EXHIBIT 10.8
AMENDED AND RESTATED EMPLOYMENT AGREEMENT OF XXXXXXX XXXXXXX
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this
"Agreement"), effective as of November 1, 2000, is entered into by and among
Xxxxxxx Xxxxxxx ("Employee"), iParty Corp., a Delaware corporation (the
"Company"), and iParty Retail Stores Corp., a Delaware corporation (the
"Subsidiary").
W I T N E S S E T H :
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WHEREAS, the Company and Employee have previously entered into
an employment letter agreement dated as of March 12, 1999 (the "Employment
Agreement"); and
WHEREAS, the Company and Employee now each desire to amend and
restate in its entirety the Employment Agreement as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth, and intending to be legally bound hereby, Employee, the
Company and the Subsidiary have agreed and do hereby agree as follows:
1. Duties and Title. The Company does hereby employ, engage
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and hire Employee as President and Chief Financial Officer of the Company and as
President of the Subsidiary. Employee does hereby accept and agree to such
hiring, engagement and employment. Employee agrees to perform any and all other
duties and to assume any and all responsibilities that may be assigned to him.
Employee shall devote his full time (at least forty (40) hours per week), energy
and skill to the performance of his duties for the Company and the Subsidiary.
2. Compensation.
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(a) The Company shall pay Employee and Employee
agrees and accepts from the Company, in full payment for his services and
promises to the Company, a base salary (the "Base Salary") at the rate of One
Hundred Sixty-Five Thousand Dollars ($165,000.00) per year, less all applicable
payroll witholding taxes and deductions for insurance contributions and the
like. The Base Salary shall be payable in accordance with the regular payroll
practices of the Company, as in effect from time to time.
(b) The Company also agrees to pay Employee a
maximum of Two [Thousand Seven Hundred Fifty Thousand Dollars ($2,750.00)] per
month for all reasonable living expenses, properly receipted, including, but not
limited to, temporary housing in Boston and costs associated with Employee
leasing an automobile during the Employment Period (the "Lease").
3. Benefits. Employee shall be eligible to participate
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in any medical and dental plan adopted by the Company for the benefit of its
employees and Employee shall receive such other benefits as may be granted to
him from time to time by the Board of Directors.
4. Vacation. Employee is entitled to four (4) weeks
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paid vacation per calendar year, with such vacation to be scheduled and taken in
accordance with the Company's standard vacation policies.
5. Relocation Expenses. The Company shall reimburse
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Employee for all reasonable relocation expenses including, but not limited to,
the shipment of furniture and other household goods from New York to Boston and
broker's fees or agent's commission in association with the rental or leasing of
an apartment.
6. Employment Period.
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(a) The Company shall employ the Employee for a
period commencing as of November 1, 2000 and ending on October 31, 2001 (the
"Employment Period"), unless sooner terminated in accordance with the provisions
of this Employment Agreement.
(b) At the end of the Employment Period,
provided that this Agreement has not been terminated in accordance with the
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provisions of this Employment Agreement, the Company shall pay Employee a bonus
equal to four and one-half (4 1/2) months of his Base Salary ("Bonus"). The
Company shall also pay all of Employee's reasonable relocation expenses from
Boston to New York, including, but not limited to, the shipment of furniture and
other household goods from Boston to New York and temporary housing in New York
("Relocation Expenses"). The Bonus and Relocation Expenses shall be payable on
the first payroll disbursement date for the month following the end of the
Employment Period.
(c) At the end of the Employment Period,
provided that this Agreement has not been terminated in accordance with the
provisions of this Employment Agreement, Employee shall have the option (the
"Option") to assume the Lease. Employee shall provide written notice to the
Company if he does not wish to exercise the Option. The Company agrees that if
Employee does not exercise the Option, the Company shall assume all costs in
connection with the termination of the Lease.
