Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is dated December 28, 2007,
and is between ESCALA GROUP, INC., a Delaware corporation (the "Company") and
XXXXXXX X. XXXXXXX, an individual ("Xx. Xxxxxxx").
WHEREAS, the Company, Spectrum Numismatics, Inc., a wholly-owned
subsidiary of the Company ("Spectrum"), and Xx. Xxxxxxx are parties to an
Employment Agreement, dated as of February 18, 2000, as amended by an amendment
dated June 17, 2002 (as so amended, the "Original Agreement");
WHEREAS, the parties desire to amend the Original Agreement in
certain respects;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the Original Agreement is hereby amended and restated in
its entirety, and the Company and Xx. Xxxxxxx therefore agree as follows:
1. Employment; Term. The Company hereby employs Xx. Xxxxxxx, and Xx.
Xxxxxxx hereby accepts employment with the Company, in accordance with and
subject to the terms and conditions set forth in this Agreement. The term of
this Agreement (the "Term") commences on the date of this Agreement and, unless
earlier terminated in accordance with Section 4, will terminate on June 30,
2010.
2. Duties. (a) During the Term, Xx. Xxxxxxx shall serve as the President
of the Company's Numismatics and Trading Divisions, and also as President of
Spectrum. Xx. Xxxxxxx shall report to the Board of Directors of the Company. Xx.
Xxxxxxx will have such duties and responsibilities as are customary for Xx.
Xxxxxxx' position and any other duties or responsibilities he may be reasonably
assigned by the Board of Directors.
(b) During the period Xx. Xxxxxxx is employed by the Company, Xx.
Xxxxxxx shall devote his full business time and best efforts to the business and
affairs of the Company. Xx. Xxxxxxx understands and acknowledges that Xx.
Xxxxxxx' duties will require business travel from time to time.
(c) For so long as Xx. Xxxxxxx maintains beneficial ownership (as
calculated in accordance with Rule 13d-3 under the Securities Exchange Act of
1934) of at least 400,000 shares of the Company's common stock, then Xx. Xxxxxxx
shall, subject to the terms of this paragraph, be entitled to nominate one
member of the Board of Directors of the Company. In the event that Xx. Xxxxxxx'
acquires and maintains beneficial ownership of at least 1,386,440 shares of the
Company's common stock (representing 5% of the total common stock outstanding on
the date hereof), then Xx. Xxxxxxx shall have the right to nominate an
additional member of the Board of Directors. All such persons nominated by Xx.
Xxxxxxx must be reasonably acceptable to the Company. In the event that Xx.
Xxxxxxx is serving as a member of the Board of Directors at the time of the
termination of his employment for any reason, then Xx. Xxxxxxx agrees to resign
as a member of the Board of Directors, and from any other positions he may then
hold with the Company or any of its subsidiaries, at the time of such
termination and execute such documents and take such other action, if any, as
may be requested by the Company to give effect to any such resignation.
3. Compensation. (a) Commencing February 19, 2008, the Company shall pay
Xx. Xxxxxxx a salary of $450,000 per annum (that salary, the "Base Salary").
Payment of the Base Salary will be in accordance with Spectrum's standard
payroll practices and subject to all legally required or customary withholdings.
(b) Xx. Xxxxxxx shall be eligible to receive an annual bonus (the
"Performance Bonus") for each of the fiscal years 2008, 2009 and 2010. The
Performance Bonus, if any, will be based on the extent to which individual and
division-wide performance goals established by the Company for each of such
years have been met, as more fully set forth on Exhibit A hereto. In addition,
Xx. Xxxxxxx shall be entitled to participate in any bonus plan that may be
established by the Company that is based on the performance of the Company as a
whole (and any bonus due thereunder will be included within the definition of
"Performance Bonus" under this Agreement.) Each Performance Bonus, if any, shall
be paid within thirty days following the issuance of financial statements for
the fiscal year in respect of which such bonus is payable, provided that in no
event shall the Performance Bonus be paid later than the 90 days following the
end of such fiscal year. Except as provided in Section 5, Xx. Xxxxxxx must be
employed by the Company on the last day of the fiscal year to be eligible for
the Performance Bonus.
(c) The Company shall grant Xx. Xxxxxxx 75,000 restricted shares of
the Company's common stock, to vest in substantially equal increments on each of
June 30, 2008, June 30, 2009 and June 30, 2010. The restricted shares shall be
granted pursuant to the Company's standard form of restricted stock agreement.
(d) Upon submission by Xx. Xxxxxxx of vouchers in accordance with
Spectrum's standard procedures, the Company shall reasonably promptly reimburse
Xx. Xxxxxxx for all reasonable and necessary travel, business entertainment and
other business expenses incurred by Xx. Xxxxxxx in connection with the
performance of his duties under this Agreement.
