EXHIBIT 10.5
AMENDED AND RESTATED EMPLOYMENT AND NON-COMPETITION AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AND NON-COMPETITION AGREEMENT (this
"Agreement"), dated as of September 24, 2007, is between CSAV, INC., a
Massachusetts corporation (the "Employer"), and XXX XXXXXXXX (the "Employee").
WHEREAS, the Employer and the Employee are parties to that certain
Employment and Non-Competition Agreement, dated as of September 24, 2004 (as
amended, supplemented or otherwise modified from time to time to the date
hereof, the "Existing Employment Agreement"); and
WHEREAS, the Employer and the Employee desire to amend and restate the
terms of the Existing Employment Agreement pursuant to the terms of this
Agreement.
NOW, THEREFORE, it is hereby agreed as follows:
SECTION 1. EMPLOYMENT. The Employer hereby employs the Employee, and the
Employee hereby accepts employment, upon the terms and subject to the conditions
hereinafter set forth.
SECTION 2. DUTIES. The Employee shall be employed as the Vice President and
General Manager, Sanus Systems. In such capacity, the Employee shall have the
responsibilities, duties and authorities customary for the applicable position
and such other responsibilities and duties as are assigned by the Board of
Directors (the "Board") of the Employer, or the Chief Executive Officer of the
Employer (the "CEO"), which are consistent with the Employee's position. At all
times during the performance of this Agreement, the Employee will adhere to the
rules and regulations (the "Policies," current copies of which have been
provided to the Employee) that have been or may hereafter be established by the
Board for the conduct of its employees or for the position or positions held by
the Employee. The Employee agrees to devote his full business time and
reasonable efforts to the performance of his duties to the Employer. However, so
long as the following activities do not (individually or in the aggregate)
materially interfere with the performance of the Employee's duties with the
Employer or otherwise violate the terms of this Agreement (including, without
limitation Section 9 hereof), the Employee may (i) participate in charitable,
civic, educational, professional, community or industry affairs or serve on the
boards of directors or advisory boards of other companies; and (ii) manage his
and his family's personal investments.
SECTION 3. TERM. The initial term of employment of the Employee hereunder
shall commence on the date hereof (the "Commencement Date") and shall continue
until the third anniversary of the Commencement Date (the "Initial Term"),
unless earlier terminated pursuant to Section 6, and shall be renewed
automatically for additional one (1) year terms thereafter unless terminated by
either party by written notice to the other given at least ninety (90) days
prior to the expiration of the then current term.
SECTION 4. COMPENSATION AND BENEFITS. Until the termination of the
Employee's employment hereunder, in consideration for the services of the
Employee hereunder, the Employer shall compensate the Employee as follows:
(a) BASE SALARY. The Employer shall pay the Employee, in accordance
with the Employer's then current payroll practices, a base salary (the
"Base Salary"). The Base Salary will be paid at an annual rate of $225,000.
The Employee's Base Salary shall be subject to review by the Board (or a
committee thereof) at or around the same time when base salaries for other
senior executives of the Employer are reviewed, and may be increased, but
not decreased, from time to time by the Board. Once increased, the
Employee's Base Salary may not be decreased below such increased amount.
The Base Salary as increased from time to time shall constitute the "Base
Salary" for purposes of this Agreement.
(b) INCENTIVE BONUS. At the end of each fiscal year of the Employer
during the Term, beginning with the fiscal year ending December 31, 2007,
the Employee shall be eligible to receive from the Employer an annual
incentive bonus (the "Bonus"). The Bonus criteria for each fiscal year (i)
will be determined by the Board (and the Employer will advise the Employee
of such determination) prior to the end of the first fiscal quarter of such
fiscal year, and (ii) may be based solely on the achievement of individual
performance criteria, solely on the achievement by the Employer of elements
of its business plan or on a combination of these two types of criteria.
