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EXHIBIT 4.5
EMPLOYMENT AGREEMENT
AGREEMENT dated as of the 29th day of August, 1997 by and between ME
ACQUISITION CORP., a Delaware corporation (the "Company"), and Xxxxxx Xxxxxx
(the "Employee").
W I T N E S S E T H:
WHEREAS, the Company, a wholly owned subsidiary of Norton
XxXxxxxxxx, Inc., a Delaware corporation ("Norton"), and certain other parties
(which parties include the Employee) simultaneously herewith are entering into
an Agreement of Purchase and Sale dated as of August 29, 1997 (the "Purchase
Agreement"), providing, inter alia, for the purchase by the Company of
substantially all of the assets of Miss Xxxxx, Inc., a Delaware corporation
("Miss Xxxxx"); and
WHEREAS, the Employee desires to continue in the employ of the
Company subsequent to the consummation of the transactions contemplated by the
Purchase Agreement; and
WHEREAS, in order to induce the Company to enter into, and to
consummate the transactions contemplated by, the Purchase Agreement, the
Employee desires to enter into this Agreement; and
WHEREAS, the Company desires to secure the employment of the
Employee with the Company subsequent to the consummation of the transactions
contemplated by the Purchase Agreement, and to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto hereby agree as follows:
1. Employment, Term.
1.1 The Company agrees to employ the Employee, and the Employee
agrees to serve in the employ of the Company, for the term set forth in Section
1.2, in the positions and with the responsibilities, duties and authority set
forth in Section 2 and on the other terms and conditions set forth in this
Agreement.
1.2 The term of the Employee's employment under this Agreement (the
"Term") shall commence on the Closing Date (as defined in the Purchase
Agreement) and shall terminate on November 6, 1999, unless sooner terminated in
accordance with this Agreement. Notwithstanding the foregoing, the Company may,
in its discretion, extend the
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Term for an additional six (6) month period upon written notice to the Employee
at least thirty (30) days prior to expiration of the Term.
2. Positions, Duties. The Employee shall serve in the position of
Executive Vice President - Finance of the Company. The Employee shall perform,
faithfully and diligently, such duties, and shall have such responsibilities,
appropriate to said position, as shall be assigned to him from time to time by
the Chief Executive Officer or Chief Operating Officer of the Company. The
Employee shall report to the Chief Executive Officer or Chief Operating Officer
of the Company. The Employee shall devote his complete and undivided attention
to the performance of his duties and responsibilities hereunder during the
normal working hours of executive employees of Norton.
3. Compensation.
3.1 Salary. During the Term, in consideration of the performance by
the Employee of the services set forth in Section 2 and his observance of the
other covenants set forth herein, the Company shall pay the Employee, and the
Employee shall accept, a salary at a rate of $115,000 per annum, payable in
accordance with the standard payroll practices of the Company. The salary set
forth in this Section 3.1 shall be reviewed annually during the Term by the
Board of Directors of the Company in consultation with the Chief Executive
Officer and Chief Operating Officer of the Company and shall be subject to
upward adjustments, if any, as determined by the Board of Directors of the
Company in its discretion, in consultation with the Chief Executive Officer and
Chief Operating Officer of the Company.
3.2 Bonus. During the Term, in addition to the salary provided for
in Section 3.1, (i) the Employee shall be eligible to participate in the ME
Acquisition Corp. Bonus Plan for Senior Executives (the "Executive Bonus Plan"),
a copy of which is attached hereto as Exhibit A and the terms of which are
incorporated herein by reference and (ii) the Employee shall be allocated a
percentage of the Bonus Pool (as defined in the Executive Bonus Plan) as shall
be determined by the Board in consultation with the Chief Executive Officer and
Chief Operating Officer of the Company, subject to the terms and conditions of
the Executive Bonus Plan and this Agreement.
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3.3 Stock Options.
(a) Grant. On the Closing Date, the Company shall cause to be
granted to the Employee by the Board of Directors of Norton as of the Closing
Date, options to purchase an aggregate of 5,000 shares of common stock, par
value $.01 per share (the "Common Stock"), of Norton, at an exercise price per
share equal to the fair market value of the Common Stock on the Closing Date
(the "Options"). The Options shall be fully vested and exercisable on and after
the Closing Date.
