EMPLOYMENT AGREEMENT
Exhibit 10.48
This Employment Agreement (hereinafter referred to as “Agreement”) is entered into by and between Xxxxx Xxxxx International, Inc. (hereinafter referred to as the “Company”) and Xx. Xxxxx Xxxxx (hereinafter referred to as “Xx. Xxxxx”).
WHEREAS, the Company desires to employ Xx. Xxxxx in the capacity as Chief Financial Officer; and
WHEREAS, the Company and Xx. Xxxxx desire to set forth in this Agreement the terms and conditions of said employment, and to establish a mechanism to resolve disputes relating to said employment, and to establish limitations on post-term solicitation, use of confidential information, and competition;
NOW, THEREFORE, in consideration of the mutual promises and obligations contained in this Agreement, the Company and Xx. Xxxxx agree as follows:
1. Effective Date and Term.
This Agreement is effective as of March 2, 2009 (the “Effective Date”) and will expire without further notice at 5:00 p.m. e.s.t. on March 1, 2011, and can be terminated at any time by either party in accordance with the terms and conditions expressly set forth herein. The period of time beginning on the Effective Date and running until the earlier of the expiration or termination of the Agreement shall be referred to as the “Term” of the Agreement. This Agreement may be renewed for additional periods of one (1) year upon the mutual written consent of the parties, such written consent given not later than thirty (30) days prior to the expiration of the Term.
2. Duties and Responsibilities.
The Company hereby employs Xx. Xxxxx as the Company’s Chief Financial Officer, with such powers and duties as may be established from time to time by the Company in its discretion. Xx. Xxxxx will report directly to the Company’s Chief Executive Officer. Xx. Xxxxx will devote her full time, attention and energies to the Company’s business. During her employment, Xx. Xxxxx will not engage in any other business activities on her own behalf or for any other entity, other than for the benefit of the Company, regardless of whether such activity is pursued for profits, gains, or other pecuniary advantage, without the express written consent of the Company’s Chief Executive Officer. However, nothing in this Agreement shall prevent Xx. Xxxxx from passively investing in business activities so long as such investments require no active participation by Xx. Xxxxx, or from engaging in other charitable or civic activities so long as such activities do not materially detract from Xx. Xxxxx’x job duties herein. Xx. Xxxxx shall be based at the Company’s principal offices in Miami, Florida except for required travel on the Company’s business.
1
3. Compensation.
a. Base Salary. The Company promises to pay Xx. Xxxxx a Base Salary at an annualized rate of Three Hundred, Seventy-Five Thousand Dollars ($375,000.00), less applicable deductions, payable in installments according to the Company’s normal payroll practices. Any increases in Base Salary shall be at the discretion of the Company’s Chief Executive Officer.
b. Management Incentive Program. Xx. Xxxxx shall be eligible to participate in the Company’s Management Incentive Program (hereinafter, “MIP”). Xx. Xxxxx shall be eligible for up to 40% target bonus under the MIP. The amount and method of payment of any compensation paid to Xx. Xxxxx shall be determined in accordance with the applicable terms of the MIP.
c. Relocation Allowance. The Company will provide relocation benefits to Xx. Xxxxx under the terms and conditions set forth in the separate Relocation Agreement attached hereto as Appendix A.
d. Intentionally Deleted.
e. Automobile Allowance. The Company promises to pay Xx. Xxxxx a monthly automobile allowance in the amount of One Thousand Dollars ($1,000.00) per month, less applicable tax deductions. The payment under this paragraph shall be made on the first regular payroll of each month during the Term. Xx. Xxxxx and the Company acknowledge that, as of the date of this Agreement, the Company is considering implementing certain policies and procedures related to automobile allowances. Xx. Xxxxx and the Company agree that the Company shall have the option, at its discretion, to eliminate the benefit provided under this Paragraph 3.e in favor of a commensurate upward adjustment to Xx. Xxxxx’x Base Salary.
f. Non-Qualified Stock Options. The Company shall grant to Xx. Xxxxx an option (the “Option”) to purchase 10,000 shares of the Company’s common stock, $.01 par value per share (the “Common Stock”). The Option shall vest as to one-quarter ( 1/4) of the Common Stock immediately on the first anniversary of the Effective Date, as to an additional one-quarter ( 1/4) on the second anniversary of the Effective Date, as to an additional one-quarter ( 1/4) on the third anniversary of the Effective Date, and as to the remaining one-quarter ( 1/4) on the fourth anniversary of the Effective Date, but only so long as Xx. Xxxxx is employed by the Company on each such vesting date. The Option shall be forfeited to the extent that it is not vested as of the date Xx. Xxxxx’x employment is terminated for any reason by Xx. Xxxxx or by the Company. The Option shall be subject to such other terms, conditions, and/or restrictions as determined by the Company and as set forth in the related stock option agreement to be entered into between Xx. Xxxxx and the Company.