The amount of the Bonus for any fiscal year shall be up to 80% of the Base
Salary in effect as of the end of such fiscal year, with the actual amount
of the Bonus for such fiscal year depending upon the satisfaction of the
Bonus criteria to be set in accordance with the immediately preceding
sentence. The Bonus (if any) payable in connection with any fiscal year
shall be paid within thirty (30) days after the determination that the
Employee is to receive the Bonus, which determination will be made by the
Board promptly following completion by the Employer of its audit of the
financial statements for the applicable fiscal year. In any event, the
Bonus will be paid to the Employee no later than during the calendar year
following the fiscal year in which it was earned. The amount of any Bonus
payable for any fiscal year shall be paid in cash.
(c) VACATION. The Employee shall be entitled to four (4) weeks
vacation (which shall include time taken for personal leave) each calendar
year provided, that (i) with respect to the 2007 calendar year, such number
of weeks shall be reduced by any vacation time taken prior to the
Commencement Date under the Existing Employment Agreement, and (ii) the
Employee shall be entitled to additional vacation time based on the
Employee's length of service with the Employer. Any increase in the amount
of the Employee's vacation time that is based on the Employee's length of
service with the Employer shall be on a basis consistent with the
Employer's standard policy governing length of service and vacation. Any
vacation shall be taken at the reasonable and mutual convenience of the
Employer and the Employee. Accrued vacation not taken in any calendar year
will not be carried forward or used in any subsequent calendar year.
(d) INSURANCE; OTHER BENEFITS. Accident, disability, life and health
insurance for the Employee shall be provided by the Employer under group
accident, disability, life
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and health insurance plans maintained by the Employer for its full-time,
salaried employees as such employment benefits may be modified from time to
time by the Board for all full-time, salaried employees. In addition, the
Employee shall be entitled to participate in any employee benefit plan of
the Employer, including, but not limited to, equity, pension, thrift,
profit sharing, medical coverage, education, or other retirement or welfare
benefits that the Employer has adopted or may adopt, maintain or contribute
to, for the benefit of its senior executives generally, at a level
commensurate with the Employee's position within the Employer as determined
in good faith by the Board; provided, however, that nothing in this Section
4(d) or elsewhere in this Agreement shall limit the right of the Employer
to amend or terminate any such employee benefit plans.
(e) PERQUISITES. The Employer shall provide to the Employee, at the
Employer's cost, all perquisites to which other senior executives of the
Employer generally are (or become) entitled, to the extent as are suitable
to the character of the Employee's position with the Employer, subject to
such specific limits on such perquisites as may from time to time be
imposed by the Board.
(f) WITHHOLDING. All amounts payable by the Employer to the Employee
hereunder (including, but not limited to, the Base Salary) shall be reduced
prior to the delivery of such payment to the Employee by an amount
sufficient to satisfy any applicable federal, state, local or other
withholding tax requirements.
SECTION 5. EXPENSES. The Employer shall reimburse the Employee for all
reasonable travel, entertainment and other expenses of types authorized by the
Employer and incurred by the Employee in the performance of his duties
hereunder. The Employee shall comply with such budget limitations and approval
and reporting requirements with respect to expenses as the Employer may
establish from time to time.
SECTION 6. TERMINATION. The Employee's employment hereunder shall commence
on the Commencement Date and continue until the expiration of the Initial Term,
and any extension of such term pursuant to Section 3 above, except that the
employment of the Employee hereunder shall earlier terminate:
(a) DEATH. Upon the death of the Employee during the term of his
employment hereunder.
(b) DISABILITY. Subject to applicable law, including the Americans
with Disabilities Act of 1990, as amended. At the option of the Employer,
in the event of the Employee's Disability (as defined below), upon thirty
(30) days' written notice from the Employer, provided the Employee has not
returned to full-time employment within such 30-day period. For purposes
hereof, the Employee shall be deemed to have a "Disability" if the Employee
has not on account of a physical or mental illness, injury or disease or
combination thereof, performed his duties and obligations under this
Agreement for a period of more than 90 consecutive days or for a total of
120 days (in either case excluding vacation days) within any 12 month
period.
