Exhibit 10.12
EMPLOYMENT AGREEMENT entered on the 27th day of September, 1999.
AMONG: HF HOLDINGS, INC., a Delaware corporation.
("COMPANY")
ICON HEALTH & FITNESS, INC., a Delaware
corporation.
("SUBSIDIARY")
XXXX X. XXXXXXXXX, acting in his personal capacity,
of the City of PROVIDENCE, State of UTAH.
("EMPLOYEE")
THE PARTIES AGREE AS FOLLOWS:
1. PREAMBLE
1.1. The COMPANY and the SUBSIDIARY have made an exchange offer for all
outstanding 13% Senior Subordinated Notes due 2002 of the
SUBSIDIARY, 15% Senior Secured Discount Notes due 2004 of IHF
Holdings, Inc. and 14% Senior Discount Notes due 2006 of ICON
Fitness Corporation, pursuant to an Exchange Offer and Consent
Solicitation, dated July 30, 1999, as supplemented (the "Exchange
Offer").
1.2. It is recorded that the COMPANY, in connection with the
Restructuring (as defined in the Equity Letter Agreement (the
"Equity Letter"), dated July 8, 1999, attached, as amended, to the
Exchange Offer as Annex H) desires to conclude an agreement for the
employment of the EMPLOYEE as President and Chief Operating Officer
of the COMPANY, according to the terms and conditions to be set
forth in this Agreement.
1.3. This Agreement is to record the terms and conditions which govern
the mutual relations of the parties hereto with respect to its
subject matter.
1.4. In this Agreement, "BUSINESS" means the manufacture, sale and
distribution of SPORTING GOODS as carried on by the COMPANY, the
SUBSIDIARY, and their respective various divisions and subsidiaries,
from time to time. "SPORTING GOODS" means fitness equipment and
accessories, which presently involve treadmills, home gyms, aerobic
exercises, trampolines, weights and benches and exercise
accessories, but the content of such product lines may vary from
time to time.
1.5. In this Agreement, AFFILIATES means any entity in which the COMPANY
or the SUBSIDIARY holds more than a 20% voting interest direct or
indirect.
2. EMPLOYMENT AND ONE-TIME BONUS
2.1. This Agreement shall come into effect on the date hereof ("EFFECTIVE
DATE").
2.2. The COMPANY hereby employs the EMPLOYEE and the EMPLOYEE agrees to
serve the COMPANY in the positions of President and Chief Operating
Officer for a term of three (3) years from the EFFECTIVE DATE,
subject to earlier termination as hereinafter provided (the "TERM").
2.3. Although this agreement is concluded between the COMPANY and the
EMPLOYEE, it is agreed that the duties and obligations of the
EMPLOYEE hereunder extend to the SUBSIDIARY and to all of the
COMPANY's other subsidiaries, present and future, although the
EMPLOYEE will not necessarily be an employee of such entities. The
EMPLOYEE agrees to serve, if requested by the COMPANY, as an officer
or director of the SUBSIDIARY and any other subsidiaries, in each
case without additional consideration.
2.4. Upon the execution and delivery hereof, the COMPANY shall pay the
EMPLOYEE a one-time bonus of FIVE HUNDRED THOUSAND DOLLARS
($500,000).
3. BASE SALARY, EXPENSES AND BENEFITS
3.1. In consideration for the faithful performance of services by the
EMPLOYEE to be rendered to the COMPANY as herein provided, the
COMPANY shall pay to the EMPLOYEE during the TERM an annual base
salary of FOUR HUNDRED SEVENTY-FIVE THOUSAND DOLLARS ($475,000)
payable in semi-monthly installments or in accordance with the
general policy of the COMPANY which may change from time to time but
in no event less frequently than monthly.
3.2. The annual base salary mentioned in Section 3.1 above shall be
reviewed by the Board of Directors of the COMPANY and may be
adjusted upwards in the Board's discretion, annually for each year
of the TERM, taking into account, among other things:
a) the performance by the EMPLOYEE of his duties and functions
pursuant to this Agreement,
b) the general economic situation,
c) the development and performance of the BUSINESS, and
d) other matters deemed relevant by the Board of Directors such
as an increase in shareholder equity and the rate on return on
investment.
3.3. The COMPANY shall reimburse the EMPLOYEE for all reasonable expenses
which are incurred by the EMPLOYEE in the performance of his duties
hereunder
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and (i) subject to the COMPANY's annual budget or (ii) as authorized
by the Board of Directors of the COMPANY or (iii) in accordance with
the policies and procedures established from time to time by the
Board of Directors of the COMPANY or a committee delegated for such
purpose.
