Exhibit 10.12
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of January 20, 2000, between The Derby Cycle
Corporation, a Delaware corporation (the "Company"), and Xxxxxx Xxxxxxx
("Executive").
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment. The Company, (or Newco, if applicable) shall employ
Executive, and Executive hereby accepts employment with the Company (or Newco,
if applicable), upon the terms and conditions set forth in this Agreement for
the period beginning on the date hereof and ending as provided in paragraph 4
hereof (the "Employment Period").
2. Position and Duties.
(a) During the Employment Period, Executive shall serve as the
General Manager of the Company's Internet business division (the "Division") and
shall have the normal duties, responsibilities and authority of the Division's
General Manager, subject to the power of the Company's President and the
Company's board of directors ("Board") to expand or limit such duties,
responsibilities and authority and to override actions of officers of the
Company. If the Division is spun-off into a wholly owned subsidiary ("Newco") of
the Company, Executive shall become the General Manager of Newco and the Company
and Executive agree that this Agreement (and the rights and obligations hereto)
shall be assigned to Newco.
(b) During the Employment Period, Executive shall report to the
Company's President and shall devote his best efforts and his full business time
and attention (except for permitted vacation periods and reasonable periods of
illness or other incapacity) to the business and affairs of the Division (or
Newco, if applicable). Executive shall perform his duties and responsibilities
to the Division (or Newco, if applicable) hereunder to the best of his abilities
in a diligent, trustworthy, businesslike and efficient manner. The Executive and
the Company hereby agree that the Executive's principal office will be located
in the Stamford, Connecticut, area.
3. Compensation and Benefits.
(a) During the Employment Period, Executive's base salary shall be
$150,000 per annum or such higher rate as the Company's President and the Board
may designate from time to time (the "Base Salary"), which salary shall be
payable in regular installments in accordance with the Company's general payroll
practices. In addition, during the Employment Period, Executive shall be
entitled to participate in all of the Company's employee benefit programs
(including medical, pension and life insurance) for which senior executive
employees of the Company are generally eligible, and Executive shall be entitled
to three weeks of paid vacation each year, which if not taken during any year
may not be carried forward to any subsequent year. Such vacation shall be taken
at such time or times as the Company's President approves in advance.
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(b) For each calendar year during the Employment Period, beginning
with calendar year 1999, the Company (or Newco, if applicable) shall pay to the
Executive a bonus of thirty-five percent (35%) of the Base Salary which the
Executive earned during such calendar year if the Executive achieves his
personal targets and business goals, with such targets and goals to be
determined mutually by the Company's President and Executive at the outset of
each fiscal year. Executive's 1999 fiscal year bonus shall be pro-rated to
reflect the start of Executive's employment on August 23, 1999. If such personal
targets and goals are not met or are exceeded, then the Executive shall be
eligible for such lower bonus (if targets and goals are not met) or higher bonus
(if targets and goals are exceeded) as determined by the Company's President.
(c) The Company shall be entitled to offset any bonus received by
Executive against amounts due under the Promissory Note executed by the
Executive in the amount of $75,000, dated January 20, 2000.
(d) During the Employment Period, the Company (or Newco, if
applicable) shall reimburse Executive for all reasonable expenses incurred by
him in the course of performing his duties and responsibilities under this
Agreement which are consistent with the Company's policies in effect from time
to time with respect to travel, entertainment and other business expenses,
subject to the Company's requirements with respect to reporting and
documentation of such expenses.
4. Termination.
(a) The Employment Period shall continue until Executive's
resignation, death or disability or other incapacity (as determined by the Board
in its good faith judgment) or until the Company's President determines in its
good faith judgment that termination of Executive's employment is in the best
interests of the Company(or Newco, if applicable); provided that, Executive
hereby agrees not to resign from the Company (or Newco, if applicable) until and
unless the Executive provides three months prior written notice. The Company (or
Newco, if applicable) agrees not to terminate Executive's employment without
Cause until and unless it (or Newco, if applicable) provides three months prior
written notice to Executive.
(b) Except as otherwise expressly provided herein, all of Executive's
rights to salary, bonuses, fringe benefits and other compensation hereunder
which accrue or become payable after the termination or expiration of the
Employment Period shall cease upon such termination or expiration. The Company
(or Newco, if applicable) may offset any amounts Executive owes the Company or
its subsidiaries against any amounts it owes Executive hereunder.