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(c) FOR CAUSE. For "Cause" immediately upon written notice by the
Employer to the Employee, provided, that such notice is given within ninety
(90) days after receipt by the CEO or the Board of sufficient information
to reasonably evaluate the circumstances giving rise to the "Cause" event
(in no case more than 180 days following the occurrence of the "Cause"
event). For purposes of this Agreement, a termination shall be for Cause if
the Board shall reasonably determine that any one or more of the following
has occurred:
(i) the Employee shall have committed an act of fraud,
embezzlement, misappropriation or breach of fiduciary duty against the
Employer or any of CSAV Holding Corp. ("Holdings") or any of its
subsidiaries (collectively, the "Companies"), including, but not
limited to, the offer, payment, solicitation or acceptance of any
unlawful bribe or kickback with respect to the business of any of the
Companies; or
(ii) the Employee shall have been convicted by a court of
competent jurisdiction of, or pleaded guilty or nolo contendere to,
any felony; or
(iii) the Employee shall have committed a material breach of any
of the covenants, terms and provisions of Sections 7, 8 or 9 hereof
(collectively, the "Restrictive Covenants"); or
(iv) the Employee shall have breached in any material respects
any one or more of the provisions of this Agreement (excluding the
Restrictive Covenants), including, without limitation, any failure to
(x) materially comply with the Policies, or (y) comply with any one or
more of the provisions of the Stockholder Agreement dated as of August
29, 2003 (the "Stockholder Agreement"), among Holdings and its
stockholders, and, in each case, such breach shall have continued for
a period of ten (10) days after written notice to the Employee
specifying such breach in reasonable detail; or
(v) the Employee shall have refused, after explicit written
notice, to attempt in good faith to obey any lawful resolution of or
direction by the Board which is consistent with his duties hereunder.
Notwithstanding the foregoing, other than a termination pursuant to clause (ii)
above, the Employee shall not be deemed to have been terminated for Cause
without (A) advance written notice, provided to the Employee not less than five
(5) business days prior to the date of termination, setting forth the Employer's
intention to consider terminating the Employee, including a statement of the
date of termination and the basis for such consideration for Cause; (B) an
opportunity for the Employee, together with his counsel, to be heard before the
Board or a Committee (as hereinafter defined), before termination and after such
notice; and (C) a written determination provided by the Board or such Committee
setting forth the acts and omissions that form the basis of any termination for
Cause. For purposes of this Section 6(c), the term "Committee" shall mean a
committee designated by resolution of the Board of Directors of Holdings (the
"Holdings Board") for the purpose of making a determination of Cause hereunder
consisting of
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(y) at least two (2) members of the Holdings Board (excluding the CEO) or (z) a
majority of the members of the Holdings Board (excluding the CEO).
(d) RESIGNATION FOR GOOD REASON. At the option of the Employee for
"Good Reason" upon written notice to the Employer as provided in this
Section 6(d). For purposes of this Agreement, "Good Reason" shall mean,
without the express written consent of the Employee, the occurrence of any
of the following events unless such events are corrected in all material
respects by the Employer within ten (10) days following written
notification by the Employee to the Employer that the Employee intends to
terminate his employment hereunder for one of the reasons set forth below
and a reasonably detailed description of the facts and circumstances
surrounding such reason: (i) a breach by the Employer of any material
provision of this Agreement; (ii) any reduction or diminution (except
temporarily during any period of physical or mental illness or incapacity)
of the Employee's title as Managing Director, Sanus Systems, or a material
reduction or diminution of the Employee's then authorities, duties or
responsibilities with the Employer; (iii) the assignment to the Employee of
duties or responsibilities that are materially inconsistent with, and
adverse to, his position; (iv) a liquidation, wind-down, shutdown or other
cessation of operations of the Employer authorized by the Board; or (v) any
change in the Employee's permanent place of work to a location more than 50
miles from Employee's current office.