3.4. During the Term, the COMPANY shall provide the EMPLOYEE with the use
of a new automobile of his choice, acting reasonably (and
consistently with his past practice) every 3 years for the purposes
of his employment commensurate with the position of the EMPLOYEE and
having regard to COMPANY policy in force from time to time.
The COMPANY shall assume all costs and expenses of said automobile
and its operation, including, without limitation, insurance,
maintenance, gas and use of such automobile. Upon the expiry of the
TERM, the EMPLOYEE shall deliver such automobile to the COMPANY.
3.5. During the Term, the EMPLOYEE shall be entitled to participate in
the COMPANY's life, welfare, and health insurance plans for senior
executives on the same terms as those of other senior executives.
3.6. During the Term, the EMPLOYEE shall be entitled to participate in
fringe benefit programs which are not less favorable than those
extended by the COMPANY to its senior executives, including without
limitation an as yet to be defined deferred compensation plan to be
established by the Board of Directors, but excluding for this
purpose any such plan or program adopted exclusively for the benefit
of junior management.
4. ANNUAL BONUS
4.1. The EMPLOYEE shall receive with respect to (i) each fiscal year
ending during the Term, and (ii) that portion of any fiscal year
ending after Term during which he is employed hereunder, a bonus
equal to one and one-tenth percent (1.10%) of the consolidated
EBITDA (as that term is defined in the Credit Agreement of even date
herewith among the SUBSIDIARY, General Electric Capital Corporation
and the other lenders thereunder, without regard to any amendments
thereto) of the SUBSIDIARY and its subsidiaries (but not including
the COMPANY), provided that such bonus shall not be payable with
respect to any such fiscal year unless such EBITDA for such fiscal
year exceeds five and one-half percent (5.5%) of the consolidated
net sales of the SUBSIDIARY and its subsidiaries (but not including
the COMPANY) determined in accordance with generally accepted
accounting principles and provided, further, that for purposes of
this Agreement, EBITDA shall be calculated without regard to any
bonuses payable hereunder.
4.2. The sole basis for the bonus calculation shall be the auditied
financial statements of the SUBSIDIARY and its subsidiairies for the
fiscal year in question.
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4.3. Any bonus to which EMPLOYEE is entitled under the provisions of this
Agreement for any fiscal year shall be paid to him (regardless of
whether the TERM has terminated) in accordance with the COMPANY'S
previous practice, with a first installment equal to forty percent
(40%) of a good faith estimate of the bonus for such year, to be
paid during the month of December of such year and a final
installment to be paid as promptly as reasonably practicable after
the end of, but not later than the 75th day after the end of each
such fiscal year.
5. DUTIES
5.1. The EMPLOYEE shall perform those functions which are normally the
functions of the President and Chief Operating Officer of the
COMPANY and such other offices as he may hold pursuant to Section
2.3, and shall further perform those functions which shall be
reasonably determined from time to time by the Board of Directors of
the COMPANY, such functions not to be inconsistent with those herein
set forth. The EMPLOYEE shall report to, and be subject to the
authority of, the Board of Directors of the COMPANY.
5.2. The COMPANY shall give the EMPLOYEE a notice of six (6) months prior
to any relocation of the EMPLOYEE.
5.3. It is the specific responsibility of the EMPLOYEE, between regular
meetings of the Board, to apprise Board Members of significant
business matters.
5.4. The EMPLOYEE shall, during the TERM, devote his entire working time,
attention and energies to the business of the COMPANY, the
SUBSIDIARY, and their respective AFFILIATES.
5.5. The EMPLOYEE shall not, during the TERM, except under Section 5.6,
be engaged in any other business activity, whether or not such
business activity is pursued for gain, profit or other pecuniary
advantage. Notwithstanding the prohibition contained in the present
clause, the EMPLOYEE shall be entitled to continue to sit on the
boards of directors of the companies listed on Schedule I hereto,
and on the boards of directors of other companies if such activity
is approved in writing by the Board of Directors of the COMPANY. In
the case of non-profit corporations or charities, such approval
shall not be unreasonably withheld, but in all other cases, the
Board shall have sole discretion to grant, delay or withhold
approval, with or without conditions.