g. Restricted Stock. Xx. Xxxxx shall be granted 10,000 fully registered shares of the Company’s common stock of the class listed on the NASDAQ (“Shares”) One-quarter. ( 1/4) of the Shares shall vest on the first anniversary of the Effective Date, one-quarter ( 1/4) of the Shares shall vest on the second anniversary of the Effective Date, one-quarter ( 1/4) of the Shares shall vest on the third
2
anniversary of the Effective Date, and one-quarter ( 1/4) of the Shares shall vest on the fourth anniversary of the Effective Date, but only so long as Xx. Xxxxx is employed by the Company on each such vesting date. The Shares shall be forfeited to the extent that they are not vested as of the date Xx. Xxxxx’x employment is terminated for any reason by Xx. Xxxxx or by the Company. The Restricted Stock shall be subject to such other terms, conditions, and/or restrictions as determined by the Company and as set forth in the related Restricted Stock agreement to be entered into between Xx. Xxxxx and the Company.
e. Long Term Incentive Plan. Xx. Xxxxx shall be eligible to participate in the Company’s Long Term Incentive Plan (hereinafter, “LTI”), so long as Xx. Xxxxx meets the applicable eligibility requirements of the LTI. Any awards to Xx. Xxxxx under the LTI shall be subject to the discretion of the Company’s Board of Directors.
f. Other Employee Benefits. Xx. Xxxxx will be eligible to participate in any other group employee benefit plan that is generally available to all Company employees, so long as Xx. Xxxxx meets the applicable eligibility requirements of individual benefit plan and subject to the terms and conditions of each benefit plan.
4. Xx. Xxxxx’x Death or Inability to Perform
In the event of Xx. Xxxxx’x death, this Agreement and the Company’s obligation to pay Xx. Xxxxx’x salary and other compensation automatically end. If Xx. Xxxxx becomes unable to perform her employment duties during the Term of this Agreement, and she has no paid leave of absence available to her, her compensation under this Agreement shall automatically end until such time as Xx. Xxxxx becomes able to resume her job duties for the Company. In the event that Xx. Xxxxx becomes unable to perform her employment duties for a cumulative period of twelve weeks within any span of twelve months, this Agreement and Xx. Xxxxx’x employment will be automatically terminated. In such case, Xx. Xxxxx’x unpaid salary and compensation and unvested equity compensation shall automatically terminate and forfeit.
5. Termination by Company for Cause.
The Company may terminate this Agreement and Xx. Xxxxx’x employment “for Cause” at any time with or without notice. As used herein, “for Cause” shall mean any one of the following:
| • | Xx. Xxxxx’x habitual neglect of her job duties and responsibilities; or |
| • | Commission of any felony; or |
| • | Commission of a material act of dishonesty or a material breach of a fiduciary duty; or |
3
| • | Commission of a serious violation of any of the Company’s personnel policies, including but not limited to violations of the Company’s policies against any form of harassment; or |
| • | A material breach of this Agreement. |
In the event Xx. Xxxxx is terminated “for Cause,” her pay and benefits shall end on her last date of employment and any unvested benefits shall forfeit, and Xx. Xxxxx shall be entitled to no other compensation from that day forward.
6. Termination by Company Without “Cause”
x. Xxxxxxxxx Pay. The Company may terminate this Agreement and Xx. Xxxxx’x employment without Cause at any time and for any reason upon written notice to Xx. Xxxxx. In the event that the Company terminates Xx. Xxxxx’x employment without Cause, the Company will pay Xx. Xxxxx xxxxxxxxx pay in installments in the aggregate amount of the greater of: (a) the amount of remaining Base Salary described in Paragraph 3.a hereof that would otherwise have been payable for the remainder of the Term; or (b) an amount equal to six (6) months of Base Salary described in Paragraph 3.a hereof. Xx. Xxxxx shall be required to execute a Severance Agreement and General Release in a form that is reasonably satisfactory to both parties in order to receive severance pay. Xx. Xxxxx shall not be entitled to any compensation or benefits from the date of her termination forward. Any severance pay owed to Xx. Xxxxx shall be offset by any repayments owed by Xx. Xxxxx pursuant to the terms of the Relocation Expense Agreement attached hereto as Appendix A.
b. Other Severance Policies. Xx. Xxxxx and the Company acknowledge that, as of the date of this Agreement, the Company is considering implementing certain policies and procedures for severance pay to be provided to certain employees in the event of termination. Xx. Xxxxx and the Company agree that, to the extent Xx. Xxxxx is covered by any such policy, Xx. Xxxxx shall not be eligible for benefits under Paragraph 6.a hereof. In the event that the severance payment that Xx. Xxxxx might otherwise have had available to her under Paragraph 6.a would be greater than the severance payment Xx. Xxxxx would receive in the event of her termination under any Company severance policy created during the Term, the Company will “buy out” the difference.
