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EMPLOYMENT AGREEMENT
Agreement dated as of March 24, 1995, by and between Xxxxx Xxxx, Inc.,
a Delaware corporation with offices at 0 Xxxxxxxx Xxx, Xxxxxxxx, Xxx Xxxxxx
00000 (the "Corporation") and Xxxxxxxx Xxxxxx, residing at 0 Xxxxxxxx Xxx,
Xxxxxxxx, Xxx Xxxxxx 00000 (the "Executive").
It is agreed as follows:
1. Employment and Duties.
(a) The Corporation hereby employs the Executive, and the
Executive hereby accepts employment by the Corporation, as President and Chief
Executive Officer of the Corporation, and shall report directly to the Board of
Directors of the Corporation. As such, Executive shall perform duties and
functions and assume and discharge those responsibilities which are otherwise
usually performed by persons holding his title with the Corporation and shall
perform such other duties as may be assigned to him from time to time by the
President, including, without limitation, development and management of an
Imports Division of the Corporation.
(b) The Executive shall devote his full time to the business
and affairs of the Corporation, shall use his best efforts to promote the
interests of the Corporation and its affiliates, and shall discharge his
responsibilities in a diligent and faithful manner, consistent with sound
business practices. The Executive shall not engage in any other employment or
business activity, except the supervision of his private investments.
2. Compensation.
(a) Salary. As payment in full for all services to be rendered
by the Executive during the term hereof, the Corporation shall pay the
Executive, and the Executive shall accept, an annual salary at the rate of Two
Hundred Thousand Dollars ($200,000) per year. The Corporation, acting by its
Board of Directors, may, in its sole and absolute discretion, increase the
salary of the Executive during the term hereof. Such salary shall be payable in
equal weekly installments or as otherwise agreed upon by the Corporation and the
Executive.
(b) Fringe Benefits. The Corporation shall provide the
Executive with perquisites consistent with those provided to other senior
executives of the Corporation, to the extent so provided, including, without
limitation, health insurance for him and his dependents (or reimburse him for
reasonable cost which he incurs himself with respect thereto), disability, life
and accident insurance, pension, profit sharing, stock option, stock bonus or
other employee benefit plans. The Corporation also shall provide Executive with
a $2,500 per month expense allowance which Executive shall utilize for business
expenses related to the business of the Corporation.
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(c) Participation in Bonus Pool. The Board of Directors shall
include Executive in the distribution of an aggregate, to all executives of the
Corporation who may participate, of twelve and one-half percent (12-1/2%) of the
net income before taxes of the Corporation for each fiscal year of the
Corporation during the term hereof (the "Bonus Pool"), payable once annually at
such time as the Board of Directors shall determine. That portion of the Bonus
Pool which shall be payable to Executive shall be in the sole discretion of the
Board of Directors.
(d) Issuance of Performance Shares. Upon the execution and
delivery hereof, the Corporation shall issue and deliver to Executive an
aggregate of 117,000 shares (the "Performance Shares") of Common Stock, par
value $.01 per share, of the Corporation (the "Common Stock"). The Performance
Shares, upon issuance, shall be validly issued and fully paid shares of Common
Stock of the Corporation, provided, however, that (i) one-third of the
Performance Shares shall be repurchased by the Corporation for the par value
thereof in the event that the Corporation does not achieve net income before
taxes of at least $1.5 million during the period of April 1, 1995 through Xxxxx
00, 0000, (xx) one-third of the Performance Shares shall be repurchased by the
Corporation for the par value thereof in the event that the Corporation does not
achieve net income before taxes of at least $2.2 million during the period of
April 1, 1996 through Xxxxx 00, 0000, (xxx) one-third of the Performance Shares
shall be repurchased by the Corporation for the par value thereof in the event
that the Corporation does not achieve net income before taxes of at least $3.0
million during the period of April 1, 1997 through March 31, 1998; (iv) all of
which Performance Shares shall be repurchased by the Corporation for the par
value thereof upon termination of Executive's employment hereunder in the event
that Executive's employment shall terminates prior to March 31, 1996; (v)
two-thirds of which Performance Shares shall be repurchased by the Corporation
for the par value thereof upon termination of Executive's employment hereunder
in the event that Executive's employment shall terminate prior to March 31,
1997; and (vi) one-third of which Performance Shares shall be repurchased by the
Corporation for the par value thereof upon termination of Executive's employment
hereunder in the event that Executive's employment shall terminate prior to
March 31, 1998. This provision shall survive any termination of this Agreement.
