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EXHIBIT 10.43
MANAGEMENT TRANSITION AGREEMENT
THIS MANAGEMENT TRANSITION AGREEMENT (this "Agreement") is made and
entered into by and between Xxxxxx X. Xxxxx ("Executive") and American Coin
Merchandising, Inc. (the "Company"), as of the last date on which either party
signs this Agreement ("Effective Date").
W I T N E S S E T H
WHEREAS, Executive is currently Chief Executive Officer, Chairman of
the Board and a Director of the Company and wishes to transition into a
consulting relationship with the Company, in consideration of the promises and
covenants contained herein;
WHEREAS, the Company has accepted Executive's wishes and desires to
provide Executive with certain benefits in consideration of his service to the
Company and the promises and covenants of Executive as contained herein;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, it is hereby agreed by and between the parties hereto as
follows:
1. RESIGNATION. Executive has tendered, and the Company has accepted,
Executive's resignation as a Member of the Executive Committee and as Chairman
of the Board of Directors effective as of January 22, 1999. Executive shall
continue to serve as Chief Executive Officer and Director through the Company's
1999 annual shareholder meeting ("Separation Date") and only as a Director
through the Company's 2000 annual shareholder meeting. The Company agrees to
nominate Executive to serve as a Director at the Company's 1999 annual
shareholder meeting.
2. SALARY, VACATION, AND FUTURE PAYMENT. The Executive shall continue
to be paid his salary of $200,000 per annum through March 31, 1999, and his
agreed salary of $215,000 per year beginning April 1, 1999. The Executive shall
continue to be paid his guaranteed bonus of $60,000 per year through March 31,
1999, but shall not be entitled to any guaranteed bonus thereafter. Within a
reasonable time following the Separation Date, the Company shall pay Executive
all accrued salary as well as all accrued and unused vacation earned prior to
the Separation Date, subject to standard payroll deductions and tax
withholdings. Executive agrees and acknowledges that the Company has no
obligation to pay Executive any bonuses for any time subsequent to the
Separation Date. Executive's sole compensation subsequent to the Separation Date
shall be as set forth in this paragraph 2 together with the consulting fees set
forth in paragraph 6(b). Executive shall not be entitled to additional
compensation relating to any service as Director through December 31, 2000. For
any services as Director after December 31, 2000, Executive shall be entitled to
the normal compensation awarded to continuing outside Directors in accordance
with the plan in effect as of such date.
3. HEALTH INSURANCE. Company agrees to continue paying for Executive's
health insurance provided through the Company's group health insurance plan
through the Separation
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Date. Thereafter, Executive shall be eligible to continue his health insurance
benefits under the federal COBRA law (or until such time as Executive becomes
eligible for health benefits through another employer, whichever occurs first)
and the Company shall reimburse the Executive for the cost of such benefits
through the end of the Consulting Period. Executive shall be provided by the
Company with a separate notice of his COBRA rights.
4. EXPENSE REIMBURSEMENT. Executive shall submit his documented expense
reimbursement statements reflecting all business expenses he incurs prior to the
Separation Date, if any, for which he seeks reimbursement. The Company shall
reimburse Executive's expenses pursuant to Company policy and regular business
practice. During the Consulting Period, the Company shall reimburse Executive
for all out-of-pocket expenses reasonably incurred by Executive, subject to the
approval of the Chief Operating Officer of the Company.
5. SECTION 401(K). Executive shall continue to receive Section 401(k)
benefits through the Separation Date. Executive's Section 401(k) benefits shall
cease thereafter. The Company shall reasonably cooperate with Executive with
respect to the transition of his Section 401(k) benefits at such time.
6. CONSULTING AGREEMENT. Executive shall serve as a consultant to the
Company under the terms specified below. The consulting relationship shall
commence on the Separation Date and continue through December 31, 2000 (the
"Consulting Period") unless terminated earlier pursuant to paragraph 7 herein.
The term of this Agreement cannot be extended except in a writing executed by
the Executive and by the Chief Operating Officer or the then-serving Chief
Executive Officer of the Company and approved by the Company's Board of
Directors.
