
In the event the Employee was, is or becomes a party to or witness or other
participant in, or is threatened to be made a party to or witness or other
participant in, any threatened, pending or completed action, suit or proceeding,
or any inquiry or investigation (whether instituted by the Company or any other
party) that the Employee in good faith believes might lead to the institution of
any such action, suit or proceeding, whether civil, criminal, administrative,
investigative or otherwise (a "Claim"), by reason of (or arising in part out of)
any event or occurrence related to the fact that the Employee is or was a
director, officer, employee, agent, independent contractor, consultant or
fiduciary of either of the Company, or is or was serving at the request of the
Company as a director, officer, employee, trustee, agent, independent
contractor, consultant or fiduciary of another corporation, partnership, limited
liability company, joint venture, employee benefit plan, trust or other
enterprise, or by reason of anything done or not done by the Employee in any
such capacity (an "Indemnifiable Event"), then the Company, shall indemnify and
hold harmless the Employee to the fullest extent permitted by law as soon as
practicable but in any event no later than thirty (30) days after written demand
is presented to the Company, against any and all expenses (including attorneys'
fees), judgments, fines, penalties and amounts paid in settlement (including all
interest, assessments and other charges paid or payable in connection with or in
respect of such expenses, judgments, fines, penalties or amounts paid in
settlement of such Claim.
Notwithstanding anything contained herein to the contrary, the indemnification
obligations of the Company set forth in this Section 8 shall survive the
termination or expiration of this Agreement.
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Employment Agreement - Mark Hirschborn Page 12
Section 9: SUCCESSORS; BINDING AGREEMENT
This Agreement is a personal contract and the rights and interests of the
Employee hereunder may not be sold, transferred, assigned, pledged, encumbered
or hypothecated by him, except as otherwise expressly permitted by the
provisions of this Agreement. This Agreement shall inure to the benefit of the
parties hereto and their respective representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
Section 10: ENTIRE AGREEMENT
This Agreement contains all of the understandings between the parties hereto
pertaining to the matters referred to herein, and supersedes any other
undertakings and agreements, whether oral or in writing, previously entered into
by them with respect thereto. The Employee represents that, in executing this
Agreement, he does not rely and has not relied upon any representation or
statement not set forth herein made by the Company with regard to the subject
matter or effect of this Agreement or otherwise.
Section 11: AMENDMENT, MODIFICATION AND WAIVER
No provision of this Agreement may be amended, modified or waived unless such
amendment, modification or waiver is agreed to in writing, signed by the
Employee, and a duly authorized officer of the Company. No waiver by any party
hereto of any breach by another party hereto of any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of a
similar or dissimilar condition or provision at the same time, any prior time or
any subsequent time.
Section 12: NOTICES
Any notices, requests, demands, waivers or other communications required or
permitted to be given hereunder shall be in writing and shall be deemed given
when delivered personally, sent by courier or facsimile or registered or
certified mail, postage prepaid, return receipt requested, by reputable
overnight courier (receipt of which is confirmed) addressed to the party
concerned at the address indicated below or to such other address as such party
may subsequently give notice hereunder in writing:
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Employment Agreement - Mark Hirschborn Page 13
If to the Company:
SkyAuction.com, Inc.
501 Madison Ave., 14th floor
New York, NY 10022
Attn: Michael Hering
If to the Employee:
Mark Hirschhorn
8 Avon Road
Larchmont, NY 10538
All such notices, requests, demands, waivers and communications shall be deemed
to have been given on the date on which so hand-delivered, on the third business
day following the date on which so mailed, on the next business day following
the date on which delivered to such overnight courier and on the date of such
facsimile transmission and confirmation, except for a notice of change of person
or address, which shall be effective only upon receipt thereof.
Section 13: SEVERABILITY
If for any reason any provision of this Agreement shall be held invalid, such
invalidity shall not affect any other provision of this Agreement not so held
invalid, and all other such provisions shall to the full extent consistent with
law continue in full force and effect. If any such provision shall be held
invalid in part, such invalidity shall in no way affect the rest of such
provision which, together with all other provisions of this Agreement, shall
likewise to the full extent consistent with law continue in full force and
effect.
Section 14: SURVIVORSHIP
The respective rights and obligations of the parties hereunder shall survive any
termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations.
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Employment Agreement - Mark Hirschhorn Page 14
Section 15: GOVERNING LAW; JURISDICTION
This Agreement will be governed by and construed in accordance with the laws of
the State of New York, without regard to its conflicts of law principles.
The parties hereto hereby irrevocably:
(a) agree that any suit, action or other legal proceeding arising out of this
Agreement, or any of the transactions contemplated hereby, may be brought
in the courts of record of New York or the courts of the United States
located in the State of New York;
1. consent to the jurisdiction of each such court in any such suit,
action or proceeding;
2. waive any objection to the laying of venue of any such suit, action
or proceeding in any of such courts; and
3. agree that New York is the most convenient forum for litigation of
any such suit, action or proceeding.
Section 16: SPECIFIC PERFORMANCE
Each party hereto acknowledges that money damages would be both incalculable and
an insufficient remedy for any breach of this Agreement by such party and that
any such breach would cause the other parties irreparable harm. Accordingly,
each party hereto also agrees that, in the event of any breach or threatened
breach of the provisions of this Agreement by such party, the other parties
shall be entitled to equitable relief without the requirement of posting a bond
or other security, including in the form of injunctions and orders for specific
performance, in addition to all other remedies available to such other parties
at law or in equity.
Section 17: ATTORNEY'S FEES
Employee and Company agree that in any dispute resolution proceedings arising
out of this Agreement, the prevailing party shall be entitled to its, his or her
reasonable attorney's fees and costs incurred by it or him in connection with
resolution of the dispute in addition to any other relief granted.
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Employment Agreement - Mark Hirschhorn Page 15
IN WITNESS WHEREOF, Company has caused this Agreement to be executed by its duly
authorized officer, and Employee has hereunto signed this Agreement, on the date
first written above.
SkyAuction.com, Inc. (the "Company")
By /s/ Michael N. Hering
---------------------------------
Its CEO
---------------------------------
/s/ Mark Hirschhorn
------------------------------------
Employee