(b) Term of Options. Except as provided below, the term of the
Options shall be ten years.
(i) If the Employee's employment with the Company terminates
pursuant to Section 6.1, is terminated by the Company or the Employee pursuant
to Section 6.2, is terminated by the Company pursuant to Section 6.4, is
terminated by the Employee pursuant to Section 6.5, or terminates for any other
reason (except as provided in clause (ii) below) the Options may be exercised by
the Employee (or his estate or legal representative) within one year after such
termination; and
(ii) In the event of termination of the employment of the
Employee with the Company (a) by the Company pursuant to Section 6.3 or (b) by
the Employee other than pursuant to Sections 6.1, 6.2 or 6.5, no Options shall
be exercisable.
(c) Adjustments. In the event of any dividend or other
distribution (whether in the form of cash, Common Stock, other securities or
other property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase or exchange of Common Stock or other securities of Norton, issuance
of warrants or other rights to purchase Common Stock, the Board of Directors
shall, in such manner as it may deem equitable, adjust the number of shares of
Common Stock (or other securities or property) subject to the Options, the
exercise price with respect to any Options, or all of the foregoing.
(d) Registration of Shares. Norton shall, as promptly as
practicable following the commencement of the Employee's employment hereunder,
file a registration statement on Form S-8, or any successor to such Form, with
respect to the shares of Common Stock covered by the Options.
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3.4 Bonus Options. During the Term, in addition to the salary
provided for in Section 3.1, the Employee shall be eligible to receive Bonus
Options (as defined in the Executive Bonus Plan) in accordance with the terms
set forth in the Executive Bonus Plan.
4. Expense Reimbursement. During the Term, (i) the Company shall
reimburse the Employee for all reasonable and necessary out-of-pocket expenses
incurred by him in connection with the performance of his duties hereunder, upon
the presentation of proper accounts therefor in accordance with Norton's
policies and (ii) the Company shall pay for the benefit of the Employee all
reasonable and necessary expenses incurred by him in the ordinary and usual
course of business and in accordance with Norton's policies (in any case, as
such policies are adopted from time to time by the Compensation Committee of
Norton).
5. Benefits.
5.1 Benefit Plans. During the Term, the Employee will be entitled to
participate in all employee benefit plans and programs offered by Norton,
subject to the provisions of such plans and programs as in effect from time to
time.
5.2 Vacation. During the Term, the Employee shall be entitled to
paid vacation in accordance with Norton's policy for its executive employees.
6. Termination of Employment.
6.1 Death. In the event of the death of the Employee during the
Term, the Company shall pay to the estate or other legal representative of the
Employee (a) the salary provided for in Section 3.1 accrued to the date of the
Employee's death and not theretofore paid to the Employee and (b) any bonus
payable in accordance with the terms of the Executive Bonus Plan. Rights and
benefits of the estate or other legal representative of the Employee (a) with
respect to the Options or the Bonus Options shall be determined in accordance
with Section 3.3(b) or the Executive Bonus Plan, as applicable and (b) under the
benefit plans and programs of the Company shall be determined in accordance with
the provisions of such plans and programs. Neither the estate or other legal
representative of the Employee nor the Company shall have any further rights or
obligations under this Agreement.
6.2 Disability. If during the Term the Employee shall become
incapacitated by reason of physical or mental
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disability and shall be unable to perform his normal duties hereunder for a
cumulative period of six (6) months in any period of twelve (12) consecutive
months, the employment of the Employee hereunder may be terminated by the
Company or the Employee upon notice to the other. In the event of such
termination, the Company shall pay to the Employee (a) the salary provided for
in Section 3.1 accrued to the date of such termination and not theretofore paid
to the Employee and (b) any bonus payable in accordance with the terms of the
Executive Bonus Plan. Rights and benefits of the Employee (a) with respect to
the Options or the Bonus Options shall be determined in accordance with Section
3.3(b) or the Executive Bonus Plan, as applicable and (b) under the benefit
plans and programs of the Company shall be determined in accordance with the
provisions of such plans and programs. Neither the Employee nor the Company
shall have any further rights or obligations under this Agreement, except as
provided in Sections 7, 8 and 10.