(e) Xx. Xxxxxxx is entitled to participate in any and all medical
insurance, group health, disability insurance and other benefit plans that are
made generally available by Spectrum to employees of Spectrum, provided that the
medical, group health and disability insurance benefits provided by Spectrum to
Xx. Xxxxxxx shall be substantially as favorable to Xx. Xxxxxxx as those
generally provided by the Company to its senior executives. Spectrum shall pay
all premiums and deductibles payable in connection with medical insurance
provided for Xx. Xxxxxxx. Additionally, Xx. Xxxxxxx is entitled to receive four
weeks paid vacation a year and paid holidays made available pursuant to
Spectrum's policy to all employees of Spectrum. The Company may, in its sole
discretion, at any time amend or terminate any such benefit plans or programs,
upon not less than 30 days' prior written notice to Xxxxxxx.
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(f) Upon submission of vouchers in accordance with Spectrum's
standard procedures, the Company shall reasonably promptly directly pay or
reimburse Xx. Xxxxxxx for his reasonable motor vehicle costs and related
expenses, such as insurance, repairs, maintenance, and gas, up to $750.00 per
month.
(g) The Company shall indemnify Xx. Xxxxxxx, to the fullest extent
permitted by the Company's by-laws, for any and all liabilities to which he may
be subject as a result of, in connection with or arising out of his employment
by the Company hereunder, as well as the costs and expenses (including
reasonable attorneys' fees) of any legal action brought or threatened to be
brought against him or the Company or any of its affiliates as a result of, in
connection with or arising out of such employment. Xx. Xxxxxxx shall be entitled
to the full protection of any insurance policies which the Company may elect to
maintain generally for the benefit of its directors and officers. The Company
shall advance funds to Xx. Xxxxxxx in payment of his legal fees to the fullest
extent permitted by law. In the event of any inconsistency or ambiguity between
this provision and the Company's by-laws, the by-laws shall prevail.
4. Termination. Xx. Xxxxxxx' employment hereunder may be terminated prior
to the expiration of the Term under the following circumstances:
(a) Xx. Xxxxxxx' employment hereunder will terminate upon Xx.
Xxxxxxx' death.
(b) Except as otherwise required by law, the Company may terminate
Xx. Xxxxxxx' employment hereunder at any time after Xx. Xxxxxxx becomes Totally
Disabled. For purposes of this Agreement, Xx. Xxxxxxx will be "Totally Disabled"
as of the earlier of (1) the date Xx. Xxxxxxx becomes entitled to receive
disability benefits under Spectrum's long-term disability plan and (2) Xx.
Xxxxxxx' inability to perform the duties and responsibilities contemplated under
this Agreement for a period of more than 180 consecutive days due to physical or
mental incapacity or impairment.
(c) The Company may terminate Xx. Xxxxxxx' employment hereunder for
Cause at any time after providing written notice to Xx. Xxxxxxx. For purposes of
this Agreement, the term "Cause" shall mean any of the following:
(1) Xx. Xxxxxxx' neglect or failure or refusal to perform his duties under
this Agreement (other than as a result of total or partial incapacity or
disability due to physical or mental illness);
(2) any intentional act by or omission of Xx. Xxxxxxx that materially injures
the reputation or business of the Company or any of its affiliates, or his
own reputation;
(3) Xx. Xxxxxxx' conviction (including conviction on a nolo contendere plea)
of a felony or any crime involving, in the good faith judgment of the
Company, fraud, dishonesty or moral turpitude;
(4) the breach of an obligation set forth in Section 6;
(5) any other material breach of this Agreement; or
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(6) any material violation of the Company's Code of Ethics, as may be amended
from time to time (the "Code of Ethics").
In the cases of "neglect or failure" to perform his duties under this Agreement,
as set forth in 4(c)(1) above, a material breach as set forth in 4(c)(5) above,
or a material violation of the Code of Ethics as set forth in 4(c)(6) above, a
termination by the Company with Cause shall be effective only if, within 30 days
following delivery of a written notice by the Company to Xx. Xxxxxxx that the
Company is terminating his employment with Cause, which specifies in reasonable
detail the basis therefor, Xx. Xxxxxxx has failed to cure the circumstances
giving rise to Cause.
(d) The Company may terminate Xx. Xxxxxxx' employment hereunder for any
reason, upon 30 days' prior written notice.
(e) Xx. Xxxxxxx may terminate his employment hereunder for Good Reason at any
time after providing written notice to the Company. For the purposes of
this Agreement, "Good Reason" means any of the following:
(1) Spectrum decreases or fails to pay Xx. Xxxxxxx' Base Salary or Performance
Bonus or the benefits provided in Section 3;
(2) Xx. Xxxxxxx no longer holds the offices of both President of the
Numismatics Division and President of the Trading Division (or, in each
case, an office of equivalent stature), or his functions and/or duties are
materially diminished;
(3) Xx. Xxxxxxx' job site is relocated to a location which is more than thirty
(30) miles from the current location, unless the parties mutually agree to
relocate more than thirty (30) miles from the current location; and
(4) A Change in Control (as defined below) occurs.
