A-Mark Precious Metals, Inc. EMPLOYMENT AGREEMENT As Amended and Restated as of June 1, 2010
EXHIBIT 10.3
A-Xxxx Precious Metals, Inc.
EMPLOYMENT AGREEMENT
As Amended and Restated as of June 1, 2010
As Amended and Restated as of June 1, 2010
This Employment Agreement (this “Agreement”) is an amendment and restatement as of May 13,
2010 of that Employment Agreement dated as of July 2005, and is between A-XXXX PRECIOUS METALS,
INC., a New York Corporation (the “Company”) and XXXX XxXXXX, an individual (“Xx. XxXxxx”). The
Company is a wholly owned subsidiary of SPECTRUM GROUP INTERNATIONAL, INC., a Delaware corporation
(“Spectrum”), which is also a party to this Agreement.
WHEREAS, the Company and Xx. XxXxxx are parties to an Employment Agreement, dated as of July
2005, as amended (as so amended but without giving effect to this amendment and restatement, the
“Existing Agreement”);
WHEREAS, the Existing Agreement will expire June 30, 2010.
WHEREAS, the parties desire to amend the Existing Agreement in certain respects;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth,
the Existing Agreement is hereby amended and restated in its entirety, and the Company and Xx.
XxXxxx therefore agree as follows:
1. Employment; Term. The Company hereby employs Xx. XxXxxx, and Xx. XxXxxx hereby accepts
employment with the Company, in accordance with and subject to the terms and conditions set forth
in this Agreement. The term of Xx. XxXxxx’x employment under 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, 2013.
2. Duties.
(a) During the Term, Xx. XxXxxx shall serve as the Senior Vice President — Trading, reporting
to the Chief Executive Officer of Spectrum. Xx. XxXxxx will have such duties and responsibilities
as are customary for Xx. XxXxxx’x positions and any other duties or responsibilities he may be
reasonably assigned by the Company or Spectrum.
(b) During the Term, Xx. XxXxxx shall devote his full business time and best efforts to the
business and affairs of the Company. Xx. XxXxxx understands and acknowledges that Xx. XxXxxx’x
duties will require business travel from time to time.
3. Compensation.
(a) Commencing July 1, 2010 and thereafter during the Term, the Company shall pay Xx. XxXxxx a
salary of $525,000 per annum (that salary, the “Base Salary”). Payment of the Base Salary will be
in accordance with the Company’s standard payroll practices and subject to all legally required or
customary withholdings. In addition, for each of fiscal 2011 and later fiscal years, Xx. XxXxxx
shall be paid a guaranteed annual bonus of $200,000, payable by July 1 of each year.
(b) For each of the 2011 fiscal year and fiscal years thereafter the Company shall pay to Xx.
XxXxxx an annual bonus (the “Performance Bonus”). The Performance Bonus, if any, will be based on
the extent to which performance goals established by the Company for each of such years have been
met, as more fully set forth on Exhibit A hereto. Each Performance Bonus, if any, shall be paid
within 15 days following the issuance of A-Xxxx Precious Metals, Inc.’s 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 January 2 of the year following the end of such fiscal year.
Except as provided in Section 5, Xx. XxXxxx must be employed by the Company on the last day of the
fiscal year to be eligible for the Performance Bonus. The amount of any bonus payable for fiscal
2010 or earlier periods shall be governed by the terms of the Existing Agreement. If the Company
or Spectrum enters into any equity transactions the effect of which (individually or in the
aggregate) causes the net equity of the Company to fall below $25,000,000, then for purposes of
calculating the Performance Bonus, such equity transactions shall be disregarded.
(c) At July 1, 2010, Spectrum shall grant to Xx. XxXxxx 150,000 restricted stock units (the
“RSUs”) settleable by issuance of shares of Spectrum’s common stock, to vest 100% on June 30, 2013,
with the RSUs to be settleable in full at July 15, 2013, subject to accelerated vesting in the
event of death, Total Disability, termination by the Company not for Cause or termination by Xx.
