Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of April 30, 2000, between The Derby Cycle
Corporation, a Delaware corporation (the "Company"), and Xxxxx Xxxxxx
("Executive").
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment. The Company shall employ Executive, and Executive
hereby accepts employment with the Company, upon the terms and conditions set
forth in this Agreement for the period beginning on the date hereof and ending
as provided in paragraph 4 hereof (the "Employment Period").
2. Position and Duties.
(a) During the Employment Period, Executive shall serve as the Global
Sourcing Vice President of the Company and shall have the duties and
responsibilities set forth in Exhibit A attached hereto and such other normal
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duties, responsibilities and authority of the Global Sourcing Vice President,
subject to the power of the Company's President and the Company's board of
directors ("Board") to expand or limit such duties, responsibilities and
authority and to override actions of officers of the Company.
(b) During the Employment Period, Executive shall report to the
Company's President and shall devote her best efforts and her full business time
and attention (except for permitted vacation periods and reasonable periods of
illness or other incapacity) to the business and affairs of the Company and its
subsidiaries. Executive shall perform her duties and responsibilities to the
Company and its subsidiaries hereunder to the best of her abilities in a
diligent, trustworthy, businesslike and efficient manner. The Executive and the
Company hereby agree that the Executive's principal office will be located in
the Stamford, Connecticut area.
3. Compensation and Benefits.
(a) During the Employment Period, Executive's base salary shall be
$225,000 per annum or such higher rate as the Company's President and the Board
may designate from time to time (the "Base Salary"), which salary shall be
payable in regular installments in accordance with the Company's general payroll
practices. In addition, during the Employment Period, Executive shall be
entitled to participate in all of the Company's employee benefit programs
(including medical, pension and life insurance) for which senior executive
employees of the Company are generally eligible, and Executive shall be entitled
to three weeks of paid vacation each year, which if not taken during any year
may not be carried forward to any subsequent year. Such vacation shall be taken
at such time or times as the Company's President approves in advance.
(b) For each calendar year during the Employment Period, beginning
with calendar year 2000, the Company shall pay to the Executive a bonus equal to
thirty-five percent
(35%) of her Base Salary based upon the achievement of financial targets for the
Company for such fiscal year, with such financial targets to be determined by
the Board; provided that, at the discretion of the President and the Board, a
lower bonus may be paid if such financial targets are not met and a higher bonus
may be paid if such financial targets are exceeded. Executive shall also be
eligible for a discretionary bonus, with the grant and amount of such bonus, if
any, to be at the sole discretion of the Company's President and Board.
(c) During the Employment Period, the Company shall reimburse
Executive for all reasonable expenses incurred by her in the course of
performing her duties and responsibilities under this Agreement which are
consistent with the Company's policies in effect from time to time with respect
to travel, entertainment and other business expenses, subject to the Company's
requirements with respect to reporting and documentation of such expenses.
(d) In connection with Executive's relocation to the Stamford,
Connecticut area, Executive shall be reimbursed for her reasonable relocation
expenses, including real estate agent fees for selling her current residence,
moving expenses, legal fees associated with the closing on a new property in the
Stamford, Connecticut area and reasonable house hunting expenses, including
reasonable temporary housing expenses, if required.
4. Termination.
(a) The Employment Period shall continue until Executive's
resignation, death or disability or other incapacity (as determined by the Board
in its good faith judgment) or until the Board determines in its good faith
judgment that termination of Executive's employment is in the best interests of
the Company (the "Termination Date"); provided that, the Executive hereby agrees
not to resign from the Company and the Company hereby agrees not to terminate
the Executive's employment without Cause until and unless the party terminating
such employment provides to the other nine months prior written notice. The
Company may (in its absolute discretion at any time after notice of termination
has been given under this paragraph 4(a)) pay the Executive her remuneration due
under this Agreement for and in lieu of any unexpired period of notice, in which
event this Agreement and the Executive's employment with the Company shall
terminate with immediate effect from the date upon which such payment is made.
(b) Except as otherwise expressly provided herein, all of Executive's
rights to salary, bonuses, fringe benefits and other compensation hereunder
which accrue or become payable after the termination or expiration of the
Employment Period shall cease upon such termination or expiration. The Company
may offset any amounts Executive owes it or its subsidiaries against any amounts
it owes Executive hereunder.
