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EXIBIT 10.19
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT, made and entered into
as of the 2nd day of January, 2001 by and between SOUND ADVICE, INC., a Florida
corporation (the "Employer"), and XXXXXXXXXXX X'XXXX (the "Employee").
W I T N E S S E T H:
WHEREAS, the Employer and the Employee are parties to that certain
Employment Agreement, dated January 31, 1999 (the "Employment Agreement"); and
WHEREAS, the Employee and the Employer mutually desire and each of them
is willing to amend and restate the Employment Agreement as set forth herein;
and
WHEREAS, the Employee is willing, on the terms and conditions set forth
below, to enter into an Amended and Restated Employment Agreement with, and to
render services to and for the benefit of the Employer.
NOW, THEREFORE, for and in consideration of the covenants and
conditions hereinafter set forth, the parties hereto mutually agree as follows:
1. EMPLOYMENT. The Employer hereby employs the Employee and the
Employee hereby accepts employment by the Employer upon and subject to all of
the terms and conditions hereinafter set forth.
2. TERM. Subject to the provisions providing for earlier termination as
hereinafter set forth, the term of this Agreement shall be for a period of three
(3) years commencing on January 31, 1999 and ending on January 31, 2002.
3. DUTIES. The Employee shall serve in the capacity of Executive Vice
President, Chief Operating Officer and Assistant Secretary of the Employer and
shall, during the term of this Agreement, devote so much of his time as is
necessary for the proper management of the affairs of the Employer and the
performance of his duties and responsibilities as an employee of the Employer.
The Employee shall, during the term of this Agreement, perform such services,
duties and responsibilities for and on behalf of the Employer as the Board of
Directors of the Employer shall from time to time determine and direct
consistent with the capacities in which he is being employed hereunder.
4. ANNUAL COMPENSATION. For and in consideration of the services to be
rendered and duties and responsibilities to be performed by the Employee
pursuant to this Agreement, the Employer shall pay to the Employee during the
term of this Agreement the following:
(a) an annual base salary (the "Base Compensation") of One
Hundred Eighty Four Thousand Dollars ($184,000.00) per year or such greater
amount during the second and third years of the term of this Agreement as shall
be determined from time to time by the President of the Company; and
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(b) the Employee shall be entitled to participate in the
Employer's annual incentive bonus plan and long term incentive stock option
program adopted in December 1994 by the Employer's Board of Directors and the
Stock Option Committee thereof, respectively.
5. PERQUISITES. The Employee shall be eligible (subject to the terms
and conditions of particular plans and programs) to participate in any other
medical, health, accident, disability and/or life insurance programs, pension
plans, profit-sharing plans and other benefit programs and plans as are made
generally available from time to time by the Employer to all of its employees;
provided, however, that it is understood that the Employer does not by reason of
this Agreement obligate itself to make any such other programs, plans or
benefits available to its employees.
6. VACATION. The Employee shall be entitled to at least four (4) weeks
of paid vacation during each year of the term hereof. The scheduling of the
Employee's vacation(s) shall be consistent with the availability of his time and
shall be subject to (i) the Employer's vacation policy and (ii) the prior
approval of the Employer.
7. TERMINATION OF EMPLOYMENT.
(a) Notwithstanding any provisions of this Agreement to the
contrary including, without limitation, Section 2 hereof, the Employee's
employment hereunder and this Agreement shall be terminated in the following
circumstances (any of such circumstances hereinafter referred to as a
"Terminating Event"):
(i) upon the death of the Employee;
(ii) in the sole discretion of the Board of Directors
of the Employer, after the Employee is Disabled (as hereinafter defined) upon
the Employer giving the Employee written notice of such termination;
(iii) in the sole discretion of the Board of
Directors of the Employer, for Cause (as hereinafter defined) upon the Employer
giving the Employee written notice specifying the grounds for such termination;
(iv) in the sole discretion of the Employee, after a
Change in Control (as hereinafter defined) upon the Employee giving the Employer
written notice of such termination within thirty (30) days of the date that the
Employee becomes aware of such Change in Control; or
(v) in the sole discretion of the Employer for any
reason other than Cause.
