EMPLOYMENT AGREEMENT
THIS AGREEMENT (this "Agreement") is made as of
July 31, 2000, between Xxxxxx Xxxxxxx, Inc., a Florida corporation (the
"Company"), and Xxxxxxx X. Xxxxx ("Executive").
In consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT. The Company shall employ Executive, and
Executive hereby accepts employment with the Company, upon the terms and
conditions set forth in this Agreement for the period beginning on the date
hereof and ending on the Termination Date, as defined in Section 4 hereof (the
"Employment Period"). Executive's principal place of business during the
Employment Period shall be in Fort Lauderdale, Florida. The Company will not
require Executive to relocate from this place of business.
2. POSITION AND DUTIES.
(a) During the Employment Period, Executive shall serve as a
Senior Vice President and Chief Operating Officer of the Retail Division of the
Company and shall have the duties and responsibilities customarily associated
with such position, with such reasonable changes in duties and responsibilities
as requested by the Company.
(b) Executive shall initially report to the Company's
President of Retail Operations and shall devote Executive's reasonable best
efforts and Executive's full business time and attention (except for permitted
vacation periods, periods of illness or other incapacity) to the business and
affairs of the Company.
(c) For purposes of this Agreement, all references to
"Company" shall include any corporation of which the securities having a
majority of the voting power in electing directors are, at the time of
determination, owned by the Company, directly or through one or more
subsidiaries.
3. BASE SALARY AND BENEFITS.
(a) Executive's base salary shall be $160,000 per annum (the
"Base Salary") through the Company's next annual salary review, which salary
shall be payable in regular installments in accordance with the Company's
general payroll practices (but at least monthly) and shall be subject to
required withholding. In addition, during the Employment Period, Executive shall
be entitled to participate in all of the Company's employee benefit programs for
which employees of the Company are generally eligible, including annual grants
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of stock options under the Company's Stock Option Plan and other stock option
plans that the Company may adopt from time to time (all such plans, as they may
be adopted and amended from time to time being hereinafter referred to
collectively as the "Stock Option Plan"), at a level commensurate with
Executive's position in the Company.
(b) The Company shall reimburse Executive for all reasonable
expenses incurred by Executive in the course of performing Executive's duties
under this Agreement which are consistent with the Company's policies in effect
from time to time for senior executives with respect to travel, entertainment
and other business expenses, subject to the Company's requirements for its
executives with respect to reporting and documentation of such expenses.
(c) In addition to the Base Salary, during the Employment
Period, Executive shall be eligible to receive an annual bonus (the "Bonus") at
such time as the Company pays such bonuses (if any) to its other executives,
based upon Executive's performance and the Company's financial results.
4. TERM AND TERMINATION.
(a) This Agreement shall terminate on March 31, 2002 (the
"Expiration Date") unless terminated earlier (i) by Executive's resignation with
or without Good Reason, (ii) Executive's death or Disability, or (iii) by the
Company with or without Cause. The date on which Executive's employment with the
Company is terminated is referred to herein as the "Termination Date."
(b) (i) If Executive's employment with the Company is
terminated by the Company without Cause or by Executive with Good Reason, (x)
Executive shall be entitled to receive his Base Salary through the earlier to
occur of (I) the Expiration Date or (II) the first anniversary of the
Termination Date, payable in accordance with paragraph 3 above, (y) all stock
options granted to Executive under the Stock Option Plan which are not vested at
such time shall automatically, and without further action, become vested as of
the Termination Date, and all such options (together with all of Executive's
then vested stock options) shall remain exercisable until the later to occur of
(I) the Expiration Date and (II) the expiration of such stock options pursuant
to the terms of the Stock Option Plan and (z) Executive's obligations under
paragraph 6(a) below shall terminate and be of no further force or effect.
(ii) If Executive's employment with the Company is
terminated for any reason other than as described in item (i) above, Executive
shall be entitled to receive his Base Salary through the Termination Date.
(c) All of Executive's rights to benefits shall cease upon the
Termination Date.
