AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the "Agreement") dated
as of January 28, 2000, between XXXXXXXXXX.XXX, INC., a Delaware corporation
(the "Company"), and Xxxxxxx Xxxx (the "Executive").
PRELIMINARY STATEMENTS
A. The Company and the Executive are parties to that certain Employment
Agreement dated as of June 15, 1998, as amended by an Amendment to Employment
Agreement dated as of August 10, 1999 (the "Prior Employment Agreement");
B. The Company and the Executive desire to amend and restate the Prior
Employment Agreement as set forth herein;
C. The Compensation Committee ("Compensation Committee") of the Board
of Directors of the Company (the "Board") has approved the execution and
delivery by the Company of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties agree as follows:
1. Employment. The Company hereby agrees to continue to employ the
Executive and the Executive hereby agrees to continue to serve the Company, on
the terms and conditions set forth in this Agreement.
2. Term of Agreement. Subject to the terms and conditions hereof, the
term of the Executive's employment pursuant to this Agreement (the "Term") shall
commence on June 15, 1998 and shall continue in effect through December 31,
2003. The Term may be extended or renewed at any time by mutual written
agreement.
3. Position and Duties. The Executive shall serve as the Chairman of
the Board, President and Chief Executive Officer of the Company and shall have
powers and authority superior to any other officer or employee of the Company or
of any subsidiary of the Company. The Executive shall also have such other
powers and duties as may from time to time be delegated to him by the Board,
provided that such duties are consistent with his present duties and with the
Executive's position. The Executive shall report to the Board. The Executive
shall devote substantially all of his working time and efforts during normal
business hours to the business and affairs of the Company in substantially the
same manner (both as to working time and effort) as the Executive has devoted to
the Company in the past; provided, that it shall not be a violation of this
Agreement for the Executive to (i) serve on corporate, civic or charitable
boards or committees, (ii) deliver lectures or fulfill speaking engagements or
(iii) manage personal investments, so long as such activities do not interfere
with the performance of the Executive's responsibilities as an employee of the
Company in accordance with this Agreement.
4. Place of Performance. In connection with his employment by the
Company, the Executive shall be based at the Company's principal executive
offices except for required travel on the Company's business to an extent
substantially consistent with his present travel obligations. The
Company shall not, without the written consent of the Executive, relocate or
transfer its principal executive offices outside Broward County, Florida.
5. Compensation and Related Matters.
(a) Base Salary. The Executive shall receive a base salary, payable in
substantially equal bi-weekly installments, at the annual rate of at least
$385,000 during each fiscal year during the Term beginning January 1, 2000, or
such greater amount as shall be determined by the Compensation Committee
("Compensation Committee") of the Board or the entire Board, in its sole
discretion (the "Base Salary"). Notwithstanding the foregoing, on January 1,
2001 and on each January 1 thereafter (the "Salary Adjustment Date"), the
Executive's then Base Salary shall be increased by an amount equal to 10% of the
Base Salary payable to the Executive during the preceding calendar year. The
Base Salary shall also be reviewed, at least annually, for merit increases and
may, by action and in the discretion of the Compensation Committee or the Board,
be increased at any time or from time to time. Any increase in the Base Salary
or other compensation granted by the Compensation Committee or the Board shall
in no way limit or reduce any other obligation of the Company under this
Agreement and, once established at an increased specified rate, the Base Salary
shall not thereafter be reduced.
