Exhibit 10.20
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EXECUTION COPY
EMPLOYMENT AGREEMENT
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AGREEMENT by and between ICON Holdings Corp., a corporation
organized and existing under the laws of the State of New York (together with
its subsidiary, ICON Capital Corp., as the content may require the "Company"),
and Xxxx X. Xxx (the "Employee"), dated as of April 1, 1997.
In order to obtain Employee's service the Company and Employee
have each decided to enter into this Employment Agreement.
1. Employment Period.
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(a) The terms and conditions of this Agreement shall be and remain
in effect during the continuation of the Employee's employment hereunder (the
"Employment Period"). The Employment Period shall commence on the date hereof
("Effective Date") and shall continue for an initial term of 24 months ("Initial
Period") and thereafter until terminated pursuant to the terms hereof.
(b) Nothing in this Agreement shall be deemed to prohibit the
Company at any time from terminating the Employee's employment during the
Employment Period with notice for any reason; provided, however, that the
relative rights and obligations of the Company and the Employee in the event of
any such termination shall be determined under this Agreement.
2. Terms of Employment.
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(a) Position and Duties.
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(i) Commencing on the Effective Date and for the remainder
of the Employment Period, the Employee shall be engaged as Senior
Vice President, General Counsel of the Company with an office
located at 00 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. Employee will
report to the Chief Executive Officer of the Company and shall
have such duties, responsibilities and authority as shall be
consistent therewith and as the Chief Executive Officer of the
Company shall from time to time reasonably determine; and
(ii) During the Employment Period, and excluding any
periods of vacation and sick leave to which the Employee is
entitled, the Employee shall devote full business time to the
business and affairs of the Company, except as
noted in Section 2(b)(x) and use all reasonable efforts to perform
faithfully and efficiently such duties, responsibilities and
authority.
(b) Compensation.
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(i) Base Salary. Effective as of the Effective Date,
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the Employee shall receive a base salary ("Base Salary") at a rate of
$155,000 per year. The Board of Directors may, at its sole discretion,
increase the Base Salary from the beginning of each subsequent fiscal
year of the Company, based upon its review of the Company's and the
Employee's performance;
(ii) Annual Bonus. In addition to Base Salary, the
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Employee shall receive, for each fiscal year ending during the
Employment Period, an annual bonus (the "Annual Bonus"). Unless the
Employee shall elect to defer the receipt of any part of the Annual
Bonus, each such payment shall be paid promptly, but in no event more
than thirty (30) days, after the Company's receipt of the audited
financial statements of the Company for the fiscal year or, as the case
may be, preparation of the Company's monthly management accounts for
the relevant period. The Annual Bonus is expected to be in the $25,000
to $65,000 range, in the discretion of the Chief Executive Officer and
depending upon your performance and profitability of the Company.
However, for the fiscal year ending March 31, 1998, your Annual Bonus
will be at least $25,000.
(iii) Incentive, Savings and a Retirement Plans. During
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the Employment Period, the Employee's family shall be entitled to
participate in all incentive, savings and retirement plans, practices,
policies and programs, if any, applicable generally to other employees
of the Company;
(iv) Welfare Benefit Plans. During the Employment
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Period, the Employee and/or the Employee's family, as the case may be,
shall be eligible for participation in and shall receive all benefits
currently entitled to under the Company's welfare benefit plans,
practices, policies and programs provided by the Company (including,
without limitation, medical, major medical, hospital, prescription,
dental, short-term and long-term disability, salary continuance,
employee life, group life, accidental death and travel accident
insurance plans and programs, if any);
(v) Incentive Stock Option Plan. Employee shall
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participate in a manner commensurate with his position in the Company
in the incentive stock option plan shortly to be implemented for
certain senior offices of the Company.