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(d) For purposes of this Agreement, the following terms shall
have the meanings set forth below:
"Cause" shall mean (i) the conviction of Executive for a
felony or a crime involving moral turpitude or the plea of guilty or no lo
contendre by Executive to a charge of any such crime, (ii) Executive's theft or
embezzlement, or attempted theft or embezzlement, of money or property of the
Company, (iii) Executive's perpetration or attempted perpetration of fraud, or
Executive's participation in a fraud or an attempted fraud, on the Company or
Executive's unauthorized appropriation or attempted appropriation of any
tangible or intangible material assets or property of the Company, (iv)
Executive's dishonesty with respect to any matter concerning the Company or (v)
Executive's substantial and repeated failure to perform Executive's duties
hereunder in accordance with the reasonable directions of the Company.
"Disability" shall mean the inability, due to illness,
accident, injury, physical or mental incapacity or other disability, of
Executive to carry out effectively Executive's duties and obligations to the
Company or to participate effectively and actively in the management of the
Company for a period of at least 90 consecutive days or for shorter periods
aggregating at least 120 days (whether or not consecutive) during any
twelve-month period, as determined in the reasonable and good faith judgment of
the Company.
"Good Reason" shall mean the Company's willful and material
breach of this Agreement.
(e) A termination of this Agreement pursuant to its terms on
the Expiration Date shall not, in and of itself, constitute a termination of
Executive's employment with the Company. At such time, unless the Company or the
Executive terminate Executive's employment with the Company, Executive shall
become an employee at-will of the Company.
5. CONFIDENTIAL INFORMATION. Executive acknowledges that the
information, observations and data obtained by Executive while employed by the
Company concerning the business or affairs of the Company reasonably considered
of a confidential nature ("Confidential Information") are the property of the
Company. Therefore, Executive agrees that Executive shall not disclose to any
unauthorized person or use for Executive's own purposes any Confidential
Information without the prior written consent of the Board, unless and to the
extent that the aforementioned matters become generally known to and available
for use by the public other than as a result of Executive's acts or omissions,
or is otherwise known to Executive from independent sources prior to or outside
of Executive's employment with the Company. Executive shall deliver to the
Company at the termination of the Employment Period, or at any other time the
Company may reasonably request, all memoranda, notes, plans, records, reports,
computer tapes, printouts and software and other documents and data (and copies
thereof) relating to the Confidential Information or the business of the Company
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which Executive may then possess or have under Executive's control. Nothing
herein shall prohibit Executive's disclosure of Confidential Information as
directed by judicial, administrative or other governmental law, rule, regulation
or order provided that Executive shall, to the extent possible, give immediate
notice to the Company of any disclosure of Confidential Information so required
so that the Company may seek a protective order.
6. NON-COMPETE, NON-SOLICITATION.
(a) In further consideration of the compensation to be paid to
Executive hereunder, Executive acknowledges that in the course of Executive's
employment with the Company Executive shall become familiar with the Company's
trade secrets and with other Confidential Information concerning the Company and
that Executive's services shall be of special, unique and extraordinary value to
the Company. Therefore, Executive agrees that, during the Employment Period and
for two years thereafter (the "Noncompete Period"), Executive shall not directly
or indirectly own any interest in, manage, control, participate in, consult
with, render services for, or in any manner engage in any business competing
with the businesses of the Company, as such businesses exist or are in process
on the date of the termination of Executive's employment, within any
geographical area in which the Company engages or plans to engage in such
businesses. Nothing herein shall prohibit Executive from being a passive owner
of not more than 2% of the outstanding stock of any class of a corporation which
is publicly traded, so long as Executive has no active participation in the
business of such corporation.
(b) During the Noncompete Period, Executive shall not directly
or indirectly through another entity (i) induce or attempt to induce any
employee of the Company to leave the employ of the Company, or in any way
interfere with the relationship between the Company and any employee thereof,
(ii) hire any person who was an employee of the Company at any time during the
Employment Period (unless such employee was terminated by the Company), or (iii)
induce or attempt to induce any customer, supplier, licensee, licensor,
franchisee or other business relation of the Company to cease doing business
with the Company, or in any way interfere with the relationship between any such
customer, supplier, licensee or business relation and the Company.