(b) Incentive Compensation. In addition to the Base Salary, during the
Term the Executive shall be entitled to receive an annual bonus (the "Annual
Bonus") for each fiscal year for which the Company achieves its budgeted EBITDA
target (the "Target"), in an amount equal to fifty percent (50%) of the
Executive's Base Salary for such fiscal year. The Target for each fiscal year
shall be approved by the Compensation Committee not later than 90 days after the
beginning of each fiscal year. For purposes of this Section, the term "EBITDA"
means the Company's earnings before income taxes, depreciation and amortization,
as determined in accordance with generally accepted accounting principles,
consistently applied with the Company's past practices, and as reflected in the
Company's audited financial statements for the relevant fiscal year. If the
Company does not achieve the Target for any fiscal year, no Annual Bonus shall
be payable for such fiscal year. The Annual Bonus payable with respect to any
fiscal year (net of any tax or other amount properly withheld therefrom) shall
be paid by the Company to the Executive within sixty (60) days after the end of
the fiscal year; provided, that (i) any amount paid shall be subject to increase
or decrease based upon the results of the Company's audited financial statements
with respect to such year, (ii) the amount of Annual Bonus payable for any
fiscal year during which the Term expires or this Agreement is terminated shall
be prorated and payable only with respect to the portion of the fiscal year
during which the Executive was employed by the Company and (iii) no Annual Bonus
shall be payable with respect to any fiscal year during which the Executive's
employment is terminated by the Company for Cause, or by the Executive for other
than Good Reason. In addition to the Annual Bonus, the Executive shall be
entitled to receive such other bonuses or incentive compensation as the
Compensation Committee may determine in its sole discretion, taking into
consideration such criteria as it shall deem relevant. The Executive shall be
entitled to participate in any bonus pool established by the Company for its
executives and key management employees, subject to and on a basis consistent
with the terms, conditions and overall administration of such bonus pool.
(c) Stock Options. During the Term, the Executive shall be entitled to
receive stock option grants, no less frequently than annually. The number of
stock options and the terms and conditions of stock options granted to the
Executive shall be determined by the Compensation Committee in its discretion;
provided, that beginning in 2000, the Executive shall be granted stock options
to purchase at least 175,000 shares of the Company's common stock during each
calendar year.
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In addition, effective August 10, 1999, the Company will grant to the
Executive pursuant to the Company's 1997 Incentive Compensation Plan (the
"Plan") non-qualified stock options (the "Options") to purchase 200,000 shares
of the Company's common stock, at an exercise price equal to the closing price
per share of the common stock on August 10, 1999, as reported by Nasdaq. The
Options shall be granted pursuant to and subject to the terms and conditions of
the Plan and shall have a ten-year term. Notwithstanding anything in the Plan or
the forms of agreements evidencing the Options to the contrary, the Options
shall vest and become exercisable in full on the first business day of the
calendar quarter immediately following the calendar quarter in which the Company
first achieves positive EBITDA; and in no event shall the Options be exercised,
in whole or in part, unless and until such event occurs."
(d) Expenses. During the Term, the Company, in accordance with its
expense reimbursement policies and procedures in effect for senior management
employees from time to time, shall reimburse the Executive for all reasonable
expenses actually paid or incurred by the Executive in the course of and
pursuant to the business of the Company, including expenses for travel and
entertainment.
(e) Other Benefits. The Company shall not make any changes in any
employee benefit plans or arrangements in effect on the date of this Agreement
in which the Executive participates, (including without limitation, to the
extent in effect, each pension and retirement plan, supplemental pension and
retirement plan, savings and profit sharing plan, life insurance policies,
officers and directors policies, stock option plan, life insurance plan, medical
and health insurance plan, disability plan, dental plan, health-and-accident
plan or, similar plans or arrangements) which would adversely affect the
Executive's rights or benefits thereunder, unless such change occurs pursuant to
an amendment applicable to all senior executives and/or employees of the Company
and does not result in a proportionately greater reduction in the rights of or
benefits to the Executive as compared with any other senior executives and/or
employees of the Company. The Executive shall be entitled to participate in or
receive benefits under any employee benefit plan or arrangement made available
by the Company in the future to its executives and key management employees,
subject to and on a basis consistent with the terms, conditions and overall
administration of such plan or arrangement. The Company shall also provide the
Executive such coverage under any directors and officers liability policies it
maintains as is provided to its other senior management employees. Nothing paid
or provided to the Executive under any plan or arrangement presently in effect
or made available in the future shall be deemed to be in lieu of the Base Salary
or any other obligation payable to the Executive pursuant to this Agreement.
