Exhibit 10.72
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), dated January 1, 2000 by and
between Spigadoro, Inc. f/k/a IAT Multimedia, Inc. (the "Company") and Xxxxx Xx
Xxxx (the "Executive") having an address of, Xxx Xxxxxx Xxxxxxxx Xx.0, Xxxxx,
Xxxxx. ----------------------------------
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W I T N E S S E T H:
WHEREAS, the Executive is willing to serve as Chief Operating Officer of
the Company and the Company desires to retain the Executive in that capacity on
the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto agree as follows:
Section 1. Term of Employment. The Executive's employment under this
Agreement shall commence on January 1, 2000 (the "Commencement Date") and,
subject to earlier termination pursuant to Section 5 hereof, shall continue
until the third anniversary of the Commencement Date (the "Term"). The Executive
hereby represents and warrants that (i) he has the legal capacity to execute and
perform this Agreement, (ii) this Agreement is a valid and binding agreement
enforceable against him according to its terms, and (iii) the execution and
performance of this Agreement by him does not violate the terms of any existing
agreement or understanding to which the Executive is a party or by which he may
be bound.
Section 2. Position and Duties. During the Term, the Executive shall serve
as Chief Operating Officer of the Company and shall have such powers and duties
as are commensurate with such position and as may be conferred upon him from
time to time by the Chief Executive Officer or the Board of Directors of the
Company (the "Board"). During the Term, and except for illness or incapacity and
reasonable vacation periods of no more than 4 weeks in any calendar year, the
Executive shall devote all of his business time, attention, skill and efforts
exclusively to the business and affairs of the Company and its subsidiaries and
affiliates.
Section 3. Compensation. For all services rendered by the Executive in any
capacity required hereunder during the Term, including, without limitation,
services as an executive officer, director, or member of any committee of the
Company, or any subsidiary, affiliate or division thereof, other than Xxxxxxx,
S.p.A. with which the Executive has a separate employment agreement and receives
additional compensation, the Executive shall be compensated as follows:
(a) The Company shall pay the Executive a fixed salary at the rate of
$55,000 per annum ("Base Salary"). The Base Salary shall be subject to such
periodic review and such periodic increases as the Board shall deem appropriate
in accordance with the Company's
customary procedures and practices regarding the salaries of executives. Base
Salary shall be payable in accordance with the customary payroll practices of
the Company, but in no event less frequently than monthly.
(b) The Company shall pay the Executive a one-time bonus of $75,000 on
the Commencement Date.
(c) The Company shall reimburse the Executive, for housing expenses in
an amount not to exceed $20,000 per annum subject to the Executive's
presentation of appropriate vouchers in accordance with such procedures as the
Company may from time to time establish for senior officers and to preserve any
deductions for Federal income taxation purposes to which the Company may be
entitled.
(d) The Executive shall receive options to purchase 250,000 shares of
the Company's common stock on the Commencement Date (the "Initial Options")
pursuant to and subject to the terms of the Company's 1999 Stock Option Plan
(the "Stock Option Plan"). The options shall vest as follows: 50,000 upon
execution of this Agreement, 66,667 on the first anniversary of the date of this
Agreement, 66,667 on the second anniversary of the date of this Agreement and
66,666 on the third anniversary of the date of this Agreement. The 250,000
options shall be exercisable at the Fair Market Value (as defined in the Stock
Option Plan) of the common stock as of the Commencement Date. The Executive
shall be entitled to additional grants under the Stock Option Plan at the
discretion of the Board of Directors.
(e) The Executive shall be entitled to participate in all compensation
and employee benefit plans or programs, and to receive all benefits, perquisites
and emoluments, for which any salaried employees of the Company are eligible
under any plan or program now or hereafter established and maintained by the
Company, to the fullest extent permissible under the general terms and
provisions of such plans or programs and in accordance with the provisions
thereof, including, without limitation, incentive compensation, bonus, group
hospitalization, health, dental care, life, disability or other insurance,
tax-qualified and non-qualified pension, savings, thrift and profit-sharing
plans, termination or severance pay programs, sick-leave plans, travel or
accident insurance, automobile allowance or automobile lease plans, and
executive contingent compensation plans, including, without limitation, capital
accumulation programs and stock purchase, restricted stock and stock option
plans. Notwithstanding the foregoing, nothing in this Agreement shall preclude
the amendment or termination of any such plan or program, provided that such
amendment or termination is applicable generally to the senior officers of the
Company or any subsidiary or affiliate.
