-----------------------------------------------------------------
EMPLOYMENT AGREEMENT
BY AND BETWEEN
XXXXXXXXX.XXX INCORPORATED
AND
XXXXXX XXXX
DECEMBER 20, 2000
-----------------------------------------------------------------
Exhibit 10.64
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of December 20, 2000 (the "Effective
Date"), by and between Xxxxxxxxx.xxx Incorporated, a Delaware corporation, with
its principal office at 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000 (the
"Company"), and Xxxxxx Xxxx ("Executive").
W I T N E S S E T H:
WHEREAS, the Company desires that Executive be employed as the Chief
Information Officer of the Company;
WHEREAS, the Company and Executive desire to enter into this
agreement (the "Agreement") as to the terms of his employment by the Company;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable consideration, the
parties agree as follows:
1. Term of Employment. Except for earlier termination as provided in
Section 8 hereof, Executive's employment under this Agreement shall be for a two
(2) year term (the "Initial Employment Term") commencing on December 20, 2000
(the "Commencement Date") and ending on December 20, 2002. Subject to Section 8
hereof, the Initial Employment Term shall be automatically extended for
additional terms of successive one (1) year periods (the "Additional Employment
Term") unless the Company or Executive gives written notice to the other at
least ninety (90) days prior to the expiration of the then Initial Employment
Term or Additional Employment Term of the termination of Executive's employment
hereunder at the end of such Employment Term. The Initial Employment Term and
the Additional Employment Term shall be referred to herein as the "Employment
Term."
2. Positions. (a) Executive shall serve as the Chief Information
Officer of the Company. Executive shall also serve, if requested by the Chief
Executive Officer or the Chief Operating Officer of the Company, as an executive
officer and director of subsidiaries and a director of associated companies of
the Company and shall comply with the policy of the Compensation Committee of
the Company's Board of Directors (the "Compensation Committee") with regard to
retention or forfeiture of director's fees.
(b) Executive shall report directly to the Chief Executive Officer
or the Chief Operating Officer of the Company and, shall have such duties and
authority, consistent with his then position as shall be assigned to him from
time to time by the Board of Directors (the "Board"), the Chief Executive
Officer or the Chief Operating Officer of the Company.
(c) During the Employment Term, Executive shall devote substantially
all of his business time and efforts to the performance of his duties hereunder;
provided, however, that Executive shall be allowed, to the extent that such
activities do not materially interfere with the performance of his duties and
responsibilities hereunder, to manage his personal financial and legal affairs
and to serve on corporate, civic, charitable industry boards or committees.
Notwithstanding the foregoing, the Executive shall only serve on corporate
boards of directors if approved in advance by the Chief Executive Officer or the
Chief Operating Officer of the Company.
3. Base Salary. Commencing on the Effective Date and continuing
during the remainder of the Employment Term, the Company shall pay Executive a
base salary at the annual rate of not less than $300,000. Base salary shall be
payable in accordance with the usual payroll practices of the Company.
Executive's Base Salary shall be subject to annual review by the Board or the
Compensation Committee during
the Employment Term and may be increased, but not decreased, from time to time
by the Board or the Compensation Committee. The base salary as determined as
aforesaid from time to time shall constitute "Base Salary" for purposes of this
Agreement.
4. Incentive Compensation. (a) Bonus. Executive shall be eligible to
participate in any annual bonus plan the Company may implement at any time
during Executive's Employment Term for senior executives at a level commensurate
with his position.
(b) Long Term Compensation. For each fiscal year or portion thereof
during the Employment Term, Executive shall be eligible to participate in any
long-term incentive compensation plan generally made available to senior
executives of the Company at a level commensurate with his position in
accordance with and subject to the terms of such plan.
(c) Stock Options.
(i) Option Grant. On December 20, 2000 (the "Date of Grant"), the
Company shall grant a Non-Qualified Option (as such term is
defined in the Xxxxxxxxx.xxx Incorporated 1999 Omnibus Plan
(the "Plan"))(the "Option") under the Plan to Executive to
purchase eight hundred thousand (800,000) shares of the
Company's common stock (the "Common Stock"). The exercise
price with respect to each share of Common Stock subject to
the Option shall be the Fair Market Value (as such term is
defined in the Plan) of the Common Stock on the Date of Grant.