5.6. The EMPLOYEE shall not invest his personal assets in any business
other than NON-COMPETING BUSINESSES, and even in the case of such
investments:
a) No services are required or furnished on the part of the
EMPLOYEE in the operations of the companies in which such
investments are made and in which his participation is solely
that of an investor provided that this subsection is not
infringed by the EMPLOYEE's providing counseling (and not
acting in a "line" capacity) on a non-remunerative basis to
all
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such companies for a maximum of 5 hours per week and 200 hours
per year; and
b) If the EMPLOYEE purchases securities in any corporation whose
securities are regularly traded in a recognized securities
market, such purchases shall not result in his collectively
owning beneficially at any time five percent (5%) or more of
the equity securities of any corporation engaged in a business
other than a NON-COMPETING BUSINESS.
The foregoing restrictions shall not apply to any investment of
whatever extent the EMPLOYEE may take in the shares of the COMPANY
or of any successor company.
For the purposes of this subsection, NON-COMPETING BUSINESSES are
all businesses other than those which compete with:
a) the BUSINESS; or
b) any other business carried on in the future by the COMPANY,
the SUBSIDIARY or any AFFILIATES, provided that the EMPLOYEE
has access to confidential information concerning such
business.
Moreover, the EMPLOYEE shall not knowingly assist any RELATIVE to
make any investment which the EMPLOYEE is not permitted to make by
this section.
5.7. The EMPLOYEE is a member of the Board of Directors and acknowledges
that he has a significant interest in this Agreement and undertakes
the following:
5.7.1. To seek independent legal counsel at the COMPANY's expense
to negotiate and review this Agreement on the EMPLOYEE's
behalf;
5.7.2. To disclose his interest in this Agreement to the other
members of the Board of Directors; and
5.7.3. To retire from and abstain from the discussion and vote at
any meeting of the Board of Directors at which this
Agreement or any default by EMPLOYEE or matter arising
therefrom is the subject of a discussion or a vote.
5.8. The EMPLOYEE also undertakes the following:
5.8.1. To use every best effort (including the establishment of
written procedures known to operation personnel) to
promptly bring to the attention of the Board of Directors
of the COMPANY any matter requiring the COMPANY's decision
or action where his own interests or those of a RELATIVE
are involved and to abstain from taking such decision or
action until the Board of Directors decides.
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5.8.2. If requested, to be absent from and abstain from the
discussion and vote at any meeting of the aforementioned
Board of Directors where the subject matter being
discussed and voted upon is any matter covered by section
5.8.l.
5.8.3. For the purposes of this Agreement RELATIVE means the
EMPLOYEE's spouse, parent, sibling, child or sibling's
children, the spouses of the foregoing and any other
person who could be claimed as a dependent on the
EMPLOYEE's or RELATIVE's federal income tax return, any
corporation or partnership in which a RELATIVE or the
EMPLOYEE holds a five percent (5%) interest or of which a
RELATIVE or the EMPLOYEE is an officer or director, and
any trust of which any of the foregoing is a beneficiary.
6. EQUITY GRANT
6.1. Contemporaneously herewith, the COMPANY will issue to the EMPLOYEE
291,700 shares of Common Stock of the COMPANY, at no cost to
EMPLOYEE, which the COMPANY represents and warrants is equal to
2.91617% of the COMPANY's Common Stock outstanding on a fully
diluted basis upon closing of the Restructuring.
7. CONFIDENTIALITY, ETC.
7.1. The EMPLOYEE recognizes and acknowledges that the confidential
information, trade secrets and proprietary processes of the COMPANY,
its AFFILIATES and subsidiaries as they may exist from time to time
are valuable, special and unique assets of the BUSINESS of the
COMPANY, its AFFILIATES and subsidiaries, access to and knowledge of
which are essential to the performance of the EMPLOYEE's duties
hereunder. The EMPLOYEE will not, during the TERM of his employment
or at any time within five (5) years following its termination, for
any reason whatsoever, in whole or in part, disclose such
confidential information, secrets or processes to any person, firm,
corporation, association or other entity for any reason or purpose
whatsoever, nor shall the EMPLOYEE make use of such property for his
own purposes or for the benefit of any person, firm, corporation or
other entity (except the COMPANY, its AFFILIATES and subsidiaries)
under any circumstances whatsoever, except as may be required in the
fulfillment of his function with the COMPANY within the terms of
this Agreement or except as provided by law; provided these
restrictions shall not apply to such information, secrets and
processes which are then in the public domain (provided that the
EMPLOYEE was not responsible, directly or indirectly, for permitting
such secrets or process to enter the public domain without the
COMPANY's consent).
