Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement"), made in New York, New York as of May 11,
2006, between Escala Group, Inc., a Delaware corporation (the "Company"), and
Xxxxxxx Xxxxx ("Executive").
WHEREAS, the Company desires to employ Executive as its Chief Financial
Officer, and Executive desires to accept such employment on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and agreements
hereinafter set forth, the Company and Executive agree as follows:
1. Term.
Unless earlier terminated in accordance with Section 4 hereof, the
term of this Agreement shall be the period commencing as of the date hereof and
ending on June 30, 2009 (the "Term").
2. Employment.
(a) Employment by the Company. Executive agrees to be employed by the
Company during the Term upon the terms and subject to the conditions set forth
in this Agreement. Executive shall serve as the Chief Financial Officer and
Executive Vice President of the Company and shall report to the President and
Chief Executive Officer of the Company.
(b) Performance of Duties. Throughout the Term, Executive shall
faithfully and diligently perform Executive's duties in conformity with the
directions of the Company and serve the Company to the best of Executive's
ability. Executive shall devote his full business time and best efforts to the
business and affairs of the Company. In his capacity as the Chief Financial
Officer of the Company, Executive shall have such duties and responsibilities as
are customary for Executive's position and any other duties or responsibilities
consistent with his position he may be assigned by the President and Chief
Executive Officer of the Company.
(c) Place of Performance. Executive shall be based at the Company's
offices in New York, New York. Executive recognizes that his duties will
require, at the Company's expense, travel to domestic and international
locations.
3. Compensation and Benefits.
(a) Base Salary. The Company agrees to pay to Executive a base salary
("Base Salary") at the annual rate of $350,000. Payments of the Base Salary
shall be payable in equal installments in accordance with the Company's standard
payroll practices.
(b) Bonus for Fiscal Year 2006. The Company shall pay a bonus to
Executive of $30,493 for fiscal year 2006 (the "2006 Bonus"), payable promptly
following the July Meeting Date, but in no event later than July 31, 2006.
(c) Annual Performance Bonus for Fiscal Years 2007-2009. Executive
shall be eligible to receive an annual cash bonus (the "Performance Bonus") for
each of fiscal years 2007, 2008 and 2009. The Performance Bonus, if any, will be
based on the extent to which individual and Company-wide performance goals
established by the Company for each of fiscal years 2007, 2008 and 2009 have
been met. The target Performance Bonus shall be 60% of Base Salary (the "Target
Performance Bonus"). Each Performance Bonus, if any, shall be paid within thirty
days following the issuance of 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 the March 14 next occurring following the
end of such fiscal year. Except as provided in Sections 5(c)(iii) and 5(d)(iii),
Executive must be employed by the Company on the last day of the fiscal year to
be eligible for the Performance Bonus.
(d) Long-Term Incentive Award. Executive will be eligible to receive
a long-term incentive award pursuant to the Xxxxxxx Xxxxx Incentive Compensation
Program set forth on Annex A hereto.
(e) Benefits and Perquisites. Executive shall be entitled to
participate in, to the extent Executive is otherwise eligible under the terms
thereof, the benefit plans and programs, and receive the benefits and
perquisites, generally provided by the Company to executives of the Company,
including without limitation disability insurance and family medical insurance
(subject to applicable employee contributions). Executive shall be entitled to
receive twenty (20) days of annual paid vacation.
(f) Business Expenses. The Company agrees to reimburse Executive for
all reasonable and necessary travel, business entertainment and other business
expenses incurred by Executive in connection with the performance of his duties
under this Agreement. Such reimbursements shall be made by the Company on a
timely basis upon submission by Executive of vouchers in accordance with the
Company's standard procedures.
(g) Non-Accountable Expense Allowance. The Company shall pay to
Executive a non-accountable expense allowance equal to $12,000 per annum during
the Term, payable by July 31 of each year hereunder.
(h) Indemnification. The Company shall indemnify Executive, to the
fullest extent permitted by law, for any and all liabilities to which he may be
subject as a result of, in connection with or arising out of his employment by
the Company hereunder, as well as the costs and expenses (including reasonable
attorneys' fees) of any legal action brought or threatened to be brought against
him or the Company or any of its affiliates as a result of, in connection with
or arising out of such employment. Executive shall be entitled to the full
protection of any insurance policies which the Company may elect to maintain
generally for the benefit of its directors and officers.