6.3 Due Cause. The employment of the Employee hereunder may be
terminated by the Company at any time during the Term for Due Cause (as
hereinafter defined). In the event of such termination, the Company shall pay to
the Employee the salary provided for in Section 3.1 accrued to the date of such
termination and not theretofore paid to the Employee and no bonus. Rights and
benefits of the Employee (a) with respect to the Options or the Bonus Options
shall be determined in accordance with Section 3.3(b) or the Executive Bonus
Plan, as applicable and (b) under the benefit plans and programs of the Company
shall be determined in accordance with the provisions of such plans and
programs. After the satisfaction of any claim of the Company against the
Employee incidental to such Due Cause, neither the Employee nor the Company
shall have any further rights or obligations under this Agreement, except as
provided in Sections 7, 8 and 10. For purposes hereof, "Due Cause" shall mean
(a) the Employee's gross negligence or willful misconduct in bad faith in the
discharge of his duties and responsibilities to Norton, the Company and any of
their respective parent, subsidiary or affiliate corporations (collectively, the
"Norton Group"), as determined by the Board of Directors of the Company, (b) the
Employee's material and repeated failure to obey appropriate directions from the
Chief Executive Officer or Chief Operating Officer of the Company, (c) any
willful or purposeful act or omission of the Employee taken or omitted in bad
faith and intended to materially injure, and which had the effect of materially
injuring, the business or business relationships of any member of the Norton
Group or (d) the Employee's conviction or other adjudication of (1) a felony or
(2) any crime or offense involving fraud;
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provided, however, that the Employee shall be given written notice by a majority
of the Board of Directors of the Company that it intends to terminate the
Employee's employment for Due Cause under this Section, which written notice
shall specify the act or acts upon the basis of which the majority of the Board
of Directors of the Company intends so to terminate the Employee's employment,
and the Employee shall then be given the opportunity, within fifteen (15) days
of his receipt of such notice, to have a meeting with the Board of Directors of
the Company to discuss such act or acts.
6.4 Other Termination by the Company. The Company may terminate the
Employee's employment at any time during the Term for whatever reason it deems
appropriate or without reason; provided, however, that in the event that such
termination is not pursuant to Section 6.1, 6.2 or 6.3, the Company shall (a)
continue to pay to the Employee the salary provided for in Section 3.1 for the
remainder of the then-current Term and for one year thereafter and (b) pay to
the Employee any bonus payable in accordance with the terms of the Executive
Bonus Plan. The Employee shall not be required to seek subsequent employment;
provided, however, that if the Employee obtains subsequent employment, the
Employee shall inform the Company that he obtained such employment, and the
Company shall offset any amounts earned from such subsequent employment (whether
as an employee, a consultant or otherwise) against such salary continuation by
the Company which becomes payable after the date the Employee obtains subsequent
employment. If, upon expiration of the Term, the Company shall fail to offer
employment to the Employee in the same position and with the same salary then in
effect under Section 3.1 and participation in the Executive Bonus Plan on the
same terms then in effect for an additional period of six (6) months pursuant to
Section 1.2, the Company shall continue to pay to the Employee the salary then
in effect under Section 3.1 for six (6) months from the date of expiration of
the Term. Rights and benefits of the Employee (a) with respect to the Options or
the Bonus Options shall be determined in accordance with Section 3.3(b) or the
Executive Bonus Plan, as applicable and (b) under the benefit plans and programs
of the Company shall be determined in accordance with the provisions of such
plans and programs. Neither the Employee nor the Company shall have any further
rights or obligations under this Agreement, except as provided in Sections 7, 8
and 10. Any termination of this Agreement by the Company after the date hereof
and prior to the Closing Date shall be treated as a termination of employment
pursuant to this Section 6.4 as of the day following the Closing Date, provided
that the Closing (as defined in the Purchase Agreement) shall have occurred.
