EXHIBIT 10.8
This EXECUTIVE EMPLOYMENT AGREEMENT, dated as of March , 2000
is by and between IAM Group, Ltd., a New York corporation (the "Company") with
its principal executive offices located at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, and Xxxxxx Xxxxxx, (the "Executive").
WHEREAS, the Company and the Executive have entered into an
Employment Agreement dated as of March, 2000 (the "Agreement"); WHEREAS, the
Company and the Executive desire to state the terms of the Agreement as set
forth herein.
NOW, THEREFORE, in consideration of the foregoing recital and
the respective covenants and agreements of the parties contained in this
document, the Company and the Executive agree as follows:
1. Employment and Duties. During the Employment Period (as
defined in paragraph 2 below), the Executive will serve as Vice President and
Chief Productions Officer of the Company. The duties and responsibilities of the
Executive shall include the duties and responsibilities for the Executive's
design, planning, production, marketing and sales offices and positions as set
forth in the Company's bylaws from time to time in effect and such other duties
and responsibilities as the board of directors of the Company (the "Board of
Directors") may from time to time reasonably assign to the Executive, in all
cases to be consistent with the Executive's offices and positions. The Executive
shall perform faithfully the executive duties assigned to him to the best of his
ability.
2. Employment Period.
(a) Basic Rule. The employment period
commenced on March , 2000 (the "Commencement Date")
and shall continue thereafter for three (3) years
(the "Employment Period"), unless sooner terminated
pursuant to the provisions of this Agreement.
(b) Early Termination. The Company may
terminate the Executive's employment prior to the end
of the Employment Period by giving the Executive 30
days' advance notice in writing. If the Company
terminates the Executive's employment prior to the
end of the Employment Period for any reason other
than Cause, as defined below, or if the Executive
terminates his employment for Good Reason, as defined
below, the provisions of paragraphs II (a)(I), 11(b)
and 11(c) shall apply. The Executive may terminate
his employment prior to the end of the Employment
Period by giving the Company 90 days advance written
notice. If the Executive terminates his employment
prior to the end of the Employment Period other than
for Good Reason, the provisions of paragraph 11
(a)(ii) shall apply. Upon termination of the
Executive's employment with the Company, the
Executive's rights under any applicable benefit plans
shall be determined under the provisions of those
plans. Any waiver of notice shall be valid only if it
is made in writing and expressly refers to the
applicable notice requirement of this subparagraph 2.
(c) Death. The Executive's employment shall
terminate in the event of his death. The Company
shall have no obligation to pay or provide any
compensation or benefits under this Agreement on
account of the Executive's death, or for periods
following the Executive's death; provided however
that the Company's obligations under paragraphs 11
(a)(i), 11(b) and 11(c) shall not be interrupted as a
result of the Executive's death, and the Executive's
estate or its representative(s) shall be entitled to
exercise all the rights of the Executive under such
Sections. The Executive's rights (and the rights of
his estate) under the benefit plans of the Company in
the event of the Executive's death shall be
determined under the provisions of those plans.
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(d) Cause. The Company may terminate the
Executive's employment for cause by giving the
Executive 30 days' advance notice in writing. For all
purposes under this Agreement, "Cause" shall mean a
willful act by the Executive which constitutes gross
misconduct and which is injurious to the Company. No
act, or failure to act, by the Executive shall be
considered "willful" unless committed without good
faith without a reasonable belief that the act or
omission was in the Company's best interest. No
compensation or benefits will be paid or provided to
the Executive under this Agreement on account of a
termination for Cause for periods following the date
when such a termination of employment is effective.
The Executive's rights under the benefit plans of the
Company in the event of a termination for Cause shall
be determined under the provisions of those plans.
(e) Disability. The Company may terminate the
Executive's employment for Disability by giving the
Executive 30 days advance notice in writing. For all
purposes under this Agreement, "Disability" shall
mean that the Executive, at the time notice is given,
has been unable to substantially perform his duties
under this Agreement for a period of not less than
six (6) consecutive months as the result of his
incapacity due to physical or mental illness. In the
event that the Executive resumes the performance of
substantially all of his duties hereunder before the
termination of his employment under this subparagraph
(e) becomes effective, the notice of termination
shall automatically be deemed to have been revoked.
No compensation or benefits will be paid or provided
to the Executive under this Agreement on account of
termination for Disability for periods following the
date when such a termination of employment is
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effective; provided however that the Company's
obligations under paragraphs 11 (a)(i), 11(b) and
11(c) shall not be interrupted as a result of the
Executive's Disability, and the Executive or his
guardian(s) or other representative(s) shall be
entitled to exercise all the rights of the Executive
under such Sections. The Executive's rights under the
benefit plans of the Company in the event of his
Disability shall be determined under the provisions
of those plans.
