Exhibit 10.73
AMENDED & RESTATED
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), dated January 1, 2000 by and
between Spigadoro, Inc. f/k/a IAT Multimedia, Inc. (the "Company") and Xxxxx
Xxxx (the "Executive") having an address of c/o Vertical Holdings Limited,
Westbourne, The Grange, St. Xxxxx Port, Guernsey.
W I T N E S S E T H:
WHEREAS, the Executive previously entered into an Employment Agreement with
the Company dated September 1, 1998; and
WHEREAS, the Company and the Executive now wish to amend and restate their
agreement respecting the employment of Executive; and
WHEREAS, the Executive is willing to serve as Chief Executive Officer of
the Company and the Company desires to retain the Executive in that capacity on
the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto agree as follows:
Section 1. Term of Employment. The Executive's employment under this
Amended & Restated Agreement shall be effective on January 1, 2000 (the
"Commencement Date") and, subject to earlier termination pursuant to Section 5
hereof, shall continue until the third anniversary of the Commencement Date (the
"Term"). The Executive hereby represents and warrants that (i) he has the legal
capacity to execute and perform this Agreement, (ii) this Agreement is a valid
and binding agreement enforceable against him according to its terms, and (iii)
the execution and performance of this Agreement by him does not violate the
terms of any existing agreement or understanding to which the Executive is a
party or by which he may be bound.
Section 2. Position and Duties. During the Term, the Executive shall serve
as Chief Executive Officer of the Company and shall have such powers and duties
as are commensurate with such position and as may be conferred upon him from
time to time by the Board of Directors of the Company (the "Board"). During the
Term, and except for illness or incapacity and reasonable vacation periods, the
Executive shall devote such of his business time, attention, skill and efforts
as are necessary to the business and affairs of the Company and its subsidiaries
and affiliates; provided, however, it is expressly understood that Executive
provides managerial services to companies other than the Company and shall
continue to devote a portion
of his business time to such other companies in conjunction with his duties
hereunder to the extent that such activities do not inhibit or prohibit the
performance of his duties hereunder or inhibit or conflict in any material way
with the business of the Company, its subsidiaries and affiliates. In addition,
the Executive may engage in charitable, educational, religious, civic and
similar types of activities (all of which shall be deemed to benefit the
Company), speaking engagements, membership on the board of directors of other
organizations, and similar activities to the extent that such activities do not
inhibit or prohibit the performance of his duties hereunder.
Section 3. Compensation. For all services rendered by the Executive in any
capacity required hereunder during the Term, including, without limitation,
services as an executive officer, director, or member of any committee of the
Company, or any subsidiary, affiliate or division thereof, the Executive shall
be compensated as follows:
(a) The Company shall pay the Executive a fixed salary at the rate of
$300,000 per annum ("Base Salary"). Base Salary shall be payable in accordance
with the customary payroll practices of the Company, but in no event less
frequently than bi-weekly.
(b) The Executive shall be entitled to participate in all compensation
and employee benefit plans or programs, and to receive all benefits, perquisites
and emoluments, for which any salaried employees of the Company are eligible
under any plan or program now or hereafter established and maintained by the
Company, to the fullest extent permissible under the general terms and
provisions of such plans or programs and in accordance with the provisions
thereof, including, without limitation, incentive compensation, bonus, group
hospitalization, health, dental care, life, disability or other insurance,
tax-qualified and non-qualified pension, savings, thrift and profit-sharing
plans, termination or severance pay programs, sick-leave plans, travel or
accident insurance, automobile allowance or automobile lease plans, and
executive contingent compensation plans, including, without limitation, capital
accumulation programs and stock purchase, restricted stock and stock option
plans. Notwithstanding the foregoing, nothing in this Agreement shall preclude
the amendment or termination of any such plan or program, provided that such
amendment or termination is applicable generally to the senior officers of the
Company or any subsidiary or affiliate.