A termination by Xx. Xxxxxxx with Good Reason shall be effective only if, within
30 days following delivery of a written notice by Xx. Xxxxxxx to the Company
that Xx. Xxxxxxx is terminating his employment with Good Reason, which specifies
in reasonable detail the basis therefor, the Company has failed to cure the
circumstances giving rise to Good Reason. In addition, a termination by Xx.
Xxxxxxx shall be effective only if the Company receives notice of such
termination within 90 days event constituting Good Reason occurs.
(f) Change in Control. For purposes of this Agreement, "Change in
Control" of the Company shall be conclusively deemed to have occurred if any of
the following, and only if any of the following, shall have taken place:
(i) any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended
("Exchange Act")), other than Afinsa Bienes Tangibles, S.A.
("Afinsa"), any of Afinsa's affiliates, any court-appointed
administrator, trustee or person acting in similar capacity on
behalf of Afinsa, Xx. Xxxxxxx, any person with whom Xx.
Xxxxxxx is or was acting in concert, or their respective
designee(s) or affiliate(s) or any combination thereof, is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of
the Company representing fifty percent (50%) or more of the
combined voting power of the Company's then outstanding
securities.
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(ii) a merger or consolidation of the Company is consummated with
any other corporation, other than (i) a merger or
consolidation which would result in the holders of voting
securities of the Company outstanding immediately prior
thereto continuing to hold more than 50% of the combined
voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation, or (ii) a merger or consolidation effected to
implement a recapitalization of the Company (or similar
transaction) in which no "person" (as such term is used in
Sections 13(d) and 14(d)(2) of the Exchange Act) acquires more
than 50% of the combined voting power of the Company's then
outstanding securities or a reverse takeover; or
(iii) a complete liquidation of the Company occurs or a sale or
disposition by the Company of all or substantially all of the
Company's assets is consummated, or a sale or disposition of
the assets comprising the North American Trading Division or
the North American Coin Division is consummated.
5. Compensation Following Termination Prior to the End of the Term. In the
event that Xx. Xxxxxxx' employment hereunder is terminated prior to the
expiration of the Term, Xx. Xxxxxxx will be entitled only to the following
compensation and benefits upon such termination (together with such other
provisions that may be set forth in the restricted stock agreement):
(a) In the event that Xx. Xxxxxxx' employment hereunder is
terminated prior to the expiration of the Term by reason of Xx. Xxxxxxx' death
or Total Disability, pursuant to Section 4(a) or 4(b), Spectrum shall pay the
following amounts to Xx. Xxxxxxx (or Xx. Xxxxxxx' estate, as the case may be),
to be paid as soon as practicable following the date of such termination, but in
no event prior to the time such payment would not be subject to tax under
Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"):
(1) any accrued but unpaid Base Salary for services rendered to the date of
termination;
(2) the Performance Bonus, if any, not yet paid for any fiscal year ending
prior to the date of termination of Xx. Xxxxxxx' employment (payable as
and when such bonus would have been paid had X. Xxxxxxx' employment
continued);
(3) any incurred but unreimbursed expenses required to be reimbursed pursuant
to Section 3(d) or 3(f); and
(4) any vacation accrued and unused to the date of termination.
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(5) at Xx. Xxxxxxx' (or his estate's) election, either (i) payment of a pro
rata portion of the Performance Bonus, if any, for the fiscal year in
which Xx. Xxxxxxx' employment terminated (payable as and when such bonus
would have been paid had Xx. Xxxxxxx' employment continued), or (ii)
payment of an amount equal to the pro rata portion of 50% of the previous
year's Performance Bonus, payable as soon as practicable following the
date of termination (but in no event prior to the terms such payment would
not be subject to tax under Section 409(A) of the Code.)
In addition, for a period of six (6) months, beginning on the date of
termination of Xx. Xxxxxxx' employment by reason of death or Total Disability,
the Company will, at its expense, provide medical and group health insurance
benefits to Xx. Xxxxxxx and his dependents (or just his dependents, as the case
may be), which benefits shall be substantially as favorable to Xx. Xxxxxxx or
his dependents as those provided to him and his dependents immediately preceding
the termination of his employment.
(b) In the event that Xx. Xxxxxxx' employment hereunder is
terminated prior to the expiration of the Term by the Company for Cause pursuant
to Section 4(c), Spectrum shall pay the following amounts to Xx. Xxxxxxx, to be
paid as soon as practicable following the date of such termination, but in no
event prior to the time such payment would not be subject to tax under Section
409A of the Code;
(1) any accrued but unpaid Base Salary for services rendered to the date of
termination;
(2) the Performance Bonus, if any, not yet paid for any fiscal year ending
prior to the date of termination of Xx. Xxxxxxx' employment (payable as
and when such bonus would have been paid had Xx. Xxxxxxx' employment
continued);
(3) any incurred but unreimbursed expenses required to be reimbursed pursuant
to Section 3(d) or 3(f); and
(4) any vacation accrued and unused to the date of termination.