(f) Good Reason. Employment with the Company
may be regarded as having been constructively
terminated by the Company, and the Executive may
therefore terminate his employment for Good Reason
and thereupon become entitled to the benefits of
paragraphs 11 (a)(i) and 11(b) below, if, before the
end of the Employment Period, one or more of the
following events shall occur: (i) without the
Executive's express written consent, the assignment
to the Executive of any duties or the reduction of
the Executive's duties, either of which results in a
significant diminution in the Executive's position or
responsibilities with the Company in effect
immediately prior to such assignment, or the removal
of the Executive from such position and
responsibilities; (ii) without the Executive's
express written consent, a substantial reduction,
without good business reasons, of the facilities and
perquisites (including office space and location)
available to the Executive immediately prior to such
reduction; (iii) a material reduction by the Company
in the Base Salary of the Executive as in effect
immediately prior to such reduction; (iv) a material
reduction by the Company in the kind or level of
employee benefits to which the Executive is entitled
immediately prior to such reduction with the result
that the Executive's overall benefits package is
significantly reduced; (v) the relocation of the
Executive to a facility or a location more than 50
miles from the Executive's then present location or
from the Company's principal executive offices,
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without the Executive's express written consent; (vi)
any purported termination of the Executive's
employment by the Company which is not effected for
death, Disability or for Cause, or any purported
termination for which the grounds relied upon are not
valid; (vii) the failure of the Company to obtain the
assumption of this Agreement by any successor; or
(viii) any material breach by the Company of any
material provision of this Agreement.
3. Place of Employment. The Executive's services shall be performed at the
Company's principal executive offices in New York City. The Company shall
reimburse the Executive for expenses incurred by travel to and from New York
City and by intermittent out of State or out of Country living expenses
(including rent or equivalent hotel costs) in connection with the performance of
his duties hereunder.
4. Base Salary. For all services to be rendered by the Executive pursuant to
this Agreement, the Company agrees to pay the Executive during the Employment
Period a base salary (the "Base Salary") at an annual rate of not less than
$200,000. The Base Salary shall be paid in periodic installments in accordance
with the Company's regular payroll practices. The Company agrees solely for the
purpose of considering possible salary increases to review the Base Salary at
least annually as of November of each year (beginning in 2001) and to make such
increases as the Board of Directors may approve.
5. Bonus. For all services rendered by the Executive pursuant to this Agreement
during the period ("Initial Bonus Period") beginning on March , 2000 and ending
on March31, 2001 the Executive was (or shall be if any such amount shall not
have been paid before the date hereof) paid a bonus (the "Initial Bonus"). The
Initial Bonus was payable on a monthly basis for each month during the Initial
Bonus Period at a rate equal to the product of (a) .01% and (b) the amount of
Net NFL, PBA and other Licensed and Unlicensed Apparel and Accessories Sales by
the Company during the preceding Initial Bonus Period. For all services to be
rendered by the Executive pursuant to this Agreement during the period ("Second
Bonus Period") beginning on April 1, 2001 and ending on March31, 2001 the
Company agrees to issue in favor of the Executive a fully-vested option (the
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"Second Bonus") to purchase 75,000 shares of common stock of the Company at the
price of $2.00 per share pursuant to an option agreement in the form of Exhibit
A, such option to be delivered on or prior to April 1, 2001. For all services to
be rendered by the Executive pursuant to this Agreement during the Employment
Period subsequent to the Second Bonus Period, the Executive shall be paid a
bonus which shall be achievable, progressive, of a magnitude comparable in
aggregate to the magnitude of the Initial Bonus and the Second Bonus, as
adjusted to reflect the growth in the Company's sales of products (i.e.
increased if such sales increase and decreased if they decrease) and based on
appropriate measures of success based on Company Business Plans as adopted and
modified by the Board of Directors of the Company. Any bonus payable hereunder
by reference to the financial results of the Company (such as the Initial Bonus)
shall be verified in accordance with the Company's normal practices and policies
and shall be conclusively determined on the basis of audited financial
statements. No adjustments in the amount of any such Bonus previously paid shall
be made in any circumstance whatever except as a result of such audit revealing
arithmetic errors in amounts paid. Such amounts shall be paid by the Executive
or the Company, as then case may be, within 30 days after such statements have
been finally delivered to the Board of Directors or as otherwise agreed by the
Board of Directors and the Executive. Any bonus payable hereunder in equity of
the Company or other securities of the Company (such as the Second Bonus) shall
be treated as a negotiated and agreed amount not subject to adjustment after
such amount has been established by the Board of Directors of the Company,
notwithstanding any subsequent event.
