Exhibit 10.32
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of the 1st day of December,
2000 by and between American Banknote Corporation, a Delaware corporation
(hereinafter referred to as the "Company"), and Xxxxxx X. Xxxxxx, an individual
(hereinafter referred to as the "Executive").
WHEREAS, the Company wishes to retain the services of the Executive in
the capacities herein set forth, and the Executive wishes to be employed by the
Company in such capacities;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Executive hereby agree as follows:
SECTION 1. EMPLOYMENT. The Company hereby employs the Executive, and
the Executive hereby accepts employment with the Company, upon the terms and
conditions hereinafter set forth.
SECTION 2. TERM. Subject to the provisions for earlier termination
hereinafter set forth, the term of employment hereunder (the "Term") shall
commence on December 1, 2000 and shall continue for a period of three (3) years,
terminating on December 1, 2003. Such three-year period or any subsequent
Renewal Period (as defined below) is referred to herein as the "Employment
Period".
SECTION 3. RENEWAL OF AGREEMENT. At the end of any Employment Period,
this Agreement will be automatically renewed for an additional period of two (2)
years (each a "Renewal Period") unless: (i) the Company, by written notice to
the Executive, informs the Executive that it will not renew this Agreement or
(ii) the Executive, by written notice to the Company, informs the Company that
he will not renew this Agreement. Such notice shall be provided to the Executive
or to the Company, as the case may be, at least thirty (30) days prior to the
end of the relevant Employment Period.
SECTION 4. COMPENSATION. The Company agrees to provide the Executive
with salary and other benefits and perquisites for all services rendered by the
Executive under this Agreement in accordance with Schedule A attached hereto.
SECTION 5. DUTIES. During the Term, the Executive shall serve as
Chairman of the Board of Directors and Chief Executive Officer of the Company
and each of its major operating subsidiaries.
SECTION 6. EXTENT OF SERVICE. During the Term, the Executive shall be
required to devote not more than 50% of his attention during business hours to
the business and affairs of the Company and its affiliates, and to use his best
efforts to perform faithfully and efficiently his responsibilities hereunder.
SECTION 7. TERMINATION OF EMPLOYMENT.
SECTION 7.1. The Company may immediately terminate the Executive's
employment at any time during the Employment Period for Cause. For purposes of
this Agreement, "Cause" shall mean the Executive engaging in gross misconduct in
connection with his relationship to the Company, which misconduct has caused
injury to the business and affairs of the Company or an affiliate, monetary or
otherwise.
SECTION 7.3. NOTICE OF TERMINATION. Any termination by the Company for
Cause shall be communicated by Notice of Termination to the Executive given in
accordance with Section 11.5 hereof. For purposes of this Agreement, a "Notice
of Termination" means a written notice which (i) sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of the
Executive's employment hereunder; and (ii) specifies the termination date
SECTION 8. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
SECTION 8.1. If the Executive's employment is terminated for Cause
during the Employment Period, this Agreement shall terminate without further
obligation by the Company to the Executive under this Agreement other than the
payment of the compensation set forth in Schedule A attached hereto accrued up
to the effective date of such termination.
SECTION 8.2. If the Executive's employment is terminated for any
reason other than for Cause, if the Company fails to renew this agreement
pursuant to Article 3, or if the Executive shall terminate his employment for
Good Reason (as hereinafter defined), then the Company shall pay to the
Executive a lump sum severance payment in an amount equal to 3 years of the Base
Salary in effect on the date of termination.
SECTION 8.3. The Executive may, at any time upon written notice to the
Company, terminate his employment for Good Reason in the event that the Company
shall at any time during the Employment Period (a) assign him to any position or
duties other than those set forth in Article 5, (b) fail to re-elect him to the
Board of Directors, (c) require the Executive to report to any person or entity
other than the Board of Directors, (d) relocate the Company's corporate offices
to any location other than Manhattan, New York, Westchester County, New York, or
Bergen County, New Jersey, unless approved in writing by the Executive, or (e)
reduce or otherwise materially alter the Executive's Base Salary, bonus or other
benefits hereunder.
SECTION 9. COVENANTS OF EXECUTIVE.
SECTION 9.1 NOTICE OF RETIREMENT, RESIGNATION OR TERMINATION OF
EMPLOYMENT. The Executive agrees that he will not voluntarily retire, resign or
otherwise terminate his employment relationship with Company without first
giving the Company at least 120 days' prior written notice of the effective date
thereof.
