Exhibit 10.9
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is being made as of this 26th day of
March, 2002 between iPARTY CORP., a Delaware corporation having its principal
offices at 0000 XXX Xxxxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxxx 00000 (the "Company"),
and XXXXXX XXXXXX, an individual residing at 000 Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000 ("Xxxxxx").
W I T N E S S E T H :
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WHEREAS, the Company desires to employ Xxxxxx and Xxxxxx desires to be
employed by the Company as its Senior Vice President - Merchandising, upon the
terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual premises and agreements
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Nature of Employment; Term of Employment. The Company hereby
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employs Xxxxxx and Xxxxxx agrees to serve the Company as its Senior Vice
President - Merchandising upon the terms and conditions contained herein, for a
term commencing as of March 31, 2002 and continuing until the close of business
on March 30, 2004 (unless terminated sooner pursuant to the terms hereof, the
"Employment Term").
2. Duties and Powers as Employee. During the Employment Term,
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Xxxxxx shall be employed by the Company as its Senior Vice President -
Merchandising. Xxxxxx agrees to devote substantially all her full working time,
energy and efforts to the business of the Company. In performance of her duties
to the Company, Xxxxxx shall be subject to the direction of the Chief Executive
Officer of the Company. She shall be based in West Roxbury, Massachusetts and
shall be available to travel as the needs of the Company require.
3. Compensation.
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(a) As compensation for her services hereunder, during the
Employment Term, the Company shall pay Xxxxxx a base salary (the "Base Salary"),
payable in equal semi-monthly installments in arrears, at the annual rate of One
Hundred Fifty Thousand Dollars ($150,000). Additionally, Xxxxxx shall be
entitled to participate in the present or future employee benefit plans of the
Company provided that she meets the eligibility requirements therefor.
(b) In addition to the Base Salary provided herein, Xxxxxx may
be entitled to receive an annual performance bonus payment as determined in the
sole discretion of the Compensation Committee of the Board of Directors of the
Company. Without limiting the generality of the foregoing, such performance
bonus may be paid in stock, stock options, restrictive stock or cash or any
combination of the foregoing.
4. Expenses; Vacations. Xxxxxx shall be entitled to reimbursement
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for reasonable travel and other out-of-pocket expenses necessarily incurred in
the performance of her duties hereunder, upon submission and approval of written
statements and bills in accordance with the then regular procedures of the
Company. Xxxxxx shall be entitled to vacation time in accordance with the
regular procedures of the Company governing senior executive officers as
determined from time to time by the Company's Board of Directors. Xxxxxx also
shall be eligible to participate in all medical, health and disability benefit
programs provided to senior executives of the Company.
5. Representations and Warranties of Employee. Xxxxxx represents
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and warrants to the Company that (a) Xxxxxx is under no contractual or other
restriction or obligation which is inconsistent with the execution of this
Agreement, the performance of her duties hereunder, or the other rights of the
Company hereunder; and (b) Xxxxxx is under no physical or mental disability that
would hinder her performance of duties under this Agreement.
6. Non-Competition. Xxxxxx agrees that she will not (a) during the
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period she is employed by the Company engage in, or otherwise directly or
indirectly be employed by, or act as a consultant or lender to, or be a
director, officer, employee, owner or partner of, any other business or
organization that is or shall then be competing with the Company, and (b) for a
period of one year after she ceases to be employed by the Company, directly or
indirectly compete with or be engaged in the same business as the Company, or be
employed by, or act as consultant or lender to, or be a director, officer,
employee, owner or partner of, any business or organization which, at the time
of such cessation, competes with or is engaged in the same business as the
Company, except that in each case the provisions of this Section 6 will not be
deemed breached merely because Xxxxxx owns not more than five percent (5.0%) of
the outstanding common stock of a corporation, if, at the time of its
acquisition by Xxxxxx, such stock is listed on a national securities exchange,
is reported on NASDAQ, or is regularly traded in the over-the-counter market by
a member of a national securities exchange.
7. Confidential Information. All confidential information which
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Xxxxxx may now possess, may obtain during the Employment Term, or may create
prior to the end of the period she is employed by the Company, relating to the
business of the Company or of any customer or supplier of the Company shall not
be published, disclosed, or made accessible by her to any other person, firm, or
corporation during the Employment Term or any time thereafter without the prior
written consent of the Company. Xxxxxx shall return all tangible evidence of
such confidential information to the Company prior to or at the termination of
her employment.
