EXHIBIT 10.23
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") by and between Gateway, Inc., a
Delaware corporation, (the "Company") and Xxxx X. Xxxx (the "Executive") is made
as of August 1, 2000.
1. EMPLOYMENT PERIOD; COORDINATION WITH CHANGE OF CONTROL COMPENSATION
AGREEMENT.
(a) The Company hereby agrees to employ the Executive, and the
Executive hereby accepts such employment, pursuant to the terms and conditions
set forth in this Agreement, for a period commencing August 1, 2000 (the
"Commencement Date") and ending July 31, 2004, unless terminated earlier as
provided herein (the "Initial Employment Period"), provided that the Initial
Employment Period shall be automatically extended for successive one (1) year
periods ("Additional Periods") unless terminated earlier as provided herein or a
party gives written notice to the other party of non-extension at least ninety
(90) days prior to the end of the Initial Employment Period or the then
Additional Period. A notice of non-extension by the Company shall be deemed a
Termination without Cause as of the end of the then Initial Employment Period or
Additional Period or such earlier date after notice as the Executive shall
elect. The period of Executive's actual employment hereunder after the
Commencement Date shall be referred to herein as the "Employment Period."
(b) On or about the date hereof, Executive and the Company have
entered or will enter into a Change of Control Compensation Agreement
substantially in the form attached hereto as Exhibit "A" (the "Change of Control
Agreement"). This Agreement and the Change of Control Agreement shall each
remain in effect in accordance with their respective terms, provided, however,
that:
(i) If a Change of Control (as defined in the Change of Control
Agreement) shall occur during the Employment Period and at a time when the
Change of Control Agreement is in effect, then, (A) during the remaining Term
(as defined therein) of the Change of Control Agreement, the terms "Cause" and
"Good Reason" and "Disability" as used in this Agreement shall have the meanings
assigned to such terms in the Change of Control Agreement, (B) Sections 6(a) and
6(c) of this Agreement and the third and fourth sentences of Section 5(b) of
this Agreement shall not apply to any termination of Executive's employment
occurring during the remaining Term of the Change of Control Agreement, and (C)
the second sentence of Section 6(b) of this Agreement shall not apply to options
and other equity awards to which Section 6.1 (C) of the change of Control
Agreement applies; and
(ii) If a Pre-Change of Control Entitlement Event (as defined in the
Change of Control Agreement) shall occur during the Employment Period and at a
time when the Change of Control is in effect, then (A) Executive shall not be
entitled to benefits under Section 6(a) of this Agreement and (B) Sections 5(b)
and Section 6(b) of this Agreement shall be of no force or effect (it being
understood and agreed that any termination of Executive's employment that would
qualify as both a Pre-Change of Control Entitlement Event (for purposes of the
Change of Control Agreement) and a termination of Executive's employment for
"Cause" or without "Good Reason" (each as defined in this Agreement) shall be
treated solely as a Pre-Change of Control Entitlement Event).
2. POSITION AND DUTIES.
(a) During the Employment Period, the Executive shall be employed as
Senior Vice President, Chief Financial Officer.
(b) The Executive shall devote his full business time, attention and
best efforts to his duties and responsibilities hereunder and shall comply with
the Company's written rules and policies including, without limitation, the
Company's Code of Ethics and Non-Harassment policy. It shall not be a violation
of this Section for the Executive to (i) manage his personal investments, (ii)
be involved in charitable, civic and professional activities, (iii) serve on for
profit corporate or corporate advisory boards or committees approved by the
President and Chief Executive Officer, or (iv) deliver lectures or fulfill
speaking engagements, provided that the activities referred to in subparts (i)
through (iv) do not interfere with the performance of the Executive's
responsibilities as an employee of the Company or violate the Company's written
rules and policies. In the event the President and Chief Executive Officer of
the Company notifies Executive in writing that any such activity presents a
conflict, or an appearance of a conflict, of interest with the Company, or
violates the Company's written rules and policies, the Executive shall cease the
activity as soon as reasonably practicable.