(c) In the event that Xx. Xxxxxxx' employment hereunder is
terminated prior to the expiration of the Term by the Company without Cause
pursuant to Section 4(d), or by Xx. Xxxxxxx with Good Reason pursuant to Section
4(e), Spectrum shall pay the following amounts to Xx. Xxxxxxx, to be paid as
soon as practicable following the date of such termination, but in no event
prior to the time such payment would not be subject to tax under Section 409A of
the Code:
(1) any accrued but unpaid Base Salary for services rendered to the date of
termination;
(2) the Performance Bonus, if any, not yet paid for any fiscal year ending
prior to the date of termination of Xx. Xxxxxxx' employment (payable as
and when such bonus would have been paid had Xx. Xxxxxxx' employment
continued);
(3) any incurred but unreimbursed expenses required to be reimbursed pursuant
to Section 3(d) or 3(f);
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(4) any vacation accrued and unused to the date of termination;
(5) continued payment of the Base Salary in accordance Section 3 until the
expiration of the original Term in accordance with Spectrum's standard
payroll practices; and
(6) payment of a pro rata (based on the number of days during the year of
termination that Xx. Xxxxxxx was employed) portion of the Performance
Bonus, if any, for the fiscal year in which Xx. Xxxxxxx' employment
terminated (payable as and when such bonus would have been paid had Xx.
Xxxxxxx' employment continued).
In the event of termination for Good Reason due to a Change of Control, the
amounts payable to Xx. Xxxxxxx pursuant to Section 5(c)(5) above shall be
reduced by the amounts, if any, payable to Xx. Xxxxxxx under any new employment
or consulting arrangement he may enter into with the Company at any time
following the Change of Control.
(d) The benefits to which Xx. Xxxxxxx may be entitled upon
termination pursuant to the plans, policies and arrangements referred to in
Section 3(e) will be determined and paid in accordance with the terms of those
plans, policies and arrangements.
(e) Except as may be provided under this Agreement, under the terms
of any incentive compensation, employee benefit, or fringe benefit plan
applicable to Xx. Xxxxxxx at the time of termination of Xx. Xxxxxxx' employment
prior to the end of the Term, Xx. Xxxxxxx will not be entitled to receive any
other compensation, or to participate in any other plan, arrangement or benefit,
with respect to any future period after the termination of his employment.
6. Exclusive Employment; Nonsolicitation; Nondisclosure of Proprietary
Information; Surrender of Records; Inventions and Patents; Code of Ethics.
(a) No Conflict; No Other Employment. During the period of Xx.
Xxxxxxx' employment with the Company, Xx. Xxxxxxx shall not: (i) engage in any
activity which conflicts or interferes with or derogates from the performance of
Xx. Xxxxxxx' duties hereunder nor shall Xx. Xxxxxxx engage in any other business
activity, whether or not such business activity is pursued for gain or profit
and including service as a director of any other company, except as approved in
advance in writing by the Company (which approval shall not be unreasonably
withheld); provided, however, that Xx. Xxxxxxx shall be entitled to manage his
personal investments and otherwise attend to personal affairs, including
charitable, social and political activities, in a manner that does not
unreasonably interfere with his responsibilities hereunder, or (ii) engage in
any other employment, whether as an employee or consultant or in any other
capacity, and whether or not compensated therefor. The Company acknowledges and
agrees that the certain activities (as circulated to the Board in November 2007)
have previously been approved by the Company.
(b) Non-solicitation. In consideration of the payment by the Company
to Xx. Xxxxxxx of amounts that may hereafter be paid to Xx. Xxxxxxx pursuant to
this Agreement (including, without limitation, pursuant to Sections 3 and 5
hereof) and other obligations undertaken by the Company hereunder, Xx. Xxxxxxx
agrees that during (i) his employment with the Company and (ii) the length of
time that Xx. Xxxxxxx is receiving payments from the Company following the
termination of his employment pursuant to Section 5, or, in the case of
termination of his employment by the Company for Cause pursuant to Section 4(c),
for a period of one year following the date of termination of his employment,
Xx. Xxxxxxx shall not, directly or indirectly, (i) solicit, encourage or
recruit, or attempt to solicit, encourage or recruit any of the employees,
agents, consultants or representatives of the Company or any of its affiliates
to terminate his, her, or its relationship with the Company or such affiliate;
(ii) solicit, encourage or recruit, or attempt to solicit, encourage or recruit,
any of the employees, agents, consultants or representatives of the Company or
any of its affiliates to become employees, agents, representatives or
consultants of any other person or entity; or (iii) persuade or seek to persuade
any customer of the Company or any affiliate to cease to do business or to
reduce the amount of business which any customer has customarily done or
contemplates doing with the Company or such affiliate, whether or not the
relationship between the Company or its affiliate and such customer was
originally established in whole or in part through Xx. Xxxxxxx' efforts.