(f) Vacation. The Executive shall be entitled to the number of paid
vacation days in each calendar year determined by the Company from time to time
for its senior executive officers, but not less than four weeks in any calendar
year (prorated in any calendar year during which the Executive is employed under
this Agreement for less than the entire such year in accordance with the number
of days in such calendar year during which he is so employed). The Executive
shall also be entitled to all paid holidays given by the Company to its senior
executive officers.
(g) Perquisites and Fringe Benefits. The Executive shall be entitled to
continue to receive all perquisites and fringe benefits provided or available to
senior executive officers of the Company in accordance with present practice and
as may be changed from time to time with respect to all senior executive
officers of the Company.
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(h) Working Facilities. The Company shall furnish the Executive with an
office, a secretary and such other facilities and services suitable to his
position and adequate for the performance of his duties hereunder.
6. Other Offices. The Executive agrees to serve without additional
compensation as a director of the Company and any of its subsidiaries and as an
officer of any of the Company's present or future subsidiaries; provided, that
the Executive shall be indemnified for serving in any and all such capacities on
a basis no less favorable than may be from time to time provided to other senior
executives of the Company, and the Company shall use its best efforts consistent
with sound business practices obtain and maintain appropriate coverage under
officers and directors policies.
7. Restrictive Covenants.
(a) Noncompetition. The Executive agrees that he will not, either
during the Term or for a period of two years following any termination of this
Agreement, other than a termination by the Executive for Good Reason (as
hereinafter defined) or a termination by the Company without Cause (as
hereinafter defined), directly or indirectly, engage in, operate, have any
investment or interest or otherwise participate in any manner (whether as an
employee, officer, director, partner, agent, security holder, creditor,
consultant or otherwise) in any sole proprietorship, partnership, corporation or
business or any other person or entity that engages, directly or indirectly, in
a Competing Business; provided, that the Executive may continue to hold Company
securities and/or acquire, solely as an investment, shares of capital stock or
other equity securities of any company which are publicly traded, so long as the
Executive does not control, acquire a controlling interest in, or become a
member of a group which exercises direct or indirect control of, more than five
percent (5%) of any class of capital stock of such corporation. For purposes of
this Agreement, the term "Competing Business" means any sole proprietorship,
partnership, corporation or business or any other person or entity that owns,
operates, manages or distributes an on-line service that provides sports news,
information and content, whether such service is accessed through the Internet,
a commercial on-line service or otherwise.
(b) Unauthorized Disclosure. During the Term and for a period of two
years following any termination of this Agreement, other than a termination by
the Executive for Good Reason (as hereinafter defined) or a termination by the
Company without Cause (as hereinafter defined), the Executive shall not, without
the written consent of the Board or a person authorized thereby, disclose to any
person, other than an employee of the Company (or its subsidiaries) or a person
to whom disclosure is reasonably necessary or appropriate in connection with the
performance by the Executive of his duties as an executive of the Company, any
confidential information obtained by him while in the employ of the Company with
respect to any of the Company's customers, suppliers, creditors, lenders,
investment bankers, methods of distribution or methods of marketing, the
disclosure of which he knows will be damaging to the Company; provided, however,
that confidential information shall not include any information known generally
to the public (other than as a result of unauthorized disclosure by the
Executive) or any information of a type not otherwise considered confidential by
persons engaged in the same business or a business similar to that conducted by
the Company. Notwithstanding the foregoing, nothing herein shall be deemed to
restrict the Executive from disclosing Confidential Information to the extent
required by law.
(c) Nonsolicitation of Employees. During the Term and for a period of
two years following any termination of this Agreement, other than a termination
by the Executive for Good Reason (as hereinafter defined) or a termination by
the Company without Cause (as hereinafter
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defined), the Executive shall not directly or indirectly, for himself or for any
other person, firm, corporation, partnership, association or other entity,
attempt to employ or enter into any contractual arrangement with any employee or
former employee of the Company, unless such employee or former employee has not
been employed by the Company for a period in excess of six months.