Such termination shall be effective (the "Effective Date") as to the Terminating
Event set forth in (a) Section 7(a)(i) on the date of the death of the Employee,
(b) Sections 7(a)(ii) and 7(a)(iii) immediately upon receipt by the Employee of
the written notice required by each of such Sections, (c) Section 7(a)(iv)
thirty (30) days after receipt by the Employer of the written notice required by
such Section and (d) Section 7(a)(v) immediately upon notice given by the
Company to the Employee.
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(b) In the event of a termination of the Employee's employment
hereunder, the Employee shall be entitled to the following:
(i) in the event of a termination pursuant to Section
7(a)(i), the Employee shall be entitled to receive (A) any Base
Compensation and Bonus owed to him hereunder to the Effective Date of
such termination and (B) for a period of one year from the Effective
Date his Base Compensation and thereafter shall not be entitled to any
further compensation, remuneration or perquisites hereunder;
(ii) in the event of a termination pursuant to
Section 7(a)(ii), the Employee shall be entitled to receive (A) any
Base Compensation and Bonus owed to him hereunder to the Effective Date
of such termination and (B) for a period of one year from the Effective
Date (1) his Base Compensation reduced by the sum of all periodic
payments the Employee receives by virtue of his disability (x) pursuant
to any disability policy paid for by the Employer pursuant to Sections
5(a)(iii) or 5(b) hereof and (y) in the form of Florida State
Disability Benefits and/or Social Security Benefits and (2) all of the
perquisites set forth in Sections 5(a)(i), 5(a)(ii), 5(a)(iii) and 5(b)
hereof and thereafter shall not be entitled to any further
compensation, remuneration or perquisites hereunder;
(iii) in the event of a termination pursuant to
Section 7(a)(iii), the Employee shall be entitled to receive any Base
Compensation and Bonus owed to him hereunder to the Effective Date of
such termination and thereafter shall not be entitled to any further
compensation, remuneration or perquisites hereunder;
(iv) In the event of a termination pursuant to
Section 7(a)(iv) hereof, if the Employee remains and continues as an
employee of the Employer until the Effective Date of the Change in
Control unless the Employee is terminated by the Employer prior to the
Effective Date of the Change in Control other than for Cause, the
Employee shall be entitled to receive, in one lump sum payment payable
in full on the Effective Date of the Change in Control (A) any Base
Compensation and Bonus owed to him hereunder to the Effective Date of
such termination and (B) three years Base Compensation plus three times
the amount of the Bonus received by the Employee for the last full
fiscal year prior to the Effective Date of the Change in Control; and
(v) in the event of a termination pursuant to Section
7(a)(v) hereof, the Employee shall be entitled to receive in one lump
sum payment payable in full on the Effective Date (A) any Base
Compensation and Bonus owed to him hereunder to the Effective Date of
such termination and (B) three years Base Compensation plus three times
the amount of the Bonus received by the Employee for the last full
fiscal year prior to the Effective Date and thereafter shall not be
entitled to any further compensation, remuneration or perquisites
hereunder."