(a) CONSULTING SERVICES. Executive agrees to provide
consulting services to the Company in any area of his expertise upon
request by the Company's Executive Committee or management team.
Executive agrees to make himself available to perform such consulting
services throughout the Consulting Period. Executive agrees that he
will render services to the Company during the Consulting Period at a
level of up to approximately 25% of full-time employment, or
approximately 40 hours per month. Any services rendered in excess of
that amount shall not entitle Executive to payment in excess of that
amount set forth in paragraph 6(b). If the Company does not give
Executive sufficient work to occupy him for the foregoing work hours,
he shall still be paid his consulting fees as set forth in paragraph
6(b), without any deduction or penalty for the shortfall in work hours.
Nothing herein is intended to impair Executive's efforts to obtain
full-time employment not in competition with the Company, as described
in paragraph 11 below.
(b) CONSULTING FEES AND BENEFITS.
(i) CONSULTING FEES. In exchange for the consulting
services described above, the Company shall pay Executive a salary
equal to $215,000 per year from the Separation Date through the
remainder of the Consulting Period. Such salary shall be payable at the
intervals regularly established for payment of
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salaries by the Company. Executive shall not be entitled to receive any
bonuses during the Consulting Period (or for the period beginning April
1, 1999).
(ii) TAXES AND WITHHOLDING. The Company shall process
payment of Consulting Fees through the Company's normal payroll system
and subject to withholding for taxes, social security or other payroll
deductions.
(iii) ATTORNEYS' OR ACCOUNTANTS' FEES. The Company
agrees to reimburse Executive for his reasonable attorneys' and
accountants' fees directly related to negotiation of this Agreement,
within a reasonable time after presentation of itemized statements for
such services.
(iv) AUTOMOBILE LEASE. The Company shall continue to
make lease and insurance payments on Executive's motor vehicle. At the
end of the lease period, the Company shall purchase such motor vehicle
and transfer title to Executive as additional compensation. All
operating, maintenance and other expenses for such motor vehicle shall
be borne by Executive.
(v) OTHER COMPENSATION. Except as expressly provided
herein, Executive acknowledges that he will not receive (nor is he
entitled to) any additional compensation, severance or benefits after
the Separation Date.
(c) REPORTING RELATIONSHIP, OFFICE AND SUPPORT. Executive
shall report directly to the Chief Operating Officer of the Company.
Executive shall retain his current office through the Separation Date,
and thereafter Executive shall be provided with reasonable office space
and secretarial support for the performance of his consulting services
under this Agreement.
7. TERMINATION OF AGREEMENT. The Company, without liability, may
terminate Executive's consulting relationship under this Agreement for cause at
any time and without notice, and thereafter the Company's obligations hereunder
shall cease and terminate. Termination of Executive's consulting relationship
hereunder shall be deemed "for cause" if such termination is due to any act, or
failure to act, by Executive that is: (i) in bad faith and to the detriment of
the Company; (ii) a breach by Executive of any term of this Agreement, which
breach continues for a period of 10 days after Executive receives written notice
of such breach from the Company's Board of Directors; (iii) not in accordance
with his obligations under this Agreement as amounts to an intentional,
extended, or gross neglect of his respective duties to the Company; (iv) the
result of such prolonged or continued use of alcohol or narcotics as to leave
Executive unable or unwilling to fulfill his respective duties; (v) an act of
fraud or embezzlement against the Company by Executive; or (vi) results in
Executive's conviction for commission of a crime involving moral turpitude or
dishonesty. If Executive's consulting relationship is terminated for cause, all
compensation and benefits shall cease as of the date of his termination.
Executive shall not be entitled to any additional compensation or benefits
beyond what is expressly provided to him under this Agreement.
8. DEATH OR PERMANENT MENTAL DISABILITY OF EXECUTIVE. In the event of
the death or permanent mental disability of Executive (which renders him unable
to
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satisfactorily) perform his consulting relationship with the Company), this
Agreement shall immediately terminate. The Company shall immediately pay all
accrued salary and unused vacation to Executive, Executive's surviving spouse,
or if there is no spouse surviving, to Executive's estate. Thereafter the
Company's obligations hereunder shall cease and terminate.
