Exhibit 10.12
May 17, 2000
Xx. Xxxxxxx X. Xxxxxx
XXX.XXX INC.
0000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxx 00000
Dear Xxxx:
This letter agreement (this "Agreement") sets forth the terms of
your employment with XXX.XXX INC. ("XXX.XXX").
DUTIES. You shall serve as an officer of XXX.XXX or in a
substantially similar position with any entity that acquires XXX.XXX or all
or substantially all of XXX.XXX's assets (other than Florists' Transworld
Delivery, Inc. or IOS BRANDS Corporation or any of their other direct or
indirect subsidiaries) through May 17, 2003 and shall perform the duties
assigned by XXX.XXX from time to time. You shall devote your entire business
time to the affairs of XXX.XXX, to the performance of your duties under this
Agreement and to the promotion of XXX.XXX's interests.
COMPENSATION. As full compensation for the performance by you of
your duties under this Agreement, XXX.XXX shall compensate you as follows:
(a) SALARY. During the term of this Agreement, XXX.XXX shall pay to
you a salary of $225,000 per year, payable in the periodic installments
ordinarily paid by XXX.XXX to employees of XXX.XXX at comparable levels to
you. You shall be entitled to such merit increases in base salary as the
Board of Directors may determine, in its discretion.
(b) PERFORMANCE BONUS. You shall be entitled to participate in a
performance bonus as set by the Board of Directors based upon performance
criteria to be set by the Board. If your employment with XXX.XXX is
terminated for any reason other than "cause" (as defined below under
"Severance") following a Change in Control (as defined in XXX.XXX's 1999
Equity Incentive Plan), you shall be entitled to received a pro rata bonus
for the applicable fiscal year if you are entitled to one based upon the
performance criteria set by the Board.
(c) RESTRICTED STOCK AWARD. You have been awarded XXX.XXX stock
pursuant to a restricted share agreement in the form of EXHIBIT A.
Xx. Xxxxxxx X. Xxxxxx
May 17, 2000
Page 2
(d) PAID VACATION. You shall be entitled to four weeks of paid
vacation per year in accordance with XXX.XXX's policies with respect to
vacations then in effect.
(e) BENEFITS. You shall be entitled to the additional
employment-related benefits that are made available from time to time to
employees of XXX.XXX at comparable levels to you.
(f) EXPENSE REIMBURSEMENT. XXX.XXX shall reimburse you, in
accordance with the practice from time to time in effect for other employees
of XXX.XXX, for all reasonable and necessary travel expenses and other
disbursements incurred by you, for or on behalf of XXX.XXX, in the
performance of your duties under this Agreement.
SEVERANCE. XXX.XXX shall have the right to terminate your employment
by giving you written notice of the effective date of the termination. If
your employment is terminated (i) without "cause" by XXX.XXX or (ii) by you
following your assignment to a position that represents a material diminution
in your operating responsibilities (it being understood that a change in your
title shall not by itself entitle you to terminate your employment and
receive the right to severance payments under this paragraph), XXX.XXX will
pay you continued salary for one year from the effective date of any such
termination of employment and any pro rata bonus to which you may be entitled
pursuant to this Agreement. XXX.XXX's severance obligations are subject to
your best efforts to mitigate. XXX.XXX shall have no further obligation
hereunder.
For purposes of this Agreement, "cause" means any of the following
events that XXX.XXX or the XXX.XXX Board of Directors has determined, in good
faith, has occurred: (i) your continual or deliberate neglect of the
performance of your material duties; (ii) your failure to devote
substantially all of your working time to the business of XXX.XXX and its
subsidiaries or affiliated companies; (iii) your engaging willfully in
misconduct in connection with the performance of any of your duties,
including, without limitation, the misappropriation of funds or securing or
attempting to secure personally any profit in connection with any transaction
entered into on behalf of XXX.XXX or its subsidiaries or affiliated
companies; (iv) your willful breach of any confidentiality or nondisclosure
agreements with XXX.XXX (including this Agreement) or your violation, in any
material respect, of any code or standard of behavior generally applicable to
employees or executive employees of XXX.XXX; (v) your active disloyalty to
XXX.XXX, including, without limitation, willfully aiding a competitor or
improperly disclosing confidential information; or (vi) your engaging in
conduct that may reasonably result in material injury to the reputation of
XXX.XXX, including conviction or entry of a plea of nolo contendre for a
felony or any crime involving fraud under Federal, state or local laws,
embezzlement, bankruptcy, insolvency or general assignment for the benefit of
creditors.