(ii) Option Vesting. The Option shall vest and become exercisable
as to fifty percent (50%) of the Option on June 20, 2001 (the
"First Vesting Date"). The Option shall vest and become
exercisable as to the remaining fifty percent (50%) of the
Option pro rata on the 20th of each month over the eighteen
month period immediately following the First Vesting Date,
provided that Executive is employed by the Company on each
such vesting date. For avoidance of doubt, there shall be no
proportionate or partial vesting in the periods prior to each
vesting date and vesting shall occur only on the appropriate
vesting date pursuant to this Section 4(c)(ii). Vesting and
exercisability shall be accelerated as follows: (A) upon a
Termination without Cause or a Termination for Good Reason,
the Option will immediately vest and become exercisable (to
the extent not then vested) as follows: 50% of the Option if
the termination takes place prior to the First Vesting Date;
83.33% of the Option if the termination takes place on or
after the First Vesting Date and prior to the first
anniversary of the First Vesting Date; and 100% of the Option
if the termination takes place thereafter; or (B) upon death
or Termination for a Disability, the Option will immediately
vest as to 50% of Executive's then unvested shares; and (C)
upon the occurrence of a Change in Control while Executive is
employed by the Company, the Option will fully vest and become
exercisable in full (x) six (6) months after the Change in
Control if Executive is then employed by the Company, or (y)
if earlier, at, after or in connection with or in anticipation
of the Change in Control, upon a Termination without Cause,
Termination for Good Reason, Termination as a result of death
or Termination for Disability or (z) immediately prior to the
Change in Control, in the event that the Option is not
continued, assumed or substituted for upon a Change in
Control. For this purpose, the Option will not be considered
substituted for unless the terms and conditions of the
substitute Option are no less favorable to Executive than
those of the Option.
(iii) Termination. Upon Executive's Termination for Cause or
Termination without Good Reason, the unvested portion of the
Option shall be immediately forfeited and canceled. Upon
termination of Executive's employment with the Company, the
2
portion of the Option that is not, and does not become, vested
in accordance with the terms hereof shall be immediately
forfeited and canceled. The vested portion of the Option shall
expire on the earlier of (i) the tenth (10th) anniversary of
the Date of Grant, or (ii)(A) eighteen (18) months after any
termination if the termination is as of the result of
Executive's death, Termination for Disability, Termination
without Cause, Termination for Good Reason or non-extension of
the Employment Term in accordance with Section 1 hereof as a
result of notice from the Company, and (B) ninety (90) days
after such termination if such termination is a result of
Executive's Termination for Cause, voluntary Termination by
Executive without Good Reason, or non-extension of the
Employment Term in accordance with Section 1 hereof as a
result of notice by Executive.
(d) Restricted Stock. (i) Issue Date. On the Effective Date, the
Company shall issue and Executive shall receive five hundred thousand (500,000)
shares of Restricted Stock, as such term is defined in the Plan (the "Restricted
Stock"). If required by law, as consideration for receipt of the Restricted
Stock, the Executive shall pay to the Company $4,000, which represents the par
value ($0.008) per share of Restricted Stock.
(ii) Vesting Dates. Fifty percent (50%) of the Restricted Stock
shall vest on June 20, 2001 and the remaining fifty percent
(50%) of the Restricted Stock (the "Second Tranche") shall
vest on the second anniversary of the Effective Date. In the
event that the Company has positive Adjusted Net Income (as
defined below) for any twelve month period ending on the last
day of a calendar quarter, the Second Tranche of the
Restricted Stock shall immediately vest. Upon satisfaction of
the vesting requirements set forth in this Section 4(d)(ii),
the restrictions on the vested Restricted Stock, as set forth
in Section 4 of the Plan, shall lapse. Adjusted Net Income
means the net income (loss) of the Company and its
subsidiaries, on a consolidated basis, determined in
accordance with GAAP, plus, to the extent deducted in
computing net income (loss), (a) supplier warrant costs, (b)
option payroll taxes, (c) stock compensation costs, (d)
restructuring and other one-time charges and (e) preferred
stock dividends.
(iii) Accelerated Vesting. Vesting of the Restricted Stock shall be
accelerated as follows: (A) upon a Termination without Cause
or a Termination for Good Reason, the Restricted Stock will
immediately vest (to the extent not then vested) as follows:
50% of the Restricted Stock if the termination takes place
prior to June 20, 2001; 83.33% of the Restricted Stock if the
termination takes place on or after June 20, 2001 and prior to
June 20, 2002; and 100% of the Restricted Stock if the
termination takes place thereafter; or (B) upon death or
Termination for a Disability, the Restricted Stock will
immediately vest as to 50% of Executive's then unvested
shares; and (C) upon the occurrence of a Change in Control
while Executive is employed by the Company, 100% of the
Restricted Stock will fully vest (x) six (6) months after the
Change in Control if Executive is then employed by the
Company, or (y) if earlier, at, after or in connection with or
in anticipation of the Change in Control, upon a Termination
without Cause, Termination for Good Reason, Termination as a
result of death or Termination for Disability, or (z)
immediately prior to a Change in Control, if the Restricted
Stock is not continued, assumed or substituted for upon a
Change in Control.