Section 4. Business Expenses. The Company shall pay or reimburse the
Executive for all reasonable travel or other expenses incurred by the Executive
in connection with the performance of his duties and obligations under this
Agreement, subject to the Executive's presentation of appropriate vouchers in
accordance with such procedures as the Company may from time to time establish
for senior officers and to preserve any deductions for Federal income taxation
purposes to which the Company may be entitled.
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Section 5. Effect of Termination of Employment. (a) In the event the
Executive's employment terminates, during the Term, due to either a Without
Cause Termination or a Constructive Discharge, the Company shall, as liquidated
damages or severance pay, or both, continue, subject to the provisions of
Section 6 below, to pay the Executive's Base Salary as in effect at the time of
such termination for the lesser of (i) the remainder of the then-current Term,
or (ii) a period of two years from the effective date of such termination. In
the event the Executive's employment terminates, whether during the Term or
following the expiration of the Term, due to a Permanent Disability, the Company
shall continue to pay the Executive's Base Salary as in effect at the time of
such termination for a period of six months from the date such disability
commenced; provided, that such amounts shall be offset by any amounts otherwise
paid to the Executive under the Company's then-existing disability program. In
addition, earned but unpaid Base Salary as of the date of termination of
employment shall be payable in full. The Executive shall be entitled to
continued group hospitalization, health and dental care insurance for the
periods specified in the Comprehensive Omnibus Budget Reconciliation Act
("COBRA") upon payment by the Executive of the amounts specified under COBRA.
(b) In the event that the Executive's employment hereunder terminates
due to a Termination for Cause, death of the Executive, or the Executive
terminates employment with the Company for reasons other than a Constructive
Discharge, Permanent Disability or retirement pursuant to the Company's
retirement plan (the "Retirement Plan"), earned but unpaid Base Salary as of the
date of termination of employment shall be payable in full. However, no other
payments shall be made, or benefits provided, by the Company under this
Agreement except for benefits payable under the Retirement Plan and benefits
that have already become vested under the terms of employee benefit programs,
including the Stock Option Plan, maintained by the Company or its affiliates for
its employees and except as otherwise required by law. Notwithstanding the
foregoing, in the event the the Executive's employment terminates, whether
during the Term or following the expiration of the Term, due to either a Without
Cause Termination or a Constructive Discharge, all of the Initial Options
granted to the Executive under Section 3(d) of this Agreement that have not yet
vested shall immediately vest as of the date of such termination.
(c) For purposes of this Agreement, the following terms have the
following meanings:
(i) The term "Termination for Cause" means, to the maximum extent
permitted by applicable law, a termination of the Executive's employment by
the Company because the Executive has (a) materially breached or materially
failed to perform his duties under applicable law and such breach or
failure to perform constitutes self-dealing, willful misconduct or
recklessness, (b) committed an act of dishonesty in the performance of his
duties hereunder or engaged in conduct materially detrimental to the
business of the Company, (c) been convicted of a felony involving moral
turpitude, (d) materially breached or materially failed to perform his
obligations and duties hereunder, which breach or failure the Executive
shall fail to remedy within 30 days after written demand from
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the Company, or (e) violated in any material respect the representations
made in Section 1 above or the provisions of Section 6 below.
(ii) The term "Constructive Discharge" means a termination of the
Executive's employment by the Executive due to a failure of the Company or
its successors without the prior consent of the Executive to fulfill its
obligations under this Agreement in any material respect, including (a) any
failure to elect or re-elect or to appoint or reappoint the Executive to
the office of Chief Operating Officer, or (b) any other material change by
the Company in the functions, duties or responsibilities of the Executive's
position with the Company which would materially reduce the ranking or
level, dignity, responsibility, importance or scope of such position.