3. SALARY, BONUS AND BENEFITS.
(a) BASE SALARY. During the Employment Period, the Executive shall
receive an annual base salary of at least $425,000 (as increased from time to
time, "Annual Base Salary"), payable pursuant to the Company's normal payroll
practices.
(b) ANNUAL BONUS. During the Employment Period, the Executive's
annual target bonus shall be equal to 60% of the Executive's Annual Base Salary
(the "Target Bonus") and shall be increased or reduced in accordance with the
pay-out formula if established target performance goals are exceeded or not met.
The target performance goals shall be established by the Compensation Committee
of the Board (the Compensation Committee) at the beginning of each calendar year
if pursuant to a plan subject to Section 162(m) of the Internal Revenue Code, or
otherwise by the Company.
(c) BENEFITS. The Executive shall be treated in the same manner as,
and shall be entitled to such benefits and other perquisites as provided to,
other senior executive officers ("Senior Executive Officers") of the Company. In
this regard, the Executive shall be entitled to benefits under the Company's
vacation, benefit and welfare plans which are generally applicable to other
Senior
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Executive Officers including, without limitation, the Company's relocation plan,
the Company's stock option plans, the retirement savings plan, and the
short-term and long-Term disability plans.
4. STOCK OPTIONS.
(a) INITIAL OPTION GRANT. At the time Executive commenced employment
with the Company, Executive was given an initial option grant ("Initial
Options") to purchase 150,000 shares (which was thereafter adjusted for the
stock split that occurred on September 7, 1999) of Gateway common stock pursuant
to the terms of the 1996 Long-Term Incentive Equity Plan (the "1996 Plan") and
the related stock option agreement.
(b) RETENTION OPTION GRANT. The Executive was granted by the
Compensation Committee, on or about September 30, 1999, an option to purchase an
additional 75,000 shares of Gateway common stock pursuant to the terms and
conditions of the 1996 Plan and the related stock option agreement.
(c) RECURRING OPTIONS. Commencing in calendar year 2000 and
thereafter in each calendar year during the Employment Period, the Executive
will be eligible for option grants in accordance with the provisions of the
Company's stock incentive plan(s) then in effect. All stock option grants under
Section 4(c) of this Agreement will be granted under, and subject to, such
plans. Any such options granted in calendar year 2000 but prior to the
Commencement Date were, and shall continue to be, subject to the terms of the
1996 Plan (or its replacement) and the related stock option agreement(s).
5. TERMINATION OF EMPLOYMENT.
(a) TERMINATION WITHOUT CAUSE AND TERMINATION WITH CAUSE. The Company
may terminate the Executive's employment during the Employment Period without
Cause or with Cause. For purposes of this Agreement, Termination without Cause
shall mean any termination by the Company during the Employment Period other
than for Cause or as a result of death, retirement, or Disability. Except as
provided in Section 1(b) above, Termination for Cause shall mean termination
resulting from, as determined in the Company's sole discretion, the Executive's
(i) conviction (including a plea of guilty or nolo contendere) of any felony of
any kind (other than Limited Vicarious Liability or a routine traffic
infraction) or any other crime (whether it is a felony or not) involving
securities fraud, theft of assets of the Company, or falsification of the
Company's books or records; (ii) material breach of the agreement signed by
Executive as a condition of employment (attached hereto as Exhibit "B" and made
a part hereof) which breach is not cured within twenty (20) days of written
notice thereof; (iii) willful misconduct with regard to the Company; or neglect
or dereliction of duty resulting in either case in economic harm to the Company
or damage to the Company's name or reputation; (iv) failure to follow or in good
faith attempt to follow the reasonable lawful direction of the President and
Chief Executive Officer or Vice Chairman, or the person to whom the Executive
directly reports; or (v) failure to comply with the Company's Code of Ethics or
other policies including, without limitation, the Company's Non-Harassment
policy. Limited Vicarious Liability, as used above, shall mean any liability
which is based on acts of the Company (x) for which the Executive is charged
solely as a result of his offices with the Company, (y) in which he
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was not directly or indirectly involved, and (z) with respect to which he had
prior knowledge or reasonable belief that a law was being violated.