3
(iv) Termination. In the event of Executive's Termination for Cause
or Termination without Good Reason, the unvested portion of
the Restricted Stock shall be immediately forfeited and
canceled. Upon termination of Executive's employment with the
Company, the portion of the Restricted Stock that is not, and
does not become, vested in accordance with the terms hereof
shall be immediately forfeited.
(e) Other Compensation. The Company may, upon recommendation of the
Compensation Committee, award to the Executive such other bonuses and
compensation as it deems appropriate and reasonable.
5. Employee Benefits and Vacation. (a) During the Employment Term,
Executive shall be entitled to participate in all benefit plans and arrangements
and fringe benefits and perquisite programs generally provided to comparable
senior executives of the Company.
(b) During the Employment Term, Executive shall be entitled to
vacation each year in accordance with the Company's policies in effect from time
to time, but in no event less than four (4) weeks paid vacation per calendar
year. The Executive shall also be entitled to such periods of sick leave as is
customarily provided by the Company for its senior executive employees.
6. Business Expenses. The Company shall reimburse Executive for the
travel, entertainment and other business expenses incurred by Executive in the
performance of his duties hereunder, in accordance with the Company's policies
as in effect from time to time.
7. Termination. (a) The employment of Executive under this Agreement
shall terminate upon the earliest to occur of any of the following events:
(i) the death of the Executive;
(ii) the termination of the Executive's employment by the
Company due to the Executive's Disability pursuant to Section 7(b) hereof;
(ii) the termination of the Executive's employment by the
Executive for Good Reason pursuant to Section 7(c) hereof;
(iv) the termination of the Executive's employment by the
Company without Cause upon thirty (30) days prior written notice;
(v) the termination of employment by the Executive without
Good Reason upon thirty (30) days prior written notice; or
(iii) the termination of the Executive's employment by the
Company for Cause pursuant to Section 7(e).
(b) Disability. If by reason of the same or related physical or
mental illness or incapacity, the Executive is unable to carry out his material
duties pursuant to this Agreement for more than six (6) consecutive months, the
Company may terminate Executive's employment for Disability. Such termination
shall be upon thirty (30) days written notice by a Notice of Disability
Termination, at any time thereafter while Executive consecutively continues to
be unable to carry out his duties as a result of the same or related physical or
mental illness or incapacity. A Termination for Disability hereunder shall not
be effective if Executive returns to the full time performance of his material
duties within such thirty (30) day period.
(c) Termination for Good Reason. A Termination for Good Reason means
a termination by Executive by written notice given within ninety (90) days after
the occurrence of the Good Reason event,
4
unless such circumstances are fully corrected prior to the date of termination
specified in the Notice of Termination for Good Reason (as defined in Section
7(d) hereof). For purposes of this Agreement, "Good Reason" shall mean the
occurrence or failure to cause the occurrence, as the case may be, without
Executive's express written consent, of any of the following circumstances: (i)
any material diminution of Executive's positions, duties or responsibilities
hereunder (except in each case in connection with the termination of Executive's
employment for Cause or Disability or as a result of Executive's death, or
temporarily as a result of Executive's illness or other absence), or, the
assignment to Executive of duties or responsibilities that are inconsistent with
Executive's then position; (ii) removal of, or the nonreelection of, the
Executive from officer positions with the Company specified herein without
election to a higher position or removal of the Executive from any of his then
officer positions; (iii) a relocation of the Company's executive office in
Connecticut to a location more than thirty-five (35) miles from its current
location or more than thirty-five (35) miles further from the Executive's
residence at the time of relocation; (iv) a failure by the Company (A) to
continue any bonus plan, program or arrangement in which Executive is entitled
to participate (the "Bonus Plans"), provided that any such Bonus Plans may be
modified at the Company's discretion from time to time but shall be deemed
terminated if (x) any such plan does not remain substantially in the form in
effect prior to such modification and (y) if plans providing Executive with
substantially similar benefits are not substituted therefor ("Substitute
Plans"), or (B) to continue Executive as a participant in the Bonus Plans and
Substitute Plans on at least the same basis as to potential amount of the bonus
as Executive participated in prior to any change in such plans or awards, in
accordance with the Bonus Plans and the Substitute Plans; (v) any material
breach by the Company of any provision of this Agreement, including without
limitation Section 12 hereof; or (vi) failure of any successor to the Company
(whether direct or indirect and whether by merger, acquisition, consolidation or
otherwise) to assume in a writing delivered to Executive upon the assignee
becoming such, the obligations of the Company hereunder.