(d) Injunction. It is recognized and hereby acknowledged by the Company
and the Executive that a breach by the Executive of any of the agreements
contained in this Section 7 may cause irreparable harm or damage to the Company
or its subsidiaries, the monetary amount of which may be virtually impossible to
ascertain. As a result, the Executive and the Company agree that the Company and
any of its subsidiaries shall be entitled to an injunction issued by any court
of competent jurisdiction enjoining and restraining any and all violations of
such agreements by the Executive or his associates, affiliates, partners or
agents, and that such right to an injunction shall be cumulative and in addition
to whatever other remedies the Company may possess.
(e) Certain Provisions. The limitations of Section 7(a) shall terminate
if upon termination of this Agreement for any reason the Company does not
fulfill its obligations as required by Section 9 hereof; however, such
termination shall not affect the rights of the Executive to receive all
payments, undiminished in any way, provided by such Section 9. The provisions of
Section 7 shall apply during the time the Executive is receiving any payments
from the Company as a result of a termination resulting from Disability.
8. Termination. The Executive's employment under this Agreement may be
terminated without any breach of this Agreement only on the following
circumstances:
(a) Death. The Executive's employment under this Agreement shall
terminate automatically upon his death.
(b) Disability. If, as a result of the Executive's incapacity due to
physical or mental illness, the Executive shall have been absent from the
performance of his duties under this Agreement for six consecutive months during
any twelve-month period, and within 30 days after written notice of termination
is given (which notice may only be given after the end of such six-month
period), the Executive shall not have returned to the performance of his duties
under this Agreement, the Company may terminate the Executive's employment under
this Agreement for "Disability."
(c) Cause. The Company may terminate the Executive's employment under
this Agreement for Cause. For purposes of this Agreement, the term "Cause" shall
mean (i) the willful and continued failure by the Executive to substantially
perform his duties under this Agreement (other than any such failure resulting
from the Executive's incapacity due to physical or mental illness or from the
termination of this Agreement by the Executive for Good Reason), after a demand
for substantial performance is delivered to the Executive by the Company
specifically identifying the manner in which the Company believes the Executive
has not substantially performed his duties, and the Executive shall have failed
to resume substantial performance of such duties within thirty (30) days of
receiving such demand, (ii) the willful engaging by the Executive in criminal
conduct (including embezzlement and criminal fraud) which is demonstrably and
materially injurious to the Company, monetarily or otherwise, or (iii) the
conviction of the Executive of a felony (other than a traffic violation) or the
conviction of the Executive of a misdemeanor which impairs the Executive's
ability substantially to perform his duties with the Company. For purposes of
this paragraph, no act, or failure to act, on the Executive's part shall be
considered "willful" unless done, or omitted to be
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done, by him not in good faith and without reasonable belief that his action or
omission was in the best interest of the Company. Notwithstanding anything
herein to the contrary, the Executive shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to the
Executive a copy of a resolution, duly adopted by the affirmative vote of not
less than a majority of the members of the Board then in office (other than the
Executive) at a meeting of the Board called and held for such purpose (after
reasonable notice to the Executive and an opportunity for him, together with his
counsel, to be heard before the Board), finding that in the good faith opinion
of the Board the Executive was guilty of conduct set forth in clause (i), (ii)
or (iii), above, and specifying the particulars thereon in detail.
(d) Termination by the Executive. The Executive may terminate his
employment under this Agreement (i) for Good Reason, or (ii) if his health
should become impaired to any extent that makes the continued performance of his
duties under this Agreement hazardous to his physical or mental health or his
life, provided that the Executive shall have furnished the Company with a
written statement from a qualified doctor to such effect and provided, further,
that at the Company's request and expense the Executive shall submit to an
examination by a doctor selected by the Company and such doctor shall have
concurred in the conclusion of the Executive's doctor.
