EMPLOYMENT AGREEMENT
EXHIBIT 10.12
This Employment Agreement (this “Agreement”) is entered into as of September 24, 2002, by and between The Nautilus Group, Inc., a Washington corporation (the “Company” or “Employer”), and Xxxxxxx Xxxxxx (“Employee”). In consideration of the premises and the mutual covenants and agreements hereinafter set forth, the Company and Employee hereby agree as follows:
1. Employment. Employee is being hired as Vice President of Information Technology. Employee shall (a) devote his/her professional entire time, attention, and energies to his/her position, (b) use his/her best efforts to promote the interests of Employer; (c) perform faithfully and efficiently his/her responsibilities and duties, and (d) refrain from any endeavor outside of his/her employment which interferes with his/her ability to perform his/her obligations hereunder. Employee shall initially report to the President of the Direct Division, and/or such other persons as may be designated by Employer, and perform his/her job duties subject to his/her general supervision, orders, advice and direction. Employee shall perform the duties normally associated with the position and/or such duties as delegated and assigned by the Company. Subject to the provisions of Section 7(b) herein, the Company retains the sole discretion to change Employee’s position and/or duties as it deems appropriate.
Employee additionally agrees to abide by any general employment guidelines or policies adopted by Employer such as those detailed in an employer’s handbook, as such guidelines or policies may be implemented and/or amended from time to time.
2. Salary. As compensation for services to be rendered hereunder, the Company shall pay Employee an initial annual salary in the gross amount of one hundred, ninety-five thousand dollars ($195,000). Said salary will be paid in accordance with the Company’s existing payroll policies, and shall be subject to normal and/or authorized deductions and withholdings. At the sole discretion of the Company, Employee may also be granted bonuses and/or options to purchase Employer’s stock from time to time. The amount of such bonus (if any) is determined at the discretion of The Nautilus Group.
Employee will receive an annual bonus of $45,000.00 at completion of one-year of employment. Or, Employee may receive relocation payment of $22,500 at the time of the sale of Bellevue residence and an additional $22,500.00 at the time of a new purchase of residence within 50-miles of The Nautilus Group, Inc. in Vancouver, WA. Employee may also receive up to $10,000.00 bonus upon successful completion of Dot-Corp before 2003 as defined by utilizing IP (Epiphanies Interaction Platform) in the call center for Bowflex.
3. Stock Options. Pursuant to the Company’s current Stock Option Plan (the “Plan”), the Company shall recommend that Employee receive options (“Options”) to purchase 10,000 shares of Employer’s stock. The terms of any option grant shall be governed by the Plan and a Stock Option Agreement (the “Option Agreement”). Employee acknowledges that any stock options granted do not, and will not, constitute wages or compensation. Unless otherwise provided in the Plan or required by law, the Board of Directors of Employer shall have sole discretion regarding the grant of options, price of options, the vesting schedule and all other terms and conditions of the option grant.
4. Expenses. The Company will reimburse Employee for all necessary and reasonable travel, entertainment and other business expenses incurred by him in the performance of his/her duties hereunder, upon receipt of signed itemized lists of such expenditures with appropriate back-up documentation, and/or in accordance with such other reasonable procedures as the Company may adopt generally from time to time.
5. Health and Welfare Benefits. Upon satisfaction of eligibility criteria, the Employee shall be eligible to receive employee benefits, if any, generally provided to its employees by Employer, including, if provided, medical insurance, paid-time off. Such benefits may be amended or discontinued by Employer at any time.
The company will honor four weeks of paid-time off (PTO), upon commencement of employment and each year thereafter. If you shall end your employment prior to your one-year anniversary any accrued PTO not taken will not be reimbursed upon termination.
You will be expected to relocate to the Vancouver, Washington geographic area before September 2003. The company will reimburse for allowable moving expenses as described under IRS publication 521 upon agreement of reviewing at least three different relocation proposals. If you shall terminate your employment or if your employment is terminated for cause prior to your one-year anniversary, you will owe The Nautilus Group, Inc. any reimbursed amount. Employee will also receive monthly payments for corporate housing at actual cost not to exceed $1,500.00 per month for a period not to exceed ten months. This will be payable on the first payroll check date of each month beginning on October 4, 2002.
