Exhibit 10.44
Execution Copy
AGREEMENT
This Agreement is made and entered into in Canton, Massachusetts, by
and between Xxxxxxxxx & Xxxx, Inc. (the "Company") and Xxxx Xxxxxxxxx, of
Boston, Massachusetts (the "Executive"), effective as of the 15th day of
November, 2002 (the "Effective Date").
WHEREAS, the operations of the Company are a complex matter requiring
direction and leadership in a variety of arenas, including financial, strategic
planning, regulatory and others;
WHEREAS, the Executive is possessed of certain experience and expertise
that qualify him to provide the direction and leadership required by the
Company; and
WHEREAS, subject to the terms and conditions hereinafter set forth, the
Company therefore wishes to employ the Executive as its President and Chief
Executive Officer and the Executive wishes to accept such employment;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual promises, terms, provisions and conditions set forth in this Agreement,
the parties hereby agree:
1. Employment. Subject to the terms and conditions set forth in this
Agreement, the Company hereby offers and the Executive hereby accepts
employment.
2. Capacity and Performance.
a. The Executive shall serve the Company as its President and Chief
Executive Officer, subject to approval of this agreement by the Board of
Directors of the Company (the "Board") as a condition precedent to the
effectiveness of this Agreement, or in such other executive position as the
Board may designate from time to time. In addition, and without further
compensation, the Executive shall serve as a director and/or officer of one or
more of the Company's Affiliates, if any, and if so elected or appointed from
time to time.
b. During the term hereof, the Executive shall be employed by the
Company on a full-time basis and shall perform such duties and responsibilities
on behalf of the Company and any of its Affiliates as may be designated from
time to time by the Board or by its designees.
c. During the term hereof, the Executive shall devote his full
business time and his best efforts, business judgment, skill and knowledge
exclusively to the advancement of the business and interests of the Company and
any of its Affiliates and to the discharge of his duties and responsibilities
hereunder. The Executive shall not engage in any other business
activity or serve in any industry, trade, professional, governmental or academic
position during the term of this Agreement, except as may be expressly approved
in advance by the Board in writing.
3. Compensation and Benefits. As compensation for all services
performed by the Executive under and during the term hereof and subject to
performance of the Executive's duties and of the obligations of the Executive to
the Company and any of its Affiliates, pursuant to this Agreement or otherwise:
a. Base Salary. During the term hereof, the Company shall pay the
Executive a base salary at the rate of Two Hundred Thousand Dollars ($200,000)
per annum, payable in accordance with the payroll practices of the Company and
subject to adjustment from time to time by the Board, in its sole discretion.
Such base salary, as from time to time adjusted, is hereafter referred to as the
"Base Salary".
b. Vacation. The Executive shall be entitled to three weeks of
paid vacation per year, subject to Company policies as in effect from
time-to-time.
c. Eligibility for Bonus Compensation. The Executive shall be
eligible to be considered for a bonus annually during the term hereof. The
amount of such bonus, if any, shall be determined by the Board in its sole
discretion.
d. Business Expenses. The Company shall pay or reimburse the
Executive for all reasonable, customary and necessary business expenses incurred
or paid by the Executive in the performance of his duties and responsibilities
for the Company, subject to Company reimbursement policies as in effect from
time to time.
e. Other Benefits. During the term hereof and subject to any
contribution therefor generally required of employees of the Company, the
Executive shall be entitled to participate in any and all employee benefit plans
from time to time in effect for employees of the Company generally. Such
participation shall be subject to (i) the terms of the applicable plan
documents, (ii) generally applicable Company policies and (iii) the discretion
of the Board or any administrative or other committee provided for in or
contemplated by such plan. The Company may alter, modify, add to or delete its
employee benefit plans at any time as it, in its sole judgment, determines to be
appropriate, without recourse by the Executive.
f. Withholding. All payments made by the Company under this
Agreement shall be reduced by any tax or other amounts required to be withheld
by the Company under applicable law.