(c) If, at the time of enforcement of this Section 6, a court
shall hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum period,
scope and area permitted by law. Executive agrees that the restrictions
contained in this Section 6 are reasonable.
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(d) In the event of the breach or a threatened breach by
Executive of any of the provisions of this Section 6, the Company, in addition
and supplementary to other rights and remedies existing in its favor, may apply
to any court of law or equity of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce or prevent any violations
of the provisions hereof (without posting a bond or other security). In
addition, in the event of an alleged breach or violation by Executive of this
Section 6, the Noncompete Period shall be tolled until such breach or violation
has been duly cured.
7. MUTUAL REPRESENTATIONS. Executive and the Company each
represents and warrants to the other that (i) the execution, delivery and
performance of this Agreement by such party do not and shall not conflict with,
breach, violate or cause a default under any contract, agreement, instrument,
order, judgment or decree to which such party is a party or by which it is
bound, (ii) such party is not a party to or bound by any employment agreement,
noncompete agreement or confidentiality agreement with any other person or
entity that would be breached or violated by such party's execution and delivery
or performance of this Agreement and (iii) upon the execution and delivery of
this Agreement by such party, this Agreement shall be the valid and binding
obligation of such party, enforceable against such party in accordance with its
terms. Such party hereby acknowledges and represents that it has had an
opportunity to consult with independent legal counsel regarding Executive's
rights and obligations under this Agreement and that Executive fully understands
the terms and conditions contained herein.
8. SURVIVAL. Sections 5 and 6 and Sections 9 through 16
shall survive and continue in full force in accordance with their terms
notwithstanding any termination of the Employment Period.
9. NOTICES. Any notice provided for in this Agreement shall
be in writing and shall be either personally delivered, or mailed by first class
mail, return receipt requested, to the recipient at the address below indicated:
NOTICES TO EXECUTIVE:
--------------------
Xxxxxxx X. Xxxxx
0000 00xx Xxxxxx
Xx. Xxxxxxxxxx, XX
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NOTICES TO THE COMPANY:
----------------------
Xxxxxx Xxxxxxx, Inc.
0000 Xxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Attention: President
If sent via regular U.S. mail to:
X.X. Xxx 000000
Xxxx Xxxxxxxxxx, XX 00000-0000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so delivered
or three (3) days after so mailed.
10. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
11. COMPLETE AGREEMENT. This Agreement embodies with respect
to the subject matter hereof the complete agreement and understanding among the
parties and supersedes and preempts with respect to the subject matter hereof
any prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way,
including the Amended and Restated Employment Agreement between Company and
Executive, dated March 1, 1999.
12. NO STRICT CONSTRUCTION. The language used in this
Agreement shall be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction shall be applied
against any party, it being understood that Section 6(c) contemplates that a
court of competent jurisdiction shall be entitled to "blue pencil" or conform
the express language of Section 6(a) if necessary in order to comply with
Florida law.
13. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
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14. SUCCESSORS AND ASSIGNS. This Agreement is intended to bind
and inure to the benefit of and be enforceable by Executive, the Company and
their respective heirs, successors and assigns, except that (x) Executive may
not assign Executive's rights or delegate Executive's obligations hereunder
without the prior written consent of the Company and (y) other than in
connection with the sale of the Company (whether by merger, consolidation, sale
of all of the Company's stock or sale of all or substantially all of the
Company's assets), the Company may not assign its rights to Executive's services
hereunder to any third party.
15. CHOICE OF LAW. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall
be governed by, and construed in accordance with, the laws of the State of
Florida, without giving effect to any choice of law or conflict of law rules or
provisions (whether of the State of Florida or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State
of Florida.
16. AMENDMENT AND WAIVER. The provisions of this Agreement may
be amended or waived only with the prior written consent of the Company and
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
XXXXXX XXXXXXX, INC.
By __________________________
Name: Art Xxxxxxx
Title: Vice President, Human Resources
-----------------------------
XXXXXXX X. XXXXX
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