(vi) Expenses. During the Employment Period, the
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Employee shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by -the Employee in the performance of his
duties hereunder;
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(vii) Vacation. The Employee should be entitled to at
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least three weeks annual paid vacation during the Employment Period and
as Provided under the applicable personnel policies of the Company;
(viii) Payment Schedule. Base Salary shall be paid in
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accordance with the regular payroll policies of the Company as
determined by the Board of Directors from time to time but in no event
frequently than monthly; and
Automobile. The Employee will be entitled to an automobile, which
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will be leased and paid for by the Company (including insurance,
maintenance, and normal operating cost including in fuel costs) and
provided to the Employee during the Employment Period. The Employee
may chose the make and model of the automobile so long as the
monthly lease payment does not exceed $500 per month on a three
year contract;
Industry Participation. The Employee shall be encouraged to actively
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participate in ELA including reasonable attendance at annual
meetings and other important events at the Company's expense.
3. Termination of Employment.
(a) Death or Disability. The Employee's employment shall
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terminate automatically upon the Employee's death during the Employment Period.
If the Company determines in good faith that the Disability (as defined below)
of the Employee has occurred during the Employment Period, it may give to the
Employee written notice in accordance with this Agreement of its intention to
terminate the Employee's employment. In such event, the Employee's employment
with the Company shall terminate effective on the 60th day after receipt of such
notice by the Employee (the "Disability Effective Date"), provided that, within
the 60 days after such receipt, the Employee shall not have returned to full-
time performance of the Employee's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Employee from the Employee's duties
with the Company on a full-time basis for 90 consecutive business days as a
result of incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its insurers;
provided, that the Employee shall be entitled, during the aforesaid 60 day
period, to challenge any determination of Disability by such a physician, and in
the event of such a challenge, the final decision shall be made by a physician
selected by the Company's physician and the Employees physician.
(b) Cause. The Company may terminate the Employee's employment
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during theEmployment Period for Cause. For purposes of this Agreement, "Cause"
shall mean dishonest conduct in connection with the performance of Employee's
duties hereunder, breach of fiduciary duty to the Company or its shareholders
involving personal profits intentional failure to perform those duties stated in
Section. 2(a)(i) under this Agreement, or fraud or conviction of a felony
resulting in or intended to result in injury to the Company;
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(c) By Employee. Employee may terminate this Agreement at any time
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during the Employment Period if the Company fails to pay the Employee any amount
due hereunder within five days after such payment is due or the Company fails to
perform any of its material obligations hereunder ("Employee Termination").
(d) Notice of Termination. Any termination by: the Company for
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Cause or any Employee Termination shall be communicated by Notice of Termination
to the other party hereto given in accordance with this Agreement. For purposes
of this Agreement, a "Notice of Termination" means a written notice which (i)
indicates the specific termination provision in this Agreement relied upon, (ii)
to the extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employee's
employment under the provision so indicated and (iii) if the Date of Termination
(as defined below) is other than the date of receipt of such notice, specifies
the termination date (which date shall be not mom than thirty days after the
giving of such notice). The failure by the Employee or the Company to set forth
in the Notice of Termination any fact or circumstance which contributes to a
showing of Cause or establishing the right to an Employee Termination shall not
waive any right of the Employee or the Company hereunder or preclude the
Employee or the Company from asserting such fact or circumstance in enforcing
the Employee's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if the
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Employee's employment is terminated by the Company for Cause or pursuant to an
Employee Termination, the date of receipt of the Notice of Termination or any
later date specified therein, as the case may be, (ii) if the Employee's
employment is terminated by the Company other than for Cause or Disability, the
date on which the Company notifies the Employee of such termination and (iii) if
the Employee's employment is terminated by reason of death or Disability, the
date of death of the Employee or the Disability Effective Date, as the case may
be.
(f) Right to Cure. Notwithstanding any provision herein to the
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contrary, the Company or Employee, as applicable, Shall have a right to cure the
matters giving rise to an Employee Termination or for Cause termination,
respectively for a period of 30 days commencing upon the receipt of the Notice
of Termination. If Company or Employee successfully cures such matters within
such thirty-day period, the termination of this Agreement or any provision
hereof noticed in such Notice of Termination shall be void and ineffective.