Section 4. Business Expenses. The Company shall pay or reimburse the
Executive for all reasonable travel or other expenses incurred by the Executive
in connection with the performance of his duties and obligations under this
Agreement, subject to the Executive's presentation of appropriate vouchers in
accordance with such procedures as the Company may from time to time establish
for senior officers and to preserve any deductions for Federal income taxation
purposes to which the Company may be entitled.
Section 5. Effect of Termination of Employment. (a) In the event the
Executive's employment terminates, whether during the Term or following the
expiration of the Term, due to either a Without Cause Termination or a
Constructive Discharge, the Company shall, as liquidated damages or severance
pay, or both, continue, subject to the provisions of Section 6 below, to pay the
Executive's Base Salary as in effect at the time of such termination for the
lesser
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of (i) the remainder of the then-current Term, or (ii) a period of twelve months
from the effective date of such termination. In the event the Executive's
employment terminates, whether during the Term or following the expiration of
the Term, due to a Permanent Disability, the Company shall continue to pay the
Executive's Base Salary as in effect at the time of such termination for a
period of twelve months from the date of such disability commenced; provided,
that such amounts shall be offset by any amounts otherwise paid to the Executive
under the Company's then-existing disability program. In addition, earned but
unpaid Base Salary as of the date of termination of employment shall be payable
in full. The Executive shall be entitled to continued group hospitalization,
health and dental care insurance for the periods specified in the Comprehensive
Omnibus Budget Reconciliation Act ("COBRA") upon payment by the Executive of the
amounts specified under COBRA.
(b) In the event that the Executive's employment hereunder terminates due
to a Termination for Cause, death of the Executive, or the Executive terminates
employment with the Company for reasons other than a Constructive Discharge,
Permanent Disability or retirement pursuant to the Company's retirement plan
(the "Retirement Plan"), earned but unpaid Base Salary as of the date of
termination of employment shall be payable in full. However, no other payments
shall be made, or benefits provided, by the Company under this Agreement except
for benefits payable under the Retirement Plan and benefits that have already
become vested under the terms of employee benefit programs maintained by the
Company or its affiliates for its employees and except as otherwise required by
law.
(c) For purposes of this Agreement, the following terms have the following
meanings:
(i) The term "Termination for Cause" means, to the maximum extent
permitted by applicable law, a termination of the Executive's employment by
the Company because the Executive has (a) materially breached or materially
failed to perform his duties under applicable law and such breach or
failure to perform constitutes self-dealing, willful misconduct or
recklessness, (b) engaged in conduct materially detrimental to the business
of the Company, (c) been convicted of a felony involving moral turpitude,
(d) materially breached or materially failed to perform his obligations and
duties hereunder, which breach or failure the Executive shall fail to
remedy within 30 days after written demand from the Company, or (e)
violated in any material respect the representations made in Section 1
above or the provisions of Section 6 below.
(ii) The term "Constructive Discharge" means a termination of the
Executive's employment by the Executive due to a failure of the Company or
its successors without the prior consent of the Executive to fulfill its
obligations under this Agreement in any material respect, including (a) any
failure to elect or re-elect or to appoint or reappoint the Executive to
the office of Chief Executive Officer, or (b) any other material change by
the Company in the functions, duties or responsibilities of the Executive's
position with the Company which would
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materially reduce the ranking or level, dignity, responsibility, importance
or scope of such position.
(iii) The term "Without Cause Termination" means a termination of
the Executive's employment by the Company other than due to Permanent
Disability, retirement or expiration of the Term and other than a
Termination for Cause.
(iv) The term "Permanent Disability" means permanently disabled so
as to qualify for full benefits under the Company's then-existing
disability insurance policy; provided, however, that if the Company does
not maintain any such policy on the date of determination, "Permanent
Disability" shall mean the inability of the Executive to work for a period
of six full calendar months during any eight consecutive calendar months
due to illness or injury of a physical or mental nature, supported by the
completion by the Executive's attending physician of a medical
certification form outlining the disability and treatment.