XxXxxx for Good Reason (these terms as defined below), and otherwise subject to the additional
vesting and forfeiture terms set forth in the agreement evidencing the grant of the RSUs. The RSUs
shall be granted pursuant to the form of award agreement attached as Exhibit B to this Agreement.
(d) Upon submission by Xx. XxXxxx of vouchers in accordance with the Company’s standard
procedures, the Company shall reasonably promptly reimburse Xx. XxXxxx for all reasonable and
necessary travel, business entertainment and other business expenses incurred by Xx. XxXxxx in
connection with the performance of his duties under this Agreement.
(e) During the Term, Xx. XxXxxx is entitled to participate in any and all medical insurance,
group health, disability insurance and other benefit plans that are made generally available by the
Company to employees of the Company (either directly or through a wholly-owned subsidiary),
provided that the medical, group health and disability insurance benefits provided by the Company
to Xx. XxXxxx shall be, in the aggregate, substantially as favorable to Xx. XxXxxx as those
provided by the Company to Xx. Xx Xxxx at June 1, 2010. Xx. XxXxxx is entitled to receive four
weeks paid vacation a year and paid holidays made available pursuant to the Company’s policy
applicable to senior executives of the Company. The Company may, in its sole discretion, at any
time amend or terminate any specific benefit plan or program, but this authority does not relieve
the Company of its obligations under this Section 3(e).
(f) Within 10 business days following the execution of this amended and restated Agreement in
fiscal 2010, the Company shall pay to Xx. XxXxxx a one-time signing bonus in the amount of $150,000
in consideration of his execution of the amendment and restatement of this Employment Agreement.
(g) Compensation paid or payable under this Agreement, including any Performance Bonus paid
or payable under Section 3(b), shall be subject to recoupment by the Company in accordance with the
terms of any policy relating to recoupment (or clawback) approved by the Board of Directors of the
Company or Spectrum and in effect at the time of payment of such compensation.
(h) Compensation payable during periods before June 1, 2010 (and through June 30, 2010, in
the case of severance payment obligations under Section 5(c)(6)) was governed by the terms of the
Existing Agreement as in effect prior to the effectiveness of this amendment and restatement of the
Agreement.
4. Termination. Xx. XxXxxx’x employment hereunder may be terminated prior to the expiration of
the Term under the circumstances set forth in this Section 4. Upon any termination of Xx. XxXxxx’x
employment, the Term shall immediately end, although this Agreement shall remain in effect and
shall govern the rights and obligations of the parties hereto.
(a) Xx. XxXxxx’x employment hereunder will terminate upon Xx. XxXxxx’x death.
(b) Except as otherwise required by law, the Company may terminate Xx. XxXxxx’x employment
hereunder at any time after Xx. XxXxxx becomes Totally Disabled. For purposes of this Agreement,
Xx. XxXxxx will be “Totally Disabled” as of the earlier of (1) the date Xx. XxXxxx becomes entitled
to receive disability benefits under the Company’s long-term disability plan and (2) Xx. XxXxxx’x
inability to perform the duties and responsibilities contemplated under this Agreement for a period
of more than 90 consecutive days due to physical or mental incapacity or impairment.
(c) The Company may terminate Xx. XxXxxx’x employment hereunder for Cause at any time after
providing written notice to Xx. XxXxxx. For purposes of this Agreement, the term “Cause” shall mean
any of the following:
| (1) | Xx. XxXxxx’x 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 wrongful act by or omission of Xx. XxXxxx that materially injures the reputation, business or business relationship of the Company or any of its affiliates, or that, in the good faith judgment of the Company, constitutes fraud or intentional misconduct; | ||
| (3) | Xx. XxXxxx’x conviction (including conviction on a nolo contendere plea) of a felony; | ||
| (4) | the breach of an obligation set forth in Section 6; | ||
| (5) | any other material breach of this Agreement; or | ||
| [(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. XxXxxx that
the Company is terminating his employment with Cause (which notice shall set forth the basis of the
alleged neglect, failure or breach), Xx. XxXxxx has failed to cure the circumstances giving rise to
Cause.