(d) Notice of Termination for Good Reason. A Notice of Termination
for Good Reason shall mean a notice that shall indicate the specific termination
provision in Section 7(c) relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for Termination for Good
Reason. The failure by Executive to set forth in the Notice of Termination for
Good Reason any facts or circumstances which contribute to the showing of Good
Reason shall not waive any right of Executive hereunder or preclude Executive
from asserting such fact or circumstance in enforcing his rights hereunder. The
Notice of Termination for Good Reason shall provide for a date of termination
not less than ten (10) nor more than sixty (60) days after the date such Notice
of Termination for Good Reason is given, provided that in the case of the events
set forth in Sections 7(c)(i) or (ii) or the date may be five (5) days after the
giving of such notice.
(e) Cause. Subject to the notification provisions of Section 7(f)
below, Executive's employment hereunder may be terminated by the Company for
Cause. For purposes of this Agreement, the term "Cause" shall be limited to (i)
willful misconduct by Executive with regard to the Company which has a material
adverse effect on the Company; (ii) the willful refusal of Executive to attempt
to follow the proper written direction of the Board or a more senior officer of
the Company, provided that the foregoing refusal shall not be "Cause" if
Executive in good faith believes that such direction is illegal, unethical or
immoral and promptly so notifies the Board or the more senior officer (whichever
is applicable); (iii) substantial and continuing willful refusal by the
Executive to attempt to perform the duties required of him hereunder (other than
any such failure resulting from incapacity due to physical or mental illness)
after a written demand for substantial performance is delivered to the Executive
by the Board or a more senior officer of the Company which specifically
identifies the manner in which it is believed that the Executive has
substantially and continually refused to attempt to perform his duties
hereunder; or (iv) the Executive being convicted of a felony (other than a
felony involving a traffic violation or as a result of vicarious liability). For
purposes of this paragraph, no act, or failure to act, on Executive's part shall
be considered "willful" unless done or omitted to be done, by him not in good
faith and without reasonable belief that his action or omission was in the best
5
interests of the Company. A notice by the Company of a non-renewal of the
Employment Term pursuant to Section 1 hereof shall be deemed an involuntary
termination of Executive by the Company without Cause as of the end of the then
Employment Term, but Executive may terminate at any time after the receipt of
such notice and shall be treated as if he was terminated without Cause as of
such date.
(f) Notice of Termination for Cause. A Notice of Termination for
Cause shall mean a notice that shall indicate the specific termination provision
in Section 7(e) relied upon and shall set forth in reasonable detail the facts
and circumstances which provide for a basis for Termination for Cause. Further,
a Notification for Cause shall be required to include a copy of a resolution
duly adopted by at least two-thirds (2/3) of the entire membership of the Board
at a meeting of the Board which was called for the purpose of considering such
termination and which Executive and his representative had the right to attend
and address the Board, finding that, in the good faith of the Board, Executive
engaged in conduct set forth in the definition of Cause herein and specifying
the particulars thereof in reasonable detail. The date of termination for a
Termination for Cause shall be the date indicated in the Notice of Termination.
Any purported Termination for Cause which is held by a court not to have been
based on the grounds set forth in this Agreement or not to have followed the
procedures set forth in this Agreement shall be deemed a Termination by the
Company without Cause.
8. Consequences of Termination of Employment.
(a) Death. If, Executive's employment is terminated by reason of
Executive's death, the employment period under this Agreement shall terminate
without further obligations to the Executive's legal representatives under this
Agreement except for: (i) any compensation earned but not yet paid, including
and without limitation, any bonus if declared or earned but not yet paid for a
completed fiscal year, any amount of Base Salary earned but unpaid, any accrued
vacation pay payable pursuant to the Company's policies, and any unreimbursed
business expenses payable pursuant to Section 6 (collectively "Accrued
Amounts"), which amounts shall be promptly paid in a lump sum to Executive's
estate; (ii) any other amounts or benefits owing to the Executive under the then
applicable employee benefit plans, long term incentive plans or equity plans and
programs of the Company which shall be paid or treated in accordance with
Section 4(c) and (d) hereof with regard to the Option and the Restricted Stock
and otherwise in accordance with the terms of such plans and programs; (iii)
continuation of Executive's health benefits for Executive's dependents at the
same level and cost as if Executive was an employee of the Company for twelve
(12) months; and (iv) if a bonus plan is in place, the product of (x) the target
annual bonus for the fiscal year of Executive's death, multiplied by (y) a
fraction, the numerator of which is the number of days of the current fiscal
year during which Executive was employed by the Company, and the denominator of
which is 365, which bonus shall be paid when bonuses for such period are paid to
the other executives.
