EMPLOYMENT AGREEMENT
EXHIBIT 10.25
This Employment Agreement (“Agreement”) is made and entered into by and between Xxxxxxxxx S.C.S. Xxxxxx (“Employee”) and xXXXX.xxx, Inc. (“eCOST” or the “Company”).
RECITALS
A. eCOST is a rapid response direct marketer of computer hardware, software, peripheral, electronics products, and other customer goods, such as DVDs, watches and jewelry, and home and houseware products.
B. The Company has spent significant time, effort, and money to acquire and develop certain goodwill and Proprietary Information (as defined below) that it considers vital to its business and goodwill, and which has become of great value to the Company.
C. The Company’s Proprietary Information will necessarily be communicated to and acquired by Employee in the course of her employment, and the Company desires to obtain the services of Employee, only if, in doing so, it can protect its Proprietary Information and goodwill.
D. The parties agree and acknowledge that, in light of Employee’s employment relationship with the Company, and in light of Employee’s access to its Proprietary Information, the restrictive covenants contained in Section 6 of this Agreement are essential to protect the legitimate business interests of the Company.
TERMS OF EMPLOYMENT
NOW, THEREFORE, in consideration of the benefits to be derived from the mutual observance of the agreements and covenants hereinafter contained, the parties agree as follows:
1. Position And Responsibilities.
1.1 Employment. Commencing no later than January 17, 2005 (the “Effective Date”), the Company hereby employs Employee as Executive Vice President and Chief Financial Officer of eCOST. Employee will work at the Company’s headquarters in Torrance, California. Employee shall perform all services appropriate to her position as Executive Vice President and Chief Financial Officer, as well as such other services commensurate with such position as may be assigned from time to time by the Company’s Chief Executive Officer or Board of Directors. The Company shall retain full discretion and control over the means and methods by which Employee performs the above services, and of the places that Employee renders such services provided, however, that the Company may not relocate Employee more than 50 miles from the Company’s Torrance facility without Employee’s consent.
1.2 Devotion Of Time To The Business. Except as otherwise provided herein, Employee shall devote her entire professional time to her employment with the Company and shall expend her best efforts on its behalf. Employee agrees to abide by all policies, rules, regulations, and decisions adopted by the Company during the Employee’s employment with the Company. Except upon prior written consent by the Company, Employee will not, during any time she is employed by the Company: (i) accept any other employment; or (ii) engage, directly or indirectly, in any other business activity (whether or not pursued for pecuniary advantage) that might interfere with Employee’s duties and responsibilities under this Agreement or create a conflict of interest with the Company. Nothing herein shall prohibit employee from engaging in personal investments, participating on a board of directors or other advisory panel, or providing reasonable amounts of time to charitable and other community programs, as long as such activities do not unreasonably interfere with Employee’s duties under this Agreement or create a conflict of interest.
2. Warranties And Conditions Of Employment.
2.1 Employee represents and warrants that she will not use for the benefit of the Company, disclose to the Company, or induce the Company to use any confidential or proprietary information belonging to any former employer or other entity unless she has the advance written permission from the employer or entity to do so, or unless the Company has been granted such permission.
2.2 Employee represents and warrants that she shall not interfere with the employment relationship between her former employers and their employees.
2.3 Employee represents and warrants that she has not entered into any agreements or understandings with any former employer or client that would affect her ability to work for, or devote her full and best efforts to her employment with the Company.
3. Compensation And Benefits.
3.1 Base Salary. As compensation for Employee’s services, the Company will pay to Employee an annual base salary in the gross amount of $235,000 (the “Base Salary”), payable in accordance with the Company’s regularly established payroll practices, which payroll practices may be modified from time to time by the Company in its discretion. The Company will no less than annually review Employee’s Base Salary, which may be modified upon approval by the Board of Directors or an authorized committee of the Board of Directors in its discretion, and as may be necessary in relation to other similarly-situated employees.
