EXHIBIT 10.2
EMPLOYMENT AGREEMENT
BETWEEN xXXxX*s INC.
AND
XXXXXXXXXXX X. XXXXX
DATED AS OF DECEMBER __, 1996
xXXxX*s INC. (the "Company"), a Delaware corporation, and Xxxxxxxxxxx
X. Xxxxx (the "Executive") agree as follows:
1. Employment and Duties
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(a) The Company shall employ the Executive, and the Executive shall
serve the Company, as the chief operating officer and executive vice president
of the Company. The Executive shall use his best efforts to promote the
interests of the Company, and shall perform his duties faithfully and
diligently, consistent with sound business practices.
(b) The Executive shall devote substantially his full business time to
the performance of his duties for the Company (it being understood, however,
that nothing in this agreement or otherwise shall be deemed to restrict the
Executive from being a passive investor in businesses that are not competitive
with the Company).
(c) If the Company changes its principal place of business during the
term of this agreement to a location outside the New York metropolitan area, the
Executive shall not be required to perform his duties for the Company outside
the New York metropolitan area.
2. Term of Employment
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Subject to section 2, the Executive shall continue to be employed by
the Company under this agreement until the close of business on the third
anniversary of this agreement.
3. Compensation
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(a) As compensation for all services to be rendered by the Executive
during his employment under this agreement, the Executive shall be entitled to a
base salary at the rate of $100,000 a year (payable in equal installments at
least twice a month), subject to increases as provided in sections 3(b) and
3(c).
(b) The base salary referred to in section 3(a) shall be increased on
the first and second anniversaries of this agreement by the percentage increase
in the consumer price index (all items) of the United States Bureau of Labor
Statistics for New York, New York, during the immediately preceding 12-month
period; if the consumer price index ceases to be published, then a successor
index, or, if there is none, the most nearly comparable index, shall be used.
(c) The Company may, in the sole and absolute discretion of the board
of directors, from time to time increase the Executive's base salary and award
the Executive such bonuses as it considers appropriate.
4. Termination
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The Executive's employment shall terminate upon his death,
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and may be terminated at the option of the Company as a result of his
disability, if, in the good faith determination of the Company's board of
directors, such disability has prevented the Executive from substantially
performing his duties and obligations under this agreement during any period of
nine consecutive calendar months and the Company gives notice to the Executive
not earlier than 30 days and not later than 90 days after the expiration of the
nine months (in which case the employment under this agreement shall terminate
when that notice is given). Upon termination of employment for death or
disability pursuant to this section 4, the Company shall continue to pay the
Executive (or his estate or any other person designated by the Executive in
writing to the Company) the full amount of the Executive's base salary (as
determined under sections 3(a) and 3(b)) at the time of his termination until
the third anniversary of this agreement.
5. Expenses; Fringe Benefits
-------------------------
During the employment of the Executive under this agreement:
(a) The Company shall reimburse the Executive, on presentation of
vouchers or other evidence of such expenses in accordance with the policies of
the Company, for all reasonable business expenses incurred by him in the
performance of his duties for the Company.
(b) The Company shall provide the Executive with medical insurance,
disability insurance and life insurance under policies no less favorable to the
Executive than the ones currently in effect. In addition, the Company may
obtain key-man term life insurance on the life of the Executive, and the Company
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shall be the beneficiary under such policy.
(c) The Executive shall be entitled to six weeks vacation each year.
(d) The Company shall provide the Executive with an automobile of at
least the same quality as the one he currently uses, and shall pay all expenses
reasonably incurred in connection with his use of that automobile.
(e) The Company shall provide the Executive with an annual allowance
of $10,000 to be applied, in the Executive's discretion, in any combination to
one or more of the following: tax return preparation, financial consulting,
estate planning and/or life/disability insurance premiums.
6. Non-Competition; Confidentiality
--------------------------------
(a) The Executive may not at any time during his employment under this
agreement for any reason, engage or become interested in (as owner, lender,
stockholder, partner, director, officer, employee, consultant or otherwise) any
business that is in direct competition with the business conducted by the
Company anywhere in any state in the United States in which the Company has
engaged in such business.
(b) During the Executive's employment under this agreement, the
Executive shall not on his own behalf, or on behalf of any other person or
enterprise, hire, solicit or encourage to leave the employment of the Company
any individual who was an employee of the Company or its affiliates during the
Executive's employment by the Company.
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(c) The Executive shall not, at any time during or after his
employment under this agreement, disclose to any third party, except in the
performance of his duties under this agreement or as may be required by law, any
confidential matter regarding the Company's customers, suppliers, trade secrets
or business.
(d) The Executive acknowledges that the remedy at law for breach of
the provisions of this section 6 would be inadequate and that, in addition to
any other remedy the Company may have for breach of this section 6, the Company
shall be entitled to an injunction restraining any such breach or threatened
breach, without any bond or other security being required.
7. Miscellaneous
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(a) The failure of a party to this agreement to insist on any occasion
upon strict adherence to any term of this agreement shall not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this agreement. Any waiver must be
in writing.
(b) All notices and other communications under this agreement shall be
in writing and shall be deemed given when delivered personally or mailed by
registered mail, return receipt requested, to a party at his or its address as
follows (or at such other address as a party may designate in any notice under
this agreement):
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If to the Executive:
Xxxxxxxxxxx X. Xxxxx
00 Xxxx 0xx Xxxxxx
Xxx Xxxx, XX 00000
If to the Company:
xXXxX*s LLC
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: President
With a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Proskauer Xxxx Xxxxx & Xxxxxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
(c) This agreement shall be assigned to and shall inure to the benefit
of any successor to substantially all the assets and business of the Company as
a going concern, whether by merger, consolidation, liquidation or sale of
substantially all the assets of the Company or otherwise, and the Company shall
cause any such successor to assume the Company's obligations under this
agreement (but no such assignment shall relieve the Company of its obligations
under this agreement).
(d) This agreement constitutes the entire understanding of the parties
with respect to the subject matter of this agreement, cannot be changed or
terminated except by a written agreement executed by the parties and shall be
governed by the law of the State of New York applicable to agreements made and
to be performed therein.
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xXXxX*s INC.
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Chairman of the Board, President
and Chief Executive Officer
XXXXXXXXXXX X. XXXXX
/s/ Xxxxxxxxxxx X. Xxxxx
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