(b) Disability. If Executive's employment is terminated by reason of
Executive's Disability, Executive shall be entitled to receive the payments and
benefits to which his representatives would be entitled in the event of a
termination of employment by reason of his death plus, to the extent not
duplicative of the foregoing, Executive shall be entitled to continuation of the
benefits (including without limitation to health, life, disability and pension)
as if Executive had been an employee of the Company for twelve (12) months.
(c) Termination by Executive for Good Reason or Termination by the
Company without Cause. If (i) Executive terminates his employment hereunder for
Good Reason during the Employment Term or (ii) Executive's employment with the
Company is terminated by the Company without Cause, Executive shall be entitled
to receive, (A) over a period of twelve (12) months after such termination an
amount equal to two (2) times the sum of his Base Salary and target bonus, if
any, for the year in which such termination occurs (provided, however, in the
event that the Base Salary or target bonus, if any, has been decreased in the
6
twelve (12) months prior to the termination, the amount to be used shall be the
highest Base Salary and target bonus, if any, during such twelve (12) month
period); (B) any Accrued Amounts at the date of termination; (C) any other
amounts or benefits owing to Executive under the then applicable employee
benefit, long term incentive or equity plans and programs of the Company, which
shall be paid or treated in accordance with Section 4(c) and (d) hereof with
regard to the Option and the Restricted Stock and otherwise in accordance with
the terms of such plans and programs; (D) continuation of the benefits
(including without limitation to health, life, disability and pension) as if
Executive was an employee of the Company for twelve (12) months, provided that,
if such termination is after a Change in Control, the period of benefit
continuation shall be twenty-four (24) months; and (E) if a bonus plan is in
place, the product of (x) the target annual bonus for the fiscal year of
Executive's termination, multiplied by (y) a fraction, the numerator of which is
the number of days of the current fiscal year during which Executive was
employed by the Company, and the denominator of which is 365, which bonus shall
be paid when bonuses for such period are paid to the other executives.
(d) Termination with Cause or Voluntary Resignation without Good
Reason or Retirement. If, Executive's employment hereunder is terminated (i) by
the Company for Cause or (ii) by Executive without Good Reason, the Executive
shall be entitled to receive only his Base Salary through the date of
termination, and any unreimbursed business expenses payable pursuant to Section
6 and, if such termination is by Executive without Good Reason, any bonus that
has been declared or earned but not yet paid for a completed fiscal year.
Executive's rights under all benefits plans and equity grants shall be
determined in accordance with the Company's plans, programs and grants, except
as provided in Section 4(c) and (d) hereof with respect to the Option and the
Restricted Stock.
9. No Mitigation; No Set-Off. In the event of any termination of
employment hereunder, Executive shall be under no obligation to seek other
employment and there shall be no offset against any amounts due Executive under
this Agreement on account of any remuneration attributable to any subsequent
employment that Executive may obtain. The amounts payable hereunder shall not be
subject to setoff, counterclaim, recoupment, defense or other right which the
Company may have against the Executive or others, except upon obtaining by the
Company of a final unappealable judgment against Executive.
10. Change in Control. (a) For purposes of this Agreement, the term
"Change in Control" shall mean the occurrence of any one of the following
events:
(i) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing thirty-five percent (35%)
or more of the combined voting power of the Company's then outstanding voting
securities;
(ii) the following individuals cease for any reason to constitute a
majority of the number of directors then serving: individuals who, on the
Effective Date, constitute the Board and any new director (other than a director
whose initial assumption of office is in connection with an actual or threatened
election contest, including but not limited to a consent solicitation, relating
to the election of directors of the Company) whose appointment or election by
the Board or nomination for election by the Company's stockholders was approved
or recommended by a vote of the at least two-thirds (2/3) of the directors then
still in office who either were directors on the Effective Date or whose
appointment, election or nomination for election was previously so approved or
recommended;
(iii) there is a consummated merger or consolidation of the Company
or any direct or indirect subsidiary of the Company with any other corporation,
other than (A) a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving or
7
parent entity) more than fifty percent (50%) of the combined voting power of the
voting securities of the Company or such surviving or parent equity outstanding
immediately after such merger or consolidation or (B) a merger or consolidation
effected to implement a recapitalization of the Company (or similar transaction)
in which no Person, directly or indirectly, acquired twenty-five percent (25%)
or more of the combined voting power of the Company's then outstanding
securities (not including in the securities beneficially owned by such person
any securities acquired directly from the Company or its Affiliates); or
(iv) the stock holders of the Company approve a plan of complete
liquidation of the Company or there is consummated on agreement for the sale or
disposition by the Company of all or substantially all of the Company's assets
(or any transaction having a similar effect), other than a sale or disposition
by the Company of all or substantially all of the Company's assets to an entity,
at least fifty percent (50%) of the combined voting power of the voting
securities of which are owned by stockholders of the Company in substantially
the same proportions as their ownership of the Company immediately prior to such
sale.