For purposes of this Agreement the term "Good Reason" shall mean,
without the Executive's express prior written consent, the occurrence of any one
or more of the following: (A) the assignment to the Executive of any duties or
reporting obligations other than those contemplated by, or any limitation of the
powers of the Executive in any respect not contemplated by, Section 3 hereof, or
any other action by the Company which results in a diminution in the nature or
status of the Executive's position, authority, duties or responsibilities; (B) a
reduction by the Company in the Executive's Base Salary as the same shall be
increased from time to time; (C) the Company's requiring the Executive to be
based at a location outside of Broward County, Florida; (D) a failure by the
Company to comply with its other obligations and agreements contained herein,
including but not limited to any failure by the Company to comply with any of
the provisions of Section 5 hereof; (E) a failure of the Company to obtain a
satisfactory agreement from any successor to the Company to assume and agree to
perform this Agreement, as contemplated in Section 10(c) hereof; or (F) any
purported termination by the Company of the Executive's employment that is not
effected pursuant to a Notice of Termination satisfying the requirements of
subsection 8(e) hereof and otherwise in accordance with the terms of this
Agreement, and for purposes of this Agreement, no such termination shall be
effective.
The Executive's right to terminate his employment for Good Reason or
Retirement shall not be affected by his incapacity due to physical or mental
illness, nor shall the Executive's continued employment constitute consent to,
or a waiver of rights with respect to, any circumstances constituting Good
Reason hereunder. For purposes of this Section 8(d), any good faith
determination of "Good Reason" made by the Executive shall be conclusive;
provided, that with respect to the matters set forth in clauses (A) and (D),
above, the Executive shall give the Board thirty (30) days prior written notice
of his intent to terminate this Agreement as a result of any breach or alleged
breach of the applicable provision and the Company shall have the right to cure
any such breach or alleged breach within such 30-day period; provided, that no
such prior written notice or opportunity to cure shall be required following a
Change in Control.
(e) Notice of Termination. Any termination of the Executive's
employment by the Company or by the Executive (other than termination pursuant
to Section 8(a), above) shall be communicated by written Notice of Termination
to the other party hereto given in accordance with
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Section 12. For purposes of this Agreement, a "Notice of Termination" shall mean
a written notice which indicates the specific termination provision in this
Agreement relied upon and sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated. The failure by the Executive to set
forth in any Notice of Termination any fact or circumstance which contributes to
a showing of Good Reason shall not waive any right of the Executive hereunder or
preclude the Executive from asserting such fact or circumstance in enforcing his
rights hereunder.
(f) Date of Termination. "Date of Termination" shall mean (i) if the
Executive's employment is terminated by his death, the date of his death, (ii)
if the Executive's employment is terminated for Disability, thirty (30) days
after Notice of Termination is given (provided that the Executive shall not have
returned to the performance of his duties during such thirty (30) day period),
(iii) if the Executive's employment is terminated by the Company for Cause, the
date specified in the Notice of Termination after the expiration of any cure
periods, and (iv) if the Executive's employment is terminated for any other
reason, the date on which a Notice of Termination is given after the expiration
of any cure periods; provided, that if within thirty (30) days after any Notice
of Termination one party notifies the other party that a dispute exists
concerning the termination, the Date of Termination shall be the date finally
determined to be the Date of Termination, either by mutual written agreement of
the parties or by a binding and final arbitration award or an adjudication by a
court of competent jurisdiction (and in such event the Company shall continue to
perform its obligations hereunder until the date so determined).