4. Obligations of the Company Upon Termination.
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(a) Other Than for Cause. Death or Disability. If the Company
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shall terminate the Employee's employment other than for Cause, Death or
Disability, or in the event of an Employee Termination, the Company shall pay to
the Employee in a lump sum in cash within 10 Business Days after his Date of
Termination, the aggregate of the sum of (A) an amount equal to the remainder of
the Base Salary and Annual Bonus and any other forms of compensation yet unpaid
under this Agreement up to the date of expiration of the Initial Period or six
months Base Salary,
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whichever is the greater, (B) any compensation previously deferred by the
Employee, (C) any accrued vacation pay, and (D) any accrued commissions yet
unpaid.
(b) Death: Disability. If the Employee's employment is terminated
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by reason of the Employee's death or Disability during the Employment Period,
this Agreement shall without further obligations to the Employee or the
Employee's legal representatives terminate as the case may be, under this
Agreement, other than for payment of any deferred payments.
(c) Cause: Voluntary Termination. If the Employee's employment
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shall be terminated for Cause during the Employment Period or in the Event the
Employee voluntarily terminates employment during the Employment Period, this
Agreement shall terminate without further obligations to the Employee.
5. Non-Competition. During the Employment Period and for a period
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of six (6) default under this Agreement, Employee shall not:
(a) directly or indirectly, either individually or as a principal,
partner, member, agent, employee, consultant stockholder, joint venture or
investor, or as a director or officer of any corporation, entity, proprietorship
or association, or in any other ownership, executive or management position,
engage or assist in activities, or have an active interest, of an ownership,
executive, management or consulting nature in a business in the business of
marketing and selling income fund products that would compete with the equipment
leasing investment funds products of the Company actually being marketed at the
time of termination;
(b) directly or indirectly, either individually or as a principal
partner, member, agent, employee, consultant, stockholder, joint venture or
investor, or as a director or Officer of any corporation, entity, proprietorship
or association, or in any other ownership, executive or management position
whatsoever, (i) divert or attempt to divert from the Company any business with
any customer or prospective customer with which Employee has any business
contact or business association which was either under Employee's supervision or
the identity of which was learned by Employee while employed by the Company,
(ii) induce any salesmen, vendor, broker, dealer, representative, agent, or
other person wanting business with the Company to transact business for a
business in competition with the Company at the time of termination, or (iii)
induce or cause any employee of the Company to leave the employ of the Company
other than in the course of the loyal discharge of his duties.
Notwithstanding the above, this Section 5 shall not prohibit the Employee
from passively owning less than five percent (5%) of the shares of any
corporation or entity that is publicly traded on a securities exchange or over-
the-counter market.
6. Confidential Information.
(a) From the date hereof and at all times thereafter, the Employee
shall not at any time or in any manner, directly or indirectly, knowingly
disclose to any party, other than the
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Company or at the request of the Company, any trade secrets or Confidential
Information (as defined below) of the Company while employed by the Company and
for six (6) months after termination of employment. - As used herein,
Confidential Information shall mean information known to or obtained by Employee
as an employee of the Company and not generally known in the Company's industry
and that relates in any way to the business of the Company at any time during
the Employment Period, including without limitation any and all data bases,
trade secrets, know-how, and other intellectual property obtained or developed
during the Employment Period.
(b) Employee acknowledges that during the course of his
employment with the Company he may develop or otherwise acquire papers, files or
other records involving or relating to trade secrets or Confidential
Information. All such papers, files and other records shall be the exclusive
property of the Company and shall together with any and all copies thereof, be
returned to the Company upon the termination of Employee's employment with the
Company.