4. Termination By the Company for Cause. The Company may terminate the
Executive's employment hereunder for Cause at any time upon notice to the
Executive. The following, as determined by the Board in its judgment, shall
constitute Cause for termination:
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i. The Executive's material failure to perform, or gross
negligence in the performance of, his duties and
responsibilities to the Company or any of its Affiliates;
ii. Material breach by the Executive of any provision of this
Agreement; or
iii. Other conduct by the Executive that is materially harmful to
the business, interests or reputation of the Company or any
of its Affiliates.
Upon the giving of notice of termination of the Executive's employment hereunder
for Cause, the Company shall have no further obligation or liability to the
Executive, other than for Base Salary earned and unpaid at the date of
termination.
5. Termination By the Company Other than for Cause.
a. The Company may terminate the Executive's employment hereunder
other than for Cause at any time upon notice to the Executive. In the event of
such termination, and provided that no benefits are payable to the Executive
under a separate severance agreement or an executive severance plan as a result
of such termination or under Section 5b. below, then the Executive shall receive
a severance payment of Fifty Thousand Dollars ($50,000) for a period of three
(3) months following the date of termination (the "Severance Period") payable in
equal monthly installments. For the duration of the Severance Period, the
Company shall continue to contribute to the premium cost of the Executive's
participation in the Company's group medical and dental insurance plans in the
same amount that it contributes for its active full-time employees, provided
that the Executive is entitled to continue such participation under applicable
law and plan terms and provided the Executive pays the remainder of the premium
cost by authorized payroll deduction.
b. If a Change of Control of the Company, as defined in Section
10 below, occurs and the Executive's employment hereunder is terminated other
than for Cause upon or at any time after such Change of Control, an amount of
One Hundred Thousand Dollars ($100,000) shall become immediately due and payable
to the Executive on the date of the Executive's termination as a lump sum
severance payment in lieu of any amounts payable under Section 5a. above.
Further, for a period of six (6) months following any such termination under
this Section 5b. (the "Benefits Period"), the Company shall continue the
Executive's participation in its group health and dental plans and shall
continue to contribute to the premium cost of such participation in the same
amount as it did prior to the Executive's termination. If the Company does not
survive such Change of Control, the Company shall use its best efforts to ensure
the Executive's participation for the duration of the Benefits Period in
commensurate plans maintained by the successor entity in such Change of Control
and shall provide for the contribution to the cost of such participation in the
same amount as it would have under Company plans for the remainder of such
Benefits Period.
6. Termination By the Executive. The Executive may terminate his
employment hereunder at any time upon sixty (60) days' notice to the Company,
unless such termination would violate any obligation of the Executive to the
Company under a separate severance
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agreement. In the event of termination of the Executive pursuant to this Section
6, the Board may elect to waive the period of notice, or any portion thereof,
and, if the Board so elects, the Company will pay the Executive his Base Salary
for the notice period (or for any remaining portion of the period).
7. Confidential Information.
a. The Executive acknowledges that the Company and its Affiliates,
if any, continually develop Confidential Information, that the Executive may
develop Confidential Information for the Company or its Affiliates, if any, and
that the Executive may learn of Confidential Information during the course of
employment. The Executive will comply with the policies and procedures of the
Company and any of its Affiliates for protecting Confidential Information and
shall never disclose to any Person (except as required by applicable law or for
the proper performance of his duties and responsibilities to the Company and any
of its Affiliates), or use for his own benefit or gain, any Confidential
Information obtained by the Executive incident to his employment or other
association with the Company or any of its Affiliates. The Executive understands
that this restriction shall continue to apply after his employment terminates,
regardless of the reason for such termination.
b. All documents, records, tapes and other media of every kind
and description relating to the business, present or otherwise, of the Company
or any of its Affiliates and any copies, in whole or in part, thereof (the
"Documents"), whether or not prepared by the Executive, shall be the sole and
exclusive property of the Company and its Affiliates, if any. The Executive
shall safeguard all Documents and shall surrender to the Company at the time his
employment terminates, or at such earlier time or times as the Board or its
designee may specify, all Documents then in the Executive's possession or
control.
c. The Executive also agrees to assign to the Company any
Intellectual Property, as defined below, which the Executive creates or develops
during employment (alone or with others, on or off Company premises) which
relates to the business of the Company or any of its Affiliates or which
utilizes the Confidential Information, facilities or equipment of the Company or
any of its Affiliates.