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(i) No Other Compensation or Benefits; Payment. The compensation and
benefits specified in this Section 3 and in Section 5 of this Agreement shall be
in lieu of any and all other compensation and benefits. Payment of all
compensation and benefits to Executive specified in this Section 3 and in
Section 5 of this Agreement (i) shall be made in accordance with the relevant
Company policies in effect from time to time to the extent the same are
consistently applied, including normal payroll practices, and (ii) shall be
subject to all legally required and customary withholdings.
(j) Cessation of Employment. In the event Executive shall cease to be
employed by the Company for any reason, then Executive's compensation and
benefits shall cease on the date of such event, except as otherwise specifically
provided herein or in any applicable employee benefit plan or program or as
required by law.
4. Termination of Employment. Executive's employment hereunder may be
terminated prior to the end of the Term under the following
circumstances.
(a) Death. Executive's employment hereunder shall terminate upon
Executive's death.
(b) Executive Becoming Totally Disabled. The Company may terminate
Executive's employment hereunder at any time after Executive becomes "Totally
Disabled." For purposes of this Agreement, Executive shall be "Totally Disabled"
in the event Executive is unable to perform the duties and responsibilities
contemplated under this Agreement for a period of 120 consecutive days due to
physical or mental incapacity or impairment. During any period that Executive
fails to perform Executive's duties hereunder as a result of incapacity due to
physical or mental illness (the "Disability Period"), Executive shall continue
to receive the compensation and benefits provided by Section 3 of this Agreement
until Executive's employment hereunder is terminated; provided, however, that
the amount of base compensation and benefits received by Executive during the
Disability Period shall be reduced by the aggregate amounts, if any, payable to
Executive under any disability benefit plan or program provided to Executive by
the Company.
(c) Termination by the Company for Cause. The Company may terminate
Executive's employment hereunder for Cause at any time after providing written
notice to Executive. For purposes of this Agreement, the term "Cause" shall mean
any of the following: (i) Executive's willful and persistent neglect or failure
or refusal to perform his duties under this Agreement (other than as a result of
total or partial incapacity due to physical or mental illness); (ii) any act by
or omission of Executive constituting gross negligence or willful misconduct in
connection with the performance of his duties that could reasonably be expected
to materially injure the reputation, business or business relationships of the
Company or any of its affiliates; (iii) Executive's conviction (including
conviction on a nolo contendre plea) of a felony or any crime involving, in the
good faith judgment of the Company, fraud, dishonesty or moral turpitude; (iv)
any material violation of the Company's Code of Ethics, as may be amended from
time to time (the "Code of Ethics"); (v) the breach of an obligation set forth
in Section 6; or (vi) any other material breach of this Agreement; provided,
however, that a termination by the Company under Sections 4(c)(i) or 4(c)(vi)
for Cause shall be effective only if, within 14 days following delivery of a
written notice by the Company to Executive that the
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Company is terminating his employment for Cause which specifies in reasonable
detail the basis therefor, Executive has failed to cure the circumstances giving
rise to Cause.
(d) Termination by the Company Without Cause. The Company may
terminate Executive's employment hereunder at any time for any reason or no
reason by giving Executive thirty (30) days prior written notice of the
termination. Following any such notice, the Company may reduce or remove any and
all of Executive's duties, positions and titles with the Company.
(e) Termination by Executive for Good Reason. Executive may terminate
his employment hereunder for Good Reason at any time after providing written
notice to the Company. For purposes of this Agreement, the term "Good Reason"
shall mean any of the following: (i) the Company decreases or fails to pay the
compensation or benefits described in Section 3; (ii) Executive no longer holds
the office of Chief Financial Officer, or his functions and/or duties are
materially diminished; (iii) Executive's job site is relocated to a location
which is more than fifty (50) miles from New York, New York, unless the parties
mutually agree to such relocation or (iv) a Change in Control (as defined below)
occurs; provided, however, that a termination by Executive for Good Reason shall
be effective only if, within 14 days following delivery of a written notice by
Executive to the Company that Executive is terminating his employment for Good
Reason, the Company has failed to cure the circumstances giving rise to Good
Reason.
(f) Termination by Executive Without Good Reason. Executive may
terminate his employment hereunder at any time for any reason or no reason by
giving the Company ninety (90) days prior written notice of the termination.
Following any such notice, the Company may reduce or remove any and all of
Executive's duties, positions and titles with the Company, and any such
reduction or removal shall not constitute Good Reason.