(e) RESIGNATION OR TERMINATION WITHOUT CAUSE. At any time, upon
written notice by either the Employer or the Employee to the other party
hereto.
(f) RIGHTS AND REMEDIES ON TERMINATION.
(i) If the Employee's employment is terminated pursuant to
Section 6(a) on account of death, Section 6(b) on account of
Disability or Section 6(c) for Cause, by the Employee pursuant to
Section 6(e) without Cause or pursuant to Section 3 in connection with
the expiration of the Initial Term or any subsequent term hereunder,
then the Employee (or his estate, as applicable) shall be entitled to
receive (i) any unpaid Base Salary through the date of termination or
expiration and any accrued but unused vacation; (ii) any of the
bonuses set forth in Section 4(b), Section 4(c) or Section 4(d), if
earned on or before the date of such termination; (iii) reimbursement
for any unreimbursed expenses in accordance with Section 5 incurred
through the date of termination; and (iv) all other payments, benefits
or fringe benefits to which the Employee may be entitled under the
terms of any applicable compensation arrangement or benefit, equity or
fringe benefit plan or program or grant or this Agreement through the
date of such termination (collectively, "Accrued Benefits").
(ii) If the Employee's employment hereunder is terminated (x) by
the Employee pursuant to Section 6(d) or (y) by the Employer pursuant
to Section 6(e), then the Employee shall be entitled to receive
Accrued Benefits and shall be entitled to continue to receive payment,
in accordance with the Employer's then current payroll practices, of
the Employee's Base Salary in effect at the time of termination of
employment (the "Termination Date") for a six (6) month period
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following the Termination Date ("Severance"); provided, however, that
(A) the Employee's right to receive the foregoing payments is
expressly conditioned upon receipt by the Employer within 21 days
following the Termination Date of a written release executed by the
Employee, in the form of Exhibit A attached hereto, and the expiration
of the revocation period described therein without such release having
been revoked, and (B) in the event the Employer determines in good
faith that the Employee has breached any of the Restrictive Covenants,
without limiting any other rights that the Employer may have, the
Employer may cease making (and shall have no obligation to make)
payments under this Section 6(f)(ii) after delivery of notice to the
Employee of such determination; provided, that if it is ultimately
determined by a final, non-appealable order of a court of competent
jurisdiction, or if the Employee establishes by conclusive evidence
(in the reasonable discretion of the Board), that he was not in breach
of the Restrictive Covenants or that he has cured any such breach,
then the Employer shall thereupon resume making the payments under
this Section 6(f)(ii) and shall pay to the Employee any amounts
withheld from the Employee during any period in which the Employee was
not in breach of the Restrictive Covenants, in each case less any
payments made to the Employee during any period that he was in breach
of the Restrictive Covenants. The Employee acknowledges and agrees
that the exercise by the Employer of its rights and remedies under
clause (B) in the immediately preceding sentence to discontinue making
payments to the Employee shall not relieve the Employee of his
obligations under the Restrictive Covenants (it being understood that
the Employee shall continue to be bound by each of the Restrictive
Covenants to the fullest extent permitted by law and shall continue to
be liable for any breaches thereof).
(iii) Except as otherwise set forth in this Section 6(f), the
Employee shall not be entitled to any severance, bonus or other
compensation after termination other than payment of any expense
reimbursements under Section 5 hereof for expenses incurred in the
performance of his duties prior to termination or benefits or
compensation to which the Employee is entitled pursuant to applicable
law (e.g. COBRA).