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(c) Proprietary Information. Xx. Xxxxxxx acknowledges that during
the course of his employment with the Company he will necessarily have access to
and make use of proprietary information and confidential records of the Company
and its affiliates. Xx. Xxxxxxx covenants that he shall not during the Term or
at any time thereafter, directly or indirectly, use for his own purpose or for
the benefit of any person or entity other than the Company, nor otherwise
disclose, any proprietary information to any individual or entity, unless such
disclosure has been authorized in writing by the Company or is otherwise
required by law. Xx. Xxxxxxx acknowledges and understands that the term
"proprietary information" includes, but is not limited to: (a) the software
products, programs, applications, and processes utilized by the Company or any
of its affiliates; (b) the name and/or address of any customer or vendor of the
Company or any of its affiliates or any information concerning the transactions
or relations of any customer or vendor of the Company or any of its affiliates
with the Company or such affiliate or any of its or their partners, principals,
directors, officers or agents; (c) any information concerning any product,
technology, or procedure employed by the Company or any of its affiliates but
not generally known to its or their customers, vendors or competitors, or under
development by or being tested by the Company or any of its affiliates but not
at the time offered generally to customers or vendors; (d) any information
relating to the computer software, computer systems, pricing or marketing
methods, sales margins, cost of goods, cost of material, capital structure,
operating results, borrowing arrangements or business plans of the Company or
any of its affiliates; (e) any information which is generally regarded as
confidential or proprietary in any line of business engaged in by the Company or
any of its affiliates; (f) any business plans, budgets, advertising or marketing
plans; (g) any information contained in any of the written or oral policies and
procedures or manuals of the Company or any of its affiliates; (h) any
information belonging to customers or vendors of the Company or any of its
affiliates or any other person or entity which the Company or any of its
affiliates has agreed to hold in confidence; (i) any inventions, innovations or
improvements covered by this Agreement; and (j) all written, graphic and other
material relating to any of the foregoing. Xx. Xxxxxxx acknowledges and
understands that information that is not novel or copyrighted or patented may
nonetheless be proprietary information. The term "proprietary information" shall
not include information generally available to and known by the public or
information that is or becomes available to Xx. Xxxxxxx on a non-confidential
basis from a source other than the Company, any of its affiliates, or the
directors, officers, employees, partners, principals or agents of the Company or
any of its affiliates (other than as a result of a breach of any obligation of
confidentiality).
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(d) Confidentiality and Surrender of Records. Xx. Xxxxxxx shall not
during the Term or at any time thereafter (irrespective of the circumstances
under which Xx. Xxxxxxx' employment by the Company terminates), except as
required by law, directly or indirectly publish, make known or in any fashion
disclose any confidential records to, or permit any inspection or copying of
confidential records by, any individual or entity other than in the course of
such individual's or entity's employment or retention by the Company. Upon
termination of employment for any reason or upon request by the Company, Xx.
Xxxxxxx shall deliver promptly to the Company (without retaining any copies) all
property and records of the Company or any of its affiliates, including, without
limitation, all confidential records. For purposes hereof, "confidential
records" means all correspondence, reports, memoranda, files, manuals, books,
lists, financial, operating or marketing records, magnetic tape, or electronic
or other media or equipment of any kind which may be in Xx. Xxxxxxx' possession
or under his control or accessible to him which contain any proprietary
information. All property and records of the Company and any of its affiliates
(including, without limitation, all confidential records) shall be and remain
the sole property of the Company or such affiliate during the Term and
thereafter.
(e) Inventions and Patents. All inventions, innovations or
improvements (including policies, procedures, products, improvements, software,
ideas and discoveries, whether patent, copyright, trademark, service xxxx, or
otherwise) conceived or made by Xx. Xxxxxxx, either alone or jointly with
others, in the course of his employment by the Company, belong to the Company.
Xx. Xxxxxxx will promptly disclose in writing such inventions, innovations or
improvements to the Company and perform all actions reasonably requested by the
Company to establish and confirm such ownership by the Company, including, but
not limited to, cooperating with and assisting the Company in obtaining patents,
copyrights, trademarks, or service marks for the Company in the United States
and in foreign countries.
(f) Enforcement. Xx. Xxxxxxx acknowledges and agrees that, by virtue
of his position, his services and access to and use of confidential records and
proprietary information, any violation by him of any of the undertakings
contained in this Section 6 would cause the Company and/or its affiliates
immediate, substantial and irreparable injury for which it or they have no
adequate remedy at law. Accordingly, Xx. Xxxxxxx acknowledges that the Company
may seek an injunction or other equitable relief by a court of competent
jurisdiction restraining any violation or threatened violation of any
undertaking contained in this Section 6, and consents to the entry thereof. Xx.