(g) Change in Control. For purposes of this Agreement, "Change in
Control" of the Company shall be conclusively deemed to have occurred if any of
the following, and only if any of the following, shall have taken place:
(i) any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended ("Exchange Act")),
other than Afinsa Bienes Tangibles, S.A. ("Afinsa"), any of Afinsa's affiliates,
any court-appointed administrator, trustee or person acting in similar capacity
on behalf of Afinsa, the Executive, any person with whom Executive is or was
acting in concert, or their respective designee(s) or affiliate(s) or any
combination thereof, is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company representing fifty percent (50%) or more of the combined voting power of
the Company's then outstanding securities;
(ii) a merger or consolidation of the Company is consummated with
any other corporation, other than (i) a merger or consolidation with any of its
affiliates, (ii) a merger or consolidation which would result in the holders of
voting securities of the Company outstanding immediately prior thereto
continuing to hold more than 50% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately
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after such merger or consolidation, or (iii) a merger or consolidation effected
to implement a recapitalization of the Company (or similar transaction) in which
no "person" (as such term is used in Sections 13(d) and 14(d)(2) of the Exchange
Act) acquires more than 50% of the combined voting power of the Company's then
outstanding securities or a reverse takeover; or
(iii) a complete liquidation of the Company occurs or a sale or
disposition by the Company of all or substantially all of the Company's assets
is consummated, provided that this provision shall not apply to a sale or
disposition of the Company's assets to an affiliate of the Company, if such
affiliate agrees to succeed to the Company's obligations under this Agreement.
5. Compensation Following Termination Prior to the End of the Term. In
the event that Executive's employment hereunder is terminated prior to the end
of the Term, Executive shall be entitled only to the following compensation and
benefits upon such termination:
(a) General. On any termination of Executive's employment, he shall
be entitled to:
(i) any accrued but unpaid Base Salary for services rendered
through the date of termination; provided, however, that in
the event Executive's employment is terminated pursuant to
Section 4(b), the amount of Base Salary received by
Executive during the Disability Period shall be reduced by
the aggregate amounts, if any, payable to Executive under
any disability benefit plan or program provided to Executive
by the Company;
(ii) any Performance Bonus not yet paid for any fiscal year
ending prior to the date of termination of Executive's
employment (payable as and when such bonus would have been
paid had Executive's employment continued);
(iii) any vacation accrued to the date of termination;
(iv) any accrued but unpaid expenses through the date of
termination required to be reimbursed in accordance with
Sections 3(f) and 3(g) of this Agreement;
(v) receive any benefits to which he may be entitled upon
termination pursuant to the plans and programs referred to
in Section 3(e) hereof in accordance with the terms of such
plans and programs or as may be required by applicable law,
provided that in the event of any termination other than
pursuant to Sections 4(c) or 4(f) hereof, Executive shall be
entitled to receive medical benefits for the remainder of
the Term on the same basis that he had been
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receiving such benefits immediately prior to such
termination.
(vi) any amounts payable in accordance with, and subject to, the
Xxxxxxx Xxxxx Incentive Compensation Program.
(b) Termination by the Company for Cause; Termination by Executive
Without Good Reason. In the event that Executive's employment is terminated
prior to the expiration of the Term by the Company for Cause pursuant to Section
4(c) or by Executive without Good Reason pursuant to Section 4(f), Executive
shall be entitled only to those items identified in Section 5(a).
(c) Termination by Reason of Death or Executive Becoming Totally
Disabled. In the event that Executive's employment is terminated prior to the
expiration of the Term by reason of Executive's death pursuant to Section 4(a)
or Executive becoming Totally Disabled pursuant to Section 4(b), Executive (or
his estate, as the case may be) shall be entitled only to the following, to be
paid as soon as practicable following the date of such termination:
(i) those items identified in Section 5(a);
(ii) if such termination occurs prior to July 31, 2006, the 2006
Bonus;
(iii) a prorated portion of the Target Performance Bonus for the
fiscal year in which Executive's employment terminated,
based on the number of days Executive was employed by the
Company in such fiscal year and
(iv) A lump sum payment equal to twelve months of the Base Salary
(as determined pursuant to Section 3(a)).
(d) Termination by the Company Without Cause; Termination by
Executive for Good Reason. In the event that Executive's employment is
terminated prior to the expiration of the Term by the Company without Cause
pursuant to Section 4(d) or by Executive for Good Reason pursuant to Section
4(e), Executive shall be entitled only to the following, to be paid as soon as
practicable following the date of termination, but in no event prior to the time
such payment would not be subject to tax under Section 409A of the Internal
revenue Code of 1986, as amended:
(i) those items identified in Section 5(a);
(ii) if such termination occurs prior to July 31, 2006, the 2006
Bonus;
(iii) a prorated portion of the Target Performance Bonus for the
fiscal year in which Executive's employment terminated,
based on the number of days Executive was employed by the
Company in such fiscal year; and
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(iv) a lump sum equal to the Base Salary (as determined pursuant
to Section 3(a)) for the lesser of (A) the remainder of the
Term, and (B) twelve months.
