EXHIBIT 10.24
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), made and entered into this
25th day of November, 2002, by and between Xxxxxxxx.xxx, Inc., a Delaware
corporation with principal offices located at 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the "Company"), and Xxxxxxxx Xxxxx (the "Executive").
WITNESSETH
WHEREAS, the Company has a need for the Executive's personal services
in an executive capacity; and
WHEREAS, the Executive possesses the necessary strategic, financial,
planning, operational and managerial skills necessary to fulfill those needs;
and
WHEREAS, the Executive and the Company desire to enter into a formal
Employment Agreement to memorialize the terms of the Executive's employment
relationship with the Company.
NOW, THEREFORE, in consideration of the mutual promises, terms,
provisions, and conditions contained herein, the parties agree as follows:
1. Position.
The Company hereby agrees to employ the Executive to serve in the role
of Chairman of the Board of the Company with the title of Executive Chairman,
subject to the limitation set forth herein. As such, the Executive shall be
responsible for the following duties, subject to the authority of the Board of
Directors of the Company (the "Board"): (a) chairing Board meetings; (b)
overseeing the preparation of the agenda for Board meetings; (c) coordinating
the interaction of the Board with senior management of the Company; (d)
providing oversight of the Company's capital markets strategy; (e) mentoring the
Chief Executive Officer of the Company; (f) providing focus and oversight of
corporate and strategic development; and (g) directly supervising certain staff
functions including finance, human resources, legal and investor relations, or
others as may be added or removed from time to time by the Board.
The Executive accepts such employment upon the terms and conditions set forth
herein, and further agrees to perform to the best of his abilities the duties
set forth above. The Executive shall, at all times during the Employment Term,
report directly to the full Board and shall be responsible for providing such
reports to the full Board or designated committee thereof regarding the
performance of his duties as may be reasonably required. The Executive shall
perform his duties as Executive Chairman diligently and faithfully and shall
devote his full business time and attention to such duties. The Company
acknowledges and understands that the Executive shall continue to be the
Principal of Charterhouse Group and shall continue to serve on the boards of
directors of MagnaTek, Inc., Mechanical Dynamic, Inc., Strategic Distribution,
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Inc. and Titan International, during the Employment Term provided that such
activities will not interfere with the performance of his duties as set forth
hereunder.
2. Term of Employment and Future Services.
The term of Executive's employment under this Agreement will commence
on the date of this Agreement (the "Effective Date"). Subject to the provisions
of Section 5 of this Agreement, the term of Executive's employment hereunder
shall be for a term of one (1) year from the Effective Date (the "Employment
Term"). Upon the conclusion of the Employment Term, the Executive shall continue
to serve as non-executive Chairman of the Board for an additional three (3) year
period, subject to the Executive's continued election to the Board by the
shareholders of the Company. The Executive shall not serve as an employee of the
Company after the expiration of the Employment Term, but shall continue to
perform the duties described in Section 1 above, with the exception of those set
forth in subsection 1(g), while serving as non-executive Chairman of the Board.
While serving as non-executive Chairman of the Board, the Executive agrees to
commit seven (7) business days per month to his duties.
3. Compensation.
(a) Stock Option. As of the Effective Date, the Company shall grant the
Executive, pursuant to the Company's Amended and Restated 2000 Stock Incentive
Plan (the "Plan"), an option (the "Option") to purchase six hundred thousand
(600,000) shares of the Company's common stock (the "Option Shares") at a
purchase price equal to the closing price of the Company's common stock on
NASDAQ on the day the Compensation Committee approves the grant, under the terms
and conditions set forth in the Plan and the Stock Option Agreement which shall
be provided to the Executive following the date of the stock option grant
provided for herein. The Option shall vest and become exercisable in 48 equal
monthly installments of twelve thousand five hundred (12,500) Option Shares
beginning on the date of the grant (the "Vesting Commencement Date") as long as
the Executive remains a director on the Board, provided that (A) the Option
shall accelerate and vest in full upon (i) the Executive's death; (ii) the
Executive's Permanent Disability, as such term is defined in the Stock Option
Agreement; or (iii) a Change in Control, as defined in the Plan, which occurs at
any time while the Executive is serving as a director on the Board, and (B) in
the event Executive is not reelected to the Board by the Company's stockholders,
the Option shall accelerate and vest as if the Executive had continued to remain
Executive Chairman or non-executive Chairman of the Board for the twelve-month
period subsequent to the Executive's last date of service as a director, and
provided further that the Option shall immediately terminate and cease vesting
in the event that the Executive's employment is terminated for Cause as set
forth in Section 5(a) below. The Executive acknowledges and agrees that the
grant of the Option provided hereunder is in lieu of any stock option grant or
other benefit under the Company's Automatic Option Grant Program as currently in
place or as amended from time to time (the "Program"), and the Executive hereby
waives any rights or entitlement under the Program.
(b) Benefits. During the Employment Term the Executive shall be entitled to
participate in all employee benefit plans which the Company provides or may
establish from time to time for the benefit of its employees, including, without
limitation, group life, medical, surgical, dental and other health insurance,
short and long-term disability, deferred compensation, profit-sharing and
similar plans.
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(c) Expenses. The Company shall pay or reimburse the Executive for all
reasonable out-of-pocket expenses actually incurred by him during the Employment
Term in performing services hereunder, provided that the Executive properly
accounts for such expenses in accordance with the Company's policies. In
addition, during the Employment Term, the Company shall reimburse Executive for
reasonable expenses incurred by Executive in obtaining accounting or legal
advice related to his work for the Company in an amount not to exceed $30,000 in
the aggregate.