Xxxxxxx waives posting by the Company or its affiliates of any bond otherwise
necessary to secure such injunction or other equitable relief. Rights and
remedies provided for in this Section 6 are cumulative and shall be in addition
to rights and remedies otherwise available to the parties hereunder or under any
other agreement or applicable law.
(g) Code of Ethics. Nothing in this Section 6 is intended to limit,
modify or reduce Xx. Xxxxxxx' obligations under the Company's Code of Ethics.
Xx. Xxxxxxx' obligations under this Section 6 are in addition to, and not in
lieu of, Xx. Xxxxxxx' obligations under the Code of Ethics. To the extent there
is any inconsistency between this Section 6 and the Code of Ethics which would
permit Xx. Xxxxxxx to take any action or engage in any activity pursuant to this
Section 6 which he would be barred from taking or engaging in under the Code of
Ethics, the Code of Ethics shall control.
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7. Notices. Every notice or other communication required or contemplated by this
Agreement must be in writing and sent by one of the following methods: (1)
personal delivery, in which case delivery is deemed to occur the day of
delivery; (2) certified or registered mail, postage prepaid, return receipt
requested, in which case delivery is deemed to occur the day it is officially
recorded by the U.S. Postal Service as delivered to the intended recipient; or
(3) next-day delivery to a U.S. address by recognized overnight delivery service
such as Federal Express, in which case delivery is deemed to occur one business
day after being sent. In each case, a notice or other communication sent to a
party must be directed to the address for that party set forth below, or to
another address designated by that party by written notice:
If to the Company, to:
Escala Group, Inc.
5 Xxxxxxx X. Xxxxxx Xxxxxx
Xxxxxx, Xx 00000
with a copy to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
If to Xx. Xxxxxxx, to:
Mr. Xxxx Xxxxxxx
00000 Xxxxx
Xxxxxx, XX 00000
8. Assignability; Binding Effect. This Agreement is a personal contract
calling for the provision of unique services by Xx. Xxxxxxx, and Xx. Xxxxxxx'
rights and obligations hereunder may not be sold, transferred, assigned, pledged
or hypothecated. The rights and obligations of the Company under this Agreement
bind and run in favor of the successors and assigns of the Company.
9. Complete Understanding. This Agreement constitutes the complete
understanding between the parties with respect to the employment of Xx. Xxxxxxx
by the Company and supersedes all prior agreements and understandings, both
written and oral, between the parties (or between Xx. Xxxxxxx and Spectrum) with
respect to the subject matter of this Agreement.
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10. Amendments; Waivers. This Agreement may not be amended except by an
instrument in writing signed on behalf of the Company and Xx. Xxxxxxx. No waiver
by any party of any breach under this Agreement will be deemed to extend to any
prior or subsequent breach or affect in any way any rights arising by virtue of
any prior or subsequent such occurrence. Waiver by either party of any breach by
the other party will not operate as a waiver of any other breach, whether
similar to or different from the breach waived. No delay on the part of the
Company or Xx. Xxxxxxx in the exercise of any of their respective rights or
remedies will operate as a waiver of that right.
11. Severability. If any provision of this Agreement or its application to
any person or circumstances is determined by any court of competent jurisdiction
to be unenforceable to any extent, that unenforceable provision will be deemed
eliminated to the extent necessary to permit the remaining provisions to be
enforced, and the remainder of this Agreement, or the application of the
unenforceable provision to other persons or circumstances, will not be affected
thereby. If any provision of this Agreement, or any part thereof, is held to be
unenforceable because of the scope or duration of or the area covered by that
provision, the court making that determination shall reduce the scope, duration
of or area covered by that provision or otherwise amend the provision to the
minimum extent necessary to make that provision enforceable to the fullest
extent permitted by law.
12. Survivability. The provisions of this Agreement that by their terms
call for performance subsequent to termination of Xx. Xxxxxxx' employment
hereunder, or of this Agreement, will survive such termination.
13. Governing Law. This Agreement is governed by the laws of the State of
California, without giving effect to principles of conflict of laws.
14. Jurisdiction; Service of Process. Any action or proceeding seeking to
enforce any provision of, or based on any right arising out of, this Agreement
must be brought against any of the parties in the courts of the State of
California, County of Orange, or, if it has or can acquire jurisdiction, in the
United States District Court for the Southern District of California, and each
of the parties consents to the jurisdiction of those courts (and of the
appropriate appellate courts) in any such action or proceeding and waives any
objection to venue laid therein. Process in any such action or proceeding may be
served by sending or delivering a copy of the process to the party to be served
at the address and in the manner provided for the giving of notices in Section
13. Nothing in this Section 20, however, affects the right of any party to serve
legal process in any other manner permitted by law. Each party hereto waives
trial by jury.
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The undersigned hereby execute this Agreement on the date stated in the
introductory clause.
ESCALA GROUP, INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Vice President
and General Counsel
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------------
XXXXXXX X. XXXXXXX
12
EXHIBIT A
A-Xxxx Precious Metals, Inc.