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6.5 Termination by the Employee with Good Reason. The Employee may
at any time terminate his employment with the Company with Good Reason (as
hereinafter defined) and may treat such as a termination of employment pursuant
to and with the effects set forth in Section 6.4. For purposes hereof, Good
Reason shall mean (i) the continued breach by the Company of a material
provision of this Agreement for a period of 30 days after written notice of such
breach by the Employee to the Company or (ii) a material and adverse diminution
in the Employee's title or scope of duties as set forth in Section 2, which
diminution shall continue for a period of 30 days after written notice thereof
by the Employee to the Company.
6.6 Termination by the Employee without Good Reason. The Employee
may at any time upon at least 120 days prior written notice to the Company
terminate his employment with the Company without Good Reason. Such termination
shall be treated as a termination of employment pursuant to, including with the
effects set forth in, Section 6.3; provided, however, that the Company hereby
waives any claim it may have against the Employee incidental to the Employee's
termination of his employment pursuant to this Section 6.6.
7. Confidential Information.
7.1 The Employee shall, during the Term and at all times thereafter,
treat as confidential and, except as required in the performance of his duties
and responsibilities under this Agreement, not disclose, publish or otherwise
make available to the public or to any individual, firm or corporation any
confidential material (as hereinafter defined), except, on a need to know basis,
to the Employee's attorney, accountant or personal advisor. The Employee agrees
that all confidential material, together with all notes and records of the
Employee relating thereto, and all copies or facsimiles thereof in the
possession of the Employee, are the exclusive property of the Company and the
Employee agrees to return such material to the Company promptly upon the
termination of the Employee's employment with the Company.
7.2 For the purposes hereof, the term "confidential material" shall
mean all information acquired by the Employee in the course of the Employee's
prior employment with Miss Xxxxx and in the course of the Employee's employment
with the Company in any way concerning the products, projects, activities,
business or affairs of the Company or any member of the Norton Group or the
customers, suppliers or agents of the Company or any member
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of the Norton Group, including, without limitation, all information concerning
trade secrets and the preparation of raw material for, manufacture of, and/or
finishing processes utilized in the production of, the products or projects of
the Company or any member of the Norton Group and/or any improvements therein,
all sales and financial information concerning the Company or any member of the
Norton Group, all customer and supplier lists, all information concerning
projects in research and development or marketing plans for any such products or
projects, and all information in any way concerning the products, projects,
activities, business or affairs of customers of the Company or any member of the
Norton Group which is furnished to the Employee by the Company or any of its
employees (current or former), agents or customers, as such; provided, however,
that the term "confidential material" shall not include information which (a)
becomes generally available to the public or the apparel industry in general
other than as a result of a disclosure by the Employee, (b) was available to the
Employee on a non-confidential basis prior to his employment with the Company or
(c) becomes available to the Employee on a non-confidential basis from a source
other than the Company or any of its agents, franchisees, creditors, suppliers,
lessors, lessees or customers provided that the Employee has no knowledge that
such source is not bound by a confidentiality agreement with the Company or any
of such agents or customers.
8. Inventions. Any and all inventions, innovations or improvements
("inventions") made, developed or created 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 with the Company which may be directly or
indirectly useful in, or relate to, the business of the Company, shall be
promptly and fully disclosed by the Employee to the Board of Directors of the
Company and shall be the Company's exclusive property as against the Employee,
and the Employee shall promptly deliver to an appropriate representative of the
Company as designated by the Board of Directors all papers, drawings, models,
data and other material relating to any inventions made, developed or created by
him as aforesaid. The Employee shall, at the request of the Company and without
any payment therefor, execute any documents necessary or advisable in the
opinion of the Company's counsel to direct issuance of patents or copyrights to
the Company with respect to such inventions as are to be the Company's exclusive
property as against the Employee or to vest in the Company title to such
inventions
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as against the Employee. The expense of securing any such patent or copyright
shall be borne by the Company.
9. Equitable Relief, Etc.
9.1 In the event of a breach or threatened breach by the Employee of
any of the provisions of Sections 7 or 8, the Employee hereby consents and
agrees that the Company shall be entitled to an injunction or similar equitable
relief from any court of competent jurisdiction restraining the Employee from
committing or continuing any such breach or threatened breach or granting
specific performance of any act required to be performed by the Employee under
any of such provisions, without the necessity of showing any actual damage or
that money damages would not afford an adequate remedy and without the necessity
of posting any bond or other security. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedies at law or in equity
which it may have with respect to any such breach or threatened breach.