(b) For purposes of this Section 10, the following terms shall have
the following meanings:
(i) "Affiliate" shall mean an affiliate of the Company, as
defined in Rule 12b-2 promulgated under Section 12 of the
Securities Exchange Act of 1934, as amended from time to time
(the "Exchange Act");
(ii) "Beneficial Owner" shall have the meaning set forth in
Rule 13d-3 under the Exchange Act;
(iii) "Person" shall have the meaning set forth in Section
3(a)(9) of the Exchange Act, as modified and used in Sections
13(d) and 14(d) thereof, except that such term shall not
include (1) the Company, (2) a trustee or other fiduciary
holding securities under an employee benefit plan of the
Company, (3) an underwriter temporarily holding securities
pursuant to an offering of such securities or (4) a
corporation owned, directly or indirectly, by the stockholders
of the Company in substantially the same proportions as their
ownership of shares of Common Stock of the Company.
11. Confidential Information. (a) Executive acknowledges that as a
result of his employment by the Company, Executive will obtain confidential
information as to the Company and its affiliates and the Company and its
affiliates will suffer substantial damage, which would be difficult to
ascertain, if Executive should use such confidential information and that
because of the nature of the information that will be known to Executive it is
necessary for the Company and its affiliates to be protected by the
Confidentiality restrictions set forth herein.
(b) During and for a period of five (5) years after the Employment
Term, Executive shall not use for his own benefit or disclose confidential
information, knowledge or data relating to the Company and its affiliates, and
their respective businesses, including any confidential information as to
customers of the Company and its affiliates obtained by Executive during his
employment by the Company and its affiliates and not (i) otherwise public
knowledge or known within the applicable industry or (ii) in connection with
performance of his duties hereunder as he deems in good faith to be necessary or
desirable. Executive shall not, without prior written consent of the Company,
unless compelled pursuant to the order of a court or other governmental or legal
body having jurisdiction over such matter, communicate or divulge any such
information, knowledge or data to anyone other than the Company and those
designated by it. In the event
8
Executive is compelled by order of a court or other governmental or legal body
to communicate or divulge any such information, knowledge or data to anyone
other than the foregoing, he shall promptly notify the Company of any such order
so it may seek a protective order.
(c) Upon termination of his employment with the Company and its
affiliates, or at any time as the Company may request, Executive will promptly
deliver to the Company, as requested, all documents (whether prepared by the
Company, an affiliate, Executive or a third party) relating to the Company, an
affiliate or any of their businesses or property which he may possess or have
under his direction or control other than documents provided to Executive in his
capacity as a participant in any employee benefit plan, policy or program of the
Company or any agreement by and between Executive and the Company with regard to
Executive's employment or severance.
(d) In the event of a breach or potential breach of this Section 11,
Executive acknowledges that the Company and its affiliates will be caused
irreparable injury and that money damages may not be an adequate remedy and
agree that the Company and its affiliates shall be entitled to injunctive relief
(in addition to its other remedies at law) to have the provisions of this
Section 11 enforced. It is hereby acknowledged that the provisions of this
Section 11 are for the benefit of the Company and all of the affiliates of the
Company and each such entity may enforce the provisions of this Section 11 and
only the applicable entity can waive the rights hereunder with respect to its
confidential information and employees.
12. Indemnification. The Company shall indemnify and hold harmless
Executive to the fullest extent permitted by law for any action or inaction of
Executive while serving as an officer and director of the Company or, at the
Company's request, as an officer or director of any other entity or as a
fiduciary of any benefit plan. The Company shall cover the Executive under
directors and officers liability insurance both during and, while potential
liability exists, after the Employment Term in the same amount and to the same
extent as the Company covers its other officers and directors.
13. Legal Fees.
(a) The Company shall pay the Executive's reasonable legal fees and
costs associated with entering into this Agreement.
(b) All disputes and controversies arising under or in connection
with this Agreement, other than the seeking of injunctive or other equitable
relief pursuant to Section 11 hereof, shall be settled by arbitration conducted
before a panel of three (3) arbitrators sitting in New York City, New York, or
such other location agreed by the parties hereto, in accordance with the rules
for expedited resolution of commercial disputes of the American Arbitration
Association then in effect. The determination of the majority of the arbitrators
shall be final and binding on the parties. Judgment may be entered on the award
of the arbitrator in any court having proper jurisdiction. All expenses of such
arbitration, including the fees and expenses of the counsel of the Executive,
shall be borne by the Company unless the arbitrators determine that Executive's
position was overall frivolous or otherwise taken in bad faith, in which case
the arbitrators may determine that Executive shall bear his own legal fees.
