Exhibit 10.2
SECOND AMENDED AND RESTATED
EMPLOYMENT AND NON-COMPETITION AGREEMENT
This SECOND AMENDED AND RESTATED EMPLOYMENT AND NON-COMPETITION AGREEMENT
(this "Agreement"), dated as of September 24, 2007, is between CSAV, INC., a
Massachusetts corporation (the "Employer"), and XXXXX XXXX (the "Employee").
WHEREAS, the Employer and the Employee are parties to that certain Amended
and Restated Employment and Non-Competition Agreement, dated as of June 3, 2005
(as amended, supplemented or otherwise modified from time to time to the date
hereof, the "Existing Employment Agreement"); and
WHEREAS, the Employer and the Employee desire to amend and restate the
terms of the Existing Employment Agreement pursuant to the terms of this
Agreement.
NOW, THEREFORE, it is hereby agreed as follows:
SECTION 1. EMPLOYMENT. The Employer hereby employs the Employee, and the
Employee hereby accepts employment, upon the terms and subject to the conditions
hereinafter set forth.
SECTION 2. DUTIES. The Employee shall be employed as the President and
Chief Executive Officer of the Employer and shall report to the Board of
Directors (the "Board") of CSAV Holding Corp., a Delaware corporation
("Holdings"). In such capacity, the Employee shall have the responsibilities and
duties customary for such offices and such other responsibilities and duties as
are assigned by the Board which are consistent with the Employee's position. At
all times during the performance of this Agreement, the Employee will adhere to
the rules and regulations (the "Policies") that have been or may hereafter be
established by the Board for the conduct of Holdings' and the Employer's
employees or for the position or positions held by the Employee. The Employee
agrees to devote his full business time and good faith best efforts to the
performance of his duties to the Employer.
SECTION 3. TERM. The initial term of employment of the Employee hereunder
shall commence on September 24, 2007 (the "Commencement Date") and shall
continue until the third anniversary of the Commencement Date (the "Initial
Term"), unless earlier terminated pursuant to Section 6, and shall be renewed
automatically for additional one (1) year terms thereafter unless terminated by
either party by written notice to the other given at least ninety (90) days
prior to the expiration of the then current term.
SECTION 4. COMPENSATION AND BENEFITS. Until the termination of the
Employee's employment hereunder, in consideration for the services of the
Employee hereunder, the Employer shall compensate the Employee as follows:
(a) BASE SALARY. The Employer shall pay the Employee, in accordance
with the Employer's then current payroll practices, a base salary (the "Base
Salary"). The Base Salary will be paid at an annual rate of $275,000 (such
annual rate to be prorated for the 2007
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fiscal year based on the number of days remaining in the 2007 fiscal year
following the Commencement Date). Any future increases to the Base Salary are to
be determined by the Board in its sole and absolute discretion.
(b) INCENTIVE BONUS. At the end of each fiscal year of the Employer
during the Term, beginning with the fiscal year ending December 31, 2007, the
Employee shall be eligible to receive from the Employer an annual incentive
bonus (the "Bonus"). The Bonus criteria for each fiscal year (i) will be
determined by the Board (and the Employer will advise the Employee of such
determination) prior to the end of the first fiscal quarter of such fiscal year,
and (ii) may be based solely on the achievement of individual performance
criteria, solely on the achievement by the Employer of elements of its business
plan or on a combination of these two types of criteria. The amount of the Bonus
for any fiscal year shall be up to 80% of the Base Salary in effect as of the
end of such fiscal year, with the actual amount of the Bonus for such fiscal
year depending upon the satisfaction of the Bonus criteria to be set in
accordance with the immediately preceding sentence. The Bonus (if any) payable
in connection with any fiscal year shall be paid within thirty (30) days after
the determination that the Employee is to receive the Bonus, which determination
will be made by the Board promptly following completion by the Employer of its
audit of the financial statements for the applicable fiscal year. In any event,
the Bonus will be paid to the Employee no later than during the calendar year
following the fiscal year in which it was earned. The amount of any Bonus
payable for any fiscal year shall be paid in cash.
(c) VACATION. The Employee shall be entitled to four (4) weeks
vacation each calendar year; provided, that (i) with respect to the 2007
calendar year, such number of weeks shall be reduced by any vacation time taken
prior to the Commencement Date under the Existing Employment Agreement, and (ii)
the Employee shall be entitled to additional vacation time based on the
Employee's length of service with the Employer. Any increase in the amount of
the Employee's vacation time that is based on the Employee's length of service
with the Employer shall be on a basis consistent with the Employer's standard
policy governing length of service and vacation. Any vacation shall be taken at
the reasonable and mutual convenience of the Employer and the Employee. Up to
one (1) week of accrued vacation that has not been used as of the end of any
calendar year may be carried forward for use in the next calendar year.