(e) Effect of Material Breach of Section 6 on Compensation and
Benefits Following Termination of Employment Pursuant to Section 5. If, at the
time of termination of Executive's employment for any reason prior to the
expiration of the Term or any time thereafter, Executive is in material breach
of any covenant contained in Section 6 hereof, Executive (or his estate, as
applicable) shall not be entitled to any payment (or if payments have commenced,
any continued payment) under Sections 5(c)(ii), 5(c)(iii), 5(d)(ii), 5(d)(iii)
or 5(d)(iv).
(f) No Further Liability; Release. Payment made and performance by
the Company in accordance with this Section 5 shall operate to fully discharge
and release the Company and its directors, officers, employees, affiliates,
stockholders, successors, assigns, agents and representatives from any further
obligation or liability with respect to Executive's employment and termination
of employment. Other than providing the compensation and benefits provided for
in accordance with this Section 5, the Company and its directors, officers,
employees, affiliates, stockholders, successors, assigns, agents and
representatives shall have no further obligation or liability to Executive or
any other person under this Agreement. The payment of any amounts pursuant to
this Section 5 (other than payments required by law) is expressly conditioned
upon the delivery by Executive to the Company of a release in form and substance
reasonably satisfactory to the Company of any and all claims Executive may have
against the Company and its directors, officers, employees, affiliates,
stockholders, successors, assigns, agents and representatives arising out of or
related to Executive's employment by the Company and the termination of such
employment.
6. Exclusive Employment; Noncompetition; Nonsolicitation; Nondisclosure
of Proprietary Information; Surrender of Records; Inventions and Patents; Code
of Ethics.
6.1 No Conflict; No Other Employment. During the period of
Executive's employment with the Company, Executive shall not: (i) engage in any
activity which conflicts or interferes with or derogates from the performance of
Executive's duties hereunder nor shall Executive 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; provided, however, that Executive 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)
accept or engage in any other employment, whether as an employee or consultant
or in any other capacity, and whether or not compensated therefor.
6.2 Noncompetition; Nonsolicitation.
(a) Executive acknowledges and recognizes the highly competitive
nature of the Company's business and that access to the Company's confidential
records and proprietary information renders him special and unique within the
Company's industry. In
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consideration of the payment by the Company to Executive of amounts that may
hereafter be paid to Executive pursuant to this Agreement (including, without
limitation, pursuant to Sections 3 and 5 hereof) and other obligations
undertaken by the Company hereunder, Executive agrees that during (i) his
employment with the Company and (ii) the period beginning on the date of
termination of employment for any reason and ending one year after the date of
termination of employment (the "Covered Time"), Executive shall not, directly or
indirectly, engage (as owner, investor, partner, stockholder, employer,
employee, consultant, advisor, director or otherwise) in any Competing Business,
provided that the provisions of this Section 6.2(a) will not be deemed breached
merely because Executive owns less than 1% of the outstanding common stock of a
publicly-traded company. For purposes of this Agreement, "Competing Business"
shall mean (i) any business in which the Company is currently engaged anywhere
in the world, including but not limited to (A) the marketing, production and
sale of collectibles, including numismatic and philatelic material, by auction,
as merchant-dealer or otherwise, and (B) the marketing, production and sale of
third-party and owned material by auction; and (ii) any other business which the
Company engages in anywhere in the world during the Term.
(b) In further consideration of the payment by the Company to
Executive of amounts that may hereafter be paid to Executive pursuant to this
Agreement (including, without limitation, pursuant to Sections 3 and 5 hereof)
and other obligations undertaken by the Company hereunder, Executive agrees that
during his employment and the Covered Time, he shall not, directly or
indirectly, (i) solicit, encourage or attempt to solicit or encourage 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; (ii) solicit, encourage or attempt to solicit or encourage 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; (iii) solicit or attempt to solicit any customer, vendor
or distributor of the Company or any of its affiliates with respect to any
product or service being furnished, made, sold or leased by the Company or such
affiliate; or (iv) persuade or seek to persuade any customer of the Company or
any affiliate to cease to do business or to reduce the amount of business which
any customer has customarily done or contemplates doing with the Company or such
affiliate, whether or not the relationship between the Company or its affiliate
and such customer was originally established in whole or in part through
Executive's efforts. For purposes of this Section 6.2(b) only, the terms
"customer," "vendor" and "distributor" shall mean a customer, vendor or
distributor who has done business with the Company or any of its affiliates
within twelve months preceding the termination of Executive's employment.
