Exhibit 10.1
AMERICAN UNITED GLOBAL, INC.
Employment Agreement
with
Xxxxxx X. Xxxxx
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AGREEMENT made effective as of the 7th day of December 1999, by and
between AMERICAN UNITED GLOBAL, INC., a Delaware corporation (hereinafter
referred to as the "Company") and Xxxxxx X. Xxxxx, an individual with an address
of c/o Gersten, Xxxxxx & Xxxxxxxxx, LLP, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (hereinafter referred to as the "Employee").
W I T N E SSE T H:
WHEREAS, the Company desires to retain the Employee to continue as its
President and Chief Executive Officer; and
WHEREAS, the Employee is willing to make himself available for advice and
counsel to the Company in connection with its management and such other matters
so that the Company may have the benefit of the Employee's knowledge and
expertise.
NOW THEREFORE, in consideration of the mutual covenants of the parties,
which are hereinafter set forth and for other good and valuable consideration,
receipt of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. ENGAGEMENT.
(a) The Company hereby retains the Employee in the employ of the
Company as its President and Chief Executive Officer, upon the terms and
conditions which are hereinafter set forth.
(b) The Employee will render management services and other advice to
the Company. Such advice may include, without limitation, the following:
strategic planning, financial analysis, the introduction and arrangement of
financing and other business transactions, product development, business
modeling and planning, organizational development, human resources allocation
and business development.
(c) The Employee shall make himself available to the Company for
telephone consultations and for meetings as reasonably requested.
(d) Except for the requirements which are set forth in Section 1(c) of
this Agreement, the Employee shall not be required to devote any minimum number
of weeks, days or hours to the affairs of the Company during the term of this
Agreement, although it is acknowledged that the performance of his duties may
require substantial effort. Employee shall devote such additional time,
attention and energies to the business of the additional time, attention and
energies to the business of the Company as he, in the exercise of good faith and
discretion, shall determine to be necessary during the term of this Agreement.
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2. TERM. The term of this Agreement shall commence on the date set forth
above and expire on the fifth anniversary thereof, unless this Agreement is
terminated prior thereto pursuant to the terms of this Agreement (the "Term").
3. COMPENSATION.
(a) SALARY. During the Term of this Agreement the Company shall pay on
behalf of Employee in consideration for his services a minimum annual base
salary of $225,000, which shall be determined (if greater) by the Compensation
Committee of the Board of Directors of the Company and as ratified by the entire
Board. The salary shall be adjusted for any increase in the annual cost of
living as published by the Bureau of Labor Statistics of the United States
Department of Labor for wage earners in the New York City metropolitan area
measured over the course of the immediately preceding fiscal year. Such salary
shall be paid no less frequently than monthly.
(b) NET INCOME BONUS. Employee shall be eligible to receive as
compensation under the Agreement incentive bonuses of ten percent (10%) of the
Company's net income, including all of its consolidated subsidiaries, if any,
for any fiscal year as determined by the Company's independent auditors using
generally accepted accounting principles, consistently applied, which bonus
shall not exceed $1,000,000 for any fiscal year.
(c) INTRODUCED TRANSACTION BONUS. Employee shall be eligible to
receive a bonus equal to ten percent (10%) of the value of any transaction
consummated by the Company which is introduced by Employee if, in the opinion of
the independent members of the Board of Directors of the Company such
transaction substantially improves or increases the business, financial
condition or prospects of the Company. The bonuses to be paid pursuant to this
Section 3(c) shall be paid in such amount and type of securities of the Company
as shall be determined by the independent directors in their sole discretion.
The value of such transaction referenced in this Section 3(c) shall be
determined by the independent directors of the Company in their sole discretion,
who may elect, but are not obligated, to engage an independent investment
banking firm to evaluate the value of such transaction. For the purposes of this
Section 3(c) herein, a "transaction" shall include a private or public financing
of equity or debt securities of the Company, a merger, acquisition, exchange,
joint venture, license or other agreement or arrangement.
(d) INCENTIVE STOCK OPTIONS. Employees shall also receive as of the
date hereof 250,000 incentive stock options under the 1996 Plan to purchase
Common Stock which are exercisable for five years after the date hereof at $0.21
per share.