6. Stock Options. The Executive shall be entitled to participate in any stock
option grant programs established by the Company for the benefit of its key
employees. The terms of any individual grant shall be determined pursuant to a
stock option agreement or restricted stock purchase agreement between the
Company and the Executive entered into at the time of grant, subject to the
provisions of Section 11(c) hereof
7. Expenses. The Executive shall be entitled to prompt reimbursement by the
Company for all reasonable ordinary and necessary travel (including travel and
living expenses pursuant to Section 3 hereof), entertainment, and other expenses
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incurred by the Executive during the Employment Period (in accordance with the
policies and procedures established by the Company for its senior executive
officers) in the performance of his duties and responsibilities under this
Agreement; provided, that the Executive shall properly account for such expenses
in accordance with Company policies and procedures. The parties agree that for
purposes of this paragraph, the Executive's air travel shall be coach class
domestically and business class internationally.
8. Other Benefits. During the Employment Period, the Executive shall be entitled
to participate in employee benefit plans or programs of the Company, it any, to
the extent that his position, tenure, salary, age, health and other
qualifications make him eligible to participate, subject to the rules and
regulations applicable thereto.
9. Vacations and Holidays. The Executive shall be entitled to Two (2) weeks paid
vacation and Company holidays in accordance with the Company's policies in
effect from time to time for its senior executive officers.
10. Other Activities. The Executive shall devote substantially all of his
working time and efforts during the Company's normal business hours to the
business and affairs of the Company and its subsidiaries and to the diligent and
faithful performance of the duties and responsibilities duly assigned to him
pursuant to this Agreement, except for vacations, holidays and sickness.
However, the Executive may devote a reasonable amount of his time to civic,
community, or charitable activities and, with the prior written approval of the
Board of Directors, to serve as a director of other corporations and of other
types of business or public activities not expressly mentioned in this
paragraph.
11. Termination Benefits. In the event the Executive's employment terminates
prior to the end of the Employment Period, then the Executive shall be entitled
to receive severance and other benefits as follows: (a) Severance.
(i) Involuntary Termination. If the Company
terminates the Executive's employment other than for
Cause, or if the Executive terminates his employment
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for Good Reason, or if the Executive's employment
terminates by reason of his death or Disability then,
in lieu of any severance benefits to which the
Executive may otherwise be entitled under any Company
severance plan or program, the Executive shall be
entitled to payment of his Base Salary until the end
of the Employment Period or, if earlier, until a
breach by the Executive of his obligations under
paragraph 11 hereof.
(ii) Other Termination. In the event the
Executive's employment terminates for any reason
other than as described in paragraph 11 (a)(i) above,
including by reason of the Executive's resignation
other than for Good Reason and the Company's
termination of the Executive for Cause, then the
Executive shall be entitled to receive severance and
any other benefits only as may then be established
under the Company's existing severance and benefit
plans and policies at the time of such termination.
(b) Bonuses. In the event the Executive's
employment is terminated as described in paragraph 11
(a)(i) above, then the Executive shall be entitled to
receive continuing bonuses as described in paragraph
5 as though he had remained an employee through the
end of the Employment Period. In the event the
Executive's employment terminates for any other
reason during the Employment Period (other than for
Cause), then the Executive shall be entitled to
payment of a portion of subsequent bonuses
determined, after the end of the fiscal year of the
Company in which such termination occurs, by
multiplying the amount of the most recent bonus
established by the Board of Directors of the Company
for Executive prior to such termination (if in cash,
calculated according to the applicable formula
approved by the Board, and if in equity, calculated
by valuing the equity granted to Executive upon such
date of termination) by a fraction, the numerator of
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which will be the number of days in which he was
employed by the Company (or any of its subsidiaries)
in such fiscal year, and the denominator of which
shall be the number of days in such fiscal year. To
the extent all or any portion of the Bonus is payable
to the Executive pursuant to the preceding sentence,
such amount shall be paid in accordance with
paragraph 5. In the event the Executive's employment
is terminated by the Company for Cause, then the
Executive shall not be entitled to receive any
bonuses hereunder with respect to any period
subsequent to such termination, but shall receive any
unpaid bonus with respect the period prior to such
termination and shall not in any event have any
obligation to refund or reimburse any bonus paid or
granted to him prior to such termination.
(c) Options and Restricted Stock.
Notwithstanding anything to the contrary contained in
any Option Agreement or Restricted Stock Purchase
Agreement that the Executive may sign, upon any
involuntary or involuntary termination of Executive's
employment with the Company, including without
limitation termination by the Company for Cause: (i)
all unvested options to purchase shares of the
capital stock of the Company then held by the
Executive shall immediately and without further
action on the part of the Executive or the Company
become fully vested in the Executive, who may
exercise them at any time or from time to time during
the three months following the date of such
termination; and (ii) repurchase rights with respect
any shares of the capital stock of the Company then
held by the Executive shall immediately and without
further action on the part of the Executive or the
Company expire on the date of such termination.