3.2 Annual Bonus. Employee will be eligible to earn an annual bonus in an amount equal to 50% of Employee’s Base Salary, which will be paid in accordance with the Company’s existing, or to be established, annual bonus plan or program. The Company represents to Employee that its annual bonus plan or program will be finalized and adopted by the Company’s Board of Directors prior to the end of Employee’s first six months of employment with the Company, and that such bonus plan or program will apply to Employee’s efforts on behalf of the Company as of the Effective Date of this Agreement. The Company’s annual bonus plan or program will be subject to change from time to time by the Company in its sole discretion, provided, however, that: (i) in no event will the bonus plan or program be modified so as to prevent Employee from being eligible to earn an annual bonus equal to 50% of her then current Base Salary; and (ii) the bonus plan or program will provide that, should Employee’s employment with the Company terminate, other than for Cause, during any defined bonus year, Employee will be eligible to earn or accrue the pro rata portion of her bonus representing that portion of the bonus year during which she was employed. For the calendar year 2005, the Company guarantees that Employee will receive 50% of her maximum entitlement to an annual bonus (equal to 25% of her Base Salary). Thereafter, no bonus amount will be guaranteed to Employee.
3.3 Stock Options. Upon commencement of employment, Employee will be granted an option to purchase an aggregate of 250,000 shares of the Company’s common stock (the “Option”) under the Company’s 2004 Stock Incentive Plan at an exercise price equal to the closing price (i.e. the last sale price) of the Company’s common stock on the date Employee’s employment with the Company commences. The Option shall vest in equal quarterly installments over a four-year period immediately following the grant. The option agreement will provide for partial acceleration of vesting in the event of a Corporate Transaction involving the Company (as defined in the Stock Incentive Plan) as follows: vesting will accelerate so that those shares that would have vested within twelve (12) months after the date of the Corporate Transaction will be deemed to be vested and exercisable immediately prior to the specified effective date of such Corporate Transaction, provided that the Employee’s employment has not terminated prior to such date. Vesting will not accelerate if the Option is assumed by the successor entity or replaced with a comparable cash incentive program, unless Employee’s employment is terminated within 12 months after the Corporate Transaction by the successor without Cause, in which event, the deemed vesting will be given effect and the affected shares shall be deemed exercisable and salable under the terms of the Plan, and if such events are no longer possible due to changed circumstances, the survivor in the Corporate Transaction will be required to provide the economic benefit otherwise available to Employee. Employee agrees that she will not exercise the Option, even if vested, until the earlier of (i) the day following the consummation of the spin-off the Company’s common stock by PC Mall, Inc. or (ii) 18 months from the closing date of the Company’s initial public offering. Vesting of Employee’s Option will be subject to Employee’s continued employment by the Company. The Option shall expire 90 days after Employee’s termination of employment with the Company for any reason. Employee’s entitlement to the Option is conditioned upon the execution by Employee and the Company of a stock option agreement and shall be subject to its terms and the terms of the Stock Incentive Plan.
3.4 Benefits. Employee shall be eligible to participate in the Company’s benefit plans made generally available to comparable employees of the Company, including group medical, life insurance, and disability insurance. Employee’s eligibility to participate in the Company’s benefit plans shall be in accordance with the benefit plans established by the Company, which may be amended from time to time in the Company’s sole discretion.
3.5 Expenses. Employee will be entitled to receive full reimbursement for all actual and reasonable expenses incurred in connection with the fulfillment of her duties on behalf of the Company, together with use of a corporate credit card, cellular phone or portable email device, or reimbursement for the same. Reimbursement for such expenses is subject to and conditioned upon Employee providing to the Company receipts and other documentation requested by the Company demonstrating the actual expenses and other costs incurred by Employee, and are otherwise subject to the Company’s policies and procedures for reimbursement of expenses.
3.6 Vacation. Employee shall be entitled to take paid vacation pursuant to the Company’s existing policies regarding paid vacations. Employee will be entitled to accrue four weeks of paid vacation per year. Employee’s vacation time will accrue on a monthly basis at a rate of 1.66 days per month. Vacation time that is not used may be carried over to the next calendar year, but Employee will cease to accrue vacation time beyond her annual entitlement (i.e., 20 days). Vacation accruals will recommence after Employee has taken vacation and her accrued vacation time has dropped below the maximum annual entitlement.