9.2 The Company and the Employee understand and agree that in any
lawsuit or other proceeding between any of them with respect to Sections 7 or 8
hereof, the prevailing party in such lawsuit or proceeding shall be entitled to
recover from the other party in such lawsuit or proceeding, and such other party
hereby agrees to pay such prevailing party, for all costs and expenses,
including attorneys' fees, incurred by such prevailing party in the defense,
prosecution or investigation of the matters which are the subject of such
lawsuit or proceeding.
10. Successors and Assigns.
10.1 Assignment by the Company. The Company shall require any
successors (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company 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 if no such
succession had taken place. As used in this Section, the "Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law and this Agreement shall be
binding upon, and inure to the benefit of, the Company, as so defined.
10.2 Assignment by the Employee. The Employee may not assign this
Agreement or any part thereof without the prior written consent of a majority of
the Board of
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Directors of the Company (other than the Employee if he is a member of such
Board at the time); provided, however, that nothing herein shall preclude one or
more beneficiaries of the Employee from receiving any amount that may be payable
following the occurrence of his legal incompetency or his death and shall not
preclude the legal representative of his estate from receiving such amount or
from assigning any right hereunder to the person or persons entitled thereto
under his will or, in the case of intestacy, to the person or persons entitled
thereto under the laws of intestacy applicable to his estate. The term
"beneficiaries", as used in this Agreement, shall mean a beneficiary or
beneficiaries so designated to receive any such amount or, if no beneficiary has
been so designated, the legal representative of the Employee (in the event of
his incompetency) or the Employee's estate.
11. Governing Law. This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the laws of
the State of New York applicable to contracts to be performed entirely within
such State.
12. Entire Agreement. This Agreement contains all the understandings
and representations between the parties hereto pertaining to the subject matter
hereof. This Agreement supersedes all understandings and agreements, whether
oral or in writing, if any, previously entered into by the Company with the
Employee in any way relating to the employment of the Employee by the Company,
including without limitation, the Purchase Agreement, all of which agreements
and understandings are hereby terminated and all rights and entitlements
thereunder are hereby waived and released.
13. Amendment, Modification, Waiver. No provision of this Agreement
may be amended or modified unless such amendment or modification is agreed to in
writing and signed by the Employee and by a representative of the Company (other
than the Employee) who have been duly authorized by the Board of Directors of
the Company to do so (other than the Employee if he is a member of such Board at
the time). Except as otherwise specifically provided in this Agreement, no
waiver by either party hereto of any breach by the other party hereto of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar provision or condition at
the same or any prior or subsequent time, nor shall the failure of or delay by
either party hereto in exercising any right, power or privilege hereunder
operate as a waiver thereof to preclude any other
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or further exercise thereof or the exercise of any other such right, power or
privilege.
14. Notices. Any notice to be given hereunder shall be in writing
and delivered personally or sent by certified mail, postage prepaid, return
receipt requested, addressed to the party concerned at the address indicated
below or at such other address as such party may subsequently designate by like
notice:
If to the Company:
x/x Xxxxxx XxXxxxxxxx, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
If to the Employee:
Xxxxxx Xxxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
15. Arbitration. Any controversy or claim arising out of or relating
to this Agreement, or any breach thereof, shall, except as provided in Section
9, be settled by binding arbitration in accordance with the rules of the
American Arbitration Association then in effect and judgment upon such award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitration shall be held in New York, New York. The arbitration
award shall include an award of attorneys' fees and costs to the prevailing
party as determined by the arbitrator.