(c) During Executive's employment with the Company and during
the Covered Time, Executive agrees that upon the earlier of Executive's (i)
negotiating with any Competitor (as defined below) concerning the possible
employment of Executive by the Competitor, (ii) receiving an offer of employment
from a Competitor, or (iii) becoming employed by a Competitor, Executive will
(A) immediately provide notice to the Company of such circumstances and (B)
provide copies of Section 6 of this Agreement to the Competitor. Executive
further agrees that the Company may provide notice to a Competitor of
Executive's obligations under this Agreement, including without limitation
Executive's obligations pursuant to Section 6 hereof. For purposes of this
Agreement, "Competitor" shall mean any entity (other
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than the Company or any of its affiliates) that engages, directly or indirectly,
in any Competing Business.
(d) Executive understands that the provisions of this Section
6.2 may limit his ability to earn a livelihood in a business similar to the
business of the Company or its affiliates but nevertheless agrees and hereby
acknowledges that the consideration provided under this Agreement, including any
amounts or benefits provided under Sections 3 and 5 hereof and other obligations
undertaken by the Company hereunder, is sufficient to justify the restrictions
contained in such provisions. In consideration thereof and in light of
Executive's education, skills and abilities, Executive agrees that he will not
assert in any forum that such provisions prevent him from earning a living or
otherwise are void or unenforceable or should be held void or unenforceable.
6.3 Proprietary Information. Executive 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. Executive 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.
Executive 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. Executive 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 Executive 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).
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6.4 Confidentiality and Surrender of Records. Executive shall
not during the Term or at any time thereafter (irrespective of the circumstances
under which Executive's 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,
Executive shall deliver promptly to the Company 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 Executive's 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.
6.5 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 Executive, either alone or jointly with others,
in the course of his employment by the Company, belong to the Company. Executive
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.
6.6 Enforcement. Executive 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 may cause the Company and/or its
affiliates immediate, substantial and irreparable injury for which it or they
have no adequate remedy at law. Accordingly, Executive agrees and consents to
the entry of 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. Executive 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.
6.7 Code of Ethics. Nothing in this Section 6 is intended to
limit, modify or reduce Executive's obligations under the Company's Code of
Ethics. Executive's obligations under this Section 6 are in addition to, and not
in lieu of, Executive's obligations under the Code of Ethics. To the extent
there is any inconsistency between this Section 6 and the Code of Ethics which
would permit Executive 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.
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7. Key Man Insurance. Executive recognizes and acknowledges that the
Company or its affiliates may seek and purchase one or more policies providing
key man life insurance with respect to Executive, the proceeds of which would be
payable to the Company or such affiliate. Executive hereby consents to the
Company or its affiliates seeking and purchasing such insurance and will provide
such information, undergo such medical examinations (at the Company's expense),
execute such documents, and otherwise take any and all actions reasonably
necessary or desirable in order for the Company or its affiliates to seek,
purchase, and maintain in full force and effect such policy or policies.
8. Assignment and Transfer.
(a) Company. This Agreement shall inure to the benefit of and be
enforceable by, and may be assigned by the Company without Executive's consent
to, any purchaser of all or substantially all of the Company's business or
assets, or to any successor to the Company or any assignee thereof (whether
direct or indirect, by purchase, merger, consolidation or otherwise).
(b) Executive. The parties hereto agree that Executive is obligated
under this Agreement to render personal services during the Term of a special,
unique, unusual, extraordinary and intellectual character, thereby giving this
Agreement special value. Executive's rights and obligations under this Agreement
shall not be transferable by Executive by assignment or otherwise, and any
purported assignment, transfer or delegation thereof shall be void; provided,
however, that if Executive shall die, all amounts then payable to Executive
hereunder shall be paid in accordance with the terms of this Agreement to
Executive's estate.
9. Miscellaneous.
(a) Other Obligations. Executive represents and warrants that neither
Executive's employment with the Company nor Executive's performance of
Executive's obligations hereunder will conflict with or violate or otherwise are
inconsistent with any other obligations, legal or otherwise, which Executive may
have. Executive covenants that he shall perform his duties hereunder in a
professional manner and not in conflict or violation, or otherwise inconsistent
with other obligations legal or otherwise, which Executive may have.
