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EXHIBIT 10.4
FORM OF
EMPLOYMENT AGREEMENT
THIS AGREEMENT (this "Agreement") is made as of , 1998, between
Xxxxxx Xxxxxxx, Inc., a Delaware corporation (the "Company"), and
("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 on the
Termination Date, as defined in paragraph 4 hereof (the "Employment Period").
2. Position and Duties.
(a) During the Employment Period, Executive shall serve as Vice
President of the Company and Vice President of of the Company's
Division and shall be responsible for .
(b) Executive shall report to the President of the Company's
Division (the "Division") and Executive shall devote his
reasonable best efforts and his full business time and attention (except
for permitted vacation periods, periods of illness or other incapacity) to
the business and affairs of the Division.
(c) For purposes of this Agreement, all references to "Company" shall
include any corporation of which the securities having a majority of the
voting power in electing directors are, at the time of determination, owned
by the Company, directly or through one of more subsidiaries.
3. Base Salary and Benefits.
(a) During the remainder of 1998 and 1999, Executive's base salary
shall be $ per annum (the "Base Salary"), which salary shall be payable
in regular installments in accordance with the Company's general payroll
practices (but at least monthly) and shall be subject to required
withholding. In January of 2000, the Division's President shall review the
Base Salary for increase. In addition, during the Employment Period,
Executive shall be entitled to participate in all of the Company's employee
benefit programs for which employees of the Division are generally
eligible, including annual grants of stock options (beginning in 1999)
under the Company's Nonqualified Stock Option Plan and other stock option
plans that the Company may adopt from time to time (all such plans, as they
may be adopted and amended from time to time being hereinafter referred to
collectively as the "Stock Option Plan"), at a level commensurate with
Executive's position in the Company.
(b) The Company shall reimburse Executive for all reasonable expenses
incurred by him in the course of performing his duties under this Agreement
which are consistent with the Division's policies in effect from time to
time for senior executives with respect to travel, entertainment and other
business expenses, subject to the Company's requirements for its executives
with respect to reporting and documentation of such expenses.
(c) Beginning with the Company's 1999 calendar year, in addition to
the Base Salary, Executive shall be eligible to receive a bonus (the
"Bonus") at the end of each calendar year during the Employment Period of
up to 20% of Executive's Base Salary (the "Target Bonus") based upon
Executive's performance and the Company's and/or the Division's financial
results versus targets established by the President or the Compensation
Committee of the Board for such year. The Bonus, if any, will be payable no
later than March 1 of the year immediately following the year in which the
Bonus was earned. The Bonus will be prorated for any partial year during
the Employment Period.
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4. Term and Termination.
(a) This Agreement shall terminate on the second anniversary of the
date hereof (the "Expiration Date") unless terminated earlier (i) by
Executive's resignation with or without Good Reason or Executive's death or
Disability or (ii) by the Company with or without Cause. The date on which
Executive's employment with the Company is terminated is referred to herein
as the "Termination Date."
(b) (i) If Executive's employment with the Company is terminated by
the Company without Cause or by Executive with Good Reason, (x) Executive
shall be entitled to receive his Base Salary and his Target Bonus through
the Expiration Date, payable in accordance with paragraph 3 above, (y) all
stock options granted to Executive under the Stock Option Plan which are
not vested at such time shall automatically, and without further action,
become vested as of the Termination Date and all such options (together
with all of Executive's then vested stock options), shall remain
exercisable until the later to occur of (I) the Expiration Date and (II)
the expiration of such stock options pursuant to the terms of the Stock
Option Plan and (z) Executive's obligations under paragraph 6(a) below
shall terminate and be of no further force or effect.
(ii) If Executive's employment with the Company is terminated for any
reason other than as described in item (i) above, Executive shall be
entitled to receive his Base Salary through the Termination Date.
(c) All of Executive's rights to fringe benefits shall cease upon the
Termination Date.
(d) For purposes of this Agreement, the following terms shall have the
meanings set forth below:
"Cause" shall mean (i) the conviction of Executive for a felony or
a crime involving moral turpitude or the plea of guilty or no lo
contendre by Executive to a charge of any such crime, (ii) Executive's
theft or embezzlement, of money or property of the Company, (iii)
Executive's perpetration of fraud, or Executive's participation in a
fraud, on the Company or Executive's unauthorized appropriation of any
tangible or intangible material assets or property of the Company, (iv)
Executive's substantial and repeated failure to perform his duties
hereunder in accordance with the reasonable directions of the Board or
the President.
"Disability" shall mean the inability, due to illness, accident,
injury, physical or mental incapacity or other disability, of Executive
to carry out effectively his duties and obligations to the Company or to
participate effectively and actively in the management of the Company
for a period of at least 90 consecutive days or for shorter periods
aggregating at least 120 days (whether or not consecutive) during any
twelve-month period, as determined in the reasonable and good faith
judgment of the Board.
"Good Reason" shall mean (x) the Company's willful and material
breach of this Agreement or (y) the assignment to Executive of duties
that are materially inconsistent with Executive's position.
(e) A termination of this Agreement pursuant to its terms on the
Expiration Date shall not, in and of itself, constitute a termination of
Executive's employment with the Company. At such time, unless the Company
or the Executive terminate Executive's employment with the Company,
Executive shall become an employee at-will of the Company.