Section 6. Other Duties of Executive During and After Term. (a)
The Executive recognizes and acknowledges that all information pertaining to the
affairs, business, clients, or customers of the Company or any of its
subsidiaries or affiliates (any or all of such entities being hereinafter
referred to as the "Business"), as such information may exist from time to time,
other than information that the Company has previously made publicly available,
is confidential information and is a unique and valuable asset of the Business,
access to and knowledge of which are essential to the performance of the
Executive's duties under this Agreement. In consideration of the payments made
to him hereunder, the Executive shall not, except to the extent reasonably
necessary in the performance of his duties under this Agreement, divulge to any
person, firm, association, corporation, or governmental agency, any information
concerning the affairs, businesses, clients, or customers of the Business
(except such information as is required by law to be divulged to a government
agency or pursuant to lawful process), or make use of any such information for
his own purposes or for the benefit of any person, firm, association or
corporation (except the Business) and shall use his reasonable best efforts to
prevent the disclosure of any such information by others. All records,
memoranda, letters, books, papers, reports, accountings, experience or other
data, and other records and documents relating to the Business, whether made by
the Executive or otherwise coming into his possession, are confidential
information and are, shall be, and shall remain the property of the Business. No
copies thereof shall be made which are not retained by the Business, and the
Executive agrees, on termination of his employment or on demand of the Company,
to deliver the same to the Company.
(b) In consideration of the payments made to him hereunder, during the
period (the "Restricted Period") commencing on the effective date of the
termination of his employment (the "Termination Date") and ending on the earlier
of the second anniversary of the Termination Date or upon the occurrence of a
Termination Transaction (as hereafter defined), the Executive shall not, without
express prior written approval of the Board, directly or indirectly,
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own or hold any proprietary interest in, or be employed by or receive
remuneration from, any corporation, partnership, sole proprietorship or other
entity engaged in competition with the Company or any of its affiliates (a
"Competitor"), other than severance-type or retirement-type benefits from
entities constituting prior employers of the Executive. The Executive also shall
not, during the Restricted Period, solicit for the account of any Competitor,
any customer or client of the Company or its affiliates, or, any entity or
individual that was such a customer or client during the twelve-month period
immediately preceding the Termination Date. The Executive also shall not, during
the Restricted Period, act on behalf of any Competitor to interfere with the
relationship between the Company or its subsidiaries and affiliates and their
respective employees.
For purposes of the preceding paragraph, (i) the term "proprietary
interest" means legal or equitable ownership, whether through stockholding or
otherwise, of an equity interest in a business, firm or entity other than
ownership of less than 5 percent of any class of equity interest in a publicly
held business, firm or entity, (ii) an entity shall be considered to be "engaged
in competition" if such entity is, or is a holding company for, a company
engaged in the manufacture or distribution of animal feed, flour or pasta
products in the countries comprising the European Union or the United States,
and (iii) "Termination Transaction" shall mean (x) the merger or consolidation
of the Company with another company which is not affiliated with the Company
where the shareholders (or equity holders as the case may be) of the Company,
immediately prior to the merger or consolidation, do not beneficially own
immediately after the merger or consolidation, shares of the corporation issuing
cash or securities in the merger or consolidation entitling such shareholders to
the majority of all votes (without consideration of the rights of any class of
stock to elect directors by a separate class vote) to which all stockholders of
such corporation would be entitled in the election of directors, or (y) the sale
or disposition of all or substantially all of the assets or equity of the
Company to an entity not affiliated with the Company.
(c) The Company's obligation to make payments, or provide for any
benefits under this Agreement (except to the extent vested or exercisable) shall
cease upon a violation of the preceding provisions of this section. The
provisions of this Section 6 shall survive the Executive's termination of his
employment with the Company.