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SECTION 7. INVENTIONS; ASSIGNMENT. All rights to discoveries, inventions,
improvements and innovations (including all data and records pertaining thereto)
related to the home audio-visual furniture and mount business, whether or not
patentable, copyrightable, registrable as a trademark, or reduced to writing,
that the Employee may discover, invent or originate during the term of his
employment hereunder, either alone or with others and whether or not during
working hours or by the use of the facilities of any of the Companies
("Inventions"), shall be the exclusive property of the Companies. The Employee
shall promptly disclose all Inventions to the Employer, shall execute at the
request of the Employer any assignments or other documents the Employer may deem
necessary to protect or perfect the rights of the Companies therein, and shall
assist the Companies, at the Companies' expense, in obtaining, defending and
enforcing the Companies' rights therein. The Employee hereby appoints the
Employer and each of the other Companies, individually, as his attorney-in-fact
to execute on his behalf any assignments or other documents deemed necessary by
the Employer or any of the other Companies to protect or perfect their rights to
any Inventions.
SECTION 8. CONFIDENTIAL INFORMATION. The Employee recognizes and
acknowledges that certain assets of the Companies, including, without
limitation, information regarding customers, pricing policies, methods of
operation, proprietary production processes, proprietary computer programs,
sales, products, profits, costs, markets, key personnel, formulae, product
applications, technical processes, and trade secrets which the Employer treats
as confidential (hereinafter called "Confidential Information") are valuable,
special, and unique assets of the Companies and their affiliates. The Employee
shall not, during or after his term of employment, disclose any or any part of
the Confidential Information to any person, firm, corporation, association, or
any other entity for any reason or purpose whatsoever, directly or indirectly,
except as may be required pursuant to his employment hereunder; provided, that
nothing in this Section 8 shall prevent the Employee from disclosing (a)
information which was generally available to the public at the time of
disclosure by the Employee or (b) information which becomes publicly available
other than as a consequence of the breach by the Employee of his confidentiality
obligations hereunder. In the event of the termination of his employment,
whether voluntary or involuntary and whether by the Employer or the Employee,
the Employee shall deliver to the Employer all documents and data pertaining to
the Confidential Information and shall not take with him any documents or data
of any kind or any reproductions (in whole or in part) or extracts of any items
relating to the Confidential Information. Nothing contained within this Section
8 shall prohibit the Employee from disclosing Confidential Information if such
disclosure is required by law, governmental process or valid legal process. In
the event that the Employee is legally compelled to disclose any of the
Confidential Information, he shall attempt in good faith to provide the Employer
with prompt written notice so that the Employer, at its sole cost and expense,
may seek a protective order or other appropriate remedy and/or waive compliance
with the provisions of this Agreement. In the event that such protective order
or other remedy is not obtained, or that Employer waives compliance with the
provisions of this Agreement, Employee shall furnish only that portion of the
Confidential Information that he is advised by counsel of his choice (and
reasonably acceptable to the Board) is legally required to be disclosed.