15. Bonus Pool Calculation Recommendation for Fiscal Year 2008
I Formula
A The bonus pool for A-Xxxx Precious Metals, Inc. will be calculated
based on a percentage of the Pre-Tax Annual Income. The percentage
used will float based on the return on equity ("XXX") that the
Post-Bo Annual Income represents for that fiscal year.
1. Pre-Tax Annual Income is defined as: The pre-tax income,
before bonuses are paid, as determined by the independent
certified accountants, regularly retained by the Company, in
accordance with consistently and conservatively applied
generally accepted accounting principles. Amortization of
goodwill, and any direct cost incurred in connection with the
consummation of the transactions contemplated by the Stock
Purchase Agreement, dated as of July 15, 2005, by and among
Spectrum PMI, Inc., A-Xxxx Holding, Inc. and Xxxxxx X. Xxxxxxx
shall be excluded from the Company's gross income prior to
arriving at the Net Pre-Tax Annual Income. In addition,
A-Mark's Corporate Overhead Share (as defined below) will be
included in the calculation of Pre-Tax Annual Income.
2. Post-Bo means the Pre-Tax Annual Income after bonuses
calculated herein are accrued.
3. A-Mark's Corporate Overhead Share means 22% of Corporate
Overhead.
4. Corporate Overhead shall be calculated according to the method
previously approved by the Compensation Committee. It is
expected that Corporate Overhead will be approximately
$1,412.550.
5. Equity is defined as: $26,141,000.
II Percentages Paid
A If the 2008 fiscal year's Post-Bo results yield an XXX of less than
6.00%, then the bonus pool, if any, will be distributed at the
discretion of the Escala compensation committee. Additionally, all
A-Xxxx employees with minimum bonus guarantee percentages in their
employment contract will waive their rights to those minimum
guarantees should the Post-Bo results in an XXX of less than 6.00%.
B If the 2008 fiscal year's Post-Bo results yield an XXX of 6.00% -
7.99%, then the bonus pool will be equal to 27.50% of the Pre-Tax
result.
C If the 2008 fiscal year's Post-Bo results yield an XXX of between
8.00 - 11.99%, then the bonus pool will be equal to 30.00% of the
Pre-Tax result.
D If the 2008 fiscal year's Post-Bo results yield an XXX of between
12.00 - 19.99%, then the bonus pool will be equal to 32.50% of the
Pre-Tax result.
E If the 2008 fiscal year's Post-Bo results yield an XXX of more than
20.00%, then the bonus pool will be equal to 35.00% of the Pre-Tax
result.
III Payments
A At the discretion of A-Xxxx management, all bonuses to staff may be
made within 60 days of fiscal year end (and shall be estimated in
the event that the audited financial statements are not then
completed.)
B At the discretion of A-Xxxx management, all bonuses to senior
managers and staff receiving bonuses in excess of $200,000 will
receive up to 90% of the bonus within 60 day of fiscal year end (and
shall be estimated in the event that the audited financial
statements are not then completed) and the balance after completion
of the annual audit.
C Any adjustments to estimated bonus payments that are required to be
made following the completion of the audit shall be made within 15
business days following the completion of the audit.)
IV Restricted Stock Bonus
A At the discretion of the Escala Compensation Committee, the senior
management of A-Xxxx (currently Xxxx XxXxxx, Xxxx Xxxxxxxx and Xxxx
Xxxxxxx) will accept up to 10.0% of their Fiscal Year 2008 A-Xxxx
Precious Metals, Inc. bonus in restricted Escala equity shares
subject to the following:
1. The number of shares is to be determined based on the closing
price on the date of the issuance of Escala's financial
statements (but in no event later than September 15, 2008).
The restricted shares will be issued on that date at a
discount of 15% from the closing price.
2
2. The shares shall vest one year from the date of issuance.
3. If the shares are not listed on an organized exchange at the
time of issuance, the employees may elect to refuse equity and
take cash in its place at no penalty. If the employees elect
to take shares in this circumstance the shares will be issued
at a discount of 33.3% from the closing price on the
determination date.
4. If the share price is less than US$1.00 on the determination
date, the employees may elect to refuse equity and take cash
in its place at no penalty.
V Authorizations
A Bonuses will be distributed among A-Xxxx employees as follows:
Bonuses for the following individuals will be deducted from the
bonus pool first and shall be in an amount as determined by the
Compensation Committee, but shall in no event be less than 30.00% of
the bonus pool for Xxxx XxXxxx; 17.50% of the bonus pool for Xxxx
Xxxxxxxx; and 15.00% of the bonus pool for Xxxx Xxxxxxx.
B All other bonus amounts shall be paid as determined by the
Compensation Committee in its discretion, taking into account the
recommendations of the A-Xxxx management, provided that all
individual bonuses in amounts less $50,000 shall be paid as
recommended by A-Xxxx management unless the Compensation Committee
determines that there is a substantial basis for modifying those
recommendations.