(d) Executive acknowledges that he has carefully read and considered
all of the restraints imposed pursuant to this Section 6 and that each and every
one of said restraints is reasonable in respect to subject matter, length of
time, and area. Employee further acknowledges that damages at law would not be a
measurable or adequate remedy for a breach of the restrictive covenants
contained herein, and accordingly consents to the entry by any court of
competent jurisdiction of order enjoining him from violating any of such
covenants. If any of the covenants contained in this Section 6 is held to be
invalid or unenforceable because of the duration of such provision or the area
covered thereby, the parties agree that the court making such determination
shall have the power to reduce the duration and/or area of such provision and in
its reduced form said provision shall then be enforceable.
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Section 7. Withholdings. The Company may directly or indirectly withhold
from any payments made under this Agreement all Federal, state, city or other
taxes and all other deductions as shall be required pursuant to any law or
governmental regulation or ruling or pursuant to any contributory benefit plan
maintained by or on behalf of the Company.
Section 8 Consolidation, Merger, or Sale of Assets. Nothing in this
Agreement shall preclude the Company from consolidating or merging into or with,
or transferring all or substantially all of its assets to, or engaging in any
other business combination with, any other person or entity which assumes this
Agreement and all obligations and undertakings of the Company hereunder. Upon
such a consolidation, merger, transfer of assets or other business combination
and assumption, the term "Company" used herein shall mean such other person or
entity and this Agreement shall continue in full force and effect.
Section 9 Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be given in writing and shall be deemed to
have been duly given if delivered or mailed, postage prepaid, by same day or
overnight mail (i) if to the Executive, at the address set forth above, or (ii)
if to the Company, as follows:
Spigadoro, Inc.
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
or to such other address as either party shall have previously specified in
writing to the other.
Section 10. No Attachment. Except as required by law, no right to receive
payments under this Agreement shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge, or hypothecation or
to execution, attachment, levy, or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any such action shall
be null, void and of no effect; provided, however, that nothing in this Section
10 shall preclude the assumption of such rights by executors, administrators or
other legal representatives of the Executive or his estate and their assigning
any rights hereunder to the person or persons entitled thereto.
Section 11. Source of Payment. All payments provided for under this
Agreement shall be paid in cash from the general funds of the Company. The
Company shall not be required to establish a special or separate fund or other
segregation of assets to assure such payments, and, if the Company shall make
any investments to aid it in meeting its obligations hereunder, the Executive
shall have no right, title or interest whatever in or to any such investments
except as may otherwise be expressly provided in a separate written instrument
relating to such investments. Nothing contained in this Agreement, and no action
taken pursuant to its provisions, shall create or be construed to create a trust
of any kind, or a fiduciary relationship, between the Company and the Executive
or any other person. To the extent that any person acquires a right to receive
payments from the Company hereunder, such right, without prejudice to rights
which employees may have, shall be no greater than the right of an unsecured
creditor of the Company.
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Section 12. Binding Agreement; No Assignment. This Agreement shall be
binding upon, and shall inure to the benefit of, the Executive and the Company
and their respective permitted successors, assigns, heirs, beneficiaries and
representatives. This Agreement is personal to the Executive and may not be
assigned by him without the prior written consent of the Company. Any attempted
assignment in violation of this Section 12 shall be null and void.
Section 13. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York,
without reference to the choice of law principles thereof.
Section 14. Entire Agreement. This Agreement shall constitute the entire
agreement among the parties with respect to the matters covered hereby and shall
supersede all previous written, oral or implied understandings among them with
respect to such matters.
Section 15. Amendments. This Agreement may only be amended or otherwise
modified, and compliance with any provision hereof may only be waived, by a
writing executed by all of the parties hereto. The provisions of this Section 15
may only be amended or otherwise modified by such a writing.
Section 16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
shall together be deemed to constitute one and the same instrument.
[signature page follows]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by the undersigned, thereunto duly authorized, and the Executive has
signed this Agreement, all as of the date first written above.
SPIGADORO, INC.
By: /s/ Xxxxx Xxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxx
Title: Chief Financial Officer
/s/ Xxxxx Xxxx
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XXXXX XXXX
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