(e) EXPENSES. The Company shall reimburse Employee for all reasonable
expenses incurred by Employee in the performance of his duties hereunder,
including without limitation, those incurred in connection with business related
travel or entertainment, provided that the Employee provides reasonable
documentation to substantiate such expenses and such expenditures shall have
been authorized in writing by the Company.
(f) EXCISE TAX. In the event that any payment or benefit received or
to be
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received by Employee in connection with a termination of his employment with
Company would constitute a "parachute payment" within the meaning of Code
Section 280G or any similar or successor provision to 280G and/or would be
subject to any excise tax imposed by Code Section 4999 or any similar or
successor provision then Company shall assume all liability for the payment of
any such tax and Company shall immediately reimburse Employee on a "grossed-up"
basis for any income taxes attributable to Employee by reason of such Company
payment and reimbursements.
4. INTENTIONALLY OMITTED.
5. CONFIDENTIAL INFORMATION; INTELLECTUAL PROPERTY RIGHTS; NON
COMPETITION.
(a) NONDISCLOSURE OF CONFIDENTIAL INFORMATION. During the term of this
Agreement and at all times thereafter, Employee will keep confidential and will
not directly or indirectly divulge to anyone nor use or otherwise appropriate
for Employee's own benefit, or on behalf of any other person, firm, partnership
or corporation by whom Employee might subsequently be employed or otherwise
associated or affiliated with, any Confidential Information (as defined herein).
For this purpose, "Confidential Information" means any and all trade secrets or
other confidential information of any kind, nature or description concerning any
matters affecting or relating to the business of the Company or any affiliate of
the Company which derives economic value, actual or potential, from not being
generally known to the public or the trade or to other persons who can obtain
economic value from its disclosure or use and which is subject to efforts by
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the Company that are reasonable under the circumstances to maintain its secrecy.
Confidential Information does not include information which (a) is or becomes
generally available to the public or the trade other than as a result of a
disclosure by Employee or any of his agents or representatives, or (b) was
within Employee's possession prior to its being furnished to Employee by the
Company; provided that the source of such information in the case of either
clause (a) or (b) was not bound by a confidentiality agreement or other
contractual obligation of confidentiality with respect to such information or
did not otherwise acquire or disclose such information wrongfully.
(b) COMPANY INTELLECTUAL PROPERTY RIGHTS. All intellectual property
rights, whether or not patentable or copyrightable, which (i) are made or
developed with the equipment, supplies, facilities, product formulations, trade
secrets, time or other assets of the Company; (ii) relate to the business,
including anticipated research or development, of the Company that are developed
during the term of this Agreement, or (iii) result from work performed by
Employee for the Company, are and shall remain the sole property of the Company,
and upon request made by the Company, Employee shall assign any and all rights,
including copyrights, patents and patent rights, trade xxxx and trade dress
rights, Employee may have therein to Company.
(c) COMPANY MATERIALS. All reports and analysis, designs, drawings,
contracts, contractual arrangements, specifications, computer software, computer
hardware and other equipment, computer printouts, computer disks, documents,
memoranda, notebooks, correspondence, files, lists and other records, and the
like, and all photocopies or other reproductions thereof, affecting or relating
to the business of Company which Employee shall prepare, use, construct,
observe, possess or control ("Company Materials"), shall be and remain the sole
property of Company. Upon termination of this Agreement, Employee shall deliver
promptly to Company all such Company Materials.
(d) CERTAIN RESTRICTIONS ON BUSINESS ACTIVITIES. During the term of
this Agreement, Employee agrees that, except with the express written consent of
the Company:
(i) SOLICITATION OF CUSTOMERS, ETC. He will not, directly or
indirectly, either for himself or for any other person, firm or corporation,
divert or take away or attempt to divert or take away and, if the Employee's
termination of employment results for Cause (as defined herein) or the
Employee's voluntary termination of employment, for six (6) months after the
term of this Employment Agreement, call on or solicit or attempt to call on or
solicit in an attempt to so divert
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or take away any of Company's customers or distributors, including but not
limited to, those upon whom Employee called or whom Employee solicited.
(ii) SOLICITATION OF EMPLOYEES, ETC. He will not, directly or
indirectly or by action in concert with others, induce or influence (or seek to
induce or influence) any person who is engaged (as an employee, agent,
independent contractor or otherwise) by Company to terminate his or her
employment or engagement.