(b) Nondisclosure; Other Employers. Executive will not disclose to
the Company, use, or induce the Company to use, any proprietary information,
trade secrets or confidential business information of others. Executive
represents and warrants that Executive does not possess any property,
proprietary information, trade secrets and confidential business information
belonging to any prior employers.
(c) Cooperation. Following termination of employment with the Company
for any reason, Executive shall cooperate with the Company, as requested by the
Company, to effect a transition of Executive's responsibilities and to ensure
that the Company is aware of all matters being handled by Executive.
(d) Mitigation. Executive shall not be required to mitigate damages
or the amount of any payment provided to him under Section 5 of this Agreement
by seeking other employment or otherwise, nor shall the amount of any payments
provided to Executive under
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Section 5 be reduced by any compensation earned by Executive as the result of
employment by another employer after the termination of Executive's employment
or otherwise.
(e) Protection of Reputation. During the Term and thereafter,
Executive and the Company mutually agree to take no action which is intended, or
would reasonably be expected, to harm the other or their reputation or which
would reasonably be expected to lead to unwanted or unfavorable publicity to the
other.
(f) Governing Law. This Agreement shall be governed by and construed
(both as to validity and performance) and enforced in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed wholly within such jurisdiction, without regard to the principles of
conflicts of law or where the parties are located at the time a dispute arises.
(g) Arbitration.
(i) General. Executive and the Company specifically, knowingly,
and voluntarily agree that they shall use final and binding
arbitration to resolve any dispute (an "Arbitrable Dispute")
between Executive, on the one hand, and the Company (or any
affiliate of the Company), on the other hand. This
arbitration agreement applies to all matters relating to
this Agreement and Executive's employment with and/or
termination of employment from the Company, including
without limitation disputes about the validity,
interpretation, or effect of this Agreement, or alleged
violations of it, any payments due hereunder and all claims
arising out of any alleged discrimination, harassment or
retaliation, including, but not limited to, those covered by
Title VII of the Civil Rights Act of 1964, as amended, the
Age Discrimination in Employment Act of 1967, as amended,
and the Americans With Disabilities Act or any other
federal, state or local law relating to discrimination in
employment.
(ii) Injunctive Relief. Notwithstanding anything to the contrary
contained herein, the Company and any affiliate of the
Company (if applicable) shall have the right to seek
injunctive or other equitable relief from a court of
competent jurisdiction to enforce Section 6 of this
Agreement. For purposes of seeking enforcement of Section 6,
the Company and Executive hereby consent to the jurisdiction
of any state or federal court sitting in the City, County
and State of New York.
(iii) The Arbitration. Any arbitration pursuant to this Section
9(g) will take place in New York, New York, under the
12
auspices of the American Arbitration Association, in
accordance with the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association
then in effect, and before a panel of three arbitrators
selected in accordance with such rules. Judgment upon the
award rendered by the arbitrators may be entered in any
state or federal court sitting in the City, County and State
of New York.
(iv) Fees and Expenses. In any arbitration pursuant to this
Section 9(g), except as otherwise required by law, each
party shall be responsible for the fees and expenses of its
own attorneys and witnesses, and the fees and expenses of
the arbitrators shall be divided equally between the
Company, on the one hand, and Executive, on the other hand.
(v) Exclusive Forum. Except as permitted by Section 9(g)(ii)
hereof, arbitration in the manner described in this Section
9(g) shall be the exclusive forum for any Arbitrable
Dispute. Except as permitted by Section 9(g)(ii), should
Executive or the Company attempt to resolve an Arbitrable
Dispute by any method other than arbitration pursuant to
this Section 9(g), the responding party shall be entitled to
recover from the initiating party all damages, expenses, and
attorneys' fees incurred as a result of that breach.
(h) Entire Agreement. This Agreement contains the entire agreement
and understanding between the parties hereto in respect of Executive's
employment and supersedes, cancels and annuls any prior or contemporaneous
written or oral agreements, understandings, commitments and practices between
them respecting Executive's employment, including all prior employment
agreements between the Company and Executive (including, without limitation, the
letter agreement between the Company and Executive dated April 3, 2006), which
agreement(s) hereby are terminated and shall be of no further force or effect.
(i) Amendment. This Agreement may be amended only by a writing which
makes express reference to this Agreement as the subject of such amendment and
which is signed by Executive and, on behalf of the Company, by its duly
authorized officer.
