EMPLOYMENT AGREEMENT
EXHIBIT 10.3
This Employment Agreement (“Agreement”) is made and entered into as of August , 2005 (the “Effective Date”) by and between Xxxxx Xxxxxx (“Executive”), and Gaiam, Inc., a Colorado corporation (“Company”).
1. TERM OF EMPLOYMENT: Subject to the terms of this Agreement, Company hereby agrees to employ Executive, and Executive hereby agrees to accept such employment, for the period beginning on the Effective Date and ending on the fourth anniversary of the Effective Date or such earlier date upon which employment is terminated by Company or Executive in accordance with the terms hereof (the “Term”).
2. POSITION AND DUTIES: During the Term, Executive shall serve as Chairman of the Board and Chief Executive Officer of Company, shall report to the Board of Directors (the “Board”), and shall perform such duties, consistent with such positions, as the Board may assign, delegate or limit from time to time. Executive shall diligently devote such business time, energy and ability to the business of Company as is necessary to perform Executive’s duties, and shall perform those duties fully, faithfully, efficiently and in compliance with law.
3. COMPENSATION AND BENEFITS: Company shall pay Executive an annual base salary of $290,000 (the “Base Salary”), which shall be earned and shall be payable in regular installments in accordance with Company’s normal payroll practices, less required or authorized deductions. Executive shall be eligible to participate in all of the Company’s bonus programs for executive officers. The Board shall review Executive’s performance annually. Executive shall be entitled to customary benefits as determined by the Board, including five weeks of paid vacation days and a certain number of paid sick days, and the right to participate in Company’s retirement plans and group health plans applicable to Executive. Company agrees to reimburse Executive, subject to its normal policy and practices, for travel and other expenses reasonably and necessarily incurred or made by Executive in connection with Company business.
4. MISCELLANEOUS:
(a) Notices: All notices hereunder shall be in writing and shall be directed to the applicable address set forth on the signature page hereto.
(b) Survivability: The expiration or termination of the employment of Executive or of this Agreement shall not operate to affect such of the provisions hereof as are expressed to remain in full force and effect notwithstanding such termination or expiration.
(c) Successors; No Assignment of Agreement: Except as otherwise provided herein, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective legal representatives, heirs, successors and assigns. Executive acknowledges that his services are unique and personal. Accordingly, Executive may not assign his rights or delegate his duties or obligations under this Agreement to any person or entity.
(d) Additional Representations: Executive represents and warrants that he has the full capacity, right and authority to enter into this Agreement and to render the services as
required under this Agreement, and that by signing this Agreement he is not breaching any contract or legal obligation he owes to any third party. Executive represents and warrants to Company that he is knowledgeable and sophisticated as to business matters, including the subject matter of this Agreement, that he has read this Agreement and that he understands its terms. Executive acknowledges that, prior to assenting to the terms of this Agreement, he had been given a reasonable time to review it, to consult with counsel of his choice, and to negotiate at arm’s length with Company as to its contents. Company and Executive agree that the language used in this Agreement is the language chosen by the parties to express their mutual intent, and that Executive has entered into this Agreement freely and voluntarily and without pressure or coercion from anyone. Executive represents and warrants to Company that he is not bound by any agreement or subject to any restriction that would interfere with or prevent him from entering into or carrying out this Agreement.
(e) Rights and Waivers: All rights and remedies of the parties hereto are separate and cumulative, and no one of them, whether exercised or not, shall be deemed to be to the exclusion of any other rights or remedies or shall be deemed to limit or prejudice any other legal or equitable rights or remedies which either of the parties hereto may have. No party to this Agreement shall be deemed to waive any rights or remedies under this Agreement unless such waiver is in writing and signed by such party. No delay or omission on the part of either party in exercising any right or remedy shall operate as a waiver of such right or remedy or any other rights or remedies. A waiver on any one occasion shall not be construed as a bar to or a waiver of any right or remedy on any future occasion.
(f) Withholding: Company may withhold from any amounts payable under this Agreement such federal, state or local taxes as shall be required to be withheld pursuant to any applicable law or regulation.
(g) Miscellaneous: Any provision of this Agreement may be waived or amended if, and only if, such amendment or waiver is in writing and signed by all of the parties. This Agreement constitutes the entire agreement and understanding of the parties hereto and supersedes all prior agreements and understandings, both written and oral, among the parties hereto with respect to the subject matter hereof. This Agreement shall be governed by the laws of the State of Colorado (without regard to the choice of law provisions thereof). This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but such counterparts together shall constitute one and the same instrument. The section headings of this Agreement are for convenience of reference only and shall not be deemed to limit or affect any of the provisions hereof. If a court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable under applicable law, such provision shall be ineffective only to the extent of such invalidity or unenforceability, without invalidating the remainder of this Agreement. The parties also intend that, if a court of competent jurisdiction finds any provision of this Agreement overly restrictive or unenforceable as written, it will reform such provision to the least extent necessary and, as so reformed, will enforce such provision to the maximum degree permitted under applicable law.
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IN WITNESS WHEREOF, Company and Executive, intending to be legally bound, have executed this Agreement on the day and year first above written.
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EXECUTIVE: |
COMPANY: GAIAM, INC. |
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By: |
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By: |
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Name: Xxxxx Xxxxxx |
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Name: |
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Address: |
c/o Gaiam, Inc. |
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Title: |
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000 Xxxxxxxxxxx Xxxx. |
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Address: |
000 Xxxxxxxxxxx Xxxx. |
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Xxxxxxxxxx, XX 00000 |
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Xxxxxxxxxx, XX 00000 |
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Facsimile: 000-000-0000 |
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Facsimile: 000-000-0000 |
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