SECTION 9.2 EXECUTIVE COOPERATION. The Executive agrees to assist and
cooperate with the Company in connection with the defense or prosecution of any
claim that may be made against or by the Company, or in connection with any
investigation or dispute or claim of any kind involving the Company.
SECTION 9.3 RIGHTS AND REMEDIES UPON BREACH. The Executive agrees that
any breach of this Agreement would cause irreparable harm to the Company and
that, in the event of such breach, the Company shall have, in addition to all
other remedies at law, the right to an injunction, specific performance or other
equitable relief to prevent or redress the violation of Executive's obligations
hereunder.
SECTION 10. RESTRICTIVE COVENANTS.
SECTION 10.1 COMPANY PROPERTY. The Executive agrees that all client,
supplier and distributor lists, client data, financial or other data, computer
software programs, source codes, plans, contracts, agreements, literature,
manuals, catalogs, brochures, books, records, research, charts, maps,
correspondence and other materials furnished to the Executive by the Company or
any of its affiliates, or secured through the efforts of the Executive and
relating to the business conducted by the Company or any of its affiliates, are
and shall remain the property of the Company, and/or its affiliates, and the
Executive agrees to deliver all such materials, including all copies thereof, to
the Company upon the termination of the Executive's employment hereunder, or at
any other time at the Company's request.
SECTION 10.2 CONFIDENTIALITY. Except for the benefit of the Company or
any of its affiliates, the Executive agrees that the Executive will not at any
time during or after the Executive's employment with the Company use, reveal,
divulge or make known to any person, firm or corporation any trade secrets or
confidential information relating to the business of the Company or any of its
affiliates, and will retain all such knowledge and information in trust in a
fiduciary capacity for the sole benefit of the Company, its affiliates and their
respective successors and assigns. Such information shall include, but is not
limited to: (a) confidential Company, affiliate and customer financial and other
information; marketing strategies and plans, personnel strategies, plans and
information; affiliation strategies and plans; cost and pricing strategies,
plans and data; new product and service offerings; regulatory matters; legal
matters; and internal investigations; (b) client lists, phone numbers,
electronic mail addresses, electronic mail messages (sent and received),
facsimile numbers, call lists, processes, techniques, diagrams, telephone
records, computer software and other data; (c) memoranda, notes, procedural
guidelines, fee and compensation structure, and other technical data of the
Company or its affiliates or their respective clients; (d) trade secrets,
business practices and procedures, research and development data, business,
financial, marketing and economic plans, business models, systems and
methodologies, computer output, program listings, simulated results,
mathematical models, programs, algorithms, numerical techniques, and elliptical
results, diaries, calendars, and rolodexes of the Company or its affiliates or
their respective clients; and (e) all information pertaining to any assignments
performed during the course of Executive's employment.
SECTION 10.3 PROVISIONS SURVIVE TERMINATION OF AGREEMENT. Except as
expressly provided in any other written agreement between the Company and the
Executive, the provisions of this Section 10 (and Sections 8, 9 and 11) shall
survive the termination of this Agreement and the Executive's employment with
the Company hereunder.
SECTION 11. GENERAL.
SECTION 11.1 SUPERSEDES PRIOR AGREEMENTS. This Agreement supersedes
all prior agreements and understandings between the Executive and the Company or
any of its affiliates or their respective directors, officers, shareholders,
employees, attorneys, agents or representatives, and constitutes the entire
Agreement between the parties, respecting the subject matter hereof and there
are no representations, warranties or commitments other than those expressed
herein.
SECTION 11.2 OTHER AGREEMENTS. The Executive represents and warrants
to the Company that the Executive is not a party to or bound by, and the
employment of the Executive by the Company or the Executive's disclosure of any
information to the Company or its utilization of such information will not
violate or breach any, employment, retainer, consulting, license,
non-competition, non-disclosure, trade secrets or other agreement between the
Executive and any other person, partnership, corporation, joint venture,
association or other entity.
SECTION 11.3 AMENDMENT. No modification or amendment of, or waiver
under, this Agreement shall be valid unless in writing and signed by the
Executive and an officer of the Company pursuant to express authority granted by
the Company.
SECTION 11.4 WAIVER. The waiver by the Company or the Executive of a
breach of any provision of this Agreement by the other shall not operate or be
construed as a waiver of any subsequent breach.