SECTION 9. NON-COMPETITION. During the term of the Employee's employment
hereunder and for the Designated Period (as defined below) after termination of
the Employee's employment hereunder, the Employee will not (a) anywhere in the
world, engage, directly or
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indirectly, alone or as a shareholder (other than as a holder of less than two
percent (2%) of the common stock of any publicly traded corporation), partner,
officer, director, employee, consultant or advisor, or otherwise in any way
participate in or become associated with, any other business organization that
is engaged or becomes engaged in the business of manufacturing or distributing
audio-visual furniture and mounts, or any business that is directly competitive
with any business activity that any of the Companies is conducting at the time
of the Employee's termination or has notified the Employee prior to or upon
termination that it proposes to conduct and for which any of the Companies have,
prior to the time of such termination, expended substantial resources (the
"Designated Industry"), unless the Employee establishes to the reasonable
satisfaction of the Board that the Employee's role with any such other business
organization will not require the Employee to be engaged in the Designated
Industry, and except as set forth below, (b) divert to any competitor of any of
the Companies any customer of any of the Companies (it being understood that
soliciting any customer of any of the Companies for any business that: (x) such
customer is not receiving or requesting from such Company at the time of the
Employee's solicitation of such customer, or (y) such Company has not solicited
from such customer or been requested to provide by such customer at any time
during the twelve (12) month period prior to the time of the Employee's
solicitation of such customer, shall not constitute a violation of this clause
(b)), or (c) solicit any employee of any of the Companies to leave its employ
for alternative employment, or hire or offer employment to any person to whom
the Employee actually knows any of the Companies has offered employment. For
purposes hereof, the term "Designated Period" shall mean one (1) year after
termination of the Employee's employment hereunder. Nothing in this Section 9
shall prohibit the Employee from engaging in any manner contemplated by this
Section 9 in any business organization that derives revenues from the sale and
service of audio-visual electronics equipment, so long as (1) the design,
manufacture or sale of audio-visual furniture and mounts by such business
organization (taken together with its affiliates) do not constitute a material
business (i.e., generate revenues in excess of 5% of the total revenues of such
business organization for the most recently completed fiscal year), (2) such
business organization is not engaged in the business of the design, manufacture
or sale of universal audio-visual furniture and universal mounts (i.e., designed
to function with any brand other than the brand sold by such business
organization), and (3) the design, manufacture or sale of audio-visual furniture
and mounts does not constitute a material part of the Employee's job with such
business organization. The Employee acknowledges that the provisions of this
Section 9 are essential to protect the business and goodwill of the Companies.
The Employee will continue to be bound by the provisions of this Section 9 until
their expiration and shall not be entitled to any compensation from the Employer
with respect thereto except as provided above. If at any time the provisions of
this Section 9 shall be determined to be invalid or unenforceable by reason of
being vague or unreasonable as to area, duration or scope of activity, this
Section 9 shall be considered divisible and shall become and be immediately
amended to only such area, duration and scope of activity as shall be determined
to be reasonable and enforceable by the court or other body having jurisdiction
over the matter; and the Employee agrees that this Section 9 as so amended shall
be valid and binding as though any invalid or unenforceable provision had not
been included herein. The Employee hereby acknowledges that he has agreed to be
bound by the provisions of this Section 9 in consideration for the compensation,
severance and other benefits to be provided by the Employer to the Employee
pursuant to the terms of this Agreement.
SECTION 10. LIABILITY INSURANCE. The Employer shall cover the Employee
under directors and officers liability insurance in the same amount and to the
same extent as the
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Employer covers its other officers and directors generally. The Employee shall
be entitled to the benefits of the indemnification provisions set forth in
Article VII of the Employer's Amended and Restated Bylaws as they exist on the
Commencement Date and not subject to amendment or repeal.
SECTION 11. FULL SETTLEMENT. Other than a breach by the Employee of the
Employee's obligations under this Agreement, the obligation of the Employer to
make the payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any circumstances, including,
without limitation, set-off, counterclaim, recoupment, defense or other claim,
right or action which the Employer may have against the Employee or others. In
no event shall the Employee be obliged to seek other employment or take any
other action by way of mitigation of the amounts payable to the Employee under
any of the provisions of this Agreement, nor shall the amount of any payment
hereunder be reduced by any compensation earned by the Employee as a result of
employment by another employer.
SECTION 12. GENERAL.
(a) NOTICES. All notices and other communications hereunder shall be
in writing or by written telecommunication, and shall be deemed to have
been duly given (i) on the date delivered personally, (ii) on the third
business day following deposit with the United States Post Office, if
mailed by certified mail, return receipt requested, postage prepaid, (iii)
on the first business day following the date of transmission, if delivered
by confirmed facsimile, or (iv) on the first business day following the
date of deposit, if delivered by guaranteed overnight delivery service, to
the relevant address set forth below, or to such other address as the
recipient of such notice or communication shall have specified to the other
party hereto in accordance with this Section 12(a):
If to the Employer, to:
c/x Xxxxxxxx Xxxxxxxx & Xxxx LLC
Xxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Fax: (000) 000-0000
With copies to:
CSAV, Inc.