8. Termination.
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(a) Notwithstanding anything herein contained, if on or after
the date hereof and prior to the end of the Employment Term, Xxxxxx is
terminated "For Cause" (as defined below) then the Company shall have the right
to give notice of termination of Xxxxxx'x services hereunder as of a date to be
specified in such notice, and this Agreement shall terminate on the date so
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specified. Termination "For Cause" shall mean Xxxxxx shall (i) be convicted of a
felony crime, (ii) commit any act or omit to take any action in bad faith and to
the detriment of the Company, (iii) intentionally fail to follow any
commercially reasonable and lawful direction of the Chief Executive Officer or
Board of Directors, (iv) commit an act of fraud against the Company, or (v)
breach any term of this Agreement and fail to correct such breach within ten
(10) days after written notice of commission thereof.
(b) In the event that Xxxxxx shall be physically or mentally
incapacitated or disabled or otherwise unable fully to discharge her duties
hereunder, with reasonable accommodation, for a period of nine months, then this
Agreement shall terminate upon 30 (thirty) days' written notice to Xxxxxx, and
no further compensation shall be payable to Xxxxxx, except for any accrued and
unpaid Base Salary and bonus, if any, as contemplated under Section 3, any
accrued and unpaid expenses as contemplated under Section 4 and as may otherwise
be provided under any disability insurance policy, if any.
(c) In the event that Xxxxxx shall die, then this Agreement
shall terminate on the date of Xxxxxx'x death, and no further compensation shall
be payable to Xxxxxx, except for any accrued and unpaid Base Salary and bonus,
if any, as contemplated under Section 3, any accrued and unpaid expenses as
contemplated under Section 4 and as may otherwise be provided under any
insurance policy or similar instrument.
(d) In the event that this Agreement is terminated "For Cause"
pursuant to Section 8(a), then Xxxxxx shall be entitled to receive only the Base
Salary to the date on which termination shall take effect.
(e) In the event that the Company terminates Xxxxxx for any
reason other than as provided under Section 8(a), (b), (c) or (d), then this
Agreement shall terminate upon thirty (30) days' written notice to Xxxxxx and
the Company shall be obligated to pay to Xxxxxx an amount equal to any unpaid
expenses as contemplated under Section 4 and a severance payment equal to twelve
(12) months salary at the Base Salary, payable in twelve (12) equal monthly
installments. If this Agreement is not renewed at the end of the Employment
Term, such non-renewal shall not be deemed a termination of this Agreement
without cause.
(f) Nothing contained in this Section 8 shall be deemed to limit
any other right the Company may have to terminate Xxxxxx'x employment hereunder
upon any ground permitted by law.
9. Merger, Etc. In the event of a future disposition of the
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properties and business of the Company, substantially as an entirety, by merger,
consolidation, sale of assets, sale of stock, or otherwise, then the Company may
elect to assign this Agreement and all of its rights and obligations hereunder
to the acquiring or surviving entity.
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10. Survival. The covenants, agreements, representations and
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warranties contained in or made pursuant to this Agreement shall survive
Xxxxxx'x termination of employment, irrespective of any investigation made by or
on behalf of any party.
11. Modification. This Agreement sets forth the entire understanding
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of the parties with respect to the subject matter hereof, supersedes all
existing agreements between them concerning such subject matter, and may be
modified only by a written instrument duly executed by each party.
12. Notices. Any notice or other communication required or permitted
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to be given hereunder shall be in writing and shall be mailed by certified mail,
return receipt requested, or delivered against receipt to the party to whom it
is to be given at the address of such party set forth in the preamble to this
Agreement (or to such other address as the party shall have furnished in writing
in accordance with the provisions of this Section 12). In the case of a notice
to the Company, a copy of such notice (which copy shall not constitute notice)
shall be delivered to Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attn. Xxxxxx X. Xxxxxx. Notice to the estate
of Xxxxxx shall be sufficient if addressed to Xxxxxx as provided in this Section
12. Any notice or other communication given by certified mail shall be deemed
given at the time of certification thereof, except for a notice changing a
party's address which shall be deemed given at the time of receipt thereof.
13. Waiver. Any waiver by either party of a breach of any provision
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of this Agreement shall not operate as or be construed to be a waiver of any
other breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions 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.
14. Binding Effect. Xxxxxx'x rights and obligations under this
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Agreement shall not be transferable by assignment or otherwise, such rights
shall not be subject to encumbrance or the claims of Xxxxxx'x creditors, and any
attempt to do any of the foregoing shall be void. The provisions of this
Agreement shall be binding upon and inure to the benefit of Xxxxxx and her heirs
and personal representatives, and shall be binding upon and inure to the benefit
of the Company and its successors and those who are its assigns under Section 9.
15. Headings. The headings in this Agreement are solely for the
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convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
16. Counterparts; Governing Law. This Agreement may be executed in
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any number of counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. It shall be
governed by, and construed in accordance with, the laws of the State of New
York, without giving effect to the rules governing the conflicts of laws.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
iPARTY CORP.
By: /s/ Xxxxxx X. XxXxxx
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Name: Xxxxxx X. XxXxxx
Title: Secretary
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
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