(iii) The term "Without Cause Termination" means a termination of
the Executive's employment by the Company other than due to Permanent
Disability, retirement or expiration of the Term and other than a
Termination for Cause.
(iv) The term "Permanent Disability" means permanently disabled so
as to qualify for full benefits under the Company's then-existing
disability insurance policy; provided, however, that if the Company does
not maintain any such policy on the date of determination, "Permanent
Disability" shall mean the inability of the Executive to work for a period
of six full calendar months during any eight consecutive calendar months
due to illness or injury of a physical or mental nature, supported by the
completion by the Executive's attending physician of a medical
certification form outlining the disability and treatment.
Section 6. Other Duties of Executive During and After Term. (a) The
Executive recognizes and acknowledges that all information pertaining to the
affairs, business, clients, or customers of the Company or any of its
subsidiaries or affiliates (any or all of such entities being hereinafter
referred to as the "Business"), as such information may exist from time to time,
other than information that the Company has previously made publicly available,
is confidential information and is a unique and valuable asset of the Business,
access to and knowledge of which are essential to the performance of the
Executive's duties under this Agreement. In consideration of the payments made
to him hereunder, the Executive shall not, except to the extent reasonably
necessary in the performance of his duties under this Agreement, divulge to any
person, firm, association, corporation, or governmental agency, any information
concerning the affairs, businesses, clients, or customers of the Business
(except such information as is required by law to be divulged to a government
agency or pursuant to lawful process), or make use of any such information for
his own purposes or for the benefit of any person, firm, association or
corporation (except the Business) and shall use his reasonable best efforts to
prevent the disclosure of any such information by others. All records,
memoranda, letters, books, papers, reports, accountings, experience or other
data, and other records and documents relating to the Business, whether made by
the Executive or otherwise coming into his possession, are
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confidential information and are, shall be, and shall remain the property of the
Business. No copies thereof shall be made which are not retained by the
Business, and the Executive agrees, on termination of his employment or on
demand of the Company, to deliver the same to the Company.
(b) In consideration of the payments made to him hereunder, during the
two-year period commencing on the effective date of the termination of his
employment, the Executive shall not, without express prior written approval of
the Board, directly or indirectly, own or hold any proprietary interest in, or
be employed by or receive remuneration from, any corporation, partnership, sole
proprietorship or other entity engaged in the production and sale of food and
animal feed products (a "Competitor"), other than severance-type or
retirement-type benefits from entities constituting prior employers of the
Executive. The Executive also shall not, during such two-year period, solicit
for the account of any Competitor, any customer or client of the Company or its
affiliates, or, in the event of the Executive's termination of his employment,
any entity or individual that was such a customer or client during the
twelve-month period immediately preceding the Executive's termination of
employment. The Executive also shall not, during such two-year period, act on
behalf of any Competitor to interfere with the relationship between the Company
or its subsidiaries and affiliates and their respective employees.
For purposes of the preceding paragraph, (i) the term "proprietary
interest" means legal or equitable ownership, whether through stockholding or
otherwise, of an equity interest in a business, firm or entity other than
ownership of less than 5 percent of any class of equity interest in a publicly
held business, firm or entity, and (ii) an entity shall be considered to be
"engaged in competition" if such entity is, or is a holding company for, a
company engaged in the manufacture or distribution of animal feed, flour or
pasta products in the countries comprising the European Union or the United
States.
(c) The Company's obligation to make payments, or provide for any
benefits under this Agreement (except to the extent vested or exercisable) shall
cease upon a violation of the preceding provisions of this section. The
provisions of this Section 6 shall survive the Executive's termination of his
employment with the Company.