(d) The Company may terminate Xx. XxXxxx’x employment hereunder for any reason, upon 30
days’ prior written notice.
(e) Xx. XxXxxx may terminate his employment hereunder for Good Reason at any time after
providing written notice to the Company. Xx. XxXxxx also may terminate his employment hereunder
without Good Reason, upon 30 days’ written notice to the Company. For the purposes of this
Agreement, “Good Reason” means any of the following occurring during the Term (unless consented to
by Xx. XxXxxx in writing):
| (1) | The Company decreases or fails to pay Xx. XxXxxx’x Base Salary, guaranteed bonus or Performance Bonus or the benefits provided in Section 3, provided that such decrease or failure is material within the meaning of Treasury Regulation § 1.409A-1(n); | ||
| (2) | The Company makes a material change in Xx. XxXxxx’x job description or duties which is adverse to Xx. XxXxxx; and | ||
| (3) | Xx. XxXxxx’x job site is relocated to a location which is more than 30 miles from the current location, unless the parties mutually agree to relocate more than 30 miles from the current location. |
A termination by Xx. XxXxxx with Good Reason shall be effective only if, within 30 days following
delivery of a written notice by Xx. XxXxxx to the Company that Xx. XxXxxx 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.
XxXxxx shall be effective only if the Company receives notice of such termination not later than 90
days after the event constituting Good Reason occurs.
5. Compensation Following Termination Prior to the End of the Term. In the event that Xx.
XxXxxx’x employment hereunder is terminated prior to the expiration of the Term, Xx. XxXxxx 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 RSU agreement):
(a) In the event that Xx. XxXxxx’x employment hereunder is terminated prior to the expiration
of the Term by reason of Xx. XxXxxx’x death or Total Disability, pursuant to Section 4(a) or 4(b),
the Company shall pay the following amounts to Xx. XxXxxx (or Xx. XxXxxx’x 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 Code Section 409A:
| (1) | any accrued but unpaid Base Salary for services rendered to the date of termination; | ||
| (2) | for any fiscal year ending prior to the date of termination of Xx. XxXxxx’x employment, the guaranteed bonus under Section 3(a) and the Performance Bonus, if any, in respect of such completed fiscal year payable as and when such bonus or Performance Bonus would have been paid had Xx. XxXxxx’x employment continued; |
| (3) | any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d) or 3(f); | ||
| (4) | any vacation accrued and unused to the date of termination; and | ||
| (5) | payment of a pro rata (based on the number of days during the year of termination that Xx. XxXxxx was employed) portion of each of the guaranteed bonus under Section 3(a) and the Performance Bonus, if any, for the fiscal year in which Xx. XxXxxx’x employment terminated, payable as and when such bonuses would have been paid had Xx. XxXxxx’x employment continued, subject to Section 5(g). |
(b) In the event that Xx. XxXxxx’x employment hereunder is terminated prior to the expiration
of the Term by the Company for Cause pursuant to Section 4(c) or by Xx. XxXxxx without Good Reason
pursuant to Section 4(e), the Company shall pay the following amounts to Xx. XxXxxx, 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) | for any fiscal year ending prior to the date of termination of Xx. XxXxxx’x employment, the guaranteed bonus under Section 3(a) and the Performance Bonus, if any, in respect of such completed fiscal year, payable as and when such bonus or Performance Bonus would have been paid had Xx. XxXxxx’x employment continued; | ||
| (3) | any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d) or 3(f); | ||
| (4) | any vacation accrued and unused to the date of termination; | ||
| (5) | if such termination of employment is by the Company for Cause under clause (1), (2), (4), (5) or (6) of Section 4(c) (but not under clause (3)), payment of a lump-sum severance payment of $250,000; and | ||
| (6) | payment of a pro rata (based on the number of days during the year of termination that Xx. XxXxxx was employed) portion of the guaranteed bonus under Section 3(a) for the fiscal year in which Xx. XxXxxx’x employment terminated, payable as and when such bonus would have been paid had Xx. XxXxxx’x employment continued, subject to Section 5(g). |
(c) In the event that Xx. XxXxxx’x employment hereunder is terminated prior to the expiration
of the Term by the Company without Cause pursuant to Section 4(d), or by Xx. XxXxxx with Good
Reason pursuant to Section 4(e), the Company shall pay the following amounts to Xx. XxXxxx, 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) | for any fiscal year ending prior to the date of termination of Xx. XxXxxx’x employment, the guaranteed bonus under Section 3(a) and the Performance Bonus, if any, in respect of such completed fiscal year, payable as and when such bonus or Performance Bonus would have been paid had Xx. XxXxxx’x employment continued; | ||