9. Compensation Upon Termination or During Disability.
(a) Death. If the Executive's employment shall be terminated by reason
of his death, the Company shall pay to such person as the Executive shall have
designated in a notice filed with the Company, or, if no such person shall have
been designated, to his estate, (i) any unpaid amounts of his Base Salary or
Incentive Compensation accrued prior to the date of his death and (ii) a lump
sum death benefit equal to the sum of the Executive's then current Base Salary
and the Executive's Incentive Compensation for the immediately preceding
calendar year (the "Most Recent Incentive Compensation"); and upon making such
payments, the Company shall have no further liability hereunder (other than for
reimbursement for reasonable business expenses incurred prior to the date of the
Executive's death pursuant to Section 5(c)); provided, that the Executive's
spouse, beneficiaries or estate shall also be entitled to receive any amounts or
other benefits payable pursuant to any pension or employee benefit plan, life
insurance policy or other plan, program or policy then maintained or provided by
the Company in accordance with the terms thereof, or any other agreement between
the Executive and the Company. In addition, all unvested stock options held by
the Executive on the Date of Termination shall continue to vest and become
exercisable in accordance with the vesting schedule for such stock options then
in effect, and each such stock option, together with any previously vested and
unexercised stock options, shall be exercisable in accordance with their
respective terms for a period of one (1) year following the date on which it
becomes vested (or, in the case of any previously vested and unexercised
options, one (1) year following the Date of Termination) or, if earlier, until
the then scheduled expiration date(s) of such options.
(b) Disability. During any period that the Executive fails to perform
his duties hereunder as a result of incapacity due to physical or mental
illness, the Executive shall continue to receive his full Base Salary and any
Incentive Compensation until the Executive's employment is terminated pursuant
to Section 8(b) hereof, or until the Executive terminates his employment
pursuant to
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Section 8(d)(ii) hereof, whichever first occurs. Following such termination, the
Executive shall be paid in equal monthly installments an amount equal to his
Base Salary at the rate in effect at the time Notice of Termination is given
until the later of one year after termination of his employment or the
expiration of the Term (as in effect on the date of termination), plus any
disability payments otherwise payable by or pursuant to plans provided by the
Company. In addition, the Executive shall be entitled to receive any amounts
payable pursuant to any pension or employee benefit plan, life insurance policy
or other plan, program or policy then maintained or provided by the Company to
the Executive in accordance with the terms thereof. In addition, all unvested
stock options held by the Executive on the Date of Termination shall continue to
vest and become exercisable in accordance with the vesting schedule for such
stock options then in effect, and each such stock option, together with any
previously vested and unexercised stock options, shall be exercisable in
accordance with their respective terms for a period of one (1) year following
the date on which it becomes vested (or, in the case of any previously vested
and unexercised options, one (1) year following the Date of Termination) or, if
earlier, until the then scheduled expiration date(s) of such options; provided,
that such vesting shall discontinue immediately, and any unexercised options
shall terminate and be cancelled immediately upon a breach by the Executive of
the provisions of Section 7 hereof or the Executive's acceptance of employment
with another entity.
(c) Cause; Other than for Good Reason. If the Executive's employment
shall be terminated by the Company for Cause, or by the Executive for other than
Good Reason, the Company shall pay the Executive his full Base Salary and
accrued vacation pay through the Date of Termination at the rate in effect at
the time Notice of Termination is given (or on the Date of Termination if no
Notice of Termination is required hereunder) plus all other amounts to which the
Executive is entitled under any plan, program, policy or practice of the Company
or otherwise at the time such payments are due and such payments shall, assuming
the Company is in compliance with the provisions of this Agreement, fully
discharge the Company's obligations hereunder.
(d) Good Reason; Other than Cause or Disability. If the Company shall
terminate the Executive's employment other than for Cause or Disability (it
being understood that a purported termination for Cause or Disability which is
disputed and finally determined not to have been proper shall be a termination
by the Company in breach of this Agreement), or the Executive shall terminate
his employment for Good Reason, then the Company shall pay the Executive, not
later than the fifth day following the Date of Termination, the aggregate of the
following amounts:
(A) his full Base Salary and accrued vacation pay through the
Date of Termination at the rate in effect at the time Notice of
Termination is given, or the Date of Termination where no Notice of
Termination is required hereunder, any accrued Incentive Compensation
and any other amounts to which the Executive is entitled under any
plan, policy, practice or program of the Company or otherwise at the
time such payments are due;
(B) the product of (x) the Most Recent Incentive Compensation,
times (y) a fraction, the numerator of which is the number of days in
the current fiscal year through the Date of Termination and the
denominator of which is 365; and
(C) in lieu of any further salary or bonus payments to the
Executive for periods subsequent to the Date of Termination, and as a
severance benefit to the Executive, a lump sum amount equal to the
greater of (x) two (2) times the Executive's annual Base Salary in
effect immediately prior to the occurrence of the circumstances giving
rise to such termination and (y) the amount of Base Salary that would
have been payable to
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the Executive through the end of the Term had the
Executive's employment not been terminated, assuming that the
Executive's annual Base Salary for such period was determined in
accordance with the provisions of Section 5(a).