3. Term of Employment. The term of employment of the Executive
hereunder shall commence as of the date hereof and shall continue for the one
year period thereafter (the "Initial Term"), provided that this Agreement shall
be deemed renewed on a year to year basis (each a "Renewal Term") on the same
terms hereof in the event that neither party gives the other written notice of
its intent to terminate this Agreement at least 60 days prior to the expiration
of the Initial Term or Renewal Term, as the case may be.
4. Termination of Employment.
(a) The Executive's employment shall terminate upon expiration
of this Agreement as provided in Section 3 or upon the death of the Executive,
and may be terminated immediately, at the option of the Board of Directors of
the Corporation, if the Executive suffers a Disability or in case of Cause.
"Disability" shall mean such physical or mental disability or incapacity of the
Executive as, in the good faith determination of the Board of Directors, has
prevented him from
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performing substantially all his duties hereunder during any period of 60
consecutive days or 90 days in any six-month period. "Cause" shall mean, in the
good faith determination of the Board of Directors, malfeasance, dishonesty or
gross negligence by the Executive, commission by the Executive of any felony or
crime involving moral turpitude, or such behavior as might cause material harm
to the Corporation.
(b) During any Renewal Term only, the Executive's employment
with the Corporation may be terminated for any other reason by the Corporation
upon 30 days' notice to the Executive, in which event the Corporation shall pay
to the Executive three months' severance upon the effectiveness of such
termination.
(c) On the termination of Executive's employment pursuant to
Section 3 or this Section 4, the Corporation shall cease to have any obligation
to pay any compensation to the Executive (except for any compensation earned
prior to the date of termination or the severance referred to in clause (b)
above).
5. Non-Competition; Confidentiality; Inventions.
(a) The Executive shall not, at any time during the period of
his employment by the Corporation or (i) within one (1) year after termination
of his employment, if termination is a result of Executive's resignation or
termination or a result of termination for Cause, or (ii) within 90 days after
termination of employment, if termination is a result of termination by the
Corporation not for Cause (such period, as applicable, the "Restriction
Period"), in either case directly or indirectly, solicit or permit any business
of which he is an owner, partner, shareholder or executive to solicit any
employee of the Corporation or any of its affiliates to leave its employ or join
the employ of another, then or at a later time.
(b) The Executive shall not, at any time during the period of
his employment by the Corporation or during the Restriction Period, in either
case directly or indirectly, engage in or be interested (as owner, member,
partner, shareholder, employee, director, officer, manager, agent, consultant or
otherwise) in any firm or corporation which engages in any business which
competes, directly or indirectly, with the business of the Corporation; provided
that the ownership of two percent or less of a publicly-traded class of
securities shall not be deemed a violation of the foregoing covenant.
(c) The Executive shall not, directly or indirectly, either
during the term of this Agreement or thereafter, disclose to any person, firm or
corporation or use (except in the regular course of the Corporation's business)
any confidential information of any type that he shall have acquired as a result
of his employment with the Corporation, unless such information has been first
published voluntarily and intentionally by the Corporation, or unless such
disclosure is required by law. Promptly after termination of his employment
hereunder, the Executive will surrender to the Corporation any and all lists,
manuals, books and records of or relating to the business of the Corporation,
all copies of the former, whether in use or not, and all other property
belonging to the
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Corporation.
