EXHIBIT 10.42(a)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
February 1, 2000 by and between PriceSmart, Inc., a Delaware corporation
("Employer"), and Xxxxxxx Xxxxxx, ("Executive").
RECITALS
A. Employer (through its wholly-owned subsidiary Ventures Services, Inc.)
currently employs and desires to continue to employ Executive as Senior Vice
President of Employer.
B. Executive desires to retain such position upon the terms and subject
to the conditions herein provided.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the foregoing premises and mutual
covenants and conditions hereinafter set forth, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
EMPLOYMENT AND DUTIES
1.1 POSITION AND DUTIES. Executive shall serve as Senior Vice President of
Employer. Executive shall have such duties and authority as are customary for,
and commensurate with, such position, and such other related duties and
authority as may from time to time be delegated or assigned to him by the Chief
Executive Officer or the Board of Directors of Employer. Executive shall
discharge his duties in a diligent and professional manner.
1.2 OUTSIDE BUSINESS ACTIVITIES PRECLUDED. During his employment,
Executive shall devote his full energies, interest, abilities and productive
time to the performance of this
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Agreement. Executive shall not, without the prior written consent of Employer,
perform other services of any kind or engage in any other business activity,
with or without compensation, that would interfere with the performance of his
duties under this Agreement. Executive shall not, without the prior written
consent of Employer, engage in any activity adverse to Employer's interests.
1.3 PLACE OF EMPLOYMENT. Unless the parties agree otherwise in writing,
during the Employment Term (as defined in Section 3.1 below) Executive shall
perform the services he is required to perform under this Agreement at
Employer's offices located in Miami, Florida; provided, however, that Employer
may from time to time require Executive to travel temporarily to other locations
on Employer's business.
ARTICLE II
COMPENSATION
2.1 SALARY. For Executive's services hereunder, Employer shall pay as base
salary to Executive the amount of $125,000 during each year of the Employment
Term. Said salary shall be payable in equal installments in conformity with
Employer's normal payroll period. Executive shall receive such salary increases,
if any, as Employer, in its sole discretion, shall determine.
2.2 BONUS. During the Employment Term Executive shall be entitled to
participate in Employer's Bonus Plan.
2.3 OTHER BENEFITS. Executive shall be entitled to participate in and
receive benefits under Employer's standard company benefits practices and plans
for officers of Employer, including medical insurance, long-term disability,
life insurance, profit sharing and retirement plan, and Employer's other plans,
subject to and on a basis consistent with the terms, conditions and overall
administration of such practices and plans. Employer may from time to time in
its sole discretion grant such additional compensation or benefits to Executive
as it deems proper and desirable.
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2.4 EXPENSES. During the term of his employment hereunder, Executive shall
be entitled to receive prompt reimbursement for all reasonable business-related
expenses incurred by him, in accordance with the policies and procedures from
time to time adopted by Employer, provided that Executive properly accounts for
such business expenses in accordance with Employer policy.
2.5 DEDUCTIONS AND WITHHOLDINGS. All amounts payable or which become
payable under any provision of this Agreement shall be subject to any deductions
authorized by Executive and any deductions and withholdings required by law.
ARTICLE III
TERM OF EMPLOYMENT
3.1 TERM. The term of Executive's employment hereunder shall commence on
February 1, 2000 and shall continue until March 31, 2001 unless sooner
terminated or extended as hereinafter provided (the "Employment Term").
3.2 EXTENSION OF TERM. The Employment Term may be extended by written
amendment to this Agreement signed by both parties.
3.3 EARLY TERMINATION BY EXECUTIVE. Executive may terminate this Agreement
at any time by giving Employer written notice of his resignation ninety (90)
days in advance; provided, however, that the Employer may determine upon receipt
of such notice that the effective date of such resignation shall be immediate or
some time prior to the expiration of the ninety day notice period. Executive's
employment shall terminate as of the effective date of his resignation as
determined by Employer.