7. Specific Performance. The Employee acknowledges that the
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covenants the Employee in Section 5 and Section 6 are special and that the
Company will be irreparably harmed if the Employee's obligations thereunder are
not specifically enforced and that the Company would not have an adequate remedy
at law in the event of a violation or threatened violation thereof Therefore,
the Employee agrees that the Company shall be entitled to seek an injunction or
a remedy of specific performance for any actual or threatened violations or
breach by the Employee without necessity of the Company showing actual damages
or that monetary damages would not afford an adequate remedy. Employee shall
have no personal monetary liability arising out of or in connection with this
Agreement, except to the extent the Company suffers injury on account of the
Employee's willful and intentional actions resulting in or intended to result in
injury to the Company and only to the extent such willful and intentional
actions result in personal gain to the Employee.
8. Successors and Termination. This Agreement is personal to the
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Employee and without the prior written consent of the Company shall not be
assigned by the Employee otherwise than by will or the laws of descent and
distributions. This Agreement shall insure to the benefit of and be enforceable
by the Employee's legal representatives. This Agreement may not be assigned by
the Company without the prior written consent of Employee.
9. Miscellaneous.
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(a) The laws of the State of New York shall govern this
Agreement and any interpretations or constructions thereof. The captions of this
Agreement are not part of the provisions hereof and shall have no force or
effect. This Agreement may not be amended or modified otherwise than by a
written agreement executed by the parties hereto or their respective successors,
assigns and legal representatives, as the case may be.
(b) All notices and other communications shall be given by hand
delivery to the other party or by registered or certified mail return receipt
requested, postage prepaid, or by
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overnight courier or by facsimile with confirmed transmission (with a hard copy
mailed) addressed as follows:
If to the Employee:
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Xxxx X. Xxx
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
If to the Company:
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ICON Capital Corp.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx
Attention: Chief Executive Officer
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressees
(c) The invalidity or enforceability of any provision of not
affects the validity or enforceability of any other provision of this Agreement.
(d) The Company may withhold from my amounts payable under this
Agreement such Federal state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation
(e) The Employee's or the Company's failure to insist upon strict
compliance with any provision hereof or any other provision of this Agreement or
the failure to assert any right the Employee or the Company may have hereunder
shall not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement.
(f) This Agreement may be executed in any number of counterparts
each of which shall be deemed to be an original and all of which together shall
be deemed to be one and the same instrument. It shall not be necessary in making
proof of this Agreement or any counterpart hereof to produce or account for any
other counterpart.
(g) The terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular, and
the words of any gender shall include each other's gender where appropriate.
(h) Any disputes, controversies, or claims arising between the
parties hereto arising out of or relating to this Agreement, or any provision
thereof, or the breach, termination or invalidity hereof, or the rights and
obligations created hereunder by the parties hereto (collectively
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"Disputes"), shall be finally determined and settled by arbitration in
accordance with the commercial rules of the American Arbitration Association
("AAA"), as such are in force at the time a demand for arbitration is made, as
described below.
(i) Any dispute, controversy or claim relating to this
Agreement, or any provision thereof, or any breach or default in the
performance of the terms and conditions hereof shall be settled by
arbitration in the City of White Plains in accordance with the then-
existing arbitration rules promulgated by the AAA. The decision of the
arbitrators shall be final and binding on the parties, and judgment
upon the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof.
(ii) In any arbitration proceeding under this Section 9(h),
the rights of the parties shall be determined according to the
governing law set forth in Section 9(a) above, and the arbitrators
shall apply such law.
(iii) The prevailing party shall be entitled to recover from
the non-prevailing party all costs and fees, including reasonable
attorney's fees, incurred by such prevailing party in connection with
such Dispute.
IN WITNESS WHEREOF, the Employee has hereunto set the Employee's hand, and
the Company has caused these presents to be executed in its name on its behalf,
all as of the day and year first above written.
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Xxxx X. Xxx
ICON Holdings Corp.
By
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