7. Termination of Agreement by Xx. Xxxxx
Xx. Xxxxx may terminate this Agreement and her employment with the Company upon thirty (30) days prior written notice to the Company. In such case, Xx. Xxxxx may be required to perform her business duties and will be paid her regular salary up to the date of termination. At the option of the Company, the Company may require Xx. Xxxxx to depart from the Company at any time during such thirty (30) day period upon receiving said thirty (30) days notice from Xx. Xxxxx of the termination of the Agreement, and in such event, the Company shall only be required to pay Xx. Xxxxx for the balance of her salary and benefits for that workweek, and not be required to continue to pay Xx. Xxxxx any salary or benefits for the remainder of the thirty (30) day period.
4
8. Cooperation
Upon the termination of this Agreement for any reason, Xx. Xxxxx agrees to cooperate with the Company in effecting a smooth transition of the management of the Company with respect to the duties and responsibilities which Xx. Xxxxx performed for the Company. Further, after termination of this Agreement, Xx. Xxxxx will upon reasonable notice furnish such information and proper assistance to the Company as it may reasonably require in connection with any litigation to which the Company is or may become a party.
9. Covenant Not To Compete and Non-Solicitation Agreement.
Xx. Xxxxx agrees to properly execute an “Agreement Regarding Confidentiality of Information and Prohibition on Soliciting employees” (Appendix B hereto) and a “Non-Competition Agreement” (Appendix C hereto). The terms of those agreements are incorporated by reference and made part of this Agreement as if fully set forth in this Paragraph 9. The Restrictive covenants in those agreements shall survive the termination or expiration of this Agreement and/or the termination of Xx. Xxxxx’x employment for any reason.
10. Resolution of Disputes by Arbitration
Any claim or controversy that arises out of or relates to this Agreement, or the breach of it, will be resolved by arbitration in the City of Miami in accordance with the rules then obtaining of the American Arbitration Association. Judgment upon the award rendered may be entered in any court possessing jurisdiction over arbitration awards. This Section shall not limit or restrict the Company’s right to obtain injunctive relief for violations of the “Agreement Regarding Confidentiality of Information and Prohibition on Soliciting employees” and a “Non-Competition Agreement” referred to in Paragraphs 9 of this Agreement.
11. Adequate Consideration
Xx. Xxxxx expressly agrees that the Company is providing adequate, reasonable consideration for the obligations imposed upon her in this Agreement.
12. Effect of Prior Agreements.
This Agreement and its appendices supersede any prior verbal or written agreement or understanding between the Company and Xx. Xxxxx except as otherwise expressly set forth herein.
5
13. Limited Effect of Waiver by Company
If the Company waives a breach of any provision of this Agreement by Xx. Xxxxx, that waiver will not operate or be construed as a waiver of other breaches of this Agreement by Xx. Xxxxx.
14. Severability
If any provision of this Agreement is held invalid for any reason, said invalidity shall not affect the enforceability of any other provision of this Agreement, and all other provisions of this Agreement will remain in effect.
15. Assumption of Agreement by Company’s Successors and Assigns.
At the Company’s sole option, the Company’s rights and obligations under this Agreement will inure to the benefit of and be binding upon the Company’s successors and assigns. Xx. Xxxxx may not assign her rights and obligations under this Agreement.
16. Applicable Law
Xx. Xxxxx and the Company agree that this Agreement shall be subject to and enforceable under the laws of the State of Florida.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the 2 day of March, 2009.
| Xxxxx Xxxxx International, Inc. | Xxxxx Xxxxx | |||||
| By: |
/s/ Xxxxx Xxxxxx |
/s/ Xxxxx Xxxxx | ||||
6
APPENDIX “A”
RELOCATION EXPENSE AGREEMENT
This RELOCATION EXPENSE AGREEMENT (hereinafter, “Agreement”) is entered into by and between XXXXX XXXXX INTERNATIONAL, INC., (“XXXXX XXXXX”), and XXXXX XXXXX (“XX. XXXXX”).