3.4 TERMINATION FOR CAUSE. Prior to the expiration of the Employment Term,
Executive's employment may be terminated for Cause by Employer, immediately upon
delivery of notice thereof. For these purposes, termination for "Cause" shall
mean termination because of Executive's (a) repeated and habitual failure to
perform his duties or obligations hereunder; (b) engaging in any act that has a
direct, substantial and adverse effect on Employer's
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interests; (c) personal dishonesty, willful misconduct, or breach of fiduciary
duty involving personal profit; (d) intentional failure to perform his stated
duties; (e) willful violation of any law, rule or regulation which materially
adversely affects his ability to discharge his duties or has a direct,
substantial and adverse effect on Employer's interests; (f) any material breach
of this contract by Executive; or (g) conduct authorizing termination under Cal.
Labor Code ss. 2924.
3.5 TERMINATION DUE TO DEATH OR DISABILITY. Executive's employment
hereunder shall terminate immediately upon his death. In the event that by
reason of injury, illness or other physical or mental impairment Executive shall
be: (a) completely unable to perform his services hereunder for more than three
(3) consecutive months, or (b) unable to perform his services hereunder for
fifty percent (50%) or more of the normal working days throughout six (6)
consecutive months, then Employer may terminate Executive's employment hereunder
immediately upon delivery of notice thereof. Executive's beneficiaries, estate,
heirs, representatives, or assigns, as appropriate, shall be entitled to the
proceeds, if any, due under any Employer-paid life insurance policy held by
Executive, as determined by and in accordance with the terms of any such policy,
as well as any vested benefits and accrued vacation benefits.
ARTICLE IV
BENEFITS AFTER TERMINATION OF EMPLOYMENT
4.1 BENEFITS UPON TERMINATION. Upon termination of this Agreement under
Section 3.3 (Early Termination by Executive), Section 3.4 (Termination for
Cause) or Section 3.5 (Termination Due to Death or Disability), all salary and
benefits of Executive hereunder shall cease immediately. Upon termination of
this Agreement by Employer for any reason other than those set forth in Section
3.4 or Section 3.5, Executive shall be entitled to the continuation of
Executive's base salary for one (1) year, payable in equal installments in
conformity with Employer's normal payroll period. If this Agreement is not
terminated, then, upon expiration of the Employment Term, and if Executive's
employment by Employer does not thereafter continue upon mutually agreeable
terms, Executive shall be entitled to continuation of
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Executive's base salary for one (1) year, payable in equal installments in
conformity with Employer's normal payroll period; provided, however, that
Employer's obligation to pay such installments after expiration of the
Employment Term shall be reduced by the amount of employment compensation (if
any) received by Executive from a subsequent employer of Executive during said
one (1) year. During the period of this severance pay, Executive shall cooperate
with Employer in providing for the orderly transition of Executive's duties and
responsibilities to other individuals, as reasonably request by Employer.
4.2 RIGHTS AGAINST EMPLOYER. The benefits payable under this Article IV
are exclusive, and no amount shall become payable to any person (including the
Executive) by reason of termination of employment for any reason, with or
without Cause, except as provided in this Article IV. Employer shall not be
obligated to segregate any of its assets or procure any investment in order to
fund the benefits payable under this Article IV.
ARTICLE V
CONFIDENTIAL INFORMATION
5.1 Executive acknowledges that Employer holds as confidential, and
Executive may have access to during the Employment Term, certain information and
knowledge respecting the intimate and confidential affairs of Employer in the
various phases of its business, including, but not limited to, trade secrets,
data and know-how, improvements, inventions, techniques, marketing plans,
strategies, forecasts, pricing information, and customer lists. During his
employment by Employer and thereafter, Executive shall not directly or
indirectly disclose such information to any person or use any such information,
except as required in the course of his employment during the Employment Term.
All records, files, keys, documents, and the like relating to Employer's
business, which Executive shall prepare, copy or use, or come into contact with,
shall be and remain Employer's sole property, shall not be removed from
Employer's premises without its written consent, and shall be returned to
Employer upon the termination of this Agreement.