6. Termination. The parties acknowledge that Employee’s employment with the Company is “at-will” and may be terminated by either party with or without cause. No one other than the President of the Company or the Board of Directors has the power to change the at-will character of the employment relationship. As discussed below, however, the various possible ways in which Employee’s employment with the Company may be terminated will determine the payments that may be due to Employee under this Agreement. As used in this Agreement, the following terms have the following meanings:
(a) Cause. As used in this Agreement, Cause means (i) Employee’s indictment or conviction in a court of law for any crime or offense that in Employer’s reasonable judgment makes Employee unfit for continued employment, prevents Employee from performing Employee’s duties or other obligations or adversely affects the reputation of Employer; (ii) dishonesty by Employee related to his/her employment; (iii) violation of a key Employer policy or this Agreement by Employee (including, but not limited to, acts of harassment or discrimination, use of unlawful drugs or drunkenness on Employer’s premises during normal work hours); (iv) insubordination (i.e. conduct such as refusal to follow direct orders of the President or other individuals(s) to whom Employee reports; (v) dereliction of duty by Employee (e.g., failure to perform minimum duties after warning) and reasonable opportunity to correct; (vi) Employee’s competition with Employer, diversion of any corporate opportunity or other similarly serious conflict of interest or self-dealing incurring to Employee’s direct or indirect
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benefit and Employer’s detriment; (vii) intentional or grossly negligent conduct by Employee that is significantly injurious to Employer or its affiliates; (viii) Employee’s failure to meet the minimum goals of his position if such are provided in writing to Employee, and as such goals may be amended from time to time; and (ix) Employee’s death or disability (i.e., Employee’s inability to perform the essential job functions of the position with or without a reasonable accommodation).
(b) Good Reason. Good Reason shall mean a substantial diminution of employees’ job responsibilities, salary or overall benefits by Employer or a greater than 50 mile change in Employee’s primary place of employment (without the Employee’s consent), whether by Employer or any successor in interest to Employer. No event shall constitute “Good Reason” unless the Employee shall have notified the Company in writing of the conduct allegedly constituting Good Reason and the Company shall have failed to correct such conduct within thirty (30) days of the date of its receipt of such written notice from the Employee. Moreover, unless Employee shall have notified the Company of the conduct allegedly constituting Good Reason within six months of the first occurrence of such conduct, then Employee shall have waived his right to claim that such conduct constitutes “Good Reason” under this Agreement.
(c) At-Will. At-will termination shall mean a termination by the Company where it does not seek to establish Cause or by Employee without Good Reason. If the Company exercises its right to terminate Employee without Cause, it shall provide the Employee with 120-days prior written notice of the termination of his/her employment (Notice of Termination), provided however, that at the Company’s sole discretion, it may immediately relieve Employee from all duties and responsibilities during the Notice Period. After receiving Notice of Termination, the Employee must continue to perform all duties and responsibilities, unless such duties are removed. If the Company exercises its option to relieve Employee of duties after the Company has provided Notice of Termination, then the Company shall continue to provide Employee with the basic benefits generally applicable to the Company’s employees and base salary during the Notice Period. If Employee exercises his/her right to terminate his/her employment without Good Reason, the Employee agrees to provide the Company with 90-days’ prior written notice of the termination of his employment (Notice of Termination). After receiving such Notice from the Employee, the Company retains the right to accept Employee’s resignation, and hence, terminate the employment relationship without the need for further payments, at an earlier date than provided in the Employee’s Notice of Termination.
7. Severance Upon Termination.
(a) Upon termination of Employee’s employment under this Agreement by the Company without Cause or by Employee for Good Reason (as defined hereunder), then, in lieu of any further salary, bonus, or other payments for periods subsequent to the Date of Termination, the Company shall pay to the Employee severance equal to 120-days average monthly annual base salary1 less amounts earned by Employee from substantially equivalent subsequent employment or work as an independent contractor (“Subsequent Employment”)
| 1 | The average annual monthly base salary shall be calculated using the average of the cash compensation received by Employee in the twelve months prior to the Date of Termination. |
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Employee covenants that, upon termination of his/her employment during the term of this agreement by the Company without Cause or by Employee for Good Reason (as defined hereunder), he/she will exercise his/her best efforts to find and remain engaged in Subsequent Employment. Such severance payment shall be made according to the Company’s normal payroll process spread out equally over the severance period. Violation of this Agreement or the Business Protection Agreement and/or failure to sign the Release and Waiver Agreement shall immediately relieve the Company from its payment obligation under this paragraph and entitle it to recover any amounts paid under this paragraph.
(b) If the Company terminates the Employee’s employment during the term of this Agreement for Cause or if the Employee terminates his/her employment other than for Good Reason, then the Company shall have no further payment obligations to Employee.
(c) Except as it relates to the receipt of severance (which shall be solely granted under the terms of this Agreement), this Agreement shall not affect any payments due to Employee under applicable law as a result of the termination of his/her employment (such as payment of earned wages).