9. LIMITATIONS ON AUTHORITY. Executive shall have no responsibilities
or authority as a consultant of the Company other than as provided for above.
Executive hereby agrees not to represent or purport to represent the Company in
any manner whatsoever to any third party unless authorized by the Chief
Operating Officer of the Company. The parties acknowledge and agree that the
Executive will be engaged in transitional activities and discussions with the
Company's banking and financial contacts, as well as with other employees of the
Company.
10. OTHER WORK ACTIVITIES. Throughout the Consulting Period, Executive
retains the right to engage in employment, consulting, or other work
relationships in addition to his work for the Company, subject to the
limitations set forth in this Agreement.
11. NONCOMPETITION AND CONFIDENTIALITY.
(a) Executive realizes that during the Consulting Period,
Executive will produce and/or will have access to confidential
memoranda, notes, information, records, maps, research results,
business projections, business and research notebooks, data, formulae,
specifications, trade secrets, customer lists, inventions and processes
of the Company, and other information of a confidential nature
(collectively, "Confidential Information").
(b) Both during and after the Consulting Period, Executive
agrees to hold all Confidential Information in confidence and not to
disclose, and not directly or indirectly to use, copy, digest or
summarize, any Confidential Information, except to the extent necessary
to carry out Executive's responsibilities as directed or authorized by
the Company and, after termination of Executive's consulting
relationship hereunder, as specifically authorized in writing by the
Company.
(c) Executive acknowledges and agrees that he possesses or
will possess knowledge, skills and reputation in the amusement vending
machine business or industry (the "Industry") that are of material
importance to the Company, and that are special, unique and
extraordinary. Executive acknowledges that the loss of his services, to
a competitor, may cause irreparable harm to the Company. Therefore, for
a three year period following termination of his consulting
relationship with the Company (the "Restricted Period") for any reason,
with or without cause, Executive, individually and personally, shall
not do any of the following:
(i) Canvass, solicit, or accept any business in the
Industry from any present or past customer of the Company or
any related company, if such customer is located in the United
States (the "Territory").
(ii) Aid or assist any other person, entity,
partnership, association or corporation (each, a "Person") in
any effort to canvass, solicit, or accept any
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business in the Industry from any past or present customers of
the Company or of any related company, if such customer is
located within the Territory.
(iii) Directly or indirectly request or advise any
past, present or possible future customer of the Company or
any related company to withdraw, curtail, cancel, or not
undertake business in the Industry with the Company or any
related company, if the customer is located within the
Territory;
(iv) Directly or indirectly disclose to any Person
the names of past or present customers of the Company or any
related company. The parties agree that the names of such
customers are confidential and proprietary and constitute
trade secrets of the Company within the meaning of Colorado
Revised Statutes Sections 8-2-113(2)(b) and 7-74-102(4);
(v) Disclose to any Person the names of executives of
the Company;
(vi) Directly or indirectly establish, as manager,
employee or owner of more than one percent of the outstanding
ownership interest, or participate in an enterprise
competitive with any business that is conducted at any time
prior to or during the Consulting Period by the Company or any
related company, and which business is in the Industry and in
the Territory.
(vii) Provide any product, service, financing, aid,
or assistance of any kind for any Person that is competitive
with any business that is conducted at any time prior to or
during the Consulting Period by the Company or any related
company, and which business is in the Industry and the
Territory.
(d) The rights and obligations of this Section 7 shall survive
any expiration or termination of this Agreement.
(e) Executive agrees to notify the Company, in writing, at
least 10 business days prior to engaging in any work for any business
purpose other than work for the Company. In the event that Executive
engages in any activity described in subparagraph (c) above, the
Company's obligation to pay Executive consulting fees or any other
compensation set forth above shall cease immediately.