(d) The Executive agrees to make prompt and complete
disclosure of every invention (whether or not patentable), process, product,
apparatus, plan, system or improvement which he conceives or makes, and any
patent application which he files, during the period of his employment by the
Corporation or during the Restriction Period, which pertain to the Corporation's
present or then contemplated field of business. The Executive further agrees
that every said invention, process, product, apparatus, plan, system,
improvement and filing which relates to the Corporation's present or then
contemplated field of business shall be the sole and exclusive property of the
Corporation but without expense to himself, he will execute any and all proper
applications for patents, copyrights and trademarks, assignments and other
instruments which the Corporation shall deem necessary or convenient to perfect
its title in said property or to otherwise protect its interest therein in the
United States or foreign countries, and render aid and assistance to the
Corporation in any litigation or other proceeding pertaining to said property.
(e) The provisions contained in this Section 5 as to the time
periods, scope of activities, persons or entities affected, and territories
restricted shall be deemed divisible so that, if any provision contained in this
Section is determined to be invalid or unenforceable, such provisions shall be
deemed modified so as to be valid and enforceable to the full extent lawfully
permitted.
(f) The Executive acknowledges that the provisions of this
Section 5 are reasonable and necessary for the protection of the Corporation and
that the Corporation will be irrevocably damaged if such covenants are not
specifically enforced. Accordingly, the Executive agrees that the Corporation
will be entitled to injunctive relief for the purpose of restraining the
Executive from violating such covenants in addition to any other relief to which
the Corporation may be entitled under this Agreement.
6. Representations and Warranties of Executive. Executive represents
and warrants to the Corporation that (a) Executive is under no contractual or
other restriction or obligation which is inconsistent with the execution,
delivery and performance under this Agreement or the other rights of the
Corporation hereunder, and (b) Executive is under no physical or mental
disability that would hinder his performance of duties under this Agreement.
7. Miscellaneous.
(a) This Agreement shall be governed by and be construed in
accordance with the law of the State of Delaware applicable to contracts made
and to be performed in that state.
(b) The Executive may not assign his rights or obligations
under this Agreement, or a participation in such rights and obligations, to any
person.
(c) All notices and other communications under this Agreement
shall be in writing
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and shall be considered given only when delivered personally against written
receipt therefor, mailed by registered mail (return receipt requested), or sent
by expedited or overnight delivery service with return receipt, or sent by
telecopier with confirmed receipt, to the party to receive notice at the
addresses first set forth above, or such other address as either party may, upon
ten (10) days' written notice, direct.
(d) Each of the parties hereto shall hereafter, at the request
of either party hereto, execute and deliver such further documents and
agreements, and do such further acts and things as may be necessary or expedient
to carry out the provisions of this Agreement.
(e) The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
(f) This Agreement constitutes a complete statement of all of
the arrangements between the parties as of the date hereof with respect to the
matters contemplated hereby, supersedes all prior agreements and understandings
between them, and cannot be changed or terminated orally.
(g) The headings in this Agreement are intended solely for
convenience of reference and shall not be given any effect in the construction
or interpretation of this Agreement.
(h) This Agreement shall inure to the benefit of, and be
binding upon, the heirs and personal representatives of the Executive and any
successor to the Corporation including, but not limited to, any successor by
merger or consolidation to the Corporation's business and assets.
IN WITNESS WHEREOF, the undersigned have set their hands
hereto as of the date first above written.
XXXXX XXXX, INC.