CONFIDENTIAL INFORMATION AND NON-COMPETITION. You agree to enter
into a separate agreement with XXX.XXX (attached hereto as EXHIBIT B) that
provides for (i) non-disclosure of confidential information, (ii)
non-competition and (iii) non-solicitation of customers, suppliers and
employees. This Agreement shall not be effective until you have executed and
delivered such agreement to the Company.
Xx. Xxxxxxx X. Xxxxxx
May 17, 2000
Page 3
LIMITATION ON PAYMENTS AND BENEFITS. Notwithstanding any other
provision of this Agreement to the contrary, in the event that it shall be
determined (as hereafter provided) that any payment or distribution by
XXX.XXX or any of its affiliates to you or for your benefit, whether paid or
payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise pursuant to or by reason of any other agreement,
policy, plan, program or arrangement, including without limitation any stock
option, performance share, performance unit, stock appreciation right or
similar right, or the lapse or termination of any restriction on or the
vesting or exercisability of any of the foregoing, would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as
amended (the "Code") (or any successor provision thereto), by reason of being
considered "contingent on a change in ownership or control" of XXX.XXX within
the meaning of Section 280G of the Code (or any successor provision thereto),
or to any similar tax imposed by state or local law, or any interest or
penalties with respect to such taxes, then such payments and benefits to be
paid or provided shall be reduced to an amount (but not below zero) that
would result in the maximum possible net after tax receipts to you from all
such payments or distributions (determined by reference to the present value
determined in accordance with Section 280G(d)(4) of the Code (or any
successor provision thereto) of all such payments net of all such taxes, or
any interest or penalties with respect to such taxes, determined by applying
the highest marginal rate under Section 1 of the Code (or any successor
provision thereto) that applied to your taxable income for the immediately
preceding taxable year) (the "Reduced Amount"). The fact that your payments
or benefits may be reduced by reason of the limitations contained in this
paragraph will not of itself limit or otherwise affect any of your other
rights other than pursuant to this Agreement. If it is determined that you
should receive a Reduced Amount, XXX.XXX will provide you notice to that
effect and a copy of the detailed calculation thereof. You will then be
entitled to designate the payments or benefits to be so reduced in order to
give effect to this paragraph. In the event that you fail to make such
designation within ten business days of notification of the reduction in
payments or benefits is required pursuant to this paragraph, XXX.XXX may
effect such reduction in any manner it deems appropriate.
MISCELLANEOUS. This Agreement shall be governed by the internal laws
of the State of Illinois, excluding the conflicts-of-law principles thereof.
You and XXX.XXX consent to jurisdiction and venue in any federal or state
court in the City of Chicago. This Agreement and the accompanying EXHIBITS A
and B state our entire agreement and understanding regarding your employment
with XXX.XXX. This agreement may be amended only by a written document signed
by both you and XXX.XXX. No delay or failure to exercise any right under this
Agreement waives such rights under the Agreement. If any provision of this
Agreement is partially or completely invalid or unenforceable, then that
provision shall only be ineffective to such extent of its invalidity or
unenforceability, and the validity or enforceability of any other provision
of this Agreement shall not be affected. Any controversy relating to this
Agreement shall be settled by arbitration in Chicago, Illinois in accordance
with the Commercial Arbitration Rules of the American Arbitration
Association, except as otherwise provided in the Confidentiality and
Non-Competition agreement attached hereto as EXHIBIT B. In the event of
Xx. Xxxxxxx X. Xxxxxx
May 17, 2000
Page 4
any inconsistency between this Agreement and any personnel policy or manual
of XXX.XXX with respect to any matter, this Agreement shall govern the matter.
Sincerely,
/s/ XXXXXXX XXXXX
-----------------------------------
Xxxxxxx Xxxxx
Chairman of the Board
Accepted as of this
17th day of May, 2000
/s/ XXXXXXX X. XXXXXX
--------------------------------
Xxxxxxx X. Xxxxxx