(d) INSURANCE; OTHER BENEFITS. The Employee shall be entitled to
receive any health, accident, disability and life insurance and family leave
benefits provided by the Employer under group health, accident, disability, and
life insurance and family leave plans maintained by the Employer for its
full-time, salaried employees as such employment benefits may be modified from
time to time by the Board for all full-time, salaried employees.
(e) WITHHOLDING. All amounts payable by the Employer to the Employee
hereunder (including, but not limited to, the Base Salary) shall be reduced
prior to the delivery of such payment to the Employee by an amount sufficient to
satisfy any applicable federal, state, local or other withholding tax
requirements.
SECTION 5. EXPENSES. The Employer shall reimburse the Employee for all
reasonable expenses of types authorized by the Employer and incurred by the
Employee in the performance of his duties hereunder. The Employee shall comply
with such budget limitations and approval
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and reporting requirements with respect to expenses as the Employer may
establish from time to time.
SECTION 6. TERMINATION. The Employee's employment hereunder shall commence
on the Commencement Date and continue until the expiration of the Initial Term,
and any extension of such term pursuant to Section 3 above, except that the
employment of the Employee hereunder shall earlier terminate:
(a) DEATH. Upon the death of the Employee during the term of his
employment hereunder.
(b) DISABILITY. Subject to applicable law, including the Americans
with Disabilities Act of 1990, as amended, at the option of the Employer, in the
event of the Employee's Disability (as defined below), upon thirty (30) days'
written notice from the Employer. For purposes hereof, the Employee shall be
deemed to have a "Disability" if the Employee is unable (as reasonably
determined in good faith by the Board), on account of a physical or mental
illness, injury or disease or combination thereof, to perform his duties and
obligations under this Agreement for a period of more than 90 consecutive days
or for a total of 120 days (in either case excluding vacation days) within any
12 month period.
(c) FOR CAUSE. For "Cause" effective immediately upon written notice
by the Employer to the Employee. For purposes of this Agreement, a termination
shall be for Cause if the Board shall reasonably determine that any one or more
of the following has occurred:
(i) the Employee shall have committed an act of fraud,
embezzlement, misappropriation or breach of fiduciary duty against the
Employer or any of the Employer's parent or subsidiaries (collectively, the
"Companies"), including, but not limited to, the offer, payment,
solicitation or acceptance of any unlawful bribe or kickback with respect
to the business of any of the Companies; or
(ii) the Employee shall have been convicted by a court of
competent jurisdiction of, or pleaded guilty or nolo contendere to, any
felony; or
(iii) the Employee shall have committed a material breach of any
of the covenants, terms and provisions of Sections 7, 8 or 9 hereof; or
(iv) the Employee shall have breached in any material respects
any one or more of the provisions of this Agreement (excluding Sections 7,
8 and 9 hereof), including, without limitation, any failure to comply with
the Policies, or any one or more of the provisions of the Stockholder
Agreement, dated as of August 29, 2003 (as amended, the "Stockholder
Agreement"), among Holdings and its stockholders, and, in each case, such
breach shall have continued for a period of ten (10) days after written
notice to the Employee specifying such breach in reasonable detail; or
(v) the Employee shall have refused, after explicit written
notice, to obey any lawful resolution of or direction by the Board made in
good faith which is consistent with his duties hereunder; or
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(vi) the Employee shall be chronically absent from work
(excluding vacation, illnesses or leaves of absence approved by the Board)
and such absence shall continue following written notice to the Employee.
Notwithstanding the foregoing, other than a termination pursuant to clause (ii)
above, the Employee shall not be deemed to have been terminated for Cause
without being given an opportunity for the Employee to be heard before the Board
or a Committee (as hereinafter defined) after delivery of the notice referred to
above by the Employer to the Employee. For purposes of this Section 6(c), the
term "Committee" shall mean a committee designated by resolution of the Board
for the purpose of making a determination of Cause hereunder.