(d) Executive acknowledges that he has carefully read and considered
all of the restraints imposed pursuant to this Section 6 and that each and every
one of said restraints is reasonable in respect to subject matter, length of
time, and area. Employee further acknowledges that damages at law would not be a
measurable or adequate remedy for a breach of the restrictive covenant contained
in Section 6(b) hereof, and accordingly consents to the entry by any court of
competent jurisdiction of order enjoining him from violating any of such
covenant. If any of the covenants contained in this Section 6 is held to be
invalid or unenforceable because of the duration of such provision or the area
covered thereby, the parties agree that the court making such determination
shall have the power to reduce the duration and/or area of such provision and in
its reduced form said provision shall then be enforceable.
Section 7. Withholdings. The Company may directly or indirectly withhold
from any payments made under this Agreement all Federal, state, city or other
taxes and all other
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deductions as shall be required pursuant to any law or governmental regulation
or ruling or pursuant to any contributory benefit plan maintained by or on
behalf of the Company.
Section 8 Consolidation, Merger, or Sale of Assets. Nothing in this
Agreement shall preclude the Company from consolidating or merging into or with,
or transferring all or substantially all of its assets to, or engaging in any
other business combination with, any other person or entity which assumes this
Agreement and all obligations and undertakings of the Company hereunder. Upon
such a consolidation, merger, transfer of assets or other business combination
and assumption, the term "Company" used herein shall mean such other person or
entity and this Agreement shall continue in full force and effect.
Section 9 Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be given in writing and shall be deemed to
have been duly given if delivered or mailed, postage prepaid, by same day or
overnight mail (i) if to the Executive, at the address set forth above, or (ii)
if to the Company, as follows:
Spigadoro, Inc.
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
or to such other address as either party shall have previously specified in
writing to the other.
Section 10. No Attachment. Except as required by law, no right to receive
payments under this Agreement shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge, or hypothecation or
to execution, attachment, levy, or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any such action shall
be null, void and of no effect; provided, however, that nothing in this Section
10 shall preclude the assumption of such rights by executors, administrators or
other legal representatives of the Executive or his estate and their assigning
any rights hereunder to the person or persons entitled thereto.
Section 11. Source of Payment. All payments provided for under this
Agreement shall be paid in cash from the general funds of the Company. The
Company shall not be required to establish a special or separate fund or other
segregation of assets to assure such payments, and, if the Company shall make
any investments to aid it in meeting its obligations hereunder, the Executive
shall have no right, title or interest whatever in or to any such investments
except as may otherwise be expressly provided in a separate written instrument
relating to such investments. Nothing contained in this Agreement, and no action
taken pursuant to its provisions, shall create or be construed to create a trust
of any kind, or a fiduciary relationship, between the Company and the Executive
or any other person. To the extent that any person acquires a right to receive
payments from the Company hereunder, such right, without prejudice to rights
which employees may have, shall be no greater than the right of an unsecured
creditor of the Company.
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Section 12. Binding Agreement; No Assignment. This Agreement shall be
binding upon, and shall inure to the benefit of, the Executive and the Company
and their respective permitted successors, assigns, heirs, beneficiaries and
representatives. This Agreement is personal to the Executive and may not be
assigned by him without the prior written consent of the Company. Any attempted
assignment in violation of this Section 12 shall be null and void.
Section 13. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York,
without reference to the choice of law principles thereof.
Section 14. Entire Agreement. This Agreement shall constitute the entire
agreement among the parties with respect to the matters covered hereby and shall
supersede all previous written, oral or implied understandings among them with
respect to such matters.
Section 15. Amendments. This Agreement may only be amended or otherwise
modified, and compliance with any provision hereof may only be waived, by a
writing executed by all of the parties hereto. The provisions of this Section 15
may only be amended or otherwise modified by such a writing.
Section 16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
shall together be deemed to constitute one and the same instrument.
[signature page follows]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by the undersigned, thereunto duly authorized, and the Executive has
signed this Agreement, all as of the date first written above.
SPIGADORO, INC.
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Chairman of the Board and
Chief Executive Officer
/s/ Xxxxx Xx Xxxx
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XXXXX XX XXXX
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