7.2. The EMPLOYEE furthermore agrees that upon termination of the TERM he
will remit to the COMPANY all writings and materials, in his
possession or under his control, which either belong to the COMPANY
and AFFILIATES or which may
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contain confidential information concerning the COMPANY and
AFFILIATES. The EMPLOYEE may, however, retain his personal
diary/agenda after removing or destroying all confidential COMPANY
or AFFILIATES material therein.
7.3. Any and all inventions, discoveries, developments, methods,
processes, compositions, works, concepts and ideas (whether or not
patentable or copyrightable) conceived, made, developed, created or
reduced to practice by the EMPLOYEE (whether at the request or
suggestion of the COMPANY or otherwise, whether alone or in
conjunction with others, and whether during regular hours of work or
otherwise) during the period of his employment by the COMPANY or any
of its subsidiaries which may relate to the business, ventures or
other activities of or products manufactured or sold by the COMPANY
or any of its subsidiaries (collectively, "Proprietary Rights"),
shall be promptly and fully disclosed by the EMPLOYEE to an
appropriate executive officer of the COMPANY and shall be the
COMPANY's exclusive property as against the EMPLOYEE and his heirs
and personal representatives, and the EMPLOYEE hereby assigns to the
COMPANY his entire right, title and interest therein and shall
promptly deliver to an appropriate executive officer of the COMPANY
all papers, drawings models, data and other material relating to any
of the foregoing Proprietary Rights, conceived, made, developed,
created or reduced to practice by him as aforesaid. All
copyrightable Proprietary Rights shall be considered "works made for
hire."
The EMPLOYEE shall, upon the COMPANY's request and without any
payment therefor, execute any documents reasonably necessary or
advisable in the opinion of the COMPANY's counsel to assign, and
confirm the COMPANY's title in, his entire right, title and interest
in the foregoing Proprietary Rights and to direct issuance of
patents or copyrights to the COMPANY with respect to such
Proprietary Rights as are the COMPANY's exclusive property as
against the EMPLOYEE and his heirs and personal representatives
under this Section 7.3 or to vest in the COMPANY title to such
Proprietary Rights as against the EMPLOYEE and his heirs and
personal representatives, the expense of securing any such patent or
copyright, however, to be borne by the COMPANY. In addition, the
Company shall reimburse the EMPLOYEE for any reasonable expenses
incurred in having such documents reviewed by EMPLOYEE's counsel.
8. VACATION
8.1. The EMPLOYEE shall have the right to an annual paid vacation of no
less duration than four (4) weeks.
9. TERMINATION OF EMPLOYMENT
9.1. Notwithstanding any other provision contained herein, the COMPANY
may on or after the EFFECTIVE DATE send to the EMPLOYEE notice of
one of the following events and should the EMPLOYEE fail to cure the
matter giving rise to the notice within thirty (30) days after
receipt of such notice, the TERM shall
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terminate without any delay stipulated therein or any indemnity
payable in lieu thereof:
a) EMPLOYEE's willful misconduct or gross negligence;
b) The commission of a criminal act by the EMPLOYEE against the
COMPANY involving material harm (whether nor not charges are
filed);
c) The commission by the EMPLOYEE of a criminal act of moral
turpitude bringing the COMPANY into disrepute (whether or not
charges are filed);
d) Willful insubordination to any directive of the Board of
Directors provided reasonable prior notice of such directive
is given; or
e) Actions contrary to Sections 5.4, 5.5, 5.6, 5.8, 7 or 10
causing COMPANY or AFFILIATES material harm.
9.2. Notwithstanding any other provision contained herein, the TERM shall
terminate automatically, without notice or indemnity in lieu
thereof, upon the occurrence of one of the following events:
a) The bankruptcy or voluntary state insolvency filing of the
EMPLOYEE; or
b) The death of the EMPLOYEE.
9.3. The EMPLOYEE may terminate the TERM by sending his resignation in
writing to Board of Directors not less than six (6) months prior to
the effective date of such resignation or, if such resignation is
submitted in good faith so that the EMPLOYEE can perform full time
church service, not less than three (3) months prior to the
effective date of such resignation, failing which notice the
EMPLOYEE may be subject to any and all damages incurred as a result
of such failure. In the event the EMPLOYEE has given such a notice
to the COMPANY, the COMPANY may, at its option, earlier terminate
EMPLOYEE's employment.