By:______________________________
Xxxxxxxx Xxxxxx, President
_________________________________
XXXXXXXX XXXXXX
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AMENDMENT TO EMPLOYMENT AGREEMENT
Amendment to Employment Agreement dated as of March 24, 1995, by and
between Xxxxx Xxxx, Inc., a Delaware corporation with offices at 0 Xxxxxxxx Xxx,
Xxxxxxxx, Xxx Xxxxxx 00000 (the "Corporation") and Xxxxxxxx Xxxxxx, residing at
0 Xxxxxxxx Xxx, Xxxxxxxx, Xxx Xxxxxx 00000 (the "Executive").
WHEREAS, the Corporation and the Executive entered into that certain
Employment Agreement, dated as of March 24, 1995, providing for the employment
of the Executive by the Corporation (the "Employment Agreement"); and
WHEREAS, the Corporation and the Executive desire to amend the
Employment Agreement pursuant to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the mutual covenants and provisions
hereof, it is agreed as follows:
1. Section 2(d) of the Employment Agreement is hereby amended to read
as follows in its entirety:
(d) Issuance of Performance Shares. Upon the execution and
delivery hereof, the Corporation shall issue and deliver to Executive
an aggregate of 117,000 shares (the "Performance Shares") of Common
Stock, par value $.01 per share, of the Corporation (the "Common
Stock"). The Performance Shares, upon issuance, shall be validly issued
and fully paid shares of Common Stock of the Corporation, provided,
however, that (i) one-third of the Performance Shares shall be
repurchased by the Corporation for the par value thereof in the event
that the Corporation does not achieve net income before taxes of at
least $1.5 million during the period of April 1, 1995 through Xxxxx 00,
0000, (xx) one-third of the Performance Shares shall be repurchased by
the Corporation for the par value thereof in the event that the
Corporation does not achieve net income before taxes of at least $2.2
million during the period of April 1, 1996 through Xxxxx 00, 0000,
(xxx) one-third of the Performance Shares shall be repurchased by the
Corporation for the par value thereof in the event that the Corporation
does not achieve net income before taxes of at least $3.0 million
during the period of April 1, 1997 through March 31, 1998; (iv) all of
which Performance Shares shall be repurchased by the Corporation for
the par value thereof upon termination of Executive's employment
hereunder in the event that Executive's employment shall terminates
prior to March 31, 1996; (v) two-thirds of which Performance Shares
shall be repurchased by the Corporation for the par value thereof upon
termination of Executive's employment hereunder in the event that
Executive's employment shall terminate prior to March 31, 1997; and
(vi) one-third of which Performance Shares shall be repurchased by the
Corporation for the par value thereof upon termination of Executive's
employment hereunder in the event that Executive's employment shall
terminate prior to March 31, 1998. Net income before taxes, for
purposes of the foregoing calculations, will exclude any tax deduction
obtained by the
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Company solely on account of the issuance of the Performance Shares and
all similar Performance Shares issued to directors and members of
management of the Company. This provision shall survive any termination
of this Agreement.
2. The Employment Agreement shall otherwise remain unchanged and in
full force and effect.
3. Miscellaneous.
(a) This Amendment Agreement shall be governed by and be
construed in accordance with the law of the State of Delaware applicable to
contracts made and to be performed in that state.
(b) The Executive may not assign his rights or obligations
under this Amendment Agreement, or a participation in such rights and
obligations, to any person.
(c) The failure of a party to insist upon strict adherence to
any term of this Amendment Agreement on any occasion shall not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Amendment Agreement. Any waiver
must be in writing.
(d) This Amendment Agreement constitutes a complete statement
of all of the arrangements between the parties as of the date hereof with
respect to the matters contemplated hereby, supersedes all prior agreements and
understandings between them, and cannot be changed or terminated orally.
(e) This Amendment Agreement shall inure to the benefit of,
and be binding upon, the heirs and personal representatives of the Executive and
any successor to the Corporation including, but not limited to, any successor by
merger or consolidation to the Corporation's business and assets.
IN WITNESS WHEREOF, the undersigned have set their hands
hereto as of the date first above written.
XXXXX XXXX, INC.