(c) For purposes of this Agreement, "Cause" shall mean (i) the
commission of a felony or other crime involving moral turpitude or the
commission of any other act or omission involving dishonesty, disloyalty or
fraud with respect to the Company or any of its subsidiaries or any of their
customers or suppliers, (ii) chronic drug or alcohol abuse or other repeated
conduct causing the Company or any of its subsidiaries substantial public
disgrace or disrepute or economic harm, (iii) substantial and repeated failure
to perform duties as reasonably directed by the Board or the Company's
President, (iv) gross negligence or willful misconduct with respect to the
Company or any of its subsidiaries or (v) any other material breach of this
Agreement.
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5. Confidential Information. Executive acknowledges that the
information, observations and data (including trade secrets) obtained by her
while employed by the Company and its subsidiaries concerning the business or
affairs of the Company, and its subsidiaries ("Confidential Information") are
the property of the Company or such subsidiaries. Therefore, Executive agrees
that she shall not disclose to any unauthorized person or use for her own
purposes any Confidential Information without the prior written consent of the
Board.
6. Non-Compete, Non-Solicitation.
(a) In further consideration of the compensation to be paid to
Executive hereunder, Executive acknowledges that in the course of her employment
with the Company and its subsidiaries she shall become familiar with the
Company's trade secrets and with other Confidential Information concerning the
Company and its subsidiaries and that her services shall be of special, unique
and extraordinary value to the Company and its subsidiaries. Therefore,
Executive agrees that, during the Employment Period and for one year thereafter
(the "Noncompete Period"), she shall not directly or indirectly own any interest
in, manage, control, participate in, consult with, render services for, or in
any manner engage in any business competing with the businesses of the Company
or its subsidiaries, as such businesses exist, within any geographical area in
which the Company or its subsidiaries engage in such businesses.
(b) During the Noncompete Period, Executive shall not directly or
indirectly through another entity (i) induce or attempt to induce any employee
of the Company or any of its subsidiaries to leave the employ of the Company or
such subsidiary, or in any way interfere with the relationship between the
Company or any of its subsidiary and any employee thereof, (ii) hire any person
who was an employee of the Company or any of its subsidiary at any time during
the Employment Period or (iii) induce or attempt to induce any customer,
supplier, licensee, licensor, franchisee or other business relation of the
Company or any of its subsidiary to cease doing business with the Company or
such subsidiary, or in any way interfere with the relationship between any such
customer, supplier, licensee or business relation and the Company or any of its
subsidiary (including, without limitation, making any negative or disparaging
statements or communications regarding the Company or its subsidiaries).
(c) If, at the time of enforcement of paragraphs 5 or 6 of this
Agreement, a court holds that the restrictions stated herein are unreasonable
under circumstances then existing, the parties hereto agree that the maximum
period, scope or geographical area reasonable under such circumstances shall be
substituted for the stated period, scope or area. In the event a breach or
threatened breach of this Agreement, the Company or its successors or assigns,
in addition to other rights and remedies existing in their favor, shall be
entitled to specific performance and/or injunctive or other equitable relief
from a court of competent jurisdiction in order to enforce, or prevent any
violations of, the provisions hereof (without posting a bond or other security).
7. Executive's Representations. Executive hereby represents and
warrants to the Company that (i) the execution, delivery and performance of this
Agreement by Executive do not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which she is bound, (ii) Executive is
not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity and (iii) upon the
execution and delivery
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of this Agreement by the Company, this Agreement shall be the valid and binding
obligation of Executive, enforceable in accordance with its terms. Executive
hereby acknowledges and represents that she has consulted with independent legal
counsel regarding her rights and obligations under this Agreement and that she
fully understands the terms and conditions contained herein.
8. Complete Agreement. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way
(including, without limitation, the Letter Agreement between the parties hereto,
dated on or about November 19, 1999), but excluding any breaches thereof by
either party prior to the date hereof.
9. Governing Law. The validity, construction, interpretation,
administration and effect of this Agreement shall be governed, construed and
interpreted under the laws of the state of New York without giving any effect to
any choice of law rules of any state.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
THE DERBY CYCLE CORPORATION
/s/ Xxxx X. Xxxxxxxx
By:____________________________________
Chief Executive Officer
Its:___________________________________
/s/ Xxxxx X. Xxxxxx
_______________________________________
XXXXX XXXXXX