3.7 Withholdings. The Company shall have the right to deduct and withhold amounts from all payments as required under applicable law. Additional amounts may be withheld from payments to the extent such withholding is authorized in writing by Employee.
4. Employment At Will.
4.1 At any time, the Company or Employee may terminate Employee’s employment for any reason, with or without cause, and without prior notice. The Company will pay Employee all compensation then due and owing. Thereafter, except for benefits that have vested and accrued, all of the Company’s obligations under this Agreement shall cease.
4.2 If the Company without Cause (as defined below) terminates Employee’s employment at any time, upon execution of a severance and release agreement that is reasonably acceptable to the Company’s Board of Directors and that contains, among other things, a general release provision, eCOST shall pay Employee an equivalent of six months of her then Base Salary. This severance payment will be paid in equal monthly installments over a period of six months. After the Company has satisfied its severance payment obligations under this paragraph, and except for the benefits that have vested and accrued, all obligations of the Company under this Agreement shall immediately cease.
4.3 Notwithstanding Section 4.2, the Company may terminate Employee’s employment for Cause at any time, without prior notice, and without any obligation to pay any severance.
4.4 For purposes of this Agreement, the term “Cause” shall mean: (i) a material breach of any material term set forth in this Agreement; (ii) Employee’s failure to follow the reasonable instructions of the Company after Employee has been unable or unwilling to cure such failure within seven calendar days following receipt of notice of such failure; (iii) misconduct on Employee’s part that is materially injurious to the Company, monetarily or otherwise, including misappropriation of trade secrets, fraud, or embezzlement; (iv) Employee’s conviction for fraud or any other felony; or (v) if Employee exhibits in regard to her employment unavailability for service (other than due to protected disability or reasonable absences in conformity with applicable family leave or other applicable laws), misconduct, dishonesty, or habitual neglect.
4.5 To the extent permitted by applicable law, this Agreement, the Company’s obligations hereunder, and the Employee’s employment shall terminate immediately upon Employee’s death or Disability. For purposes of this Agreement, the term “Disability” shall be defined as a physical or mental impairment of any type that prevents Employee from performing the essential functions of her employment under this Agreement for more than ninety days in any twelve-month period, as reasonably and in good faith determined by the Company. The Company shall pay to Employee or her estate any compensation due and owing on the date of Employee’s death or Disability, together with any accrued and vested benefits. Nothing in this Section shall affect Employee’s rights under any disability plan in which she is a participant.
5. Termination Obligations.
5.1 Resignation From All Offices And Directorships. In the event of any termination of Employee’s employment for any reason, Employee shall be deemed to have resigned voluntarily from all offices, directorships, and other positions held with the Company, or any of the Company’s subsidiaries, to the extent she was serving in any such capacities at the time of termination.
5.2 Cooperation With The Company. Employee will cooperate with the Company in the winding up or transferring to other employees any pending work or projects. Employee will also cooperate with the Company in the defense of any action brought by any third party against the Company that relates to Employee’s employment with the Company.
5.3 Return Of Documents And Other Information. Employee agrees that all property, including, without limitation, all equipment, tangible Proprietary Information, documents, books, records, reports, notes, contracts, lists, computer disks (and other computer-generated files and data), and copies thereof, created on any medium and furnished to, obtained by, or prepared by Employee in the course of, or incident to her employment, belongs to the Company and shall be returned promptly to the Company upon termination and at any other time as demanded by the Company.
5.4 Termination Of Benefits. All benefits to which Employee is otherwise entitled shall cease upon Employee’s termination, unless explicitly continued either under this Agreement or under any specific policy or benefit plan of the Company.