(d) RESIGNATION FOR GOOD REASON. At the option of the Employee for
"Good Reason" upon written notice to the Employer. For purposes of this
Agreement, "Good Reason" shall mean, without the express written consent of the
Employee, the occurrence of any of the following events unless such events are
corrected in all material respects by the Employer within ten (10) days
following written notification by the Employee to the Employer that the Employee
intends to terminate his employment hereunder for one of the reasons set forth
below and a reasonably detailed description of the facts and circumstances
surrounding such reason: (i) a breach by the Employer of any material provision
of this Agreement; (ii) any material diminution (except temporarily during any
period of physical or mental illness or incapacity) of the Employee's then
duties or responsibilities with the Employer; or (iii) any change in the
Employee's permanent place of work to a location more than 50 miles from the
current offices of the Employer.
(e) RESIGNATION OR TERMINATION WITHOUT CAUSE. At any time, upon
written notice by either the Employer or the Employee to the other party hereto.
(f) RIGHTS AND REMEDIES ON TERMINATION.
(i) If the Employee's employment hereunder is terminated pursuant
to Section 6(a), Section 6(b) or Section 6(c), by the Employee pursuant to
Section 6(e) or, except as provided in Section 6(f)(ii), pursuant to
Section 3 in connection with the expiration of the Initial Term or any
subsequent term hereunder then the Employee (or his estate, as applicable)
shall be entitled to receive his Base Salary through the date of
termination or expiration and any Bonus that has been earned prior to the
date of termination or expiration but has not been paid to the Employee as
of such date.
(ii) If the Employee's employment hereunder is terminated (x) by
the Employee pursuant to Section 6(d), (y) by the Employer pursuant to
Section 6(e), or (z) pursuant to Section 3 in connection with the
expiration of the Initial Term or any subsequent term hereunder within six
(6) months following a Disposition Event (as defined in the Stockholder
Agreement) where the Employer (or other surviving entity of such
Disposition Event) elects not to renew the term of this Agreement, provided
that the Employee is willing and able to renew the Agreement and to
continue providing services hereunder, then the Employee shall continue to
receive payment, in accordance with the Employer's then current payroll
practices, of the Employee's Base Salary in effect at the time of
termination of employment (the "Termination Date") for a twelve (12) month
period
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following the Termination Date ( "Severance"). In addition, if the
Employee's employment hereunder is terminated by the Employer pursuant to
Section 6(e) within ninety (90) days prior to the consummation of a
Disposition Event, the Employee shall be entitled to receive payment of a
prorated portion of the Bonus (if any) for the fiscal year in which the
Termination Date occurs determined by multiplying (I) the full amount of
the Bonus (if any) that would have been paid to the Employee pursuant to
Section 4(b) hereof if his employment hereunder had not been terminated
(which amount shall be determined in good faith by the Board) by (II) a
fraction, the numerator of which is the number of days elapsed during such
fiscal year prior to the Termination Date and the denominator of which is
365 (it being understood that the payment (if any) to be made pursuant this
sentence shall be paid in the calendar year following the fiscal year in
which the Employee's Termination Date occurs, but no later than March 15 of
such calendar year). Anything in this Section 6(f)(ii) to the contrary
notwithstanding, (A) the Employee's right to receive the payments set forth
in this Section 6(f)(ii) is expressly conditioned upon receipt by the
Employer within 30 days following the Termination Date of a written release
executed by the Employee, in form and substance satisfactory to the
Employer, of any and all claims or causes of action of any nature relating
directly or indirectly to such Employee's employment or termination of
employment by the Employer (other than any right of the Employee to receive
the payments to be made to him pursuant to this Section 6(f)) and (B) in
the event that the Employee breaches any of the covenants, terms or
provisions of Sections 7, 8 or 9 hereof, without limiting any other rights
that the Employer may have, the Employer's obligation to make payments
under this Section 6(f)(ii) shall immediately terminate.
(iii) Except as otherwise set forth in this Section 6(f), the
Employee shall not be entitled to any severance, bonus or other
compensation after termination other than payment of any expense
reimbursements under Section 5 hereof for expenses incurred in the
performance of his duties prior to termination or benefits or compensation
to which the Employee is entitled pursuant to applicable law (e.g. COBRA).
SECTION 7. INVENTIONS; ASSIGNMENT. All rights to discoveries, inventions,
improvements and innovations (including all data and records pertaining thereto)
related to the business of any of the Companies, whether or not patentable,
copyrightable, registrable as a trademark, or reduced to writing, that the
Employee may discover, invent or originate during the term of his employment
hereunder, either alone or with others and whether or not during working hours
or by the use of the facilities of any of the Companies ("Inventions"), shall be
the exclusive property of the Companies. The Employee shall promptly disclose
all Inventions to the Employer, shall execute at the request of the Employer any
assignments or other documents the Employer may deem necessary to protect or
perfect the rights of the Companies therein, and shall assist the Companies, at
the Companies' expense, in obtaining, defending and enforcing the Companies'
rights therein. The Employee hereby appoints the Employer and each of the other
Companies, individually, as his attorney-in-fact to execute on his behalf any
assignments or other documents deemed necessary by the Employer or any of the
other Companies to protect or perfect their rights to any Inventions.