(j) Severability. If any provision of this Agreement or the
application of any such provision to any party or circumstances shall be
determined by any court of competent jurisdiction or arbitration panel to be
invalid or unenforceable to any extent, the remainder of this Agreement, or the
application of such provision to such person or circumstances other than those
to which it is so determined to be invalid or unenforceable, shall not be
affected thereby, and each provision hereof shall be enforced to the fullest
extent permitted by law. If any provision of this Agreement, or any part
thereof, is held to be invalid or unenforceable because of the scope or duration
of or the area covered by such provision, the
13
parties hereto agree that the court or arbitration panel making such
determination shall reduce the scope, duration and/or area of such provision
(and shall substitute appropriate provisions for any such invalid or
unenforceable provisions) in order to make such provision enforceable to the
fullest extent permitted by law and/or shall delete specific words and phrases,
and such modified provision shall then be enforceable and shall be enforced. The
parties hereto recognize that if, in any judicial or arbitral proceeding, a
court or arbitration panel shall refuse to enforce any of the separate covenants
contained in this Agreement, then that invalid or unenforceable covenant
contained in this Agreement shall be deemed eliminated from these provisions to
the extent necessary to permit the remaining separate covenants to be enforced.
In the event that any court or arbitration panel determines that the time period
or the area, or both, are unreasonable and that any of the covenants is to that
extent invalid or unenforceable, the parties hereto agree that such covenants
will remain in full force and effect, first, for the greatest time period, and
second, in the greatest geographical area that would not render them
unenforceable.
(k) Construction. The headings and captions of this Agreement are
provided for convenience only and are intended to have no effect in construing
or interpreting this Agreement. The language in all parts of this Agreement
shall be in all cases construed according to its fair meaning and not strictly
for or against the Company or Executive. As used herein, the words "day" or
"days" shall mean a calendar day or days.
(l) Nonwaiver. Neither any course of dealing nor any failure or
neglect of either party hereto in any instance to exercise any right, power or
privilege hereunder or under law shall constitute a waiver of any other right,
power or privilege or of the same right, power or privilege in any other
instance. All waivers by either party hereto must be contained in a written
instrument signed by the party to be charged and, in the case of the Company, by
its duly authorized officer.
(m) Notices. Any notice required or permitted hereunder shall be in
writing and shall be sufficiently given if personally delivered or if sent by
registered or certified mail, postage prepaid, with return receipt requested,
addressed: (i) in the case of the Company, to Escala Group, Inc., 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attn.: General Counsel, with a copy to Xxxxxx
Xxxxx Xxxxxxxx & Xxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, attn.: Xxxxx X. Xxxxxxxxx, Esq.; and (ii) in the case of Executive, to
Executive's last known address as reflected in the Company's records, or to such
other address as Executive shall designate by written notice to the Company. Any
notice given hereunder shall be deemed to have been given at the time of receipt
thereof by the person to whom such notice is given if personally delivered or at
the time of mailing if sent by registered or certified mail.
(n) Assistance in Proceedings, Etc. Executive shall, without
additional compensation, during and after the Term, upon reasonable notice,
furnish such information and proper assistance to the Company as may reasonably
be required by the Company in connection with any legal or quasi-legal
proceeding, including any external or internal investigation, involving the
Company or any of its affiliates.
(o) Survival. Cessation or termination of Executive's employment with
the Company shall not result in termination of this Agreement. The respective
obligations
14
of Executive and the Company as provided in Sections 5, 6, 8 and 9 of this
Agreement shall survive cessation or termination of Executive's employment
hereunder.
(p) Section 409A of the Code. The Company makes no representations
regarding the tax implications of the compensation and benefits to be paid to
Executive under this Agreement, including, without limitation, under Section
409A of the Code. Executive and the Company agree that in the event the Company
reasonably determines that the terms hereof would result in Executive being
subject to tax under Section 409A of the Code, Executive and the Company shall
negotiate in good faith to amend this Agreement to the extent necessary to
prevent the assessment of any such tax, including by delaying the payment dates
of any amounts hereunder.
(q) Effectiveness. This Agreement shall be of full force and effect
as of the date hereof, unless on or prior to July 31, 2006, the Board of
Directors of the Company, at a meeting duly convened, affirmatively rejects this
Agreement. The date of any such meeting is herein referred to as the "July
Meeting Date".
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed on its behalf by an individual thereunto duly authorized and Executive
has duly executed this Agreement, all as of the date and year first written
above.
ESCALA GROUP, INC. EXECUTIVE:
By:
----------------------- -----------------------
Name: Xxxxxxx Xxxxx
Title:
15
ANNEX A
Xxxxxxx Xxxxx Incentive Compensation Program
--------------------------------------------
1. Introduction
------------
This Xxxxxxx Xxxxx Incentive Compensation Program (the "Program") is
established by Escala Group, Inc. (the "Company") to provide Xxxxxxx Xxxxx
("Executive") with "performance-based compensation" within the meaning of
Section 162(m)(4) of the Internal Revenue Code of 1986, as amended (the "Code").