By:______________________________
Xxxxxxxx Xxxxxx, President
_________________________________
XXXXXXXX XXXXXX
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AMENDMENT TO EMPLOYMENT AGREEMENT
Amendment to Employment Agreement dated as of April 10, 1995, by and
between Xxxxx Xxxx, Inc., a Delaware corporation with offices at 0 Xxxxxxxx Xxx,
Xxxxxxxx, Xxx Xxxxxx 00000 (the "Corporation") and Xxxxxxxx Xxxxxx, residing at
0 Xxxxxxxx Xxx, Xxxxxxxx, Xxx Xxxxxx 00000 (the "Executive").
WHEREAS, the Corporation and the Executive entered into that certain
Employment Agreement, dated as of March 24, 1995, as amended, providing for the
employment of the Executive by the Corporation (the "Employment Agreement"); and
WHEREAS, the Corporation and the Executive desire to further amend the
Employment Agreement pursuant to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the mutual covenants and provisions
hereof, it is agreed as follows:
1. Section 2(c) of the Employment Agreement is hereby amended to read
as follows in its entirety:
(c) Participation in Bonus Pool. The Board of Directors shall
include Executive in the distribution of an aggregate, to all
executives of the Corporation who may participate, of twelve and
one-half percent (12-1/2%) of the net income before taxes of the
Corporation, to the extent such net income before taxes exceeds one
million dollars ($1,000,000) for each fiscal year of the Corporation
during the term hereof (the "Bonus Pool"), payable once annually at
such time as the Board of Directors shall determine. That portion of
the Bonus Pool which shall be payable to Executive shall be in the sole
discretion of the Board of Directors.
2. The Employment Agreement shall otherwise remain unchanged and in
full force and effect.
3. Miscellaneous.
(a) This Amendment Agreement shall be governed by and be
construed in accordance with the law of the State of Delaware applicable to
contracts made and to be performed in that state.
(b) The Executive may not assign his rights or obligations
under this Amendment Agreement, or a participation in such rights and
obligations, to any person.
(c) The failure of a party to insist upon strict adherence to
any term of this Amendment Agreement on any occasion shall not be considered a
waiver or deprive that party of
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the right thereafter to insist upon strict adherence to that term or any other
term of this Amendment Agreement. Any waiver must be in writing.
(d) This Amendment Agreement constitutes a complete statement
of all of the arrangements between the parties as of the date hereof with
respect to the matters contemplated hereby, supersedes all prior agreements and
understandings between them, and cannot be changed or terminated orally.
(e) This Amendment Agreement shall inure to the benefit of,
and be binding upon, the heirs and personal representatives of the Executive and
any successor to the Corporation including, but not limited to, any successor by
merger or consolidation to the Corporation's business and assets.
IN WITNESS WHEREOF, the undersigned have set their hands
hereto as of the date first above written.
XXXXX XXXX, INC.
By:______________________________
Xxxxxxxx Xxxxxx, President
_________________________________
XXXXXXXX XXXXXX
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AMENDMENT TO EMPLOYMENT AGREEMENT
Amendment to Employment Agreement dated as of March 23, 1996, by and
between Xxxxx Xxxx, Inc., a Delaware corporation with offices at 0000 Xxxxxxxx,
Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 (the "Corporation") and Xxxxxxxx Xxxxxx,
residing at 0 Xxxxxxxx Xxx, Xxxxxxxx, Xxx Xxxxxx 00000 (the "Executive").
WHEREAS, the Corporation and the Executive entered into that certain
Employment Agreement, dated as of March 24, 1995, providing for the employment
of the Executive by the Corporation, which Agreement was amended pursuant to
that certain Amendment to Employment Agreement dated as of March 24, 1995 and
further amended pursuant to that certain Amendment to Employment Agreement dated
as of April 10, 1995 (collectively, the "Employment Agreement"), initially
capitalized terms not otherwise defined herein having their respective meanings
as set forth in the Employment Agreement; and
WHEREAS, the Corporation and the Executive desire to further amend the
Employment Agreement pursuant to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the mutual covenants and provisions
hereof, it is agreed as follows:
1. Section 2(a) of the Employment Agreement is hereby amended to
provide that Executive's annual salary shall be at the rate of Two Hundred
Twenty-Five Thousand Dollars ($225,000) per year. Section 2(b) of the Employment
Agreement is hereby amended to provide that Executive's expense allowance shall
be equal to $3,500 per month.