SECTION 8. CONFIDENTIAL INFORMATION. The Employee recognizes and
acknowledges that certain assets of the Companies, including, without
limitation, information regarding customers, pricing policies, methods of
operation, proprietary production processes,
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proprietary computer programs, sales, products, profits, costs, markets, key
personnel, formulae, product applications, technical processes, and trade
secrets (hereinafter called "Confidential Information") are valuable, special,
and unique assets of the Companies and their affiliates. The Employee shall not,
during or after his term of employment, disclose any or any part of the
Confidential Information to any person, firm, corporation, association, or any
other entity for any reason or purpose whatsoever, directly or indirectly,
except as may be required pursuant to his employment hereunder; provided, that
Confidential Information shall in no event include (a) Confidential Information
which was generally available to the public at the time of disclosure by the
Employee or (b) Confidential Information which becomes publicly available other
than as a consequence of the breach by the Employee of his confidentiality
obligations hereunder. In the event of the termination of his employment,
whether voluntary or involuntary and whether by the Employer or the Employee,
the Employee shall deliver to the Employer all documents and data pertaining to
the Confidential Information and shall not take with him any documents or data
of any kind or any reproductions (in whole or in part) or extracts of any items
relating to the Confidential Information. Nothing contained within this Section
8 shall prohibit the Employee from disclosing Confidential Information if such
disclosure is required by law, governmental process or valid legal process. In
the event that the Employee is legally compelled to disclose any of the
Confidential Information, he shall provide the Employer with prompt written
notice so that the Employer, at its sole cost and expense, may seek a protective
order or other appropriate remedy and/or waive compliance with the provisions of
this Agreement. In the event that such protective order or other remedy is not
obtained, or that Employer waives compliance with the provisions of this
Agreement, Employee shall furnish only that portion of the Confidential
Information that he is advised by counsel is legally required to be disclosed.
SECTION 9. NON-COMPETITION. During the term of the Employee's employment
hereunder and for the Designated Period (as defined below) after termination of
the Employee's employment hereunder, the Employee will not (a) anywhere in the
world, engage, directly or indirectly, alone or as a shareholder (other than as
a holder of less than two percent (2%) of the common stock of any publicly
traded corporation), partner, officer, director, employee, consultant or
advisor, or otherwise in any way participate in or become associated with, any
other business organization that is engaged or becomes engaged in any business
that is the same or substantially identical business of any of the Companies, or
is directly competitive with, any business activity that any of the Companies is
conducting at the time of the Employee's termination or has notified the
Employee that it proposes to conduct and for which any of the Companies have,
prior to the time of such termination, expended substantial resources (the
"Designated Industry"), (b) divert to any competitor of any of the Companies any
customer of any of the Companies, (c) solicit any employee of any of the
Companies (other than by a general advertisement not directed at the employees
of any of the Companies) to leave its employ for alternative employment, or (d)
hire or offer employment to any person who was an employee of any of the
Companies, or any person to whom the Employee actually knows any of the
Companies has offered employment, in either case within 180 days prior to the
date of the Employee's termination. For purposes hereof, the term "Designated
Period" shall mean (i) in all cases other than as set forth in clause (ii)
below, two (2) years and (ii) in the case the Employee's employment is
terminated pursuant to Section 3 in connection with the expiration of the
Initial Term or any subsequent term hereunder, one (1) year. The Employee
acknowledges that the provisions of this Section 9 are essential to protect the
business and goodwill of the Companies. The Employee will continue to be bound
by the provisions of this Section 9 until their expiration and shall not be
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entitled to any compensation from the Employer with respect thereto except as
provided above. If at any time the provisions of this Section 9 shall be
determined to be invalid or unenforceable by reason of being vague or
unreasonable as to area, duration or scope of activity, this Section 9 shall be
considered divisible and shall become and be immediately amended to only such
area, duration and scope of activity as shall be determined to be reasonable and
enforceable by the court or other body having jurisdiction over the matter; and
the Employee agrees that this Section 9 as so amended shall be valid and binding
as though any invalid or unenforceable provision had not been included herein.