SECTION 11.5 NOTICES. Each notice, request, demand, approval or other
communication which may be or is required to be given under this Agreement shall
be in writing and shall be deemed to have been properly given when received
personally at the address set forth below for the intended party during normal
business hours at such address, when received by facsimile or other electronic
transmission at the respective facsimile transmission numbers of the parties set
forth below, or when received by recognized overnight courier or by United
States registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Company:
American Banknote Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxx Xxxxxxx
with a copy to:
Solomon, Zauderer, Ellenhorn, Xxxxxxxx & Xxxxx
00 Xxxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
If to the Executive:
Xxxxxx X. Xxxxxx
00 Xxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
or such other address as he may from time to time designate to the Company.
Notices may be given to such other address or addresses or by way of
such other facsimile transmission number, as a particular party may from time to
time designate by written notice to the other party hereto. Each notice,
request, demand, approval or other communication which is sent in accordance
with this Section shall not be deemed delivered, given and received for all
purposes of this Agreement until actually received by the other party.
SECTION 11.6 SUCCESSORS; ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the Company and the Executive and their
respective heirs, personal representatives, permitted assignees and successors.
Neither party may assign this Agreement; provided, however, that the Company
may, without the prior consent of the Executive, assign this Agreement to an
affiliate or to an entity to which the Company has sold all or substantially all
of its assets. The Company shall obtain an agreement from a successor who
purchases all or substantially all of the assets of the Company to assume and
agree to perform this Agreement.
SECTION 11.7 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to conflict of laws provisions thereof. The parties agree that the personal
jurisdiction and venue of any action brought under this Agreement shall be in
the state or federal courts located in New York State.
SECTION 11.8 HEADINGS. The headings in this Agreement are for
reference only and shall not affect the interpretation of this Agreement.
SECTION 11.9 UNENFORCEABLE TERMS. In the event any term or provision
of this Agreement shall for any reason be invalid, illegal, or unenforceable in
any respect, this Agreement shall be interpreted and construed as if such term
or provision had never been included herein and the validity and enforceability
of any other provision hereof shall be unaffected thereby.
SECTION 11.10 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, all of which taken together shall constitute one and the same
agreement.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the day and year first above written.
AMERICAN BANKNOTE CORPORATION
By:
-----------------------------
Name:
Title:
------------------------------------
XXXXXX X. XXXXXX
SCHEDULE A
TO
EMPLOYMENT AGREEMENT
BETWEEN XXXXXX X. XXXXXX
AND AMERICAN BANKNOTE CORPORATION
COMPENSATION
1. SALARY. During the Term, the Company shall pay to the Executive a
monthly salary ("Base Salary") of no less than $15,000, payable in equal
installments twice per month.
2. SALARY INCREASES. On September 1 of each year during the Term, the
Base Salary shall be increased by not less than 10%. In the event that the
duties set forth in Article 5 above require Executive to devote more than 50% of
his attention during business hours to the business and affairs of the Company
and its affiliates, the Base Salary (as defined in Schedule A) shall be adjusted
proportionally. In the event that the duties set forth in Article 5 above
require Executive to devote the equivalent of full-time services (i.e. an
average of 35 hours or more each week) to the business and affairs of the
Company and its affiliates, the Base Salary (as defined in Schedule A) shall be
adjusted to not less than 200% of the prior Base Salary . In the event of any
increase in the Base Salary for any reason, the increased amount shall
automatically become the Base Salary.
3. BONUS. In each year during the Term, the Company shall pay to the
Executive a bonus in an amount equal to 50% of the Base Salary at the end of
such year, based upon achieving budgeted annual EBITDA targets. Each year, the
Compensation Committee of the Board of Directors shall establish a bonus plan,
which plan shall provide for partial bonus upon partial achievement of EBITDA
targets and excess bonus upon exceeding EBITDA targets.
4. OTHER BENEFITS. The Executive shall be entitled to participate in
and receive the benefits of any and all stock option, pension, retirement,
vacation, profit sharing, health, disability, insurance and other benefit plans,
programs and policies, if any, which may be maintained by the Company from time
to time during the Term, or may elect to receive the cash value thereof in lieu
of participation.
5. LIFE INSURANCE. In addition to the other benefits and perquisites
offered to key executives of the Company, the Company shall obtain and pay for a
life insurance policy insuring against the death of the Executive in the amount
of at least $1,000,000, and naming such beneficiaries as the Executive shall
designate from time to time..
6. EXPENSES. The Company shall reimburse the Executive for all
reasonable out-of-pocket expenses incurred in connection with his employment
hereunder, in accordance with Company policy.