WHEREAS, XX. XXXXX has agreed to become employed by XXXXX XXXXX as Chief Financial Officer; and
WHEREAS, XXXXX XXXXX has agreed to reimburse XX. XXXXX for certain expenses related to XX. XXXXX’x relocation to South, Florida; and
WHEREAS, the parties hereto desire to set forth in this Agreement the terms and conditions of XX. XXXXX’x reimbursement of relocation expenses and her repayment of a portion of those benefits in the event she leaves employment as described herein;
NOW, THEREFORE, the parties agree as follows:
1. Execution of Agreement and Effective Date. This Agreement is effective on the date it is signed by both parties (the “Effective Date”).
2. Reimbursement of Relocation Expenses.
A. Reimbursement for Temporary Housing. XXXXX XXXXX will reimburse XX. XXXXX for the reasonable cost of temporary housing incurred up to July 31, 2009. Reimbursements shall be limited to rent payments and utility costs. No reimbursement will be granted for property damage or any extraneous charges that result from XX. XXXXX occupying the temporary housing.
B. Relocation Services. XXXXX XXXXX will provide relocation services to XX. XXXXX associated with her relocation to South Florida. XX. XXXXX shall be required to use a vendor approved by XXXXX XXXXX. XX. XXXXX must submit receipts for any expenses reimbursable under this paragraph to the applicable vendor providing relocation services.
C. Limitation on Aggregate Reimbursement. The total aggregate amount reimbursable to XX. XXXXX or payable on her behalf under Paragraph 2.B shall be no greater than One Hundred Fifty Thousand Dollars ($150,000.00).
D. Round Trip Air Fare. XXXXX XXXXX will reimburse XX. XXXXX for the cost of one round trip coach class airline ticket purchased during each full month beginning the first full month after the Effective Date and ending in June, 2009. Travel arrangements should be made through a travel agent designated by XXXXX XXXXX.
E. Repayment of Housing and Moving Expenses and Airfare. XX. XXXXX agrees to repay to XXXXX XXXXX a prorated portion of any money paid to her under Paragraphs 2.A or 2.B or 2.D in the event that she, at any time prior to the second anniversary of the Effective Date: (1) resigns from employment; (2) retires from employment; or (3) is terminated from employment for “cause” as defined in Paragraph 5 of the written Employment Agreement between XX. XXXXX and XXXXX XXXXX. The prorated amount
1
payable by XX. XXXXX shall be calculated by multiplying the total amount of money paid to XX. XXXXX or on her behalf under Paragraphs 2.A and 2.B and 2.D by a fraction determined on the date of XX. XXXXX’x termination, the numerator of which is the number of months remaining until the second anniversary of the Effective Date, the denominator of which is twenty-four (24). XXXXX XXXXX shall be entitled, in addition to any other remedies, to set-off any repayment owed by XX. XXXXX under this Paragraph 2.E against any final compensation or severance pay owed to XX. XXXXX.
3. Governing Law and Interpretation. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Its language shall be construed as whole, according to its fair meaning, and not strictly for or against either party.
4. Severability. Should any provision of this Agreement be declared illegal or unenforceable by any court of competent jurisdiction and cannot be modified to be enforceable, such provision shall immediately become null and void, leaving the remainder in full force and effect.
5. Headings. Section headings are used herein for convenience of reference only and shall not affect the meaning of any provision of this Agreement.
6. Disputes. In the event of a dispute as to the interpretation, application or violation of this Agreement, it is understood and agreed that such dispute shall be submitted to final and binding arbitration in Miami-Dade County, Florida, pursuant to the rules of the American Arbitration Association.
7. Reasonable Time to Consider Signing Agreement. XX. XXXXX acknowledges that she has been given a reasonable period of time to consider whether to sign this Agreement.
8. Encouragement to Consult Attorney. XXXXX XXXXX hereby encourages XX. XXXXX to consult her attorney before signing this Agreement.
THE PARTIES HAVE READ, UNDERSTOOD AND FULLY CONSIDERED THE AGREEMENT AND ARE MUTUALLY DESIROUS OF ENTERING INTO SUCH AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth below.
| XXXXX XXXXX INTERNATIONAL, INC. | XXXXX XXXXX | |||||||
| By: | /s/ Xxxxx Xxxxxx |
/s/ Xxxxx Xxxxx | ||||||
| Date: | 3/2/09 |
Date: | 3/2/09 | |||||
2