9.4. Except under the circumstances described in Section 9.6, the COMPANY
may terminate the TERM by sending a notice in writing to the
EMPLOYEE.
9.5. The EMPLOYEE may immediately terminate the TERM by sending a notice
of termination to the Board of Directors with immediate effect
following any material diminution of the EMPLOYEE's responsibilities
or in the event that the EMPLOYEE is asked by the Board of Directors
to perform any act which a reasonable person would consider illegal
or unethical and the COMPANY has not withdrawn its request to the
EMPLOYEE to perform such act within five (5) days of receiving a
written notice from the EMPLOYEE to withdraw such a request.
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9.6. The COMPANY may immediately terminate the TERM by sending a notice
in writing to the EMPLOYEE with immediate effect:
9.6.1. after a period of six (6) consecutive months (or
aggregating six (6) months in any twelve (12) month
period) of absence by the EMPLOYEE from his employment as
a result of sickness or disability, or
9.6.2. after sixty (60) days of absence by the EMPLOYEE from his
employment as a result of sickness or disability and a
certification by three (3) physicians that the EMPLOYEE is
likely to be disabled for a period of at least six (6)
months from the initial date of sickness or disability.
One (1) such physician shall be chosen by the EMPLOYEE,
one (1) shall be chosen by the COMPANY and the third shall
be chosen by the other two (2) selected physicians. The
EMPLOYEE agrees that in the event of his sickness, he
shall submit himself for examination by such physicians if
reasonably requested to do so by the COMPANY. For the
purposes of this section, "disabled" or "disability" shall
mean a temporary or permanent substantial inability
because of a physical or mental illness to continue to
discharge the EMPLOYEE's duties hereunder.
Notwithstanding any other provision hereof, the EMPLOYEE's
compensation during any period of the EMPLOYEE'S disability shall be
reduced to the extent of any payments to the EMPLOYEE for such
period under any disability plan or program maintained for the
EMPLOYEE by the COMPANY for his benefit.
9.7. In the event of the termination of the TERM by virtue of section 9.6
in addition to the payments described therein, the COMPANY shall pay
to the EMPLOYEE a severance pay equal to one (1) month base salary
in effect at termination for each calendar year, or part thereof, of
the EMPLOYEE's employment with the COMPANY, the SUBSIDIARY, IHF
Capital, Inc. or IHF Holdings, Inc. (or any predecessor companies of
the COMPANY, the SUBSIDIARY, IHF Capital, Inc., or IHF Holdings,
Inc.) after January 1, 1988.
9.8. In the event of the termination of the TERM by virtue of Section
9.3, 9.4 or 9.5, the COMPANY shall pay to the EMPLOYEE a severance
pay equal to the EMPLOYEE's base salary then in effect and the bonus
referred to in Section 4 hereof, pro-rated for the period of the
payment, for two (2) years following the termination of the TERM,
provided, however, that if, due to the EMPLOYEE's resignation, there
is a termination of the TERM, without any action by the COMPANY,
during the one (1) year period following the EFFECTIVE DATE, the
EMPLOYEE shall forego FIVE HUNDRED THOUSAND DOLLARS ($500,000) of
any severance pay to which he would otherwise be entitled under this
Section 9.8, unless the resignation resulting in such termination is
submitted (i) in good faith by EMPLOYEE pursuant to Section 9.3 so
that the EMPLOYEE can perform full time church service, or (ii)
pursuant to Section 9.5. The bonuses shall be paid to the EMPLOYEE
within ninety (90) days from the end of the COMPANY's applicable
fiscal year, and the base salary shall be paid to the
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EMPLOYEE on the same payment schedule as was applicable to the
EMPLOYEE during his employment.
10. RESTRICTIVE COVENANT
10.1. EMPLOYEE shall not, during the TERM of his employment hereunder and
for a period of four (4) years from its termination, either directly
or indirectly, individually or in partnership, carry on or be
engaged in, or concerned with or interested in, in any capacity
whatsoever (including that of principal, agent, shareholder (subject
to section 5.6(b)), consultant, employee, lender or surety), any
person, firm, association, syndicate or company engaged in or
concerned with or interested in the conception, development,
fabrication, transformation, marketing, distribution, advertising,
franchising or sale in Canada, the United States or the European
Economic Community, or any of them, of any products or services
similar or identical to any of those manufactured, distributed, or
sold by the COMPANY or any of its subsidiaries in the course of his
employment with the COMPANY, its AFFILIATES and subsidiaries.