(c) For purposes of this Agreement, "Cause" shall mean (i) the
commission of a felony or a crime involving moral turpitude or the commission of
any other act or omission involving disloyalty, fraud or material dishonesty
with respect to the Division, the Company or any of its Subsidiaries or any of
their customers or suppliers, (ii) conduct tending to bring the Division, the
Company or any of its Subsidiaries into substantial public disgrace or
disrepute, (iii) repeated failure to perform material duties as reasonably
directed by the Company's President, (iv) gross negligence or willful misconduct
with respect to the Division, the Company or any of its
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Subsidiaries, (v) chronic drug or alcohol abuse (include, without limitation,
DWI charges or similar), or (vi) any other material breach of this Agreement by
the Executive if such breach is not cured within 30 days of Executive receiving
written notice of such breach; provided that Cause shall not be deemed to exist
unless (A) the Company provides to the Executive a written notice specifying in
detail the reasons for (and/or breaches leading to) the existence of Cause
within 30 days of becoming aware of the existence of such Cause and (B) to the
extent curable, the Executive has had 30 days after receipt of the Company's
written notice to cure the existence of any such Cause.
5. Confidential Information. Executive acknowledges that the
information, observations and data (including trade secrets) obtained by him
while employed by the Division (or Newco, if applicable) and the Company and its
subsidiaries concerning the business or affairs of the Division (or Newco, if
applicable), and the Company and its subsidiaries ("Confidential Information")
are the property of the Division (or Newco, if applicable) and the Company and
its subsidiaries. Therefore, Executive agrees that he shall not disclose to any
unauthorized person or use for his own purposes any Confidential Information
without the prior written consent of the Company's President.
6. Non-Compete, Non-Solicitation.
(a) In further consideration of the compensation to be paid to
Executive hereunder, Executive acknowledges that in the course of his employment
with the Division (or Newco, if applicable) and the Company and its
subsidiaries, he shall become familiar with the Division's (or Newco's, if
applicable) and the Company's and its subsidiaries' trade secrets and with other
Confidential Information concerning the Division (or Newco, if applicable) and
the Company and its subsidiaries and that his services shall be of special,
unique and extraordinary value to the Division (or Newco, if applicable) and the
Company and its subsidiaries. Therefore, Executive agrees that, during the
Employment Period and for one year thereafter (the "Noncompete Period"), he
shall not directly or indirectly own any interest in, manage, control,
participate in, consult with, render services for, or in any manner engage in
any bicycle, bicycle accessory or Internet business competing with the Division
(or Newco, if applicable) or the Company or its subsidiaries, as such businesses
exist, within any geographical area in which the Division (or Newco, if
applicable) or the Company and its subsidiaries engage in such businesses.
(b) During the Noncompete Period, Executive shall not directly or
indirectly through another entity (i) induce or attempt to induce any employee
of the Division (or Newco, if applicable) or the Company and its subsidiary to
leave the employ of the Division (or Newco, if applicable) or the Company and
its subsidiaries, or in any way interfere with the relationship between the
Division (or Newco, if applicable) and the Company and its subsidiaries and any
employee thereof, (ii) hire any person who was an employee of the Division (or
Newco, if applicable) and the Company or its subsidiaries, at any time during
the Employment Period or (iii) induce or attempt to induce any customer,
supplier, licensee, licensor, franchisee or other business relation of the
Division (or Newco, if applicable) or the Company and its subsidiaries to cease
doing business with the Division (or Newco, if applicable) and the Company and
its subsidiaries, or in any way interfere with the relationship between any such
customer, supplier, licensee or business relation and the Division (or Newco, if
applicable) or the Company and its subsidiaries (including, without
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limitation, making any negative or disparaging statements or communications
regarding the Division (or Newco, if applicable) or the Company and its
subsidiaries).
(c) If, at the time of enforcement of paragraphs 5 or 6 of this
Agreement, a court holds that the restrictions stated herein are unreasonable
under circumstances then existing, the parties hereto agree that the maximum
period, scope or geographical area reasonable under such circumstances shall be
substituted for the stated period, scope or area. In the event a breach or
threatened breach of this Agreement, the Company and its subsidiaries or its
successors or assigns, in addition to other rights and remedies existing in
their favor, shall be entitled to specific performance and/or injunctive or
other equitable relief from a court of competent jurisdiction in order to
enforce, or prevent any violations of, the provisions hereof (without posting a
bond or other security).
7. Executive's Representations. Executive hereby represents and
warrants to the Company that (i) the execution, delivery and performance of this
Agreement by Executive do not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound, (ii) Executive is
not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity and (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of Executive, enforceable in accordance with
its terms. Executive hereby acknowledges and represents that he has consulted
with independent legal counsel regarding his rights and obligations under this
Agreement and that he fully understands the terms and conditions contained
herein.
8. Complete Agreement. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way
(including, without limitation, all terms and conditions of the confirmation of
an offer between the parties hereto, dated on or about July 23, 1999 except for
the grant of an equity interest in Xxxxxxxx.xxx referred to in the third to last
paragraph thereof), but excluding any breaches thereof by either party prior to
the date hereof.
9. Governing Law. The validity, construction, interpretation,
administration and effect of this Agreement shall be governed, construed and
interpreted under the laws of the state of New York without giving any effect to
any choice of law rules of any state.
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10. Arbitration. Sections 4.7 and 4.8 of the Management Stock
Purchase Agreement, dated as of the date hereof between the parties hereto, is
hereby incorporated herein by reference.
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