(c) In the event after a Change in Control either party files for
arbitration to resolve any dispute as to whether a termination is for Cause or
Good Reason, until such dispute is determined by the arbitrators, the Executive
shall continue to be treated economically and benefit wise in the manner
asserted by him in the arbitration effective as of the date of the filing of the
arbitration, subject to the Executive promptly refunding any amounts paid to
him, paying the cost of any benefits provided to him and paying to the Company
the profits in any stock option or other equity awards exercised or otherwise
realized by him during
9
the pendency of the arbitration which he is ultimately held not to be entitled
to; provided the arbitrators may terminate such payments and benefits in the
event that they determine at any point that the Executive is intentionally
delaying conclusion of the arbitration.
14. Non-Solicitation/Non-Disparagement. Commencing on the date of
Executive's cessation of employment with the Company and continuing for twelve
(12) months thereafter, (a) Executive shall not (whether for Executive's own
account or on behalf of any person, corporation, partnership, or other business
entity, and whether directly or indirectly) solicit or endeaver to entice away
from the Company or any subsidiary or affiliate, any employee or group of
employees thereof provided, however, that the general advertisement for
employees or the general solicitation of employees by a recruiter shall not be
deemed a violation of this Section 15(a) and (b) neither Executive nor the
Company shall publicly or with the intent to become public make any statements,
written or oral, which disparage or defame the goodwill or reputation of, in
Executive's case, the Company formally or, its directors or senior officers or,
in the Company's case, Executive.
15. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any payment, award, benefit or
distribution (or any acceleration of any payment, award, benefit or
distribution) by the Company (or any of its affiliated entities) or any entity
which effectuates a Change in Control (or any of its affiliated entities) to or
for the benefit of Executive (whether pursuant to the terms of this Agreement or
otherwise, but determined without regard to any additional payments required
under this Section 15) (the "Payments") would be subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code"), or any interest or penalties are incurred by Executive with respect to
such excise tax (such excise tax, together with any such interest and penalties,
are hereinafter collectively referred to as the "Excise Tax"), then the Company
shall pay to Executive an additional payment (a "Gross-Up Payment") in an amount
such that after payment by Executive of all taxes (including any Excise Tax)
imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up
Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y)
the product of any deductions disallowed because of the inclusion of the
Gross-up Payment in Executive's adjusted gross income and the highest applicable
marginal rate of federal income taxation for the calendar year in which the
Gross-up Payment is to be made. For purposes of determining the amount of the
Gross-up Payment, the Executive shall be deemed to (i) pay federal income taxes
at the highest marginal rates of federal income taxation for the calendar year
in which the Gross-up Payment is to be made, and (ii) pay applicable state and
local income taxes at the highest marginal rate of taxation for the calendar
year in which the Gross-up Payment is to be made, net of the maximum reduction
in federal income taxes which could be obtained from deduction of such state and
local taxes. Notwithstanding the foregoing provisions of this Section 15(a), if
it shall be determined that Executive is entitled to a Gross-Up Payment, but
that the Payments would not be subject to the Excise Tax if the Payments were
reduced by an amount that is less than 5% of the portion of the Payments that
would be treated as "parachute payments" under Section 280G of the Code, then
the amounts payable to Executive under this Agreement shall be reduced (but not
below zero) to the maximum amount that could be paid to Executive without giving
rise to the Excise Tax (the "Safe Harbor Cap"), and no Gross-Up Payment shall be
made to Executive. The reduction of the amounts payable hereunder, if
applicable, shall be made by reducing first the payments under Section 15,
unless an alternative method of reduction is elected by Executive. For purposes
of reducing the Payments to the Safe Harbor Cap, only amounts payable under this
Agreement (and no other Payments) shall be reduced. If the reduction of the
amounts payable hereunder would not result in a reduction of the Payments to the
Safe Harbor Cap, no amounts payable under this Agreement shall be reduced
pursuant to this provision.