(e) Acceleration of Vesting; Sale of Shares. Unless the Company
terminates the Executive's employment for Cause, the Executive terminates his
employment for other than Good Reason or the Executive's employment is
terminated due to his death or Disability, upon (i) termination of the
Executive's employment or (ii) upon a Change of Control, all unvested stock
options held by the Executive on the Date of Termination shall immediately vest
and become exercisable; and all such stock options, together with any previously
vested and unexercised stock options, shall be exercisable by the Executive in
accordance with their respective terms for a period of one (1) year following
the Date of Termination or the date of the Change in Control, as the case may
be, or, if earlier, until the then scheduled expiration date(s) of such options.
The Company shall provide the Executive such cooperation and assistance as may
reasonably be necessary to effect cashless exercises of such stock options, as
well as the sale of any restricted Company securities beneficially owned by the
Executive at the Date of Termination.
For purposes of this Agreement, a "Change in Control" means and shall
be deemed to have occurred if: (i) any person, entity or "group", within the
meaning of Sections 13(d)(3) and 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), other than (A) the Company, its
subsidiaries or any employee benefit plan established and maintained by the
Company or its subsidiaries, or (B) the Executive or any of the Executive's
affiliates, becomes the "beneficial owner" (within the meaning of Rule 13d-3
promulgated under the Exchange Act), directly or indirectly, of securities of
the Company representing forty percent (40%) or more of the combined voting
power of the Company's then outstanding securities entitled to vote generally in
the election of directors; (ii) the individuals who, as of the date hereof
constitute the Company's Board of Directors (as of the date hereof, the
"Incumbent Board") cease for any reason to constitute a majority of the Board of
Directors, provided that any person becoming a director subsequent to the date
hereof whose election, or nomination for election by the Company's stockholders
was approved by a vote of at least a majority of the directors then comprising
the Incumbent Board (other than the election or nomination of an individual
whose initial assumption of office is in connection with an actual or threatened
election contest relating to the election of the directors of the Company, as
such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) shall be, for purposes of this Agreement, considered as though
such person were a member of the Incumbent Board; or (iii) the shareholders of
the Company approve (A) a reorganization, merger or consolidation with respect
to which persons who were the shareholders of the Company immediately prior to
such reorganization, merger or consolidation do not, immediately thereafter, own
more than 50% of the combined voting power entitled to vote generally in the
election of directors of the reorganized, merged or consolidated company's then
outstanding voting securities, (B) a liquidation or dissolution of the Company,
or (C) the sale of all or substantially all of the assets of the Company, unless
the approved reorganization, merger, consolidation, liquidation, dissolution or
sale is subsequently abandoned.
(f) Maintenance of Benefit. Unless the Executive is terminated for
Cause, the Company shall maintain in full force and effect, for the continued
benefit of the Executive and/or his family for two (2) years after termination
for any reason, all employee medical, health and hospitalization plans and
programs in which the Executive and/or his family was entitled to participate in
immediately prior to the Date of Termination provided that the continued
participation of the Executive and/or his family is possible under the general
terms and provisions of such plans and
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programs. In the event that the participation of the Executive and/or his family
in any such plan or program is barred, the Company shall arrange to provide the
Executive and/or his family with benefits substantially similar to those which
the Executive and/or his family would otherwise have been entitled to receive
under such plans and programs from which his or their continued participation is
barred.