| (3) | any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d) or 3(f); | ||
| (4) | any vacation accrued and unused to the date of termination; | ||
| (5) | payment of a pro rata (based on the number of days during the year of termination that Xx. XxXxxx was employed) portion of each of the guaranteed bonus under Section 3(a) and the Performance Bonus, if any, for the fiscal year in which Xx. XxXxxx’x employment terminated, payable as and when such bonus would have been paid had Xx. XxXxxx’x employment continued, subject to Section 5(g); and | ||
| (6) | for a termination after June 30, 2010, payment of a lump sum severance payment equal to $725,000 within 30 days after such termination; provided, however, that if, under Code Section 409A, any portion of this severance payment would be deemed to be in substitution for a separate severance payment under the Existing Agreement that constitutes a deferral of compensation under Section 409A, such portion shall be payable at the time such corresponding separate payment would have been paid under the Existing Agreement (subject to Section 5(f)), and any other portion of the severance payment shall be deemed a separate payment payable as provided under this Section 5(c)(6), subject to Section 5(f). . Severance payable for a qualifying termination on or before June 30, 2010 shall be governed by the terms of the Existing Agreement. |
(d) The benefits to which Xx. XxXxxx 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. XxXxxx at the time of
termination of Xx. XxXxxx’x employment prior to the end of the Term, Xx. XxXxxx 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.
(f) This Agreement is subject to the Company’s “Special Rules for Compliance with Code
Section 409A Applicable to Employment Agreements,” effective as of December 31, 2008.
(g) Effect of Code Sections 4999 and 280G on Payments.
| (1) | In the event that Xx. XxXxxx becomes entitled to any benefits or payments in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) under this Agreement, or any other plan, arrangement, or agreement with the Company or a subsidiary (the “Payments”), and such Payments will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (or any similar tax that may hereafter be imposed) in connection with a change in control, then, subject to reasonable notification to Xx. XxXxxx and, if he so requests, discussions with his advisors, the Payments under this Agreement shall be reduced (but not below zero) to the Reduced Amount (as defined below), if reducing the Payments under this Agreement will provide Xx. XxXxxx with a greater net after-tax amount than would be the case if no such reduction were made. The “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of the Payments without causing any Payment to be subject to the Excise Tax, determined in accordance with Section 280G(d)(4) of the Code. Only amounts payable under this Agreement shall be reduced pursuant to this Section 5(g). Payments payable in cash and having the lowest denominated value relative to the valuation of such Payments as “parachute payments” shall be reduced first. | ||
| (2) | In determining the potential impact of the Excise Tax, the Company may rely on any advice it deems appropriate including, but not limited to, the advice of its independent accounting firm, legal advisors and compensation consultants. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, the Company may take into account any relevant guidance under the Code and the regulations promulgated thereunder, including, but not limited to, the following: |
| (A) | The amount of the Payments which shall be treated as subject to the Excise Tax shall be equal to the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code, as determined by the Company’s independent accounting firm or other advisor; | ||
| (B) | The value of any non-cash benefits or any deferred or accumulated payment or benefit shall be determined by the Company’s independent accounting firm or other advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code; and | ||
| (C) | The value of any non-competition covenants contained in this Agreement or other agreement between Xx. XxXxxx and the Company or an affiliate shall be taken into account to reduce “parachute payments” to the maximum extent allowable under Section 280G of the Code. |
For purposes of the determinations under this Section 5(g), Xx. XxXxxx shall be deemed to pay
federal income taxes at the highest marginal rate of federal income taxation in the calendar year
in which the applicable payment is to be made, and state and local income taxes at the highest
marginal rate of taxation in the state and locality of Xx. XxXxxx’x residence, net of the maximum
reduction in federal income taxes which could be obtained from deduction of such state and local
taxes (unless it is impracticable for Xx. XxXxxx to itemize his deductions).