6. Proprietary Information; Non-Disclosure; and Non-Solicitation.
6.1 Proprietary Information. For purposes of this Agreement, “Proprietary Information” means all information and any idea in whatever form, tangible or intangible, whether disclosed to, learned, or developed by Employee, pertaining in any manner to the business of the Company or to the Company’s affiliates (including subsidiaries), consultants, customers, and business associates, unless: (i) the information is or becomes publicly known through lawful means; (ii) the information was rightfully in Employee’s possession or part of her general knowledge prior to her employment by the Company; or (iii) the information is disclosed to Employee without confidential or proprietary restriction by a third party who rightfully possesses the information in a non-restricted manner. Employee further understands that the Company considers the following information to be included, without limitation, in the definition of Proprietary Information: (a) techniques, development tools and processes, computer printouts, computer programs, design manuals; (b) information about costs, profits, revenues, margins and markets; (c) plans for future development and new product concepts; (d) customer names, addresses, telephone numbers, facsimile numbers, credit card numbers, contact persons and customer preferences; (e) vendor names, addresses, telephone numbers, facsimile numbers, contact persons, vendor preferences and pricing; (f) marketing plans, bidding information, costs of product, services and other items, proposal information, proposal methods and policies, price schedules, product profit margins, price setting methods and policies, customer service methods and policies and service plans and policies; (g) product plans, product development plans, product specifications, sources of supply, methods of operation and related materials conceived, created or reduced to practice in the performance of services for the Company; (h) the Company’s business plans, accounting records, computer records, computer systems, networking and telecommunication systems, management information systems and programs, audits and other financial data related to products and services provided by the Company; (i) labor rates, commission rates and plans, commission schedules, employee lists, employee performance evaluations and related information, employee titles, outside contracting sources and rates, benefit costs and research reports; and (j) all documents, books, papers, and other data of any kind and description, including electronic data recorded or retrieved by any means, that have been or will be given to Employee by the Company (or any affiliate of it), as well as written or verbal instructions or comments.
6.2 Non-Disclosure. Employee agrees that her work with the Company will involve access to and creation of Proprietary Information. Employee further agrees to hold all Proprietary Information in strict confidence and never to use or disclose any Proprietary Information to anyone at any time, including after the termination of her employment, except to the extent necessary to carry out her responsibilities as an employee of the Company, or as specifically authorized in writing by an authorized officer of the Company, other than Employee.
6.3 Return Of Third Party Information. Employee represents and warrants that she has returned all property, information, and trade secrets belonging to all prior employers, if any.
6.4 Former Agreements. Employee represents and warrants that her performance of the terms of this Agreement will not breach any agreement to keep in confidence confidential information or trade secrets acquired by her prior to her employment by the Company, and that Employee is not subject to any restrictions, particularly (but without limitation) in connection with any previous employment, which has a possibility of adversely altering the Company’s business or limiting the rights of the Company.
6.5 Non-Solicitation. Employee understands and agrees that, because of her responsibilities at the Company, she will help to develop, and will be exposed to the Company’s business strategies, information on customers and clients, and other valuable Proprietary Information, and that use or disclosure of such Proprietary Information in breach of this Agreement would be extremely difficult to detect or prove. Employee acknowledges that the Company’s relationships with its employees, customers, clients, vendors, and other persons are valuable business assets. Therefore, Employee agrees as follows:
(a) Employee shall not, for a period of one year after she is no longer employed by the Company, directly or indirectly solicit, induce, recruit, or encourage any officer, director, or employee of the Company, or any of the Company’s affiliates or subsidiaries, to leave the Company or terminate his or her employment with the Company;
(b) Employee shall not, for a period of one year after she is no longer employed by the Company directly or indirectly: (i) divert or attempt to divert any business from the Company or any of the Company’s affiliates or subsidiaries; (ii) interfere with any business relationship or contract between the Company, including the Company’s affiliates or subsidiaries, and any of its customers, clients, members, vendors, business partners, or suppliers; or (iii) for the purpose of selling products or services competitive with the Company or the Company’s affiliates, solicit any person, firm, corporation or entity of any kind, that was a customer, client or prospective client of the Company at any time during the one year period preceding the termination date of Employee’s employment.