8. Restricted Activities. The Executive agrees that some restrictions
on his activities during and after his employment are necessary to protect the
goodwill, Confidential Information and other legitimate interests of the Company
and any of its Affiliates. While the Executive is employed by the Company and
for three (3) months after his employment terminates, the Executive shall not,
directly or indirectly, whether as owner, partner, investor, consultant, agent,
employee, co-venturer or otherwise, compete with the Company or any of its
Affiliates or undertake any planning for any business competitive with the
Company or any of its Affiliates; provided, however, that if the Executive's
employment is terminated under Section 5b. hereof, the Executive shall not,
directly or indirectly, whether as owner, partner, investor, consultant, agent,
employee, co-venturer or otherwise, compete with the Company or any of its
Affiliates or undertake any planning for any business competitive with the
Company or any of its Affiliates for six (6) months after his employment
terminates. Specifically, but without limiting the
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foregoing, the Executive agrees not to engage in any manner in any activity that
is directly or indirectly competitive or potentially competitive with the
business of the Company or any of its Affiliates, if any, as conducted or under
consideration at any time during the Executive's employment, including, without
limitation, any activity that involves the retail sale of wine or wine
accessories via the mails or the Internet.
9. Enforcement of Covenants. The Executive acknowledges that he has
carefully read and considered all the terms and conditions of this Agreement,
including the restraints imposed upon him pursuant to Sections 7 and 8 hereof.
The Executive agrees that said restraints are necessary for the reasonable and
proper protection of the Company and its Affiliates, if any, and that each and
every one of the restraints is reasonable in respect to subject matter, length
of time and geographic area. The Executive further acknowledges that, were he to
breach any of the covenants contained in Sections 7 and 8 hereof, the damage to
the Company would be irreparable. The Executive therefore agrees that the
Company, in addition to any other remedies available to it, shall be entitled to
preliminary and permanent injunctive relief against any breach or threatened
breach by the Executive of any of said covenants, without having to post bond.
The parties further agree that, in the event that any provision hereof shall be
determined by any court of competent jurisdiction to be unenforceable by reason
of its being extended over too great a time, too large a geographic area or too
great a range of activities, such provision shall be deemed to be modified to
permit its enforcement to the maximum extent permitted by law.
10. Definitions. Words or phrases which are initially capitalized or
are within quotation marks shall have the meanings provided in this Section 10
and as provided elsewhere herein. For purposes of this Agreement, the following
definitions apply:
a. "Affiliates" means all persons and entities directly or
indirectly controlling, controlled by or under common control with the Company,
where control may be by either management authority or equity interest.
b. "Change of Control" means the occurrence of: a merger,
consolidation, reorganization, recapitalization or any other transaction (or any
series of such transactions) in which the stockholders, immediately prior to
such transaction (or series of transactions) receive, in exchange for the stock
owned by them, cash, property or securities of the resulting or surviving entity
or any Affiliate thereof, and, as a result thereof, persons who, individually or
in the aggregate, were holders of 50% or more of the voting stock of the Company
immediately prior to such transaction (or series of transactions) hold less than
50% of the voting stock of the resulting or surviving entity or such Affiliate
thereof, calculated on a fully diluted basis; or a sale, transfer or other
disposition of all or substantially all of the assets of the Company.