(b) GOOD REASON. The Executive may terminate employment for Good
Reason, which is referred to herein as a Termination for Good Reason. Except as
provided in Section 1(b) above, Good Reason means: (i) a diminution in
Executive's title; provided, however, that it shall not be deemed a diminution
in Executive's title where Executive continues to carry the title Senior Vice
President, (ii) the assignment of duties to the Executive that are materially
and adversely inconsistent with the Executive's position as Senior Vice
President, (iii) any material diminution in Executive's authority or
responsibility, or (iv) any material breach by the Company of this Agreement. If
the Executive determines that Good Reason exists, the Executive must notify the
Company in writing, within 180 days following the Executive's knowledge of the
first event which the Executive determines constitutes Good Reason, or such
event shall not constitute Good Reason under this Agreement. If the Company
remedies such event within sixty (60) days following receipt of notice, the
Executive may not terminate employment for Good Reason as a result of such
event.
(c) DEATH, RETIREMENT, OR DISABILITY. The Executive's employment
shall terminate automatically upon the Executive's death or retirement during
the Employment Period. Except as provided in Section 1(b) above, the Executive's
employment under this Agreement shall terminate for "Disability" where the
Executive has been unable to render the material services required by his
position as a result of physical or mental incapacity (as determined by the
Company's disability insurance carrier) for a period of 180 consecutive days and
the Company has notified the Executive of such termination while he is so
disabled. The parties agree that exceeding such a period would constitute an
undue hardship for the Company under Federal and state law including, without
limitation, the Americans with Disabilities Act and the California Fair
Employment and Housing Act.
(d) TERMINATION WITHOUT GOOD REASON. The Executive may terminate his
employment with the Company without Good Reason at any time. Any such
termination is referred to herein as a Termination without Good Reason. Notice
of non-extension by the Executive under Section 1 above shall be deemed a
Termination without Good Reason as of the end of the Employment Period.
(e) NOTICE OF TERMINATION. Any termination of the Executive's
employment by the Company or by the Executive shall be communicated by Notice of
Termination to the other party. For purposes of this Agreement, a "Notice of
Termination" means a written notice which indicates the specific termination
provision in this Agreement relied upon and, to the extent practicable, sets
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated.
6. PAYMENT OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) TERMINATION WITHOUT CAUSE; TERMINATION FOR GOOD REASON. Upon (i)
Termination without Cause or (ii) Termination for Good Reason during the
Employment Period, and in either case subject to and conditioned on Executive's
timely execution and non-revocation of a Separation Agreement and General
Release of claims against the Company and its subsidiaries and affiliates in a
form satisfactory to the Company, the Company shall pay the Executive an amount
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equal to two (2) times the sum of (x) the Executive's then current Annual Base
Salary plus (y) the Executive's then current annual Target Bonus. The amount
will be paid in a single lump sum payment within twenty (20) days after the date
of termination. Any Company stock options or other equity, if any, held by the
Executive as of the date of termination will be handled in accordance with
Section 4 of this Agreement and the applicable plan and grants. In addition, the
Executive will be entitled to Accrued Amounts, as defined in Section 6(d) below.
(b) TERMINATION FOR CAUSE OR WITHOUT GOOD REASON. If the Executive's
employment is terminated by the Company for Cause or by the Executive without
Good Reason during the Employment Period, the Company will pay to the Executive
the Executive's Annual Base Salary through the date of termination, to the
extent not yet paid, and the Company shall have no further obligations under
this Agreement. In addition, all outstanding Company stock options and other
equity awards, if any, will be handled in accordance with Section 4 of this
Agreement and the applicable plan and grants. In addition, the Executive will
also be entitled to other Accrued Amounts.