12. NONSOLICITATION. Executive agrees that during the Restricted Period
he will not, either directly or indirectly, solicit or attempt to solicit any
employee, consultant, or independent contractor of the Company to terminate his
or her relationship with the Company in order to become an employee, consultant
or independent contractor to or for any other person or entity.
13. COMPANY AND PERSONAL PROPERTY. All records in whatever form and in
whatever medium recorded, and any and all copies thereof (including volatile
electronic or magnetic signals), relating to the Company's business that
Executive shall prepare, or use, or come into contact with in the course of his
executing his duties under this Agreement, shall be and remain the sole property
of the Company and shall not be removed from the Company's premises except as
necessary to carry out Executive's responsibilities as directed and authorized
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by the Company; and the same shall be returned promptly to the Company at the
end of the Consulting Period or upon the Company's request. On the Separation
Date, Executive shall also return all credit cards, entry cards, identification
badges, keys, and mobile phones if any, that Executive received prior to that
time. The Executive shall be entitled to remove all of his personal property
located at the Company's offices.
14. NONDISPARAGEMENT. Executive and the Company agree that neither
party shall at any time disparage the other in any manner likely to be harmful
to the other party, its business reputation, or the personal or business
reputation of its directors, shareholders, and employees, provided that each
party shall respond accurately and fully to any question, inquiry or request for
information when required by legal process. Executive shall have the right to
review and comment upon any press releases issued by the Company that refer to
his departure from the Company or otherwise directly affect him, and the Company
agrees to consider in good faith any changes or clarifications suggested by the
Executive.
15. HOLD HARMLESS. Executive shall exonerate, indemnify and hold
harmless the Company, its officers, agents and employees from and against any
and all liability, loss, cost, damage, claims, demands, or expenses of every
kind on account of injuries (including death) to the Company or any third party,
or loss of or damage to the Company's or any third party's property arising out
of or resulting in any manner from or occurring in connection with any gross
negligence or intentional actions by the Executive in the performance of his
services hereunder. The Company shall exonerate, indemnify and hold harmless the
Executive, his successors and assigns from and against any and all liability,
loss, cost, damage, claims, demands, or expenses of every kind on account of
injuries (including death) to the Company or any third party, or loss of or
damage to the Company's or any third party's property arising out of or
resulting in any manner from or occurring in connection with any gross
negligence or intentional actions by the Company, its officers, agents and
employees hereunder.
16. RELEASE OF CLAIMS. Except as otherwise set forth in this Agreement,
Executive hereby releases, acquits and forever discharges the Company, its
officers, directors, agents, servants, employees, shareholders, attorneys,
successors, assigns and affiliates, of and from any and all claims, liabilities,
demands, causes of action, costs, expenses, attorneys' fees, damages,
indemnities and obligations of every kind and nature, in law, equity, or
otherwise, known and unknown, suspected and unsuspected, disclosed and
undisclosed, arising out of or in any way related to agreements, events, acts or
conduct at any time prior to and including the date of this Agreement, including
without limitation: (a) any and all such claims and demands directly or
indirectly arising out of or in any way connected with Executive's relationship
with the Company or the termination of that relationship; (b) claims or demands
related to salary, bonuses, commissions, stock, stock options, or any other
ownership interests in the Company, vacation pay, fringe benefits ,expense
reimbursements, severance benefits, or any other form of compensation; (c)
claims pursuant to any federal, state or local law, statute or cause of action
including without limitation, tort law, contract law, wrongful discharge,
discrimination, fraud, defamation, emotional distress and breach of the implied
covenant of good faith and fair dealing. Except as otherwise set forth in this
Agreement, the Company hereby releases, acquits and forever discharges the
Executive, his successors and assigns, of and from any and all claims,
liabilities, demands, causes of action, costs, expenses, attorneys' fees,
damages, indemnities and obligations of every kind and nature, in law, equity,
or otherwise, known and unknown,
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suspected and unsuspected, disclosed and undisclosed, arising out of or in any
way related to agreements, events, acts or conduct at any time prior to and
including the date of this Agreement, including without limitation: (a) any and
all such claims and demands directly or indirectly arising out of or in any way
connected with Executive's relationship with the Company or the termination of
that relationship; (b) claims or demands related to salary, bonuses,
commissions, stock, stock options, or any other ownership interests in the
Company, vacation pay, fringe benefits ,expense reimbursements, severance
benefits, or any other form of compensation; (c) claims pursuant to any federal,
state or local law, statute or cause of action including without limitation,
tort law, contract law, wrongful discharge, discrimination, fraud, defamation,
emotional distress and breach of the implied covenant of good faith and fair
dealing.