7. Termination of Employment.
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(a) Notwithstanding anything herein contained,
if on or after the date hereof and prior to the end of the Employment Period,
the Company or Employee, as the case may be, shall have the right to terminate
Employee's services under this Agreement. Termination of Employee's employment
shall be deemed termination for "cause" if on account of: (i) Employee's
voluntary resignation (other than as a result of Employee's death or disability,
or for the reasons set forth in subparagraphs (x) and (y)); (ii) intentionally
fail to follow any commercially reasonable and lawful direction of the Board of
Directors and continue to fail to follow such direction within three (3) days of
written notification of the same; (iii) Employee is charged with a felony crime;
(iv) Employee commits any act of fraud against the Company; and (v) Employee
commits any act or omits to take any action in bad faith and to the detriment of
the Company. Cessation of the employment relationship between Employee and the
Company by reason of Employee's death or permanent disability, or Employee's
resignation because of (x) the assignment to him of duties materially
inconsistent with respect to his position as contemplated by this Agreement, or
(y) any material failure by the Company to comply with the provisions of this
Agreement, shall be deemed termination without "cause."
(b) Termination because of Disabilities.
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Employee shall be considered to be "disabled" for purposes of this Section 6 if
Employee is unable to perform his customary duties under this Agreement for a
continuous period of four (4) months because of physical or mental impairment,
in which event this Agreement shall terminate upon thirty (30) days written
notice to Employee and no further compensation shall be payable to Employee,
except as may otherwise be provided under any disability insurance policy.
Notwithstanding anything to the contrary above, if Employee is terminated
pursuant to this Section 7(b), he shall be entitled to any accrued but unused
vacation time (the "Unused Vacation Payment"). The Unused Vacation Payment shall
be payable on the first payroll disbursement date for the month following the
date this Agreement terminates.
(c) Effect of Termination Without "Cause".
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If Employee's employment is terminated without "cause," the Company shall give
notice of termination of Employee's services hereunder as of a date to be
specified in such notice and this Agreement shall terminate on the date so
specified (the "Without Cause Termination Date"). The Company shall also pay
Employee: (i) the Bonus, (ii) the Relocation Expenses and (iii) the Unused
Vacation Payment. The Bonus, Relocation Expenses and Unused Vacation Payment
shall be payable on the first payroll disbursement date for the month following
the Without Cause Termination Date.
(d) Effect of Termination for "Cause".
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If Employee's employment is terminated by the Company for "cause," the Company
shall give notice of termination of Employee's services hereunder as of a date
to be specified in such notice and this Agreement shall terminate on the date so
specified (the "Termination Date"). Employee shall be entitled to receive only
his Base Salary at the rate provided in Section 2(a) to the Termination Date and
Employee shall not be entitled to any other compensation or benefits not already
earned and vested on the Termination Date.
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(e) If Employee's employment is terminated by
Employee's voluntary resignation (other than for the reasons set forth in
paragraphs (x) or (y) or paragraph (a) above) Employee agrees to provide the
Company with thirty (30) days' advance written notice of such termination and
this Agreement shall terminate on the date so specified (the "Resignation
Termination Date"). If Employee resigns, he shall be entitled to the Unused
Vacation Payment. The Unused Vacation Payment shall be payable on the first
payroll disbursement date for the month following the Resignation Termination
Date.
(f) Nothing contained in this Section 6 shall be
deemed to limit any other right the Company or the Employee may have to
terminate Employee's employment hereunder upon any ground permitted by law.
8. Termination of Prior Agreements.
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This Agreement terminates and supercedes any and all prior agreements and
understandings between the parties with respect to employment or with respect to
the compensation of Employee by the Company.
9. Nondisclosure and Nonuse of Confidential Information.
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Employee shall not use or disclose to any other person (except as required by
applicable law or for the proper performance of his duties hereunder) any
confidential information obtained by him incident to his employment or other
associations with the Company and the Subsidiary. Employee understands that this
restriction shall continue to apply after his employment terminates, regardless
of the reason for such termination.
10. Non-competition. During Employee's employment
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hereunder and for a period of one year thereafter (the "Non-competition
Period"), Employee shall not, without permission of the Company: (i) engage in
any activity, whether as owner, partner, investor, consultant, agent, employee,
co-venturer or otherwise, that is competitive with the business of the Company
or the Subsidiary, or (ii) solicit or do business with, directly or indirectly,
any present or past customer of the Company or the Subsidiary.