(g) In the event that Xx. XxXxxx becomes entitled to payment of a pro rata portion of either
the bonus under Section 3(a) or the Performance Bonus, then, in the discretion of the Company, the
present value of such bonus or Performance Bonus may be paid earlier than the specified time of
settlement if accelerated payment is permissible under Code Section 409A, in which case the
accelerated payment shall be in full settlement of the obligation hereunder.
6. Exclusive Employment; Nonsolicitation; Nondisclosure of Proprietary Information; Surrender
of Records; Inventions and Patents; Code of Ethics; Other Commitments.
(a) No Conflict; No Other Employment. During the period of Xx. XxXxxx’x employment with the
Company, Xx. XxXxxx shall not: (i) engage in any activity which conflicts or interferes with or
derogates from the performance of Xx. XxXxxx’x duties hereunder nor shall Xx. XxXxxx 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. XxXxxx
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 Xx. XxXxxx has engaged and intends to continue to engage in
certain other business transactions, subject to the approval of the Audit Committee of the
Company’s Board of Directors as appropriate.
(b) Non-solicitation. In consideration of the payment by the Company to Xx. XxXxxx of amounts
that may hereafter be paid to Xx. XxXxxx pursuant to this Agreement (including, without limitation,
pursuant to Sections 3 and 5 hereof) and other obligations undertaken by the Company hereunder, Xx.
XxXxxx agrees that during his employment with the Company and for a period of one year following
the date of termination of his employment, Xx. XxXxxx 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; or (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.
(c) Proprietary Information. Xx. XxXxxx 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. XxXxxx 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. XxXxxx 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. XxXxxx 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. XxXxxx 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).
(d) Confidentiality and Surrender of Records. Xx. XxXxxx shall not during the Term or at any
time thereafter (irrespective of the circumstances under which Xx. XxXxxx’x 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. XxXxxx 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.
XxXxxx’x 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. XxXxxx, either alone or jointly
with others, in the course of his employment by the Company, belong to the Company. Xx. XxXxxx 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. XxXxxx 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. XxXxxx 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. XxXxxx 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.
XxXxxx’x obligations under the Company’s or Spectrum’s Code of Ethics. Xx. XxXxxx’x obligations
under this Section 6 are in addition to, and not in lieu of, Xx. XxXxxx’x obligations under such
Code of Ethics. To the extent there is any inconsistency between this Section 6 and such Code of
Ethics which would permit Xx. XxXxxx 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.
(h) Cooperation With Regard to Litigation. Xx. XxXxxx agrees to cooperate with the
Company, during the Term and thereafter (including following Xx. XxXxxx’x termination of employment
for any reason), by making himself reasonably available to testify on behalf of the Company or any
subsidiary or affiliate of the Company, in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, and to assist the Company, or any subsidiary or affiliate of the
Company, in any such action suit, or proceeding, by providing information and meeting and
consulting with the Board or its representatives or counsel, or representatives or counsel to the
Company, or any subsidiary or affiliate of the Company, as reasonably requested. The Company
agrees to reimburse Xx. XxXxxx, on an after-tax basis each calendar quarter, for all expenses
actually incurred in connection with his provision of testimony or assistance in accordance with
the provisions of Section 6(h) of this Agreement (including reasonable attorneys’ fees) but not
later than the last day of the calendar year in which the expense was incurred (or, in the case of
an expense incurred in the final quarter of a calendar year, the next following February 15).