00000 Xxxxxxx 00 Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxx
Fax: (000) 000-0000
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Xxxxxxx XxXxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
If to the Employee, to:
Xxx Xxxxxxxx
With a copy to:
Xxxxx Xxxxxx, Esq.
Robins, Kaplan, Xxxxxx & Xxxxxx L.L.P.
0000 XxXxxxx Xxxxx
000 XxXxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
(b) SECTION 409A. This Agreement is intended to comply with the
requirements of Section 409A of the Internal Revenue Code of 1986, as
amended, and regulations promulgated thereunder (together, "Section 409A"),
and shall, to the extent practicable, be construed in accordance therewith.
If any amount payable pursuant to Section 6(f) of this Agreement
constitutes a "deferral of compensation" subject to Section 409A and if, at
the date of the Employee's "separation from service," as such term is
defined in Section 409A, from the Employer (his "Separation from Service"),
the Employee is a "specified employee", within the meaning of Section 409A,
of the Employer as determined by the Employer from time to time, then each
such payment that would otherwise be payable to the Employee within the six
(6) month period following the Employee's Separation from Service shall be
delayed and paid to the Employee without interest on the first business day
of the seventh month following the Employee's Separation from Service. For
the avoidance of doubt, for purposes of Section 6(f) and this Section
10(b), any amount which would not be considered a "deferral of
compensation" within the meaning of Section 409A by reason of Treas. Reg.
Sections 1.409A-1(b)(4) or 1.409A-1(b)(9) shall not be considered a
deferral of compensation for which payment shall be delayed in accordance
with the preceding sentence. For purposes of this Agreement, each payment
to which the Employee may be entitled pursuant to Section 6(f), including
each of the payments of Severance upon each payroll period, shall be
considered a separate payment within the meaning of Treas. Reg. Section
1.409A-2(b)(2). Notwithstanding the foregoing, to the extent that this
Agreement or any payment or benefit hereunder shall be deemed not to comply
with Section 409A, then neither the Employer, nor any of its principals,
employees, designees or agents, shall be liable to the Employee or to any
other person to the extent such failure to comply results from any actions,
decisions or determinations made in good faith.
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(c) EQUITABLE REMEDIES. Each of the parties hereto acknowledges and
agrees that upon any breach by the Employee of his obligations under
Sections 7, 8 and 9 hereof, the Employer will have no adequate remedy at
law, and accordingly will be entitled to specific performance and other
appropriate injunctive and equitable relief.
(d) SEVERABILITY. If any provision of this Agreement is or becomes
invalid, illegal or unenforceable in any respect under any law, the
validity, legality and enforceability of the remaining provisions hereof
shall not in any way be affected or impaired.
(e) WAIVERS. No delay or omission by either party hereto in exercising
any right, power or privilege hereunder shall impair such right, power or
privilege, nor shall any single or partial exercise of any such right,
power or privilege preclude any further exercise thereof or the exercise of
any other right, power or privilege.
(f) COUNTERPARTS. This Agreement may be executed in multiple
counterparts (including by telecopier), each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
(g) ASSIGNS. This Agreement shall be binding upon and inure to the
benefit of the heirs and successors of each of the parties hereto,
including any entity which acquires substantially all of the assets or
stock of the Employer.
(h) ENTIRE AGREEMENT. This Agreement and the exhibits hereto contain
the entire understanding of the parties, supersedes all prior agreements
and understandings relating to the subject matter hereof, and shall not be
amended except by a written instrument hereafter signed by each of the
parties hereto.
(i) GOVERNING LAW. This Agreement and the performance hereof shall be
construed and governed in accordance with the laws of the State of
Minnesota.
(j) AMENDMENT AND RESTATEMENT. The Existing Employment Agreement shall
continue in force and effect only as amended and restated herein.