2. Section 2(d) of the Employment Agreement is hereby amended to read
as follows in its entirety:
(d) Issuance of Performance Shares. Upon the execution and
delivery hereof, the Corporation shall issue and deliver to Executive
an aggregate of 117,000 shares (the "Performance Shares") of Common
Stock, par value $.01 per share, of the Corporation (the "Common
Stock"). The Performance Shares, upon issuance, shall be validly issued
and fully paid shares of Common Stock of the Corporation, provided,
however, that (i) two-thirds of the Performance Shares shall be
repurchased by the Corporation for the par value thereof in the event
that the Corporation does not achieve net income before taxes of at
least $2.1 million during the period of April 1, 1996 through Xxxxx 00,
0000, (xx) one-third of the Performance Shares shall be repurchased by
the Corporation for the par value thereof in the event that the
Corporation does not achieve net income before taxes of at least $3
million during the period of April 1, 1997 through March 31, 1998;
(iii) two-thirds of which Performance Shares shall be repurchased by
the Corporation for the par value thereof upon termination of
Executive's employment hereunder in the event that Executive's
employment shall terminate prior to March 31, 1997; and (iv) one-third
of which Performance Shares shall be repurchased by the Corporation for
the par value thereof upon termination of Executive's employment
hereunder in the event that Executive's employment shall terminate
prior to March 31, 1998. Net income
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before taxes, for purposes of the foregoing calculations, will exclude
any tax deduction obtained by the Company solely on account of the
issuance of the Performance Shares and all similar Performance Shares
issued to directors and members of management of the Company. This
provision shall survive any termination of this Agreement.
3. A new Section 2(e) shall be added, as follows:
(e) Additional Minimum Bonus. In addition to the
compensation described above, Executive shall receive, on or
before March 1, 1997 and, in the event that there shall be a
Renewal Term, on or before March 1, 1998 and on or before
March 1, 1999, a bonus in such amount as the Board of
Directors shall determine, but in no event less than $15,000
on each such occasion.
4. Section 3 of the Employment Agreement is hereby amended by replacing
the words "one year period" in line 2 thereof with the words "two year period".
5. The Employment Agreement shall otherwise remain unchanged and in
full force and effect.
6. Miscellaneous.
(a) This Amendment Agreement shall be governed by and be
construed in accordance with the law of the State of Delaware applicable to
contracts made and to be performed in that state.
(b) The Executive may not assign his rights or obligations
under this Amendment Agreement, or a participation in such rights and
obligations, to any person.
(c) The failure of a party to insist upon strict adherence to
any term of this Amendment Agreement on any occasion shall not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Amendment Agreement. Any waiver
must be in writing.
(d) This Amendment Agreement constitutes a complete statement
of all of the arrangements between the parties as of the date hereof with
respect to the matters contemplated hereby, supersedes all prior agreements and
understandings between them, and cannot be changed or terminated orally. This
Amendment Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and which together shall constitute one and the same
agreement.
(e) This Amendment Agreement shall inure to the benefit of,
and be binding upon, the heirs and personal representatives of the Executive and
any successor to the Corporation including, but not limited to, any successor by
merger or consolidation to the Corporation's business and assets.
IN WITNESS WHEREOF, the undersigned have set their hands
hereto as of the date first above written.
XXXXX XXXX, INC.
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By:______________________________________
Xxxxxxx Xxxxx, Executive Vice President
_________________________________________
XXXXXXXX XXXXXX
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