3
Spectrum coin group (Spectrum)
16. Bonus Pool Calculation Recommendation for Fiscal Year 2008
VI Formula
A The bonus pool for Spectrum will be calculated based on a percentage of
the Pre-Tax Annual Income. The percentage used will float based on the
return on equity ("XXX") that the Post-Bo Annual Income (as defined below)
represents for that fiscal year.
1. Pre-Tax Annual Income is defined as: The pre-tax income,
before bonuses are paid, as per the books and records for a
fiscal year, as determined by the independent certified
accountants, regularly retained by the Company, in accordance
with consistently and conservatively applied generally
accepted accounting principles. Amortization and depreciation
(other than amortization and depreciation relating to
acquisitions and exceptional items) will be included in the
calculation of Pre-Tax Annual Income. In addition, Spectrum's
Corporate Overhead Share (as defined below) and the interest
paid on any loans to corporate will be included in the
calculation of Pre-Tax Annual Income.
2. Post-Bo Annual Income means Pre-Tax Annual Income after the
bonuses as calculated herein are accrued.
3. Spectrum's Corporate Overhead Share means 22% of Corporate
Overhead.
4. Corporate Overhead shall be calculated according to the method
previously approved by the Compensation Committee. It is
expected that Corporate Overhead will be approximately
$1,412.550.
5. Equity is defined as $10 million.
6. The coin companies have several employees receiving commission
payments. These commission payments are part of operating
expenses. Employees with arrangements that include signing and
retention bonuses are also included in operating
expenses/employee compensation and shall not be part of the
bonus pool.
4
VII Percentages Paid
A If the 2008 fiscal year's Post-Bo yield an XXX of less than 6.00%,
then the bonus pool, if any, will be distributed at the discretion
of the Escala compensation committee.
B If the 2008 fiscal year's Post-Bo results yield an XXX of 6.00% -
7.99%, then the bonus pool will be equal to 27.5% of the Pre-Tax
result. C If the 2008 fiscal year's Post-Bo results yield an XXX of
between 8.00 - 11.99%, then the bonus pool will be equal to 30% of
the Pre-Tax result.
D If the 2008 fiscal year's Post-Bo results yield an XXX of between
12.00 - 19.99%, then the bonus pool will be equal to 32.5% of the
Pre-Tax result.
E If the 2008 fiscal year's Post-Bo results yield an XXX of more than
20.00%, then the bonus pool will be equal to 35% of the Pre-Tax
result.
VIII Payments
A At the discretion of Spectrum management, all bonuses to staff may
be made within 60 days of fiscal year end (and shall be estimated in
the event that the audited financial statements are not then
completed.)
B At the discretion of Spectrum management, all bonuses to senior
managers and staff receiving bonuses in excess of $200,000 will
receive up to 90% of the bonus within 60 day of fiscal year end (and
shall be estimated in the event that the audited financial
statements are not then completed) and the balance after completion
of the annual audit.
C Any adjustments to estimated bonus payments that are required to be
made following the completion of the audit shall be made within 15
business days following the completion of the audit.)
IX Restricted Stock Bonus
A At the discretion of the Compensation Committee, the senior
management of Spectrum (currently Xxxx Xxxxxxx, Xxxxxx Xxxxxxxx and
Xxx Xxxxxxx) will accept up to 10.0% of their Fiscal Year 2008
Spectrum bonus in restricted Escala equity shares subject to the
following:
1. The number of shares is to be determined based on the closing
price on the date of the issuance of Escala's financial
statements (but in no event later than September 15, 2008).
The restricted shares will be issued on that date at a
discount of 15% from the closing price.
5
2. The shares shall vest one year from the date of issuance.
3. If the shares are not listed on an organized exchange at the
time of issuance, the employees may elect to refuse equity and
take cash in its place at no penalty. If the employees elect
to take shares in this circumstance the shares will be issued
at a discount of 33.3% from the closing price on the
determination date.
4. If the share price is less than US$1.00 on the determination
date, the employees may elect to refuse equity and take cash
in its place at no penalty.
X Authorizations
A Bonuses will be distributed among Spectrum employees as follows:
B Bonuses for the following individuals will be deducted from the
bonus pool first and shall be in an amount as determined by the
Compensation Committee, but shall in no event be less 25% of the
bonus pool for Xxxx Xxxxxxx, 17.5% of the bonus pool for Xxxxxx
Xxxxxxxx and 17.5% of the bonus pool for Xxx Xxxxxxx.
C All other bonus amounts shall be paid as determined by the
Compensation Committee in its discretion, taking into account the
recommendations of the Spectrum CEO, provided that all individual
bonuses in amounts less $50,000 shall be paid as recommended by the
Spectrum CEO unless the Compensation Committee determines that there
is a substantial basis for modifying those recommendations.
6