10
(b) Subject to the provisions of Section 15(a), all determinations
required to be made under this Section 15, including whether and when a Gross-Up
Payment is required, the amount of such Gross-Up Payment, the reduction of the
Payments to the Safe Harbor Cap and the assumptions to be utilized in arriving
at such determinations, shall be made by the public accounting firm that is
retained by the Company as of the date immediately prior to the Change in
Control (the "Accounting Firm") which shall provide detailed supporting
calculations both to the Company and Executive within fifteen (15) business days
of the receipt of notice from the Company or the Executive that there has been a
Payment, or such earlier time as is requested by the Company (collectively, the
"Determination"). In the event that the Accounting Firm is serving as accountant
or auditor for the individual, entity or group effecting the Change in Control,
Executive may appoint another nationally recognized public accounting firm to
make the determinations required hereunder (which accounting firm shall then be
referred to as the Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by the Company and the Company shall enter
into any agreement requested by the Accounting Firm in connection with the
performance of the services hereunder. The Gross-up Payment under this Section
15 with respect to any Payments shall be made no later than thirty (30) days
following such Payment. If the Accounting Firm determines that no Excise Tax is
payable by Executive, it shall furnish Executive with a written opinion to such
effect, and to the effect that failure to report the Excise Tax, if any, on
Executive's applicable federal income tax return will not result in the
imposition of a negligence or similar penalty. In the event the Accounting Firm
determines that the Payments shall be reduced to the Safe Harbor Cap, it shall
furnish Executive with a written opinion to such effect. The Determination by
the Accounting Firm shall be binding upon the Company and Executive. As a result
of the uncertainty in the application of Section 4999 of the Code at the time of
the Determination, it is possible that Gross-up Payments which will not have
been made by the Company should have been made ("Underpayment") or Gross-up
Payments are made by the Company which should not have been made
("Overpayment"), consistent with the calculations required to be made hereunder.
In the event that the Executive thereafter is required to make payment of any
Excise Tax or additional Excise Tax, the Accounting Firm shall determine the
amount of the Underpayment that has occurred and any such Underpayment (together
with interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall
be promptly paid by the Company to or for the benefit of Executive. In the event
the amount of the Gross-up Payment exceeds the amount necessary to reimburse the
Executive for his Excise Tax, the Accounting Firm shall determine the amount of
the Overpayment that has been made and any such Overpayment (together with
interest at the rate provided in Section 1274(b)(2) of the Code) shall be
promptly paid by Executive (to the extent he has received a refund if the
applicable Excise Tax has been paid to the Internal Revenue Service) to or for
the benefit of the Company. Executive shall cooperate, to the extent his
expenses are reimbursed by the Company, with any reasonable requests by the
Company in connection with any contests or disputes with the Internal Revenue
Service in connection with the Excise Tax.
16. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware without reference to
principles of conflict of laws.
(b) Entire Agreement/Amendments. This Agreement and the instruments
contemplated herein, contain the entire understanding of the parties with
respect to the employment of Executive by the Company from and after the
Commencement Date and supersedes any prior agreements between the Company and
Executive. There are no restrictions, agreements, promises, warranties,
covenants or undertakings between the parties with respect to the subject matter
herein other than those expressly set forth herein and therein. This Agreement
may not be altered, modified, or amended except by written instrument signed by
the parties hereto.
(c) No Waiver. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party's rights or deprive such party of the
11
right thereafter to insist upon strict adherence to that term or any other term
of this Agreement. Any such waiver must be in writing and signed by Executive or
an authorized officer of the Company, as the case may be.
(d) Assignment. This Agreement shall not be assignable by Executive.
This Agreement shall be assignable by the Company only to an acquirer of all or
substantially all of the assets of the Company, provided such acquirer promptly
assumes all of the obligations hereunder of the Company in a writing delivered
to the Executive and otherwise complies with the provisions hereof with regard
to such assumption.
(e) Successors; Binding Agreement; Third Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees legatees and permitted assignees of the parties hereto.
(f) Communications. For the purpose of this Agreement, notices and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given (i) when faxed or delivered, or (ii) two
(2) business days after being mailed by United States registered or certified
mail, return receipt requested, postage prepaid, addressed to the respective
addresses set forth on the initial page of this Agreement, provided that all
notices to the Company shall be directed to the attention of the Secretary of
the Company, or to such other address as any party may have furnished to the
other in writing in accordance herewith. Notice of change of address shall be
effective only upon receipt.
(g) Withholding Taxes. The Company may withhold from any and all
amounts payable under this Agreement such Federal, state and local taxes as may
be required to be withheld pursuant to any applicable law or regulation.
(h) Survivorship. The respective rights and obligations of the
parties hereunder, including without limitation Section 11 hereof, shall survive
any termination of Executive's employment to the extent necessary to the agreed
preservation of such rights and obligations.
(i) Counterparts. This Agreement may be signed in counterparts, each
of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
(j) Headings. The headings of the sections contained in this
Agreement are for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement.
12
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
Xxxxxxxxx.xxx Incorporated
By:
---------------------------------------
Xxxxxxx Xxxxxxxx
Chairman of the Board
Xxxxxxxxx.xxx Incorporated
---------------------------------------
Xxxxxx Xxxx
13