(e) SEVERABILITY. Employee agrees, in the event that any provision of
this Section 5 or any word, phrase, clause, sentence or other portion thereof
shall be held to be unenforceable or invalid for any reason, such provision or
portion thereof shall be modified or deleted in such a manner so as to make this
Section 5 as modified legal and enforceable to the fullest extent permitted
under applicable laws. The validity and enforceability of the remaining
provisions or portions thereof shall not be affected thereby and shall remain
valid and enforceable to the fullest extent permitted under applicable laws. A
waiver of any breach of the provisions of this Section 5 shall not be construed
as a waiver of any subsequent breach of the same or any other provision.
6. WAIVERS. Except as otherwise specifically provided for in this
Agreement, no party shall be deemed to have waived any of his or its rights
hereunder under any other agreement, instrument or paper signed by any of them
with respect to the subject matter hereof unless such waiver is in writing and
signed by the party waiving said right. Except as otherwise specifically
provided for in this Agreement, no delay or omission by any party in exercising
any right with respect to the subject matter hereof shall operate as a waiver of
such right or of any such other right. A waiver on any one occasion with respect
to the subject matter hereof shall not be construed as a bar to, or waiver of,
any right or remedy on any future occasion.
7. ELECTION OF REMEDIES. All rights and remedies with respect to the
subject matter hereof, whether evidenced hereby or by any other agreement,
instrument, or paper, will be cumulative, and may be exercised separately or
concurrently.
8. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement
between them with respect to the subject matter hereof. All understandings and
agreements heretofore had between the parties with respect to the subject matter
hereof are merged in this Agreement and any such instrument, which alone fully
and completely expresses their Agreement.
9. AMENDMENTS. This Agreement may not be changed, modified, extended,
terminated or discharged orally, but only by an agreement in writing, signed by
all of the parties to this Agreement.
10. FURTHER ASSURANCES. The parties agree to execute any and all such
other and further instruments and documents, and to take any actions reasonably
required to effectuate this Agreement and the intents and purposes hereof.
11. ASSIGNMENT. This Agreement shall not be assigned to other parties,
provided,
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however, this Agreement may be assigned by Company to an entity that acquires
substantially all of the assets of Company.
12. APPLICABLE LAW. This Agreement shall in all respects be governed by
the internal laws of the State of New York.
13. SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their heirs, executors, administrators,
personal representatives, successors, and assigns.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same agreement.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties to this Agreement have caused these
presents to be signed by their duly authorized officers as of the day, month and
year first above written.
AMERICAN UNITED GLOBAL INC.
By: ---------------------------------
Name:
Title:
Employee:
--------------------------------
Xxxxxx X. Xxxxx
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PROXY
AMERICAN UNITED GLOBAL, INC.
ANNUAL MEETING OF STOCKHOLDERS
FEBRUARY 22, 2000
THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS IN CONNECTION WITH THE
ANNUAL MEETING OF STOCKHOLDERS OF AMERICAN UNITED GLOBAL, INC. TO BE HELD ON
FEBRUARY 22, 2000. THE SHAREHOLDER HAS THE RIGHT TO APPOINT AS HIS PROXY A
PERSON (WHO NEED NOT BE A SHAREHOLDER) OTHER THAN ANY PERSON DESIGNATED BELOW,
BY INSERTING THE NAME OF SUCH OTHER PERSON IN ANOTHER PROPER FORM OF PROXY.
The undersigned, a shareholder of American United Global, Inc. (the
"Corporation"), hereby revoking any proxy hereinbefore given, does hereby
appoint Xxxxxx X. Xxxxx and Xxxxx X. Xxxxxx, or either of them, as his proxy
with full power of substitution, for and in the name of the undersigned to
attend the Annual Meeting of the Stockholders to be held on Tuesday, February
22, 2000 at the offices of Xxxxxxx, Savage & Xxxxxxxxx, LLP, counsel to the
company, 000 X. 00xx Xxxxxx, Xxx Xxxx, X.X. 00000 at 10:00 a.m., local time, and
at any adjournments thereof, and to vote upon all matters specified in the
notice of said meeting, as set forth herein, and upon such other business as may
properly come before the meeting, all shares of stock of said Corporation which
the undersigned would be entitled to vote if personally present at the meeting.
THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED
HEREIN BY THE UNDERSIGNED SHAREHOLDER. IF NO DIRECTION IS GIVEN, SUCH SHARES
WILL BE VOTED FOR ALL NOMINEES FOR DIRECTOR IDENTIFIED BELOW AND FOR ALL
PROPOSALS.
1. The Election of the following proposed directors to hold office until the
next Annual Meeting of Stockholders or until their successors shall be elected
and shall qualify: Xxxxxx X. Xxxxx, C. Xxxx XxXxxx, Xxxxxx Xxxx, Xxxxx X.
Xxxxxx, Xxxxxxx Xxxxxxx and Xxxxx Xxxxxx.
FOR ALL NOMINEES / /
(EXCEPT AS MARKED TO THE CONTRARY)
WITHHOLD ALL NOMINEES / /
AUTHORITY TO WITHHOLD A VOTE FOR ANY OF THE ABOVE NAMED INDIVIDUALS SHOULD BE
INDICATED BY CLEARLY LINING THROUGH OR OTHERWISE STRIKING OUT THE NAME OF THE
NOMINEE.
2. To authorize an amendment to the Company's Certificate of Incorporation
changing the Company's name to "Xxxxxxxx-xxxxxx.xxx, Inc."
/ / FOR / / AGAINST / / ABSTAIN
3. To authorize and approve the Company's 1996 Employee Stock Option Plan, as
amended, which contains options upon the exercise of which up to 3,500,000
shares of Common Stock would be available for issuance.
/ / FOR / / AGAINST / / ABSTAIN
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4. To authorize and ratify the sale of all of the assets of American United
Products, Inc. and American United Seal, Inc., engaged in the Company's
Manufacturing Business to subsidiaries of Xxxxxxxxxx Corporation under the terms
of the Sale Agreement, and to ratify of the terms of the Sale Agreement, all
exhibits thereto and the transactions contemplated thereby.
/ / FOR / / AGAINST / / ABSTAIN
5. To authorize and ratify the issuance of shares of the Company's Series B-1
Convertible Preferred Stock issued in connection with the acquisition of Old
Connectsoft, effective as of July 31, 1996.
/ / FOR / / AGAINST / / ABSTAIN
6. To authorize and ratify the issuance of 400,000 shares of the Company's
Series B-2 Convertible Preferred Stock issued in connection with a $10,000,000
Private Placement in January 1997.
/ / FOR / / AGAINST / / ABSTAIN
7. To authorize and ratify the amendment and restatement of the employment
agreement between the Company and Xxxxxx X. Xxxxx, the Company's Chief Executive
Officer.
/ / FOR / / AGAINST / / ABSTAIN
8. To authorize an amendment to the Company's Certificate of Incorporation
reducing the authorized capital stock from 67,700,000 to 42,700,000 shares and
the authorized Common Stock from 65,000,000 to 40,000,000 shares, and removing
all classifications of the Common Stock.
/ / FOR / / AGAINST / / ABSTAIN
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9. To authorize and ratify the appointment of PricewaterhouseCoopers as
independent auditors for the Company for the fiscal year ending July 31, 1999
/ / FOR / / AGAINST / / ABSTAIN
IN THEIR DISCRETION, THE PROXIES ARE AUTHORIZED TO VOTE UPON SUCH OTHER BUSINESS
AS MAY PROPERLY COME BEFORE THE MEETING.
/ / FOR / / AGAINST / / ABSTAIN
Dated: ______________________, _____[Month, Date, Year]
---------------------------------------
Signature
Print Name:
---------------------------------------
Signature, if Jointly Held
Print Name:
PLEASE SIGN EXACTLY AS YOUR NAME APPEARS
HEREIN, if signing as attorney, executor,
administrator, trustee or guardian, indicate
such capacity. All joint tenants must sign. If
a corporation, please sign in full corporate
name by the president or other authorized
officer. If a partnership, please sign in
partnership name by an authorized person.
The Board of Directors requests that you fill
in the date and sign the Proxy and return it
in the enclosed envelope.
IF THE PROXY IS NOT DATED ABOVE
IT WILL BE DEEMED TO BE DATED
ON THE DAY ON WHICH IT WAS MAILED BY
THE COMPANY .
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EXHIBITS.