For purposes of Section 7(c)(iv) the following terms will have
the meanings set forth below:
(P) A "Change in Control" shall be deemed to have
occurred upon any of the following events: (i) the acquisition in one
or more transactions by any "person" (as the term person is used for
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purposes of Section 13(d) or 14(d) of the Securities Exchange Act of
1934, as amended (the "1934 Act")) of "beneficial ownership" (within
the meaning of Rule 13d-2 promulgated under the 0000 Xxx) of fifteen
percent (15%) or more of the combined voting power of the Employer's
then outstanding voting securities (the "Voting Securities"), provided,
however, that for purposes hereof the Voting Securities acquired (by
sale, merger, consolidation or in any other manner) from the Employer
by any person shall be excluded from the determination of such person's
beneficial ownership of Voting Securities (but such Voting Securities
shall be included in the calculation of the total number of Voting
Securities then outstanding); or (ii) the individuals who, as of the
date hereof, are members of the Board of Directors of the Employer (the
"Incumbent Board") cease for any reason to constitute more than
one-half of the Board; provided, however, that, if the election, or
nomination for election by the Employer's shareholders, of any new
director was approved by a vote of more than one-half of the Incumbent
Board, such new director shall, for purposes hereof, be considered as a
member of the Incumbent Board; or (iii) approval by the shareholders of
the Employer of (A) a merger or consolidation involving the Employer if
the shareholders of the Employer immediately before such merger or
consolidation do not own, directly or indirectly immediately following
such merger or consolidation, more than one-half of the combined voting
power of the outstanding voting securities of the corporation resulting
from such merger or consolidation in substantially the same proportion
as their ownership of the Voting Securities immediately before such
merger or consolidation (unless, however, the event described in
subparagraph (ii) above does not occur in connection therewith) or (B)
a complete liquidation or dissolution of the Employer or an agreement
for the sale or other disposition of all or substantially all of the
assets of the Employer; provided, however, that, notwithstanding the
foregoing, (x) a change in control shall not be deemed to occur solely
because fifteen percent (15%) or more of the then outstanding Voting
Securities is acquired by (1) a trustee or other fiduciary holding
securities under one or more employee benefit plans maintained by the
Employer or any of its subsidiaries, (2) any corporation which,
immediately prior to such acquisition, is owned directly or indirectly
by the shareholders of the Employer in the same proportion as their
ownership of stock in the Employer immediately prior to such
acquisition or (3) Xxxxxxx Xxxxxxxx and/or Xxxxx Xxxxxxxx or any person
directly or indirectly controlled, under common control with or
controlled by either or both of them, and (y) a change in control shall
not be deemed to occur solely because any person (the "Subject Person")
acquired beneficial ownership of more than the permitted amount of the
outstanding Voting Securities as a result of the acquisition of Voting
Securities by the Employer which, by reducing the number of Voting
Securities outstanding, increases the proportional number of shares
beneficially owned by the Subject Person, provided that if a change in
control would occur (but for the operation of this sentence) as a
result of the acquisition of Voting Securities by the Employer and,
after such share acquisition by the Employer, the Subject Person
becomes the beneficial owner of any additional Voting Securities which
increases the percentage of the then outstanding Voting Securities
beneficially owned by the Subject Person, then a change in control
shall occur.
(Q) The "Effective Date of the Change in Control"
shall be the later to occur of the closing date or the effective date
(as the case may be) of the transaction or event resulting in the
Change in Control; provided, however, that, notwithstanding the
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foregoing, the Effective Date of the Change in Control solely for the
event set forth in item (i) of subsection (P) of this Section 7(c)(iv)
shall be the date fifteen (15) business days after the occurrence of
such event.
(c) For purposes of this Section 7, the terms set forth herein
shall have the following meanings:
(i) The term "Disabled" shall mean the permanent
inability of the Employee by reason of physical or mental illness, incapacity or
injury to adequately perform all of the services, duties and responsibilities
required of him in connection with his employment hereunder, which permanent
inability shall be determined by the Board of Directors of the Employer;
provided, however, that, if the Employee disputes the determination of the Board
of Directors as to his being Disabled, the issue shall be submitted for decision
to a medical doctor mutually agreed upon by the Board of Directors of the
Employer and the Employee, except that, if such disability arises from mental
illness or incapacity and a dispute arises, the issue shall be submitted to a
medical doctor selected by the Board of Directors of the Employer in its sole
discretion, and the decision of such medical doctor shall be binding upon the
parties hereto for all purposes hereof; provided, further, that, if any
insurance carrier shall acknowledge the onset of disability pursuant to a
disability insurance policy covering the Employee and maintained and paid for by
the Employer pursuant to Section 5(a)(iii) hereof, the Employee shall be
conclusively presumed to be Disabled for purposes hereof.
(ii) The term "Cause" shall mean and include any of
the following with respect to the Employee: a fraud, gross dishonesty or gross
misconduct perpetrated on the Employer, a criminal conviction for a felony,
fraud or theft, the imposition of any material sanction against the Employee or
the Employer solely by reason of the actions of the Employee by an regulatory or
governmental agency governing the Employer or its business or a material breach
or violation by the Employee of any material term or provision of this Agreement
which is not cured within thirty (30) days of the Employee's receipt of written
notice from the Board of Directors of the Employer detailing such material
breach or violation.