The Program has been approved by a committee of the Company's Board of Directors
comprised solely of at least two independent directors (the "Committee") and is
subject to approval by the shareholders of the Company. The Company shall cause
the Program to be submitted for shareholder approval at the next meeting of the
Company's shareholders. In the event the Program is not approved at such
meeting, or in the event such meeting is not held prior to January 31, 2007,
Executive and the Company shall promptly thereafter negotiate in good faith for
a replacement award of similar economic value. Prior to any payment under the
Program, the Committee shall certify the amount of the Long-Term Incentive Award
(as defined below) to which Executive is entitled.
This Program is an Annex to the employment agreement between Executive and
the Company, dated as of May 11, 2006 (the "Employment Agreement"), and the
provisions of the Employment Agreement, including without limitation, with
respect to arbitration of disputes, shall apply to this Program to the extent
not inconsistent with the terms of the Program.
2. Long-Term Incentive Award.
--------------------------
(a) The Company will pay to Executive in shares of the Company's
common stock (the "Long-Term Incentive Award") an amount equal to 50% of the
Appreciation in Stock Price (as defined below) for 40,000 shares of common stock
of the Company. The "Appreciation in Stock Price" shall mean the appreciation,
if any, between (1) the closing price of the common stock of the Company on May
11, 2006, and (2) the Average Closing Price (as defined below) for the period
between June 1, 2009 and June 30, 2009. Any shares delivered to Executive shall
be registered and enable Executive to freely transact the shares so delivered.
(b) Payment of the Long-Term Incentive Award, if any, shall be made
on July 31, 2009; provided, however, that if necessary to comply with Section
409A(a)(2)(B)(i) of the Code, and applicable administrative guidance and
regulations, such payment shall be made on December 31, 2009. The number of
shares payable to Executive shall be based on the closing price of the Company's
common stock on June 30, 2009.
(c) Except as provided below, Executive must be employed by the
Company on June 30, 2009 to be eligible for the Long-Term Incentive Award.
3. Termination of Employment.
--------------------------
(a) Subject to Sections 3(c) and 3(d) below, if Executive's
employment terminates for any reason other than by the Company for Cause or by
the Executive without Good Reason (as each such term is defined in the
Employment Agreement), Executive
shall be entitled to payment of the Long-Term Incentive Award in accordance
with, and subject to, Section 2 of the Program, provided that in such a case the
Appreciation in Stock Price shall be the appreciation, if any, between (1) the
closing price of the common stock of the Company on May 11, 2006, and (2) the
Average Closing Price for the 30-day period preceding the date of termination of
employment. Payment of the Long-Term Incentive Award, if any, shall be made
thirty days following the date of termination of employment; provided, however,
if necessary to comply with Section 409A(a)(2)(B)(i) of the Code, and applicable
administrative guidance and regulations, such payment shall be made six months
following the date of termination of employment.
(b) If Executive's employment is terminated by the Company for Cause
or by Executive without Good Reason, Executive shall not be eligible to receive
the Long-Term Incentive Award.
(c) The payment of any amounts pursuant to Section 3(a) hereof is
expressly conditioned upon the delivery by Executive to the Company of a release
in form and substance reasonably satisfactory to the Company of any and all
claims Executive may have against the Company and its directors, officers,
employees, affiliates, stockholders, successors, assigns, agents and
representatives arising out of or related to Executive's employment by the
Company and the termination of such employment.
(d) If, at the time of termination of Executive's employment for any
reason or any time thereafter, Executive is in material breach of any covenant
contained in Section 6 of the Employment Agreement, Executive (or his estate, as
applicable) shall not be entitled to any payment under Section 3(a) hereof.
4. Average Closing Price.
----------------------
For purposes of the Program, "Average Closing Price" with respect to a
specified period of time shall mean the average of closing prices of the
Company's common stock as reported in the Wall Street Journal for those dates
during the specified period on which the national stock exchanges are open for
business.
5. Equitable Adjustment.
---------------------
In the event of any change in the outstanding shares of Company's common
stock, through declaration of stock or other dividends or distributions with
respect to such shares, through restructuring, recapitalization or other similar
event or through stock splits, change in par value, combination or exchange of
shares, or the like, then the number or kind of shsares covered by the Program
shall be adjusted proportionately, as necessary to reflect equitably such
changes.