(i) Non-Disparagement. Xx. XxXxxx shall not, at any time during the Term and
thereafter, make statements or representations, or otherwise communicate, directly or indirectly,
in writing, orally or otherwise, or take any action which may, directly or indirectly, disparage
the Company or any of its subsidiaries or affiliates or their respective officers, directors,
employees, advisors, businesses or reputations. Notwithstanding the foregoing, nothing in this
Agreement shall preclude Xx. XxXxxx from making truthful statements that are required by applicable
law, regulation or legal process.
(j) Release of Employment Claims. Xx. XxXxxx agrees, as a condition to receipt of any
termination payments and benefits provided for in Section 5 of this Agreement (other than
compensation accrued and payable at the date of termination without regard to termination) that he
will execute a general release agreement, in substantially the form set forth in Exhibit C to this
Agreement, releasing any and all claims arising out of Xx. XxXxxx’x employment other than
enforcement of this Agreement and other than with respect to vested rights or rights provided for
under any equity plan, any compensation plan or any benefit plan or arrangement of the Company or
rights to indemnification under any agreement, law, Company organizational document or policy or
otherwise. The Company will provide Xx. XxXxxx with a copy of such release simultaneously with
delivery of the notice of termination, but not later than 21 days before (45 days before if Xx.
XxXxxx’x termination is part of an exit incentive or other employment termination program offered
to a group or class of employees) Xx. XxXxxx’x termination of employment. Xx. XxXxxx shall deliver
the executed release to the Company eight
days before the date applicable under Section 5 of this Agreement for the payment of the
termination payments and benefits payable under Section 5 of this Agreement.
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:
A-Xxxx Precious Metals, Inc.
c/o Spectrum Group International, Inc.
00000 Xxxxx
Xxxxxx, XX 00000
Attention: General Counsel
c/o Spectrum Group International, Inc.
00000 Xxxxx
Xxxxxx, XX 00000
Attention: General Counsel
If to Spectrum, to:
If to Xx. XxXxxx, to:
Xx. Xxxx XxXxxx
000 00xx Xx.
Xxxxx Xxxxxx, XX 00000
000 00xx Xx.
Xxxxx Xxxxxx, XX 00000
8. Assignability; Binding Effect. This Agreement is a personal contract calling for the
provision of unique services by Xx. XxXxxx, and Xx. XxXxxx’x 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. XxXxxx by the Company and supersedes all prior
agreements and understandings, both written and oral, between the parties (or between Xx. XxXxxx
and Spectrum Numismatics, Inc.) with respect to the subject matter of this Agreement.
10. Amendments; Waivers. This Agreement may not be amended except by an instrument in writing
signed on behalf of the Company and Xx. XxXxxx. 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.
XxXxxx 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. XxXxxx’x employment hereunder, or of this Agreement, will survive
such termination. Without limiting the generality of the foregoing, the provisions of Sections
3(g), 5 and 6 shall survive any termination of this Agreement in accordance with their terms.
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. Binding Arbitration. (a) Any controversy, dispute or claim arising out of or relating to
the interpretation, performance or breach of this Agreement, or Xx. XxXxxx’x employment or
termination of employment hereunder, shall be resolved by binding arbitration, at the request of
either party, in Los Angeles County, California, in accordance with the rules of the American
Arbitration Association then in effect. The arbitrators shall have the power to grant all legal
and equitable remedies and award compensatory damages provided by California law. The arbitrators
shall issue a statement of findings of facts. The arbitrators shall be deemed to have “exceeded
his powers” for purposes of California Code of Civil Procedure Sections 1286.2 or 1286.6 if they
commit errors of law or legal reasoning. The award of the arbitrators may be vacated or corrected
pursuant to California Code of Civil Procedure. If for any reason a court of competent
jurisdiction refuses to review the arbitration award for errors of law or legal reasoning, then, at
the request of either party, a three-person private review panel shall hear such matters. Each of
the parties shall select one member of the private review panel, and these two panel members shall
select the third member of the panel. Any judgment upon any award rendered by the arbitrator(s)
may be entered in any court of competent jurisdiction. In the event of any such arbitration, the
prevailing party shall be entitled to receive, in addition to any award or judgment, full costs,
including reasonable attorneys’ fees and costs incurred in connection with such proceeding or
arbitration.