6.6 Injunctions. Employee acknowledges that the restrictions contained in Section 6 are reasonable and necessary in view of the nature of the Company’s businesses, in order to protect the legitimate interests of the Company, and that any violation thereof would result in irreparable injury to the Company. Therefore, Employee agrees that, in the event of a breach or threatened breach by Employee of the provisions of the paragraphs above, the Company shall be entitled to obtain from any court of competent jurisdiction, preliminary and permanent injunctive relief restraining Employee from any violation of the foregoing.
7. Arbitration.
7.1 The Company and Employee hereby agree that, to the fullest extent permitted by law, any and all claims or controversies between them (or between Employee and any present or former officer, director, agent, or employee of the Company or any parent, subsidiary, or other entity affiliated with the Company) that arise out of or relate to this Agreement or Employee’s employment with the Company, shall be resolved by final and binding arbitration.
7.2 Claims subject to arbitration shall include, without limitation, contract claims, tort claims, claims relating to compensation and stock options, as well as claims based on any federal, state, or local law, statute, or regulation, including, but not limited to any claims arising under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the California Fair Employment and Housing Act. However, claims for unemployment benefits, workers’ compensation claims, and claims under the National Labor Relations Act shall not be subject to arbitration.
7.3 Any arbitration proceeding shall be conducted in accordance with the National Rules for the Resolution of Employment Disputes of the American Arbitration Association (“the AAA Rules”). The arbitrator shall apply the same substantive law, with the same statutes of limitations and same remedies that would apply if the claims were brought in a court of law.
7.4 Either the Company or Employee may bring an action in court to compel arbitration under this Agreement and to enforce an arbitration award. Otherwise, neither party shall initiate or prosecute any lawsuit of claim in any way related to any arbitrable claim, including without limitation any claim as to the making, existence, validity, or enforceability of the agreement to arbitrate. Nothing in this Agreement, however, precludes a party from filing an administrative charge before an agency that has jurisdiction over an arbitrable claim. Moreover, nothing in this Agreement prohibits either party from seeking provisional relief pursuant to Section 1281.8 of the California Code of Civil Procedure.
7.5 All arbitration hearings under this Agreement shall be conducted in Los Angeles, California, unless otherwise agreed by the parties. The arbitration provisions of this Arbitration Agreement shall be governed by the Federal Arbitration Act. In all other respects, this Arbitration Agreement, including available discovery (which the parties agree shall be favorably considered by the arbitrator) shall be construed in accordance with the laws of the State of California, without reference to conflicts of law principles.
7.6 Each party shall initially pay its own costs and attorney’s fees. However the arbitrator shall award a reimbursement of reasonable attorneys’ fees and costs to the prevailing party and the arbitrator shall determine the party that is the prevailing party should there be one. The Company agrees to pay the costs and fees of the arbitrator to the extent required by law, which fees and costs are not recoverable even if the Company is the prevailing party.
7.7 The parties also understand and agree that this agreement constitutes a waiver of their right to a trial by jury of any claims or controversies covered by this agreement. The parties agree that none of those claims or controversies shall be resolved by a jury trial.
8. Severability.
8.1 Severability Of Unenforceable Provisions. The provisions of this Agreement are severable. In the event that any one or more of the provisions contained in this Agreement, or the application thereof in any circumstances is held invalid, illegal, or unenforceable in any respect for any reason, the validity and enforceability of any such provision in every other respect and of the remaining provisions of this Agreement shall not be in any way impaired or affected, it being intended that all of the rights and privileges contained in this Agreement shall be enforceable to the fullest extent permitted by law.
8.2 Scope. To the extent that any provision hereof is deemed unenforceable by virtue of its scope, but could be enforceable by reducing the scope, Employee and the Company agree that same shall be enforced to the fullest extent permissible under the laws and public policies applied in the jurisdiction in which enforcement is sought, and that the Company shall have the right, in its sole discretion, to modify such invalid or unenforceable provision to the extent required to be valid and enforceable.