17. OWBPA NOTICE. Executive acknowledges that, among other rights, he
is waiving and releasing any rights he may have under the federal Age
Discrimination in Employment Act of 1967, as amended, that this waiver and
release is knowing and voluntary, and that the consideration given for this
waiver and release is in addition to anything of value to which he was already
entitled as an employee of the Company. Executive further acknowledges that he
has been advised, as required by the Older Workers Benefit Protection Act, that:
(a) the waiver and release granted herein does not relate to claims that may
arise after this Agreement becomes effective; (b) he has the right to consult
with any attorney prior to executing this Agreement (although he may choose
voluntarily not to do so); (c) he has 21 days from the date he receives this
Agreement in which to consider this Agreement (although he may choose
voluntarily to execute this Agreement earlier); (d) he has seven days following
the execution of this Agreement to revoke his consent to this Agreement; and (e)
this Agreement shall not be effective until the seven day revocation period has
expired.
18. CONFIDENTIAL ARBITRATION. Any disputes arising from this Agreement
shall be submitted to binding, confidential arbitration with the Judicial
Arbiter Group ("JAG") in Denver, Colorado, in accordance with the then existing
rules issued by JAG applicable to employment disputes. Any such arbitration
shall be conducted in the utmost secrecy.
19. ENTIRE AGREEMENT. This Agreement constitutes the complete, final
and exclusive embodiment of the entire agreement between Executive and the
Company with respect to the subject matter hereof. It is entered into without
reliance on any promise or presentation, written or oral, other than those
expressly contained herein. It may not be modified except in a writing signed by
Executive and a duly authorized officer of the Company. Each party has carefully
read this Agreement, has been afforded the opportunity to be advised of its
meaning and consequences by his or its respective attorneys, and signed the same
of his or its own free will.
20. SUCCESSORS AND ASSIGNS. Due to the personal nature of Executive's
duties under this Agreement, Executive shall not delegate the performance of his
duties under this Agreement. Nothing in this Agreement shall prevent the
consolidation of the Company with, or its merger into, any other corporation, or
the sale by the Company of all or substantially all of its properties or assets,
or the assignment by the Company of this Agreement and the performance of its
obligations hereunder to any affiliated company. This Agreement shall bind the
heirs, personal representatives, successors, assigns, executors, and
administrators of each party, and inure to the benefit of each party, its heirs,
successors and assigns.
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21. APPLICABLE LAW. This Agreement shall be deemed to have been entered
into and shall be construed and enforced in accordance with the laws of the
State of Colorado as applied to contracts made and to be performed entirely
within Colorado.
22. SEVERABILITY. If a court of competent jurisdiction determines that
any term or provision of this Agreement is invalid or unenforceable, in whole or
in part, then the remaining terms and provisions hereof shall be unimpaired.
Such court will have the authority to modify or replace the invalid or
unenforceable term or provision with a valid and enforceable term or provision
that most accurately represents the parties' intention with respect to the
invalid or unenforceable term or provision.
23. PARAGRAPH HEADINGS. The paragraph headings contained herein are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
24. COUNTERPARTS. This Agreement may be executed in two counterparts,
each of which shall be deemed an original, all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly authorized and caused this
Agreement to be executed as follows:
AMERICAN COIN MERCHANDISING, INC.
/s/ Xxxxxxx X. Xxxxxxx
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By: Xxxxxxx X. Xxxxxxx
Its: Chief Operating Officer
EXECUTIVE:
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, individually
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