(b) Nothwithstanding the foregoing, any action or proceeding (1) seeking injunctive relief
pursuant to Section 6(f) hereof, (2) arising in connection with an arbitration proceeding brought
under this Section 14, or (3) relating to any matter which is not legally arbitrable for any
reason, shall be instituted and prosecuted in the state courts of the State of California, County
of
Los Angeles, or the federal district court in and for the Central District of California located in
Los Angeles, and each party waives the right to change the venue.
15. 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.
16. Mitigation. In no event shall Xx. XxXxxx be obligated to seek other employment or take
any other action by way of mitigation of the amounts payable to him under any of the provisions of
this Agreement, and such amounts shall not be reduced whether or not Xx. XxXxxx obtains other
employment.
The undersigned hereby execute this Agreement on the date stated in the introductory clause.
| A-XXXX PRECIOUS METALS, INC. |
||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | President | |||
| SPECTRUM GROUP INTERNATIONAL, INC. |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Executive Vice President and General Counsel |
|||
| /s/ Xxxx XxXxxx | ||||
| XXXX XxXXXX | ||||
Exhibit A
A-Xxxx Precious Metals, Inc.
Performance Bonus Terms — Xxxx XxXxxx
This
Exhibit to the Employment Agreement, as amended and restated as of June 1, 2010 (the
“Employment Agreement”), between A-Xxxx Precious Metals, Inc. (the “Company”) and Xxxx XxXxxx, sets
forth the terms of the opportunity of Xx. XxXxxx to earn the “Performance Bonus” authorized in
Section 3(b) of the Employment Agreement. This Performance Bonus remains subject to the terms of
Section 3(b) and other applicable terms of the Employment Agreement. Capitalized terms herein have
the meanings as defined in the Employment Agreement.
In each of the Company’s fiscal years 2011, 2012 and 2013, Xx. XxXxxx will have the
opportunity to earn a Performance Bonus as follows, subject to satisfaction of the conditions of
the Employment Agreement (including the condition relating to the Company’s shareholders’ equity
under Section 3(b)):
Assuming that the Company has positive Pre-Tax Profits (as defined below) for a given year,
the Performance Bonus shall equal the following:
| • | A minimum of 3.0% of Pre-Tax Profits up to $10 million of Pre-Tax Profits; plus | ||
| • | A minimum of 6.0% of Pre-Tax Profits in excess of $10 million, up to $13.5 million of Pre-Tax Profits; plus | ||
| • | A minimum of 7.0% of Pre-Tax Profits in excess of $13.5 million of Pre-Tax Profits, up to $20 million of Pre-Tax Profits; plus | ||
| • | A minimum of 11.5% of Pre-Tax Profits in excess of $20 million of Pre-Tax Profits. |
Any amounts paid to Xx. XxXxxx in excess of the minimums set forth above shall be as
determined by the Compensation Committee of the Board of Directors of Spectrum.