5. Confidential Information. Executive acknowledges that the information,
observations and data obtained by him while employed by the Company concerning
the business or affairs of the Company reasonably considered of a confidential
nature ("Confidential Information") are the property of the Company. Therefore,
Executive agrees that he shall not disclose to any unauthorized person or use
for his own purposes any Confidential Information without the prior written
consent of the Board, unless and to the extent that the aforementioned matters
become generally known to and available for use by the public other than as a
result of Executive's acts or omissions, or is otherwise known to Executive from
independent sources prior to or
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outside of Executive's employment with the Company. Executive shall deliver to
the Company at the termination of the Employment Period, or at any other time
the Company may reasonably request, all memoranda, notes, plans, records,
reports, computer tapes, printouts and software and other documents and data
(and copies thereof) relating to the Confidential Information or the business of
the Company which he may then possess or have under his control. Nothing herein
shall prohibit Executive's disclosure of Confidential Information as directed by
judicial, administrative or other governmental law, rule, regulation or order
provided that Executive shall, to the extent possible, give immediate notice to
the Company of any disclosure of Confidential Information so required so that
the Company may seek a protective order.
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 his
employment with the Company he shall become familiar with the Company's
trade secrets and with other Confidential Information concerning the
Company and that his services shall be of special, unique and extraordinary
value to the Company. Therefore, Executive agrees that, during the
Employment Period and for two years thereafter (the "Noncompete Period"),
he 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, as such
businesses exist or are in process on the date of the termination of
Executive's employment, within any geographical area in which the Company
engages or plans to engage in such businesses. Nothing herein shall
prohibit Executive from being a passive owner of not more than 2% of the
outstanding stock of any class of a corporation which is publicly traded,
so long as Executive has no active participation in the business of such
corporation.
(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 to leave the employ of the Company, or in any way
interfere with the relationship between the Company and any employee
thereof, (ii) hire any person who was an employee of the Company at any
time during the Employment Period (unless such employee was terminated by
the Company), or (iii) induce or attempt to induce any customer, supplier,
licensee, licensor, franchisee or other business relation of the Company to
cease doing business with the Company, or in any way interfere with the
relationship between any such customer, supplier, licensee or business
relation and the Company.
(c) If, at the time of enforcement of this paragraph 6, a court shall
hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall
be substituted for the stated duration, scope or area and that the court
shall be allowed to revise the restrictions contained herein to cover the
maximum period, scope and area permitted by law. Executive agrees that the
restrictions contained in this paragraph 6 are reasonable.
(d) In the event of the breach or a threatened breach by Executive of
any of the provisions of this paragraph 6, the Company, in addition and
supplementary to other rights and remedies existing in its favor, may apply
to any court of law or equity of competent jurisdiction for specific
performance and/or injunctive or other relief in order to enforce or
prevent any violations of the provisions hereof (without posting a bond or
other security). In addition, in the event of an alleged breach or
violation by Executive of this paragraph 6, the Noncompete Period shall be
tolled until such breach or violation has been duly cured.
7. Mutual Representations. Executive and the Company each represents and
warrants to the other that (i) the execution, delivery and performance of this
Agreement by such party do not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which such party is a party or by which or it is bound, (ii) Such
party is not a party to or bound by any employment agreement, noncompete
agreement or confidentiality agreement with any other person or entity that
would be breached or violated by such party execution and delivery or
performance of this Agreement and (iii) upon the execution and delivery of this
Agreement by such party, this Agreement shall be the valid and
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binding obligation of such party, enforceable in accordance against such party
with its terms. Such party hereby acknowledges and represents that or it has
consulted with independent legal counsel regarding his rights and obligations
under this Agreement and that he fully understands the terms and conditions
contained herein.
8. Survival. Paragraphs 5 and 6 and paragraphs 9 through 16 shall survive
and continue in full force in accordance with their terms notwithstanding any
termination of the Employment Period.
9. Notices. Any notice provided for in this Agreement shall be in writing
and shall be either personally delivered, or mailed by first class mail, return
receipt requested, to the recipient at the address below indicated:
Notices to Executive:
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Notices to the Company:
Xxxxxx Xxxxxxx, Inc.
Xxx Xxxxxxxxx Xxxxx, 00xx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: President
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so delivered
or three (3) days after so mailed.
10. Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
11. Complete Agreement. This Agreement and the Purchase Agreement embodies
with respect to the subject matter hereof the complete agreement and
understanding among the parties and supersedes and preempts with respect to the
subject matter hereof 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.
12. No Strict Construction. The language used in this Agreement shall be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against any party,
it being understood that paragraph 6(c) contemplates that a court of competent
jurisdiction shall be entitled to "blue pencil" or conform the express language
of paragraph 6(a) if necessary in order to comply with Florida law.
13. Counterparts. This Agreement may be executed in separate counterparts,
each of which is deemed to be an original and all of which taken together
constitute one and the same agreement.
14. Successors and Assigns. This Agreement is intended to bind and inure to
the benefit of and be enforceable by Executive, the Company and their respective
heirs, successors and assigns, except that (x) Executive may not assign his
rights or delegate his obligations hereunder without the prior written consent
of the Company and (y) other than in connection with sale of (i) the stock or
all or substantially all of the assets of [insert chain] or (ii) the Company
(whether by merger, consolidation, sale of all of the Company's stock or sale of
all or substantially all of the Company's assets), the Company may not assign
its rights to Executive's services hereunder to any third party.
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15. CHOICE OF LAW. ALL ISSUES AND QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA, WITHOUT
GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS
(WHETHER OF THE STATE OF FLORIDA OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF FLORIDA.
16. Amendment and Waiver. The provisions of this Agreement may be amended
or waived only with the prior written consent of the Company and Executive, and
no course of conduct or failure or delay in enforcing the provisions of this
Agreement shall affect the validity, binding effect or enforceability of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
XXXXXX XXXXXXX, INC.
By
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Name: Xxxxxx X. Xxxxxx
Title: President
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[Executive]
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