9. Successors.
This Agreement and the rights and obligations of the parties hereto shall be binding upon and inure to the benefit of any successor or successors of the Company by way of reorganization, merger, acquisition or consolidation, and any assignee of all or substantially all of the Company’s business and properties.
10. Amendments; Waivers.
This Agreement may not be orally modified or amended. It may only be modified or amended by an instrument in writing signed by Employee and by a duly authorized representative of the Company, other than Employee. No failure to exercise and no delay in exercising any right, remedy, or power under this Agreement shall operate as a waiver thereof or as a waiver of any other right, remedy, or power, nor shall any single or partial exercise of any right, remedy, or power hereunder preclude any other or further exercise of any other right, remedy, or other power provided herein or by law or in equity.
11. Notices.
All notices, requests, demands, and other communications hereunder shall be in writing, and shall be delivered in person, by facsimile, or by certified or registered mail with return receipt requested. Each such notice, request, demand, or other communication shall be effective: (a) if delivered by hand, when delivered at the address specified in this Section; (b) if given by facsimile, when such facsimile is transmitted to the telefacsimile number specified in this Section and confirmation is received; or (c) if given by certified or registered mail, three days after the mailing thereof. Notices shall be delivered as follows:
If to the Company:
xXXXX.xxx, Inc.
0000 X. 000xx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Chief Executive Officer
Fax: 0-000-000-0000
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
00000 XxxXxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
If to the Employee:
Xxxxxxxxx S.C.S. Xxxxxx
0000 X. 000xx Xxxxxx
Xxxxxxxx, XX 00000
Any party may change its address by notice giving notice to the other party of a new address in accordance with the foregoing provisions.
12. Assignment.
No benefit hereunder shall be subject to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge, and any attempt to do so shall be void. The Company shall be permitted to assign this Agreement to any affiliate or any successor, subject to the provisions outlined in Section 4.2.
13. Integration.
This Agreement is intended to be the final, complete, and exclusive statement of the terms of Employee’s employment by the Company. This Agreement supersedes all other prior and contemporaneous agreements and statements, whether written or oral, express or implied, pertaining in any manner to the employment of Employee, and it may not be contradicted by evidence of any prior or contemporaneous statements or agreements. To the extent that the practices, policies, or procedures of the Company, now or in the future, apply to Employee and are inconsistent with the terms of this Agreement or the offer letter, the provisions of this Agreement shall control. To the extent that such practices, policies, and procedures are not contradicted by the terms of this Agreement, they shall be deemed to further and enhance the terms and conditions of Employee’s employment.
14. Interpretation.
The language in all parts of this Agreement shall be in all cases construed simply according to its fair meaning and not strictly for or against any party. Whenever the context requires, all words used in the singular will be construed to have been used in the plural, and vice versa. The descriptive headings of the sections and subsections of this Agreement are inserted for convenience only and shall not control, limit, or affect the interpretation or construction of any of the provisions herein.
15. Governing Law.
This Agreement has been negotiated and executed in the State of California and shall in all respects be governed by and interpreted in accordance with the laws of the State of California without giving effect to principles of conflict of laws.
EMPLOYEE ACKNOWLEDGES THAT SHE HAS READ THIS AGREEMENT AND UNDERSTANDS ITS CONTENTS. EMPLOYEE FURTHER ACKNOWLEDGES THAT THE COMPANY HAS ADVISED HER OF HER RIGHT TO CONSULT WITH LEGAL COUNSEL OF HER OWN CHOICE CONCERNING THIS AGREEMENT. BY SIGNING THIS AGREEMENT, EMPLOYEE AND THE COMPANY AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
The parties have executed this Agreement on the dates noted below.
| xXXXX.xxx, Inc. | |
| Dated: December 22, 2004. | /s/Xxxx Xxxxxxx |
| XXXX XXXXXXX, Chief Executive Officer of xXXXX.xxx | |
| Dated: December 22, 2004. | /s/Xxxxxxxxx S.C.S. Xxxxxx |
| XXXXXXXXX S.C.S. XXXXXX |