16. Severability. Should any provision of this Agreement be held by
a court or arbitration panel of competent jurisdiction to be enforceable only if
modified, such holding shall not affect the validity of the remainder of this
Agreement, the balance of which shall continue to be binding upon the parties
hereto with any such modification to become a part hereof and treated as though
originally set forth in this Agreement. The parties further agree that any such
court or arbitration panel is expressly authorized to modify any such
unenforceable provision of this Agreement in lieu of severing such unenforceable
provision from this Agreement in its entirety, whether by rewriting the
offending provision, deleting any or all of the offending provision, adding
additional language to this Agreement, or by making such other modifications as
it deems warranted to carry out the intent and agreement of the parties as
embodied herein to the maximum extent permitted by law. The
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parties expressly agree that this Agreement as so modified by the court or
arbitration panel shall be binding upon and enforceable against each of them. In
any event, should one or more of the provisions of this Agreement be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions hereof, and if such
provision or provisions are not modified as provided above, this Agreement shall
be construed as if such invalid, illegal or unenforceable provisions had never
been set forth herein.
17. Authority. The Company represents and warrants to the Employee
that the execution and delivery of this Agreement by the Company and the
performance by the Company of its covenants and agreements hereunder have been
duly authorized by all necessary corporate action and that this Agreement has
been duly executed and delivered on behalf of the Company.
18. Withholding. Anything to the contrary notwithstanding, all
payments required to be made by the Company hereunder to the Employee or his
beneficiaries, including his estate, shall be subject to withholding of such
amounts relating to taxes as the Company may reasonably determine it should
withhold pursuant to any applicable law or regulation. In lieu of withholding
such amounts, in whole or in part, the Company, may, in its sole discretion,
accept other provision for payment of taxes as permitted by law, provided it is
satisfied in its sole discretion that all requirements of law affecting its
responsibilities to withhold such taxes have been satisfied.
19. Subsidiaries, etc. The Employee shall be deemed to resign as an
officer and director of the Company or of any parent, subsidiary or affiliate of
the Company upon termination of his employment with the Company for any or no
reason.
20. Survivorship. The respective rights and obligations of the
Employee and the Company hereunder shall survive any termination of this
Agreement to the extent necessary to the intended preservation of such rights
and obligations.
21. Titles. Titles of the sections of this Agreement are intended
solely for convenience and no provision of this Agreement is to be construed by
reference to the title of any section.
22. Counterparts. This Agreement may be executed in two or more
counterpart copies, each of which shall be
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deemed to be an original and all of which taken together shall be deemed one
document.
* * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
ME ACQUISITION CORP.
By /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Title: Chairman of the Board
EMPLOYEE:
/s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
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EXHIBIT A
ME ACQUISITION CORP. BONUS PLAN
FOR SENIOR EXECUTIVES
1. Establishment. This Plan, which shall be known as the ME
Acquisition Corp. Bonus Plan for Senior Executives (the "Bonus Plan"), is hereby
established by ME Acquisition Corp. (the "Company") to provide incentives for
senior executives providing services to the Company and to aid the Company in
retaining such senior executives upon whose efforts the Company's success and
future growth depends.
2. Administration. The Bonus Plan shall be administered by the Board
of Directors of the Company (the "Board"). For purposes of administration, the
Board, subject to the terms of the Bonus Plan, shall have plenary authority to
establish such rules and regulations, to make such determinations and
interpretations, and to take such other administrative actions as it deems
necessary or advisable.
3. Participants. The participants in the Plan shall be Xxxxxx
Xxxxxxx, Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxx Xxxxx, Xxxxxxx Xxx and
Xxxxxx Xxxxxx, in each case for so long as such individual is employed by the
Company pursuant to an Employment Agreement (as defined in the Agreement, as
defined in Section 4 below) (each, a "Participant" and collectively, the
"Participants"); provided, however, that nothing contained herein shall be
construed as creating a contract or guarantee of employment for any Participant.
4. Bonus Pool.
4.1 For each of the fiscal years of the Company, provided that the
EBITDA Target (as hereinafter defined) for such fiscal year shall have been
attained, the Company shall establish a bonus pool in an amount equal to a
percentage of EBITDA (as hereinafter defined) for such fiscal year as determined
by the Board in consultation with Xxxxxx Xxxxxxx and Xxxxxx Xxxxxxxx for so long
as they are employed by the Company (the "Bonus Pool"); provided, however, that
the Bonus Pool for any fiscal year shall not exceed that amount which, when
deducted from EBITDA, would result in EBITDA for such fiscal year net of the
Bonus Pool of less than $5,500,000.