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12. Proprietary Information. During the Employment Period and thereafter, the
Executive shall not, without the prior written consent of the Board of
Directors, disclose or use for any purpose (except in the course of his
employment under this Agreement and in furtherance of the business of the
Company or any of its affiliates or subsidiaries) any confidential information
or proprietary data of the Company. As an express condition of the Executive's
employment with the Company, the Executive agrees to execute confidentiality
agreements as requested by the Company.
13 Non-Solicit. The Executive covenants and agrees with the Company that during
his employment with the Company and for a period expiring one (1) year after the
date of termination of such employment, he will not solicit any of the Company's
then-current employees to terminate their employment with the Company or to
become employed by any firm, company or other business enterprise with which the
Executive may then be connected.
14. Right to Advice of Counsel. The Executive acknowledges that he has had the
right to consult with counsel and is fully aware of his rights and obligations
under this Agreement.
15. Successors. 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 to expressly
assume 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 agreement
prior to the effectiveness of any such succession shall entitle the Executive to
the benefits described in paragraphs 1 I(a)(i), 11(b) and 11(c) of this
Agreement, subject to the terms and conditions therein.
16. Arbitration. Any dispute or controversy arising under or in connection with
this Agreement shall be settled exclusively by arbitration in New York city, in
accordance with the rules of the American Arbitration Association then in effect
by an arbitrator selected by both parties within 10 days after either party has
notified the other in writing that it desires a dispute between them to be
settled by arbitration. In the event the parties cannot agree on such arbitrator
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within such 10-day period, each party shall select an arbitrator and inform the
other party in writing of such arbitrator's name and address within 5 days after
the end of such 10-day period and the two arbitrators so selected shall select a
third arbitrator within 15 days thereafter; provided, however, that in the event
of a failure by either party to select an arbitrator and notify the other party
of such selection within the time period provided above, the arbitrator selected
by the other party shall be the sole arbitrator of the dispute. Each party shall
pay its own expenses associated with such arbitration, including the expense of
any arbitrator selected by such party and the Company will pay the expenses of
the jointly selected arbitrator. The decision of the arbitrator or a majority of
the panel of arbitrators shall be binding upon the parties and judgment in
accordance with that decision may be entered in any court having jurisdiction
thereof Punitive damages shall not be awarded.
17 Absence of Conflict. The Executive represents and warrants that his
employment by the Company as described herein shall not conflict with and will
not be constrained by any prior employment or consulting agreement or
relationship.
18. Assignment. This Agreement and all rights under this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective personal or legal representatives, executors,
administrators, heirs, distributees, devisees, legatees, successors and assigns.
This Agreement is personal in nature, and neither of the parties to this
Agreement shall, without the written consent of the other, assign or transfer
this Agreement or any right or obligation under this Agreement to any other
person or entity; except that the Company may assign this Agreement to any of
its affiliates or wholly-owned subsidiaries, provided, that such assignment will
not relieve the Company of its obligations hereunder. If the Executive should
die while any amounts are still payable to the Executive hereunder, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to the Executive's devisee, legatee, or other designee
or, if there be no such designee, to the Executive's estate.
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19. Notices. For purposes of this Agreement, notices and other communications
provided for in this Agreement shall be in writing and shall be delivered
personally or sent by United States certified mail, return receipt requested,
postage prepaid, addressed as follows: If to the Executive: Xxxxxx Xxxxxx do
IAMNY, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, If to the Company: IAMNY, 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. or to such other address or the
attention of such other person as the recipient party has previously furnished
to the other party in writing in accordance with this paragraph. Such notices or
other communications shall be effective upon delivery or, if earlier, three days
after they have been mailed as provided above.
20. Integration. This Agreement represents the entire agreement and
understanding between the parties as to the subject matter hereof and supersedes
all prior or contemporaneous agreements whether written or oral. No waiver,
alteration, or modification of any of the provisions of this Agreement shall be
binding unless in writing and signed by duly authorized representatives of the
parties hereto.
21 Waiver. Failure or delay on the part of either party hereto to enforce any
right, power, or privilege hereunder shall not be deemed to constitute a waiver
thereof Additionally, a waiver by either party or a breach of any promise hereof
by the other party shall not operate as or be construed to constitute a waiver
of any subsequent waiver by such other party.
22. Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
23 Headings. The headings of the paragraphs contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of any provision of this Agreement.
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24. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal substantive laws, and not the choice of law rules,
of the State of New York.
25. Counterparts. This Agreement may be executed in one or more counterparts,
none of which need contain the signature of more than one party hereto, and each
of which shall be deemed to be an original, and all of which together shall
constitute a single agreement.
IN WITNESS WHEREOF, each of the parties has executed this
Agreement, in the case of the Company by its duly authorized officer, as of the
day and year first above written.
IAM Group, Ltd.
By: /s/ XXXX XXXXXXXX
--------------------------
Title: CEO Executive
/s/ XXXXXX XXXXXX
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