10.2. (a) EMPLOYEE shall not, during the TERM of his employment
hereunder and for a period of twelve (12) months from its
termination, directly or indirectly, hire any Designated
Employee.
(b) EMPLOYEE shall not, during the TERM of his employment
hereunder and for a period of eighteen (18) months from its
termination, directly or indirectly, solicit, interfere with
or endeavor to entice away, any Designated Employee.
(c) For purposes of this Section 10.2., the term "Designated
Employee" shall mean any person if that person is or was a
Senior Employee of the COMPANY or any of its AFFILIATES or
subsidiaries during the period beginning six (6) months prior
to the termination of the TERM and ending (i) in the case of
clause (a), twelve (12) months thereafter and (ii) in the case
of clause (b), eighteen (18) months thereafter, but shall
exclude Xxxxx X. Xxxxxxxxx or any RELATIVE. For purposes of
this Section 10.2 "Senior Employee" shall mean each of the two
hundred (200) most highly compensated employees of the COMPANY
or any of its subsidiaries or AFFILIATES.
10.3. Notwithstanding the foregoing, if termination of employment occurs
under Section 9.3, 9.4 or 9.5, the period stipulated by Section 10.1
is reduced to two (2) years; provided, however, that such period
shall be extended by written notice to the EMPLOYEE within thirty
(30) days of such termination up to two (2) years (i.e., up to a
total of four (4) years from the termination of EMPLOYEE's
employment) to the extent that the COMPANY, at its option, pays to
the EMPLOYEE a severance pay equal to the EMPLOYEE's base salary
then in effect and the bonus referred to in Section 4 hereof,
pro-rated for the period of the payment, for a period of up to an
additional two (2) years beyond that required to
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be paid by the COMPANY to the EMPLOYEE under Section 9.8. If paid at
the COMPANY's option, such bonuses are to be paid within ninety (90)
days from the end of the COMPANY's applicable fiscal year, and the
base salary shall be paid to the EMPLOYEE on the same payment
schedule as was applicable to the EMPLOYEE during his employment.
11. REASONABLENESS AND REMEDIES
11.1. The EMPLOYEE agrees that all the conditions and restrictions
established in this Agreement are reasonable taking into account the
circumstances surrounding this Agreement.
11.2. The EMPLOYEE recognizes that in the view of the serious and
irreparable harm which a violation hereof would have on the COMPANY,
and without prejudice to the COMPANY's other remedies, injunctive
relief would constitute an available and appropriate remedy and, to
the extent permitted by law, the COMPANY shall not be required to
furnish any security or bond in respect thereof.
12. [INTENTIONALLY DELETED]
13. GENERAL LIMIT ON EMPLOYEE'S LIABILITY
13.1. As a general and overall limitation of the EMPLOYEE's liability to
the COMPANY and AFFILIATES, the COMPANY agrees that the EMPLOYEE
shall not be liable, for any reason except as set forth below, to
the COMPANY or any of its AFFILIATES for an amount in excess of the
amount provided in the next sentence hereof. Accordingly, as and for
their sole remedy against the EMPLOYEE, the COMPANY agrees that for
any claim or cause of action that the COMPANY or any of its
AFFILIATES may have against the EMPLOYEE, whether past or future,
their sole remedy shall be the forfeiture of the EMPLOYEE's salary,
bonus and other compensation (but not the equity grant under Section
6.1 hereof, which shall not be subject to forfeiture) received by
the EMPLOYEE during the COMPANY's fiscal year in which the
EMPLOYEE's termination occurred plus subsequently accruing
compensation. In this regard, the COMPANY agrees, to the extent
permitted by applicable law, to indemnify the EMPLOYEE from and
against any liability the EMPLOYEE may have in excess of that
provided in the immediately preceding sentence (i) hereunder or (ii)
for any other claim the COMPANY or any of its AFFILIATES may have
against the EMPLOYEE. However, nothing in this Section 13 shall
limit the EMPLOYEE's liability to the COMPANY or any of its
AFFILIATES or provide the EMPLOYEE any indemnity (i) for any act by
the EMPLOYEE involving theft, fraud or embezzlement against the
COMPANY or any of its AFFILIATES, (ii) in respect of any equitable
remedy against the EMPLOYEE, (iii) in respect of any agreement
listed on Schedule I of the Old Employment Agreement (as defined in
that separate Termination Agreement among IHF Capital, Inc., IHF
Holdings, Inc., SUBSIDIARY and EMPLOYEE, dated an even date hereof
(the "Termination Agreement")) or any agreement heretofore or
hereafter entered into
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by the EMPLOYEE after the date of the Old Employment Agreement, (iv)
in respect of any claim or cause of action asserted by the COMPANY