4.2 Notwithstanding the foregoing, in the event that the EBITDA
Target is not achieved in any fiscal year,
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but EBITDA (calculated as otherwise provided herein) for such fiscal year and
for the subsequent fiscal year equals or exceeds $11,000,000, then the Company
shall establish a bonus pool in an amount equal to a percentage to be determined
by the Board in consultation with Xxxxxx Xxxxxxx and Xxxxxx Xxxxxxxx for so long
as they are employed by the Company of combined EBITDA for such two fiscal
years, which percentage of the combined EBITDA shall for purposes hereof
constitute the Bonus Pool for such two fiscal years; provided, however, that the
Bonus Pool for such two fiscal years shall not exceed that amount which, when
deducted from the combined EBITDA, would result in the combined EBITDA for such
two fiscal years net of the Bonus Pool of less than $11,000,000.
4.3 As used herein: (i) EBITDA shall have the meaning set forth in
the Agreement of Purchase and Sale dated as of September 3, 1997 (the
"Agreement"), by and among the Company and the other parties thereto (which
parties include certain of the Participants) for the appropriate fiscal year,
without reduction for the Bonus Pool for such fiscal year contemplated by this
Bonus Plan or for any expense attributable to the Bonus Options; and (ii) EBITDA
Target shall mean, for each fiscal year, achievement of EBITDA of not less than
$5,500,000. In the event of any change in the fiscal year of the Company,
appropriate adjustments shall be made to the EBITDA Target in order to carry out
the intent and principles of the Bonus Plan.
5. Allocation of Bonus Pool. The Bonus Pool shall be allocated as
specified in each Participant's Employment Agreement.
6. Payment of Bonus. The bonus payable to each Participant (or his
or her estate or other legal representative) for any fiscal year of the Company
pursuant to this Bonus Plan shall be paid by the Company within 120 days
following the close of such fiscal year.
7. Termination of Employment.
7.1 In the event of termination of the employment of a Participant
pursuant to Section 6.1, 6.2, 6.4, 6.5 or 6.6 of his or her Employment Agreement
prior to the end of any fiscal year of the Company, such Participant (or his or
her estate or other legal representative) shall be entitled to a bonus for such
fiscal year only as provided in this Section 7.1. The bonus to which the
Participant (or his estate or other legal representative) shall be entitled for
such fiscal year (which shall be payable at the time other Participants are paid
their portion of the Bonus Pool for
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such fiscal year) shall be (i) in the event that the Bonus Pool is calculated
pursuant to Section 4.1 of this Bonus Plan, an amount equal to the product of
(x) the bonus, if any, which would have been payable to the Participant pursuant
to Sections 4.1 and 5 of this Bonus Plan for such fiscal year if the employment
of the Participant had not so terminated, multiplied by (y) a fraction, the
numerator of which is the number of days from the beginning of such fiscal year
to the date of termination, and the denominator of which is 365; or (ii) in the
event that the Bonus Pool is calculated pursuant to Section 4.2 of this Bonus
Plan, an amount equal to the product of (x) the bonus, if any, which would have
been payable to the Participant pursuant to Sections 4.2 and 5 of this Bonus
Plan for such two fiscal years if the employment of the Participant had not so
terminated, multiplied by (y) a fraction, the numerator of which is the number
of days from the beginning of the first of such two fiscal years to the date of
termination, and the denominator of which is 730.
7.2 In the event of termination of the employment of a Participant
pursuant to Section 6.3 of his or her Employment Agreement, such Participant
shall not be entitled to a bonus for the fiscal year of the Company in which
such termination occurs.
7.3 In the event of termination of the employment of a Participant
by the Participant for any reason, other than pursuant to Section 6.1, 6.2 or
6.6 of his or her Employment Agreement, such Participant shall not be entitled
to a bonus for the fiscal year of the Company in which such termination occurs.
7.4 No Participant shall be entitled to a bonus for any fiscal year
of the Company subsequent to the fiscal year in which his or her termination of
employment (for any or no reason) occurs.
7.5 If any portion of the Bonus Pool shall not be allocated or paid
by reason of this Section 7, such portion shall be retained by the Company or
paid to other Participants or to new participants, all as determined by the
Board in its discretion, after consideration of any recommended course of action
submitted to the Board by the Chief Executive Officer and Chief Operating
Officer of the Company.