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ARTICLE VI
GENERAL PROVISIONS
6.1 ENTIRE AGREEMENT. This Agreement contains the entire understanding and
sole and entire agreement between the parties with respect to the subject matter
hereof, and supersedes any and all prior agreements, negotiations and
discussions between the parties hereto with respect to the subject matter
covered hereby. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, oral or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are not
embodied herein, and that no other agreement, statement or promise not contained
in this Agreement shall be valid or binding. This Agreement may not be modified
or amended by oral agreement, but rather only by an agreement in writing signed
by Employer and by Executive which specifically states the intent of the parties
to amend this Agreement.
6.2 ASSIGNMENT AND BINDING EFFECT. Neither this Agreement nor the rights
or obligations hereunder shall be assignable by Executive. Employer may assign
this Agreement to any successor or affiliate of Employer, and upon such
assignment any such successor or affiliate shall be deemed substituted for
Employer upon the terms and subject to the conditions hereof. In the event of
any merger of Employer or the transfer of all (or substantially all) of
Employer's assets, the provisions of this Agreement shall be binding upon, and
inure to the benefit of, the surviving business entity or the business entity to
which such assets shall be transferred.
6.3 ARBITRATION. The parties hereto agree that any and all disputes
(contract, tort, or statutory, whether under federal, state or local law)
between Executive and Employer (including Employer's employees, officers,
directors, stockholders, members, managers and representatives) arising out of
Executive's employment with Employer, the termination of that employment, or
this Agreement, shall be submitted to final and binding arbitration. Such
arbitration shall take place in the County of San Diego, and may be compelled
and enforced
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according to the California Arbitration Act (Code of Civil Procedure xx.xx. 1280
ET SEQ.). Unless the parties mutually agree otherwise, such arbitration shall be
conducted before the American Arbitration Association, according to its
Commercial Arbitration Rules. Judgment on the award the arbitrator renders may
be entered in any court having jurisdiction over the parties. Arbitration shall
be initiated in accordance with the Commercial Arbitration Rules of the American
Arbitration Association.
6.4 NO WAIVER. No waiver of any term, provision or condition of this
Agreement, whether by conduct or otherwise, in any one or more instances shall
be deemed or be construed as a further or continuing waiver of any such term,
provision or condition, or as a waiver of any other term, provision or condition
of this Agreement.
6.5 GOVERNING LAW; RULES OF CONSTRUCTION. This Agreement has been
negotiated and executed in, and shall be governed by and construed in accordance
with the laws of, the State of California. Captions of the several Articles and
Sections of this Agreement are for convenience of reference only, and shall not
be considered or referred to in resolving questions of interpretation with
respect to this Agreement.
6.6 NOTICES. Any notice, request, demand or other communication required
or permitted hereunder shall be deemed to be properly given when personally
served in writing, or when deposited in the United States mail, postage
pre-paid, addressed to Employer or Executive at his last known address. Each
party may change its address by written notice in accordance with this Section.
Address for Employer:
PriceSmart, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxx Xxxxx, XX. 00000
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Address for Executive:
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6.7 SEVERABILITY. The provisions of this Agreement are severable. If any
provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provisions or
enforceable parts hereof shall not be affected thereby and shall be enforced to
the fullest extent permitted by law.
6.8 ATTORNEYS' FEES. In the event of any arbitration or litigation brought
to enforce or interpret any part of this Agreement, the prevailing party shall
be entitled to recover reasonable attorneys' fees, as well as all other
litigation costs and expenses as an element of damages.
6.9 FOREIGN ASSIGNMENT AGREEMENT. This Agreement supercedes and replaces
the Foreign Assignment Agreement dated April 17, 1998 and the First Amendment to
Foreign Assignment Agreement dated March 31, 1999, between Executive and
Ventures Services, Inc., a wholly-owned subsidiary of Employer.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the, parties hereto as of the date first above written.
EMPLOYER EXECUTIVE
PRICESMART, INC. Name: ____________________
Xxxxxxx Xxxxxx
By: _________________________
Name:________________________
Title: ______________________
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