(g) Full Settlement. The Company's obligation to make the payments
provided for herein and otherwise to perform its obligations hereunder shall not
be affected by any set-off, counterclaim, recoupment, defense or other claim,
right or action which the Company may have against the Executive or others,
except claims in respect of the Executive's gross negligence, wilful misconduct
or violation of any applicable law. The Executive shall not be required to
mitigate the amount of any payment provided for in Section 9 hereof by seeking
other employment or otherwise, nor shall the amount of any payment provided for
in Section 9 hereof be reduced by any compensation earned by the Executive as
the result of employment by another employer or business, by profits earned by
the Executive from any source at any time before or after the Date of
Termination, or otherwise. Unless the Executive is found by a court of competent
jurisdiction to have committed an act that constitutes gross negligence, wilful
misconduct or a violation of applicable law, the Company agrees to pay, to the
fullest extent permitted by law, all legal fees and expenses incurred by the
Executive as a result of any contest or dispute (regardless of the outcome
thereof) by the Company or others of the validity or enforceability of, or
liability under, any provision of this Agreement, or by the Executive in seeking
to obtain or enforce any right or benefit provided by this Agreement (including
the amount of any payment pursuant to Section 9 hereof or the validity of any
purported termination by the Company hereunder).
10. Successors.
(a) This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the Executive other
than by will or the laws of descent and distribution. This Agreement and all
rights of the Executive hereunder shall inure to the benefit of and be enforce
able by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devises and legatees. If the
Executive should die while any amounts would still be payable to him hereunder,
all such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to the Executive's personal or legal
representatives or, if there be no such persons, the Executive's estate.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company, by agreement in form and substance
satisfactory to the Executive, to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure of the
Company to obtain such assumption and agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Company in the same amount and on the same
terms as he would be entitled to hereunder if he terminated his employment for
Good Reason, except for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its
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business and/or assets as aforesaid which executes and delivers an assumption
and agreement provided for in this Section 10(c) or which otherwise becomes
bound by all the terms and provisions of this Agreement by operation of law, or
otherwise.
11. Non-exclusivity of Rights. Nothing in this Agreement shall prevent
or limit the Executive's continuing future participation in any benefit, bonus,
incentive or other plans, programs, policies or practices provided by the
Company or any of its subsidiaries and for which the Executive may qualify, nor
shall anything herein limit or otherwise affect such rights as the Executive may
have under any stock option or other agreements with the Company or any of its
subsidiaries. Except as herein specifically provided, amounts which are vested
benefits or which the Executive is otherwise entitled to receive under any plan,
policy, practice or program of the Company or any of its subsidiaries at or
subsequent to the Date of Termination shall be payable in accordance with such
plan, policy, practice or program.
12. Notice. All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
If to the Company: XxxxxxXxxx.xxx, Inc.
0000 X.X. 0xx Xxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Board of Directors
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notices and communications shall be effective
when actually received by the addressee.
13. Miscellaneous.
(a) This Agreement has been approved by the Board. No provisions of
this Agreement may be modified, waived or discharged unless such modification,
waiver or discharge is agreed to in a writing signed by the Executive and such
officer as may be specifically designed by the Board.
(b) The failure by either party hereto to insist upon compliance with
any condition or provision of this Agreement shall not be deemed a waiver of
such condition or provision or any other provision hereof.
(c) No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement and this Agreement
supersedes any other employment agreement between the Company and the Executive
(including, without limitation, the Prior Employment Agreement).
(d) The Company may withhold from any accounts payable under this
Agreement all Federal, state or other taxes as legally shall be required.
(e) The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Florida, without
reference to principles of conflicts of laws.
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(f) The invalidity or unenforceability of any provision or provisions
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
(g) This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Employment Agreement as of the date and year first above written.
XXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Title: Senior Vice President and Chief
Financial Officer
/s/ Xxxxxxx Xxxx
-----------------------------------
Xxxxxxx Xxxx
The foregoing Employment Agreement was approved by the Compensation
Committee of the Company's Board of Directors:
/s/ Xxxx XxXxxxx
-----------------
Xxxx XxXxxxx
/s/ Xxxxx Xxxxx
-----------------
Xxxxx Xxxxx
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