(c) DEATH, RETIREMENT, OR DISABILITY. If the Executive's employment
is terminated by reason of the Executive's death, retirement, or disability
during the Employment Period, the Company will pay the Executive (or the
Executive's heirs or representatives, if applicable) the Executive's Annual Base
Salary through the date of termination, to the extent not yet paid and other
Accrued Amounts, plus a pro-rated amount of Executive's Target Bonus. In
addition, any Company stock options or other equity, if any, held by the
Executive as of the date of termination will be handled in accordance with
Section 4 of this Agreement and the applicable plans and grants.
(d) ACCRUED AMOUNTS. Accrued Amounts shall mean Annual Base Salary
and expense reimbursements due for the period prior to any termination.
7. EXCISE TAX. The provisions of Annex B to the Change of Control
Agreement are incorporated herein by reference and shall survive the termination
of the Change of Control Agreement.
8. SUCCESSORS.
(a) This Agreement is personal to the Executive and shall not be
assignable by the Executive except by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by
the Executive's heirs or legal representatives. Notwithstanding the foregoing,
any amounts that become payable hereunder pursuant to Section 6, shall be
payable to Executive's estate if not paid prior to the Executive's death.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns, provided that the Company may not
assign this Agreement except in connection with the assignment or disposition of
all or substantially all of the assets or stock of the Company or by law as a
result of a merger or consolidation and only if such assignee promptly delivers
to Executive a written assumption of this Agreement in form and substance
reasonably acceptable to Executive.
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9. MISCELLANEOUS.
(a) This Agreement shall be governed, by, and construed in accordance
with, the laws of the State of California, without reference to its conflict of
law rules. The captions of this Agreement are not part of the provisions hereof
and shall have no force or effect. This Agreement may not be amended or modified
except by a written agreement executed by the parties hereto or their respective
successors and legal representatives.
(b) All notices and other communications under this Agreement shall
be in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
IF TO THE EXECUTIVE
Xxxx X. Xxxx
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX, 00000
IF TO THE COMPANY
Gateway, Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attn: General Counsel
or to such other address as either party furnishes to the other in writing in
accordance with this Section 9(b). Notices and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement. If any provision of this Agreement shall be held invalid or
unenforceable in part, the remaining portion of such provision, together with
all other provisions of this Agreement, shall remain valid and enforceable and
continue in full force and effect to the fullest extent consistent with law.
(d) Notwithstanding any other provision of this Agreement, the
Company may withhold from amounts payable under this Agreement all federal,
state, local and foreign taxes that are required to be withheld by applicable
laws or regulations.
(e) The Executive's or the company's failure to insist upon strict
compliance with any provision of, or to assert any right under, this Agreement
shall not be deemed to be a waiver of such provision or right or of any other
provision of or right under this Agreement.
(f) Except as provided herein, the Executive and the Company
acknowledge that this Agreement constitutes the entire agreement between the
parties and supersedes any prior agreement between the Executive and the Company
concerning the subject matter hereof. Except as provided herein, the Executive
shall not be entitled to participate in any severance plans or severance
programs of the Company during the Employment Period.
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(g) The Company shall indemnify Executive with respect to claims
(both during and after employment) relating to Executive's service as an
employee and officer of the Company and its affiliates and as a fiduciary of any
benefit plan of any of the foregoing to the full extent permitted by applicable
law and the Company shall cover the Executive under the Company's Directors and
Officers indemnification insurance policy (as in effect from time to time) both
during and after employment with regard to actions or inactions in such
capacities.
(h) The prevailing party in any litigation with regard to this
Agreement or the grants hereunder, as determined by the Court, shall be awarded
by the Court his or its reasonable legal fees and disbursements.
(i) This Agreement may be executed in several counterparts, each of
which shall be deemed an original, and said counterparts shall constitute but
one and the same instrument.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization of its Board of Directors, the Company has
caused this Agreement to be executed in its name on its behalf, all as of the
day and year first above written.
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