Pre-Tax Profits means the Company’s net income (as determined under Generally Accepted
Accounting Principles or GAAP) for the given fiscal year, adjusted as follows:
| • | The positive or negative effects of income taxes (in accordance with GAAP) shall be eliminated from net income in determining Pre-Tax Profits. | ||
| • | The positive or negative effects of foreign currency exchange shall be eliminated from net income in determining Pre-Tax Profits. | ||
| • | Except for the above items, no adjustment shall be made to Pre-Tax Income; thus, for clarity, other extraordinary expenses and bonus compensation accruals shall remain included in net income in determining Pre-Tax Profits. |
In the event that, as a result of a restatement of the Company’s financial statements, the
amount of the Performance Bonus that was actually awarded in a given year is materially
lower than the amount that would have been awarded had the financial results been properly
reported, then Xx. XxXxxx shall be entitled to be paid the difference within 90 days
following the issuance of the restated financial statements.
Exhibit C
RELEASE
We advise you to consult an attorney before you sign this Release. You have until the date
which is seven (7) days after the Release is signed and returned to Spectrum Group International,
Inc. to change your mind and revoke your Release. Your Release shall not become effective or
enforceable until after that date.
In consideration for the benefits provided under your Employment Agreement with Spectrum Group
International, Inc. as amended and restated effective May __, 2010 (the “Employment Agreement”),
and more specifically enumerated in Attachment 1 hereto, by your signature below, you, for yourself
and on behalf of your heirs, executors, agents, representatives, successors and assigns, hereby
release and forever discharge the Company, its past and present parent corporations, subsidiaries,
divisions, subdivisions, affiliates and related companies (collectively, the “Company”) and the
Company’s past, present and future agents, directors, officers, employees, representatives,
successors and assigns (hereinafter “those associated with the Company”) with respect to any and
all claims, demands, actions and liabilities, whether in law or equity, which you may have against
the Company or those associated with the Company of whatever kind, including but not limited to
those arising out of your employment with the Company or the termination of that employment. You
agree that this release covers, but is not limited to, claims arising under the Age Discrimination
in Employment Act of 1967, 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., the
Fair Labor Standards Act, 29 U.S.C. § 201 et seq., the Employee Retirement Income Security Act of
1974, 29 U.S.C. § 1001 et seq., the Connecticut Fair Employment Practices Act, C.G.S. § 46a-51 et
seq., and any other local, state or federal law, regulation or order dealing with discrimination in
employment on the basis of sex, race, color, national origin, veteran status, marital status,
religion, disability, handicap, or age. You also agree that this release includes claims based on
wrongful termination of employment, breach of contract (express or implied), tort, or claims
otherwise related to your employment or termination of employment with the Company and any claim
for attorneys’ fees, expenses or costs of litigation.
This Release covers all claims based on any facts or events, whether known or unknown by you,
that occurred on or before the date of this Release. Except to enforce this Release, you agree that
you will never commence, prosecute, or cause to be commenced or prosecuted any lawsuit or
proceeding of any kind against the Company or those associated with the Company in any forum and
agree to withdraw with prejudice all complaints or charges, if any, that you have filed against the
Company or those associated with the Company.
Anything in this Release to the contrary notwithstanding, this Release does not include a
release of (i) your rights under the Employment Agreement or your right to enforce the Employment
Agreement; (ii) any rights you may have to indemnification or insurance under any agreement, law,
Company organizational document or policy or otherwise; (iii) any rights you may have to equity
compensation or other compensation or benefits under the Company’s equity, compensation or benefit
plans; or (iv) your right to enforce this Release.
By signing this Release, you further agree as follows:
You have read this Release carefully and fully understand its terms;
You have had at least twenty-one (21) days to consider the terms of the Release;
You have seven (7) days from the date you sign this Release to revoke it by written
notification to the Company. After this seven (7) day period, this Release is final and binding and
may not be revoked;
You have been advised to seek legal counsel and have had an opportunity to do so;
You would not otherwise be entitled to the benefits provided under your Employment Agreement
had you not agreed to execute this Release; and
Your agreement to the terms set forth above is voluntary.
Name:
|
||
Signature:
|
Date: | |
Received by:
|
Date: |
Spectrum — sign off on Section re RSUs
Attachment: Attachment 1 — Schedule of Termination Payments and Benefits