The Employee hereby acknowledges that he has agreed to be bound by the
provisions of this Section 9 in consideration for the compensation, severance
and other benefits to be provided by the Employer to the Employee pursuant to
the terms of this Agreement.
SECTION 10. GENERAL.
(a) NOTICES. All notices and other communications hereunder shall be
in writing or by written telecommunication, and shall be deemed to have been
duly given if delivered personally or if mailed by certified mail, return
receipt requested, postage prepaid or sent by written telecommunication or
telecopy, to the relevant address set forth below, or to such other address as
the recipient of such notice or communication shall have specified to the other
party hereto in accordance with this Section 10(a):
If to the Employer, to:
CSAV, Inc.
c/x Xxxxxxxx Xxxxxxxxx & Xxxx LLC
Xxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Fax: (000) 000-0000
With a copies to:
CSAV, Inc.
00000 Xxxxxxx 00 Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxxxx
Fax: (000) 000-0000
Xxxxxxx XxXxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
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If to the Employee, to:
Xxxxx Xxxx
(b) SECTION 409A. This Agreement is intended to comply with the
requirements of Section 409A of the Internal Revenue Code of 1986, as amended,
and regulations promulgated thereunder (together, "Section 409A"), and shall, to
the extent practicable, be construed in accordance therewith. If any amount
payable pursuant to Section 6(f) of this Agreement constitutes a "deferral of
compensation" subject to Section 409A and if, at the date of the Employee's
"separation from service," as such term is defined in Section 409A, from the
Employer (his "Separation from Service"), the Employee is a "specified
employee", within the meaning of Section 409A, of the Employer as determined by
the Employer from time to time, then each such payment that would otherwise be
payable to the Employee within the six (6) month period following the Employee's
Separation from Service shall be delayed and paid to the Employee without
interest on the first business day of the seventh month following the Employee's
Separation from Service. For the avoidance of doubt, for purposes of Section
6(f) and this Section 10(b), any amount which would not be considered a
"deferral of compensation" within the meaning of Section 409A by reason of
Treas. Reg. Sections 1.409A-1(b)(4) or 1.409A-1(b)(9) shall not be considered a
deferral of compensation for which payment shall be delayed in accordance with
the preceding sentence. For purposes of this Agreement, each payment to which
the Employee may be entitled pursuant to Section 6(f), including each of the
payments of Severance upon each payroll period, shall be considered a separate
payment within the meaning of Treas. Reg. Section 1.409A-2(b)(2).
Notwithstanding the foregoing, to the extent that this Agreement or any payment
or benefit hereunder shall be deemed not to comply with Section 409A, then
neither the Employer, nor any of its principals, employees, designees or agents,
shall be liable to the Employee or to any other person to the extent such
failure to comply results from any actions, decisions or determinations made in
good faith.
(c) EQUITABLE REMEDIES. Each of the parties hereto acknowledges and
agrees that upon any breach by the Employee of his obligations under Sections 7,
8 and 9 hereof, the Employer will have no adequate remedy at law, and
accordingly will be entitled to specific performance and other appropriate
injunctive and equitable relief.
(d) SEVERABILITY. If any provision of this Agreement is or becomes
invalid, illegal or unenforceable in any respect under any law, the validity,
legality and enforceability of the remaining provisions hereof shall not in any
way be affected or impaired.
(e) WAIVERS. No delay or omission by either party hereto in exercising
any right, power or privilege hereunder shall impair such right, power or
privilege, nor shall any single or partial exercise of any such right, power or
privilege preclude any further exercise thereof or the exercise of any other
right, power or privilege.
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(f) COUNTERPARTS. This Agreement may be executed in multiple
counterparts (including by telecopier), each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
(g) ASSIGNS. This Agreement shall be binding upon and inure to the
benefit of the heirs and successors of each of the parties hereto, including any
entity which acquires substantially all of the assets or stock of the Employer.
(h) ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties and supersedes all prior agreements and understandings relating
to the subject matter hereof. This Agreement shall not be amended except by a
written instrument hereafter signed by each of the parties hereto.
(i) GOVERNING LAW. This Agreement and the performance hereof shall be
construed and governed in accordance with the laws of Minnesota.
(j) AMENDMENT AND RESTATEMENT. The Existing Employment Agreement shall
continue in force and effect only as amended and restated herein.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
hereto have caused this Agreement to be duly executed as of the date and year
first above written.
CSAV, INC.
By: /s/ Xxxx Xxxxxx
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Title: Chief Financial Officer
/s/ Xxxxx Xxxx
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XXXXX XXXX