(d) Waiver of Additional Compensation. The Executive acknowledges and
agrees that he is entitled to no compensation other than that specifically
provided for in this Section 3 and he waives any rights or entitlement to other
cash or non-cash compensation or benefits the Company may provide to its
employees individually or generally. Executive also waives his rights to receive
any cash compensation approved by the Board in connection with the service as a
director during the Employment Term.
4. Confidentiality, Inventions and Restrictive Covenants.
(a) The Executive agrees to the terms of the Proprietary Information,
Inventions and Nonsolicitation Agreement attached hereto as Exhibit A.
5. Termination.
Notwithstanding the provisions of Section 2 of this Agreement, the
Executive's employment hereunder may terminate under the following
circumstances:
(a) Termination by the Company for Cause. The Company may terminate the
Executive's employment for Cause at any time, upon written notice to the
Executive setting forth in reasonable detail the nature of such Cause. For
purposes of this Agreement, Cause is defined as (i) the Executive's willful and
material breach of the terms of this Agreement or the Proprietary Information,
Inventions and Nonsolicitation Agreement; (ii) the Executive's commission of any
felony or any crime involving moral turpitude; (iii) gross negligence or willful
misconduct by the Executive in connection with his positions hereunder; (iv) the
Executive's willful refusal to perform his duties hereunder or (v) the
Executive's failure to follow the written policies or directives of the Company.
Upon the termination for Cause of the Executive's employment, the Company shall
have no further obligation or liability to the Executive.
(b) Termination by the Company Without Cause. The Executive's employment
hereunder may be terminated without Cause by the Company upon thirty (30) days'
written notice to the Executive.
(c) Termination by the Executive. The Executive may terminate his
employment hereunder upon ninety (90) days' written notice to the Company.
During such notice period, the Executive shall work in good faith to transition
his responsibilities as Executive Chairman.
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6. Choice of Law.
The Executive acknowledges that a substantial portion of the Company's
business is based out of and directed from the State of New York. The Executive
also acknowledges that during the course of the Executive's employment with the
Company the Executive will have substantial contacts with New York.
The validity, interpretation and performance of this Agreement shall be
governed by, and construed in accordance with, the internal law of New York,
without giving effect to conflict of law principles.
7. Miscellaneous.
(a) Assignment. The Executive acknowledges and agrees that the rights and
obligations of the Company under this Agreement may be assigned by the Company
to any successors in interest. The Executive further acknowledges and agrees
that this Agreement is personal to the Executive and that the Executive may not
assign any rights or obligations hereunder.
(b) Entire Agreement. This Agreement sets forth the entire agreement
between the parties and supersedes any prior communications, promises,
agreements and understandings, written or oral, with respect to the terms and
conditions of the Executive's employment.
(c) Amendments. Any attempted modification of this Agreement will not be
effective unless formally approved by the full Board and signed by the
Executive.
(d) Waiver of Breach. The Executive understands that a breach of any
provision of this Agreement may only be waived by the full Board. The waiver by
the Company of a breach of any provision of this Agreement shall not operate or
be construed as a waiver of any subsequent breach.
(e) Severability. If any provision of this Agreement should, for any
reason, be held invalid or unenforceable in any respect by a court of competent
jurisdiction, then the remainder of this Agreement, and the application of such
provision in circumstances other than those as to which it is so declared
invalid or unenforceable, shall not be affected thereby, and each such provision
of this Agreement shall be valid and enforceable to the fullest extent permitted
by law.
(f) Notices. Any notices, requests, demands and other communications
provided for by this Agreement shall be in writing and shall be effective when
delivered by private messenger, private overnight mail service, or facsimile as
follows (or to such other address as either party shall designate by notice in
writing to the other in accordance herewith):
If to the Company:
000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
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With a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx, Esq.
If to Executive:
c/o Xxxxxxxx.xxx, Inc.
000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
or such other address as the Executive shall provide.
(g) Survival. The Executive and the Company agree that certain provisions
of this Agreement shall survive the expiration or termination of this Agreement
and the termination of the Executive's employment with the Company. Such
provisions shall be limited to those within this Agreement which, by their
express and implied terms, obligate either party to perform beyond the
termination of the Executive's employment or termination of this Agreement.
(h) Arbitration of Disputes. Any controversy or claim arising out of this
Agreement or any aspect of the Executive's relationship with the Company
including the cessation thereof shall be resolved by arbitration in accordance
with the then existing Employment Dispute Resolution Rules of the American
Arbitration Association, in New York, New York, and judgment upon the award
rendered may be entered in any court having jurisdiction thereof. The parties
shall split equally the costs of arbitration, except that each party shall pay
its own attorneys' fees. The parties agree that the award of the arbitrator
shall be final and binding.
(i) Rights of Other Individuals. This Agreement confers rights solely on
the Executive and the Company. This Agreement is not a benefit plan and confers
no rights on any individual or entity other than the undersigned.
(j) Headings. The parties acknowledge that the headings in this Agreement
are for convenience of reference only and shall not control or affect the
meaning or construction of this Agreement.
(k) Advice of Counsel. The Executive and the Company hereby acknowledge
that each party has had adequate opportunity to review this Agreement, to obtain
the advice of counsel with respect to this Agreement, and to reflect upon and
consider the terms and conditions of this Agreement. The parties further
acknowledge that each party fully understands the terms of this Agreement and
has voluntarily executed this Agreement.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of the day and year set forth below.
EXECUTIVE XXXXXXXX.XXX, INC.
/s/ Xxxxxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxxx Xxxxx Xxxxxxx X. Xxxxxx
Title: CEO, as authorized by the Board of
Directors
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