8. Return of Documents. Employee understands and agrees that all equipment, records, files, manuals, forms, materials, supplies, computer programs, and other materials furnished to the Employee by Employer or used on Employer’s behalf, or generated or obtained during the course of his/her employment shall remain the property of Employer. Upon termination of this Agreement or at any other time upon the Company’s request, Employee agrees to return all documents and property belonging to the Company in his/her possession including, but not limited to, customer lists, contracts, agreements, licenses, business plans, equipment, software, software programs, products, work-in-progress, source code, object code, computer disks, Confidential Information, books, notes and all copies thereof, whether in written, electronic or other form. In addition, Employee shall certify to the Company in writing as of the effective date of termination that none of the assets or business records belonging to the Company is in his/her possession, remain under his control, or have been transferred to any third person.
9. Confidential Information/Non-Competition. By virtue of his/her employment, Employee will have access to confidential, proprietary and trade secret information, the ownership and protection of which is very important to the Company. Employee hereby agrees to enter into a Business Protection Agreement with the Company concurrent with his/her entry into this Agreement. The Business Protection Agreement is attached as Exhibit A hereto.
10. Release of Claims. As a precondition to receipt of the severance provided in Section 7(a) of this Agreement, Employee acknowledges and understands that he/she must sign a Waiver and Release of Claims Agreement. Such Agreement shall be substantially similar to the Agreement attached as Exhibit B. Employee understands that he/she will not be entitled to receive any payments under this Agreement until he/she executes and delivers the Waiver and Release of Claims Agreement, and the revocation period set forth in the Waiver and Release of Claims Agreement has run.
11. Assignment. This Agreement is personal, and is being entered into based upon the singular skill, qualifications and experience of Employee. Employee shall not assign this
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Agreement or any rights hereunder without the express written consent of Employer which may be withheld with or without reason. This Agreement will bind and benefit any successor of the Employer, whether by merger, sale of assets, reorganization or other form of business acquisition, disposition or business reorganization.
12. Notices. Any Notice of Termination or notice of good reason shall be in writing and shall be deemed to have been given or submitted (i) upon actual receipt if delivered in person or by facsimile transmission with confirmation of transmission, (ii) upon the earlier of actual receipt or the expiration of two (2) business days after sending by express courier (such as U.P.S. or Federal Express), and (iii) upon the earlier of actual receipt or the expiration of seven (7) business days after mailing if sent by registered or certified mail, postage prepaid, to the parties at the following addresses:
| To the Company: | The Nautilus Group, Inc. 0000 XX 000xx Xxxxxx Xxxxxxxxx, XX 00000 Attention: Human Resources | |
| With a Copy to: | Xxxxxx, Xxxxxxxx & Xxxxx 0000 Xxxxxx Xxxxxx, 00xx Xxxxx Xxxxxxx, XX 00000-0000 Attention: Xxxx X. Xxxxxxx | |
| To Employee: | Xxxxxxx Xxxxxx 00000 XX 00xx Xxxxxx Xxxxxxxx, XX 00000; or last address Shown on the records of the Company | |
Employee shall be responsible for providing the Company with a current address. Either party may change its address (and facsimile number) for purposes of notices under this Agreement by providing notice to the other party in the manner set forth above within ten business days.
13. Effect of Waiver. The waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach hereof. No waiver shall be valid unless in writing.
14. Entire Agreement. This Agreement, along with the Business Protection Agreement attached as Exhibit A, sets forth the entire agreement of the parties hereto and supersedes any and all prior agreements and understandings concerning Employee’s employment by the Company. This Agreement may be changed only by a written document signed by Employee and the Company.
15. Governing Law/Jurisdiction/Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the substantive and procedural laws of the State of Washington without regard to rules governing conflicts of law. For all disputes under this Agreement, the parties agree that any suit or action between them shall be instituted and commenced exclusively in the state courts in Xxxxx County or King County Washington (U.S.A)
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or the United States District Court for the Western District of Washington, sitting in Seattle, Washington. Both parties waive the right to change such venue and hereby consent to the jurisdiction of such courts for all potential claims under this Agreement.
16. Acknowledgment. The Employee acknowledges that he/she has read and understands this Agreement, that he has had the opportunity to consult with an attorney regarding the terms and conditions hereof, and that he/she accepts and signs this Agreement as his/her own free act and in full and complete understanding of its present and future legal effect.
Employee understands that this offer is contingent upon Employee satisfying the Company’s standard reference/background check. The reference/background check varies depending on the position, but may include such items as a reference check, a background check, and/or a drug test.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
Employer: THE NAUTILUS GROUP, INC.
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