11. Enforcement. The Company and Employee agree that a
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breach of the provisions of Sections 8 or 9 hereof would cause irreparable
damage to the Company or the Subsidiary and that recovery by the Company or the
Subsidiary of money damages would not constitute an adequate remedy for such
breach. Accordingly, the Company, the Subsidiary and Employee agree that the
provisions of Sections 8 and 9 hereof may be specifically enforced in addition
to any other rights or remedies available on account of such breach.
12. Assignment. This Agreement is personal in its
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nature and neither of the parties hereto shall, without the consent of the
other, assign or transfer this Agreement or any rights or obligations hereunder;
provided that, in the event of a merger or consolidation of the Company with any
other entity, this Agreement shall, subject to the provisions hereof, be binding
upon and inure to the benefit of such successor and such successor shall
discharge and perform all the promises, covenants, duties and obligations of the
Company hereunder. In addition, the Company or the Subsidiary shall require any
purchaser of all, or substantially all, of its assets to assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no sale of its assets had taken
place.
13. Governing Law. This Agreement shall be governed in
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all respects, whether as to validity, construction, capacity, performance, or
otherwise, by the laws of the State of New York. Except as otherwise provided in
Section 14 hereof, no action involving this Agreement may be brought except in
the Supreme Court of the State of New York in the County of New York or United
States District Court for the Southern District of New York.
14. Entire Agreement. This Agreement embodies the
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entire agreement of the parties respecting those matters within its scope and
may be modified only in writing executed by the Company, the Subsidiary and
Employee.
15. Arbitration. All claims, disputes and other
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matters in question between the parties arising out of the employment
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relationship shall be decided by arbitration in accordance with the rules of the
American Arbitration Association, unless the parties mutually agree otherwise.
The award by the arbitrator shall be final, and judgment may be entered upon it
in accordance with applicable law in the Supreme Court of the State of New York
in the County of New York or the United States District Court for the Southern
District of New York.
16. Waiver. Failure to insist upon strict compliance
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with any of the terms, covenants or conditions hereof shall not be deemed a
waiver of such term, covenant or condition, nor shall any waiver or
relinquishment of, or failure to insist upon strict compliance with, any right
or power hereunder at any one or more times be deemed a waiver or relinquishment
of such right or power at any other time or times.
17. Severability. In the event that a court of
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competent jurisdiction determines that any portion of this Agreement is in
violation of any statute or public policy, then only the portions of this
Agreement that violate such statute or public policy shall be stricken. All
portions of this Agreement that do not violate such statute or public policy
continue in full force and effect. Further, any court order striking any portion
of this Agreement shall modify the stricken terms to give as much effect as
possible to the intentions of the parties under this Agreement.
18. Notices. Any notice, consent, or other communication
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been given three (3) days after the date sent if sent by United
States certified mail, return receipt requested, with proper postage thereon,
one (1) day after the date sent if sent by overnight courier of national
recognition, or on the day of delivery if by hand to an officer of the Company.
Notices shall be addressed as follows:
(a) If to Employee: Xxxxxxx Xxxxxxx
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(b) If to the Company iParty Corp.
or Subsidiary: 0000 X.X.X. Xxxxxxx
Xxxx Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxxx
(c) With a copy to: Akin, Gump, Strauss, Xxxxx & Xxxx,
L.L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
or at such other address or addresses as the party addressed may from time to
time designate by written notice.
19. Headings; Counterparts. The headings in this
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Agreement are solely for the convenience of reference and shall be given no
effect in the construction or interpretation of this Agreement. This Agreement
may be executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement or cause this Agreement to be executed on its behalf as of the date
first written above.
iPARTY CORP.
By: /s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx
Chief Executive Officer
iPARTY RETAIL STORES CORP.
By: /s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx
Chief Executive Officer
EMPLOYEE
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
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