or any of its AFFILIATES as a counterclaim (to the extent of any
liability the COMPANY or any of its AFFILIATES may have by reason of
the EMPLOYEE claim in question) or as a set off, or (v) under
Section 7, 9.3 or 10 of this Agreement or under the Non-Competition
Agreement (as defined in the First Amended and Restated Master
Transaction Agreement dated as of October 12, 1994 among ICON Health
& Fitness, Inc. and the other parties thereto (the "Master
Transaction Agreement")); provided, however, that the aggregate of
the liability of the EMPLOYEE to the COMPANY or any of its
AFFILIATES under Section 7, 9.3 or 10 of this Agreement or to the
COMPANY, any of its AFFILIATES, IHF Capital, Inc. or any of its
AFFILIATES (as defined in the Old Employment Agreement) under the
Non-Competition Agreement and of the liability of the EMPLOYEE to
IHF Capital, Inc. or any of its AFFILIATES (as so defined) in
respect of claims subject to the $18,000,000 limits set forth in the
third to last sentence of Section 10.3.1.1 of the Master
Transaction, shall not exceed $1,240,000.
14. AMENDMENTS
14.1. This Agreement may be amended only by written instrument duly
executed by all the parties hereby and approved by the Board of
Directors of the COMPANY.
15. NO ASSIGNMENT
15.1. No party hereto shall assign, in whole or in part, this agreement or
any of its or his respective rights and obligations hereunder
without the express prior written consent of the other parties
hereto; for this purpose the merger or reorganization of the COMPANY
or the SUBSIDIARY or any AFFILIATE shall not be considered an
assignment.
16. NO WAIVER
16.1 No waiver by any party of any breach of the obligations of any other
party hereunder shall be a waiver of any subsequent breach or of any
other obligation, nor shall any forbearance to seek a remedy for any
breach be a waiver of any rights and remedies with respect to any
subsequent breach.
17. SEVERABILITY
17.1. The invalidity of one of the provisions of this Agreement shall not
invalidate or otherwise affect any of the other provisions of this
Agreement, which shall remain in full force and effect, and each
such invalid provision shall be construed by limiting it so as to be
valid for the maximum extent permitted by law.
18. CURRENCY, ETC.
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18.1. All references in this Agreement to dollar of $ mean lawful currency
of the United States of America.
18.2. The COMPANY shall have the right to withhold, from or in respect of
any payment, benefit or other item of compensation due to the
EMPLOYEE hereunder, any federal, state or local taxes of any kind
required by law to be withheld with respect thereto. In the event
that at the time any withholding is required hereunder, the amount
of cash payments from which the applicable withholding taxes may be
deducted is less than the withholding taxes due, the EMPLOYEE shall
pay to the COMPANY, in immediately available funds, an amount equal
to such shortfall.
19. GOVERNING LAW; ARBITRATION
19.1. This Agreement shall be governed by and construed in accordance with
the domestic substantive laws of the State of Utah, without giving
effect to any choice or conflict of law provision or rule that would
cause the application of the domestic substantive laws of any other
jurisdiction; provided, however, that any dispute relating to the
provisions of Section 19.2 shall be governed by the United States
Arbitration Act as then in force.
19.2. Except solely as set forth in Section 19.4, each dispute,
difference, controversy or claim arising in connection with or
related or incidental to, or question occurring under, this
Agreement or the subject matter hereof shall be finally settled
under the Commercial Arbitration Rules of the American Arbitration
Association (the "AAA") by an arbitral tribunal composed of three
(3) arbitrators, at least one (1) of whom shall be an attorney
experienced in corporate transactions, appointed by agreement of the
parties in accordance with said Rules. In the event the parties fail
to agree upon a panel of arbitrators from the first list of
potential arbitrators proposed by the AAA, the AAA will submit a
second list in accordance with said Rules. In the event the parties
shall have failed to agree upon a full panel of arbitrators from
said second list, any remaining arbitrators to be selected shall be
appointed by the AAA in accordance with said Rules. If, at the time
of the arbitration, the parties agree in writing to submit the
dispute to a single arbitrator, said single arbitrator shall be
appointed by agreement of the parties in accordance with the
foregoing procedure, or, failing such agreement, by the AAA in
accordance with said Rules. The foregoing arbitration proceedings
may be commenced by any party by notice to all other parties.