[Remainder of page intentionally left blank; signature page follows]
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
hereto have caused this Agreement to be duly executed as of the date and year
first above written.
CSAV, INC.
By: /s/ Xxxxx Xxxx
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Title: President
/s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx
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EXHIBIT A
Form of Release
Reference is hereby made to the Amended and Restated Employment and
Non-Competition Agreement, dated as of September 24, 2007 (the "Employment
Agreement"), by and between Xxx Xxxxxxxx ("Xxxxxxxx") and CSAV, INC., a
Massachusetts corporation (the "Company"). Capitalized terms used but not
defined herein shall have the meanings specified in the Employment Agreement.
Pursuant to the terms of the Employment Agreement and in consideration of
the payments to be made to Xxxxxxxx by the Company, Xxxxxxxx hereby releases and
forever discharges and holds the Company and its parent and subsidiaries
(collectively, the "Company Parties" and each a "Company Party"), and the
respective officers, directors, employees, partners, stockholders, members,
agents, affiliates, successors and assigns and insurers of each Company Party
harmless from all claims or suits, of any nature whatsoever (whether known or
unknown), present or future, including those arising from the law, being
directly or indirectly related to Xxxxxxxx'x employment by or the termination of
such employment by any Company Party, including, but not limited to, any claims
for notice, pay in lieu of notice, wrongful dismissal, severance pay, bonus,
overtime pay, incentive compensation, interest or vacation pay or Xxxxxxxx'x
service as an officer or director to any Company Party through the date hereof.
Xxxxxxxx also hereby agrees not to file a lawsuit asserting any such claims.
This release (this "Release") includes, but is not limited to, contract and tort
claims, claims growing out of any legal restriction on any Company Party's right
to terminate its employees and claims or rights under federal, state, and local
laws prohibiting employment discrimination (including, but not limited to,
claims or rights under Title VII of the Civil Rights Act of 1964, as amended by
the Civil Rights Act of 1991, the Employee Retirement Income Security Act, the
Equal Pay Act, the Age Discrimination in Employment Act of 1967, as amended by
the Older Workers Benefit Protection Act of 1990, and the laws of the State of
Minnesota against discrimination) which arose before the date this Release is
signed. Xxxxxxxx acknowledges that because this Release contains a release of
claims and is an important legal document, he has been advised to consult with
counsel before executing it, that he may take up to twenty-one (21) days to
decide whether to execute it, and that he may revoke this Release by delivering
or mailing a signed notice of revocation to the Company at its offices within
seven (7) days after executing it.
Xxxxxxxx acknowledges that there is a risk that after signing this Release
he may discover losses or claims that are released under this Release, but that
are presently unknown to him. Xxxxxxxx assumes this risk and understands that
this Release shall apply to any such losses and claims.
Xxxxxxxx understands that this Release includes a full and final release
covering all known and unknown, suspected or unsuspected injuries, debts, claims
or damages which have arisen or may have arisen from any matters, acts,
omissions or dealings released herein. Xxxxxxxx acknowledges that by accepting
the benefits and payments set forth in the Employment Agreement, he assumes and
waives the risks that the facts and the law may be other than as he believes.
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Notwithstanding the foregoing, this Release does not release, and Xxxxxxxx
continues to be entitled to, (i) any rights to exculpation or indemnification
that Xxxxxxxx has under contract or law with respect to his service as an
officer or director of any Company Party, (ii) receive the payments to be made
to him by the Company pursuant to Section 6(f)(ii) of the Employment Agreement,
subject to the conditions set forth in such Section and (iii) any rights or
claims arising under the Stockholder Agreement or any other written agreement
between or among Xxxxxxxx and the Company on account of or arising out of any
matter, cause or event occurring after the date of this Release.
This Release constitutes the release referenced in Section 6(f)(ii) of the
Employment Agreement.
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Xxx Xxxxxxxx
Date:
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