8. Bonus Options.
8.1 Grant. For each $500,000 of EBITDA in excess of $6,000,000
attained by the Company in each of the fiscal
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years of the Company beginning with the fiscal year ending October 31, 1998, the
Company shall cause to be granted to the Participants by the Board of Directors
of Norton XxXxxxxxxx, Inc., a Delaware corporation ("Norton"), options (the
"Bonus Options") to purchase an aggregate of 28,000 (or such lesser number as
shall be necessary to allocated Bonus Options in accordance with Section 8.2
below) shares of common stock, par value $.01 per share, of Norton (the "Common
Stock"). The Bonus Options shall be granted, if at all, as of the last day of
the applicable fiscal year and shall have an exercise price per share equal to
the fair market value of the Common Stock on the date of grant.
8.2 Allocation of Bonus Options. The Bonus Options shall be
allocated 10,000 to Xxxxxxx, 10,000 to Zwilling, 3,000 to Ciacci, 2,000 to
Xxxxx, 2,000 to Tse and 1,000 to Xxxxxx.
8.3 Exercise. The Bonus Options shall be fully vested and
exercisable on and after the date of grant.
8.4 Term of Options. Except as provided below, the term of the Bonus
Options shall be ten years.
(i) If a Participant's employment with the Company terminates
pursuant to Section 6.1 of his or her Employment Agreement, is terminated by the
Company or by the Participant pursuant to Section 6.2 of his or her Employment
Agreement, is terminated by the Company pursuant to Section 6.4 of his or her
Employment Agreement, is terminated by the Employee pursuant to Section 6.6 of
his or her Employment Agreement, or terminated for any other reason (except as
provided in clause (ii) below), the Bonus Options may be exercised by the
Participant (or his estate or legal representative) within one (1) year after
such termination; and
(ii) In the event of termination of the employment of a
Participant (a) by the Company pursuant to Section 6.3 of his or her Employment
Agreement or (b) by the Participant other than pursuant to Sections 6.1, 6.2 or
6.6 of his or her Employment Agreement, no Bonus Options shall be exercisable.
8.5 Adjustments. In the event of any dividend or other distribution
(whether in the form of cash, Common Stock, other securities or other property),
recapitalization, stock split, reverse stock split, reorganization, merger,
consolidation, split-up, spin-off, combination, repurchase or exchange of Common
Stock or other securities of Norton, issuance of warrants or other rights
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to purchase Common Stock, the Board of Directors shall, in such manner as it may
deem equitable, adjust the number of shares of Common Stock (or other securities
or property) subject to the Bonus Options, the exercise price with respect to
any Bonus Options, or both.
8.6 No Participant shall be entitled to Bonus Options for any fiscal
year of the Company subsequent to the fiscal year in which his or her
termination of employment (for any or no reason) occurs.
8.7 In the event of termination of the employment of a Participant
prior to the end of a fiscal year, pursuant to Sections 6.1, 6.2, 6.4, 6.5 or
6.6 of his or her Employment Agreement, such Participant (or his or her estate
or other legal representative) shall be granted such Bonus Options for such
fiscal year only as provided in this Section 8.7. The number of Bonus Options to
which the Participant (or his or her estate or legal representative) shall be
entitled for such fiscal year (which shall be granted at the time that the Bonus
Options are granted to the other Participants) shall be equal to the product of
(x) the number of Bonus Options, if any, which would have been granted to the
Participant pursuant to Sections 8.1 and 8.2 of this Bonus Plan for such fiscal
year if the employment of the Participant had not so terminated, multiplied by
(y) a fraction, the numerator of which is the number of days from the beginning
of such fiscal year to the date of termination, and the denominator of which is
365. The terms and conditions of any such Bonus Options shall be as otherwise
provided in this Section 8.
8.8 If any portion of the Bonus Options shall not be allocated or
granted by reason of this Section 8, such Bonus Options shall be retained by the
Company or granted to other Participants or to new participants, all as
determined by the Board in its discretion, after consideration of any
recommended course of action submitted to the Board by the Chief Executive
Officer and Chief Operating Officer of the Company.