c. "Confidential Information" means any and all information of the
Company and any of its Affiliates that is not generally known by others with
whom they compete or do business, or with whom they plan to compete or do
business and any and all information, publicly known in whole or in part or not,
which, if disclosed by the Company or any of its Affiliates would assist in
competition against them. Confidential Information includes without limitation
such information relating to (i) the development, research, testing,
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manufacturing, marketing and financial activities of the Company and any of its
Affiliates, (ii) the Products, (iii) the costs, sources of supply, financial
performance and strategic plans of the Company and any of its Affiliates, (iv)
the identity and special needs of the customers of the Company and any of its
Affiliates and (v) the people and organizations with whom the Company and any of
its Affiliates have business relationships and those relationships. Confidential
Information also includes comparable information that the Company or any of its
Affiliates have received belonging to others or which was received by the
Company or any of its Affiliates with any understanding that it would not be
disclosed.
d. "Intellectual Property" means all inventions, discoveries,
compositions, concepts, ideas and the like (whether or not patentable or
copyrightable or constituting trade secrets) conceived, made, created, developed
or reduced to practice by the Executive (alone or with others, on or off Company
premises) during the term of this Agreement that relate in any way to the
business, products or services of the Company or any of its Affiliates or to any
prospective activity of the Company or any of its Affiliates.
e. "Person" means an individual, a corporation, an association, a
partnership, an estate, a trust and any other entity or organization, other than
the Company or any of its Affiliates.
f. "Products" means all products planned, researched, developed,
tested, manufactured, sold, licensed, leased or otherwise distributed or put
into use by the Company or any of its Affiliates, together with all services
provided or planned by the Company or any of its Affiliates, during the
Executive's employment.
11. Withholding. All payments made by the Company under this Agreement
shall be reduced by any tax or other amounts required to be withheld by the
Company under applicable law.
12. Assignment. Neither the Company nor the Executive may make any
assignment of this Agreement or any interest herein, by operation of law or
otherwise, without the prior written consent of the other; provided, however,
that the Company may assign its rights and obligations under this Agreement
without the consent of the Executive in the event that the Company shall
hereafter affect a reorganization, consolidate with, or merge into, any other
Person or transfer all or substantially all of its properties or assets to any
other Person. This Agreement shall inure to the benefit of and be binding upon
the Company and the Executive, their respective successors, executors,
administrators, heirs and permitted assigns.
13. Severability. If any portion or provision of this Agreement shall
to any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
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14. Waiver. No waiver of any provision hereof shall be effective
unless made in writing and signed by the waiving party. The failure of either
party to require the performance of any term or obligation of this Agreement, or
the waiver by either party of any breach of this Agreement, shall not prevent
any subsequent enforcement of such term or obligation or be deemed a waiver of
any subsequent breach.
15. Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all prior communications, agreements and
understandings, written or oral, with respect to the terms and conditions of the
Executive's employment.
16. Amendment. This Agreement may be amended or modified only by a
written instrument signed by the Executive and by a expressly authorized
representative of the Company.
17. Conflicting Agreements. The Executive hereby represents and
warrants that the execution of this Agreement and the performance of his
obligations hereunder will not breach or be in conflict with any other agreement
to which the Executive is a party or is bound and that the Executive is not now
subject to any covenants against competition or similar covenants or any court
order or other legal obligation that would affect the performance of his
obligations hereunder. The Executive will not disclose to or use on behalf of
the Company any proprietary information of a third party without such party's
consent.
18. Headings. The headings and captions in this Agreement are for
convenience only and in no way define or describe the scope or content of any
provision of this Agreement.
19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument.
20. Governing Law. This is a Massachusetts contract and shall be
construed and enforced under and be governed in all respects by the laws of the
Commonwealth of Massachusetts, without regard to the conflict of laws principles
thereof.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the Company, by its duly authorized representative, and by the
Executive, as of the date first above written.
THE EXECUTIVE: XXXXXXXXX & XXXX, INC.
/s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxx X. Xxxxxxx
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Title: Director
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