19.3. The place of arbitration shall be Salt Lake City, Utah.
19.4. The parties hereto exclude any right of appeal to any court on the
merits of the dispute. The provisions of this Section 19 may be
enforced in any court having jurisdiction over the award of any of
the parties or any of their respective assets and judgment on the
award (including without limitation equitable remedies) granted in
any arbitration hereunder may be entered in any such court. Nothing
contained in this Section 19 shall prevent any party from seeking
interim
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measures of protection in the form of pre-award attachment of assets
or preliminary or temporary equitable relief.
19.5. To the extent not prohibited by applicable law which cannot be
waived, each of the parties hereto hereby waives, and covenants that
he or it will not assert (whether as plaintiff, defendant, or
otherwise), any right to trial by jury in any forum in respect of
any issue, claim, demand, cause of action, action, suit or
proceeding arising out of or based upon this Agreement or the
subject matter hereof, in each case whether now existing or
hereafter arising and whether in contract or tort or otherwise. Any
of the parties hereto may file an original counterpart or a copy of
this Section 19.5 with any court as written evidence of the consent
of each of the parties hereto to the waiver of his or its right to
trial by jury.
19.6. Each of the parties hereto acknowledges that he or it has been
informed by each other party that the provisions of Section 19
constitute a material inducement upon which such party is relying
and will rely in entering into this Agreement and the transactions
contemplated hereby.
20. BINDING ON HEIRS
20.1. This Agreement binds and inures to the benefit of the parties, their
heirs, executors, administrators, successors and permitted assigns
(subject to Section 9.2(b)).
21. ENTIRE AGREEMENT
21.1 This Agreement embodies the entire Agreement between the parties
hereto concerning the subject matters mentioned herein and
supersedes all previous discussions, correspondence, understandings
or agreements, whether written or oral, with respect to such
matters, except as provided in the Termination Agreement. This
agreement shall constitute an agreement between employer and
employee of the type referred to in Section 1, Chapter 28, Title 34
of the Utah Code, Annotated.
22. ATTORNEY'S FEES
22.1. In the event that any party hereto shall be found in default or in
breach of this Agreement pursuant to arbitral or judicial
proceedings, such party shall be liable to pay all reasonable
attorney's fees, court costs and other related collection costs and
expenses incurred by the non-defaulting or non-breaching party in
pursuing its rights hereunder.
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23. NOTICES
23.1. All notices and other communications necessary or contemplated under
this Agreement shall be in writing and shall be delivered in the
manner specified herein or, in the absence of such specification,
shall be deemed to have been duly given three (3) business days
after mailing by certified mail, when delivered by hand, or when
delivered by facsimile upon confirmation of receipt, or one (1) day
after sending by overnight delivery service, to the respective
addresses of the parties set forth below:
a) for notices and communications to the COMPANY or the
SUBSIDIARY:
HF HOLDINGS, INC.
ICON HEALTH & FITNESS, INC.
0000 Xxxxx 0000 Xxxx
Xxxxx, Xxxx 00000
Fax: 000-000-0000
Attn: Board of Directors
b) For notices and communications to the EMPLOYEE:
Xxxx X. Xxxxxxxxx
000 Xxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
c) With a copy in each case to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxxxxx X. Xxxxxx, Esq.
and
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
Attn: X. Xxxxxxx Xxxxxxxxx, Esq.
24. JOINT AND SEVERAL LIABILITY
24.1. The COMPANY and the SUBSIDIARY shall be jointly and severally liable
in respect of all payment obligations of the COMPANY hereunder.
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IN WITNESS WHEREOF the parties have hereto signed this 27th day of
September, 1999.
HF HOLDINGS, INC.
By: /s/ S. Xxxx Xxxx
----------------------------------- -------------------------------------
Witness Title: Vice President
ICON HEALTH & FITNESS, INC.
By: /s/ S. Xxxx Xxxx
----------------------------------- -------------------------------------
Witness Title: Vice President
/s/ Xxxx X. Xxxxxxxxx
----------------------------------- ----------------------------------------
Witness XXXX X. XXXXXXXXX
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SCHEDULE I
To
EMPLOYMENT AGREEMENT
Among
HF HOLDINGS, INC.
ICON HEALTH & FITNESS, INC.
And
XXXX X. XXXXXXXXX
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Board Seats
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Boy Scots of America, Local Council
Utah State Business College
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