8. WAIVER. The waiver of a breach or violation of any term or provision
of this Agreement by either party shall not operate or be construed or deemed as
a continuing waiver by such party of such breach or violation or as a waiver of
a breach or violation of any other term or provision of this Agreement or as a
waiver of any subsequent breach or violation of the same term or provision of
this Agreement.
9. RIGHTS AND LIABILITIES UPON NOTICE OF TERMINATION. As soon as notice
of termination of this Agreement is given or received, the Employee shall
immediately cease contact with all customers, vendors and lenders of and others
doing business with the Employer and shall forthwith surrender to the Employer
all customer lists, documents and other property of the Employer then in his
possession. Pending the surrender of all such customer lists, documents and
other property to the Employer, the Employer may hold in abeyance any payments
due the Employee pursuant to this Agreement.
10. ASSIGNMENT. The Employee shall not assign, transfer or convey this
Agreement or in any manner encumber the compensation, remuneration or other
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benefits payable and/or provided to him hereunder or delegate any of this duties
or obligations hereunder, except with the prior written consent of the Employer.
Subject to the provisions of Section 7 hereof, the Employer may assign this
Agreement and its rights hereunder in whole, but not in part, to any corporation
or any other entity to or into which it may transfer all or substantially all of
its assets.
11. NOTICES. All notices, demands and other communications which may be
made or are required hereunder shall be in writing and shall be deemed to have
been given when delivered personally or when deposited in the U.S. mail,
certified or registered, with postage prepaid and a return receipt requested,
addressed, if to the Employer, at 0000 Xxxxxxxxx Xxxx., Xxxxx, Xxxxxxx 00000,
Attention: Xxxxxxx Xxxxxxxx, Vice President, and, if to the Employee, at the
address set forth below the signature of the Employee at the end of this
Agreement, or at such other addresses as may, from time to time, be furnished in
writing in the manner provided in this Section to the Employer by the Employee
or to the Employee by the Employer.
12. BINDING EFFECT. This Agreement shall be binding on the parties
hereto and on their respective heirs, administrators, executors, legal
representatives, successors and permitted assigns.
13. ENFORCEABILITY. This Agreement contains the entire understanding of
the parties and may be altered, amended or modified only by a writing executed
by both of the parties hereto. This Agreement supersedes all prior agreements
and understandings by and between the Employer and the Employee relating to the
Employee's employment. In the event any part or provision of this Agreement
shall be found to be invalid or unenforceable, such invalidity or
unenforceability shall attach to only such part or provision and shall not in
any way affect or render invalid or unenforceable any other part or provision of
this Agreement, and the remaining parts and provisions of this Agreement shall
nevertheless be binding and enforceable with the same effect as though the
invalid or unenforceable part or provision was deleted and not contained herein.
14. APPLICABLE LAW. This Agreement and the rights and liabilities of
the parties hereto shall be interpreted under, and governed and enforced by, the
laws of the State of Florida.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original, but all of which
together shall constitute one and the same instrument.
16. GENDER. Wherever in this Agreement the masculine gender is used, it
shall be deemed to include the feminine or neuter; and the use of the singular
or plural shall be deemed to include the other.
17. ATTORNEYS' FEES AND COSTS. In the event that either of the parties
to this Agreement institutes suit against the other party to this Agreement to
enforce any of his or its rights hereunder, the prevailing party in such action
shall be entitled to recover from the other party all reasonable costs thereof,
including reasonable attorneys' fees.
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IN WITNESS WHEREOF, the Employee has hereunto set his hand and the
Employer has caused this Agreement to be executed by its duly authorized officer
effective as of the day and year first above written.
SOUND ADVICE, INC.
By: /s/ XXXXX XXXXXXXX
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XXXXX XXXXXXXX, President and
Chief Executive Officer
EMPLOYEE:
/s/ XXXXXXXXXXX X'XXXX
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XXXXXXXXXXX X'XXXX
Address: 0000 XX 00 XXXXXX
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XXXXXXXXXX, XX 00000
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