Exhibit 10.12
EMPLOYMENT AGREEMENT
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This Employment Agreement, dated as of December 18, 2003 (the "Agreement"),
is entered into by and between Haights Cross Communications, Inc. (the
"Company"), a Delaware corporation, and, and Xxxxx X. Xxxxxx (the "Executive").
In consideration of the mutual covenants contained herein, the Company and
Executive agree as follows:
1. Term. The Company agrees to employ Executive, and Executive hereby
agrees to work for the Company as a full-time Executive, commencing on the date
first set forth above until terminated pursuant to the provisions of Section 6
hereof (the "Employment Period").
2. Employment. During the Employment Period, Executive shall be employed as
a senior executive officer of the Company with the titles of Chairman and Chief
Executive Officer, or in such other executive position as the Board of Directors
of the Company (the "Board of Directors") may from time to time determine and
which position is acceptable to Executive. In the performance of his duties,
Executive shall be subject to the direction of the Board of Directors.
Executive's duties and authority shall be commensurate with his title and
position with the Company. Executive agrees to his employment as described in
this Section 2 and agrees to devote substantially all of his business time and
efforts to the business and affairs of the Company. Executive agrees to serve
the Company faithfully and to the best of his ability, and to perform such
services and duties in connection with the business, affairs and operations of
the Company as may be assigned or delegated to him from time to time by or
under, and in accordance with, the authority and direction of the Board of
Directors, and to use his reasonable best efforts in the promotion and
advancement of the Company and its welfare.
3. Base Salary. During the Employment Period, Executive's salary will be
determined by the Board of Directors on a per year basis ("Base Salary"). Base
Salary shall be payable in accordance with the Company's normal business
practices for senior executive officers, but no less frequently than
semi-monthly. Executive's Base Salary shall be reviewed no less frequently than
annually by the Board of Directors and may be increased, but not decreased,
during the Employment Period.
4. Performance Bonus. Executive will be eligible for annual bonus
compensation (generally payable during the first quarter of the following year)
in an amount to be determined under a mutually agreeable bonus program (the
"Bonus Plan"), subject to proration for any period less than a full year.
5. Other Benefits. During the Employment Period, Executive shall have the
right to participate in any of the Company's health, dental, retirement, pension
or other benefit plans that are made generally available to the executive
officers of the Company from time to time. Executive shall be entitled to paid
vacation time in accordance with the then regular procedures of the Company for
senior executive officers.
6. Termination.
(a) At-Will Employment. Executive's employment hereunder is "at will"
and may be terminated by the Company at any time without Cause (as herein
defined), by a majority vote of all of the members of the Board of Directors
upon written notice to Executive, subject only to the severance provisions set
forth in Section 6(c) hereof.
(b) Termination by Executive. Executive's employment hereunder may be
terminated by Executive upon 30 days notice to the Board of Directors in the
event (i) the Company fails to comply with the provisions of Sections 3 or 5
hereof, or fails to pay amounts due under Section 4 hereof, if any, or (ii)
materially breaches any other provision of this Agreement, and such failure to
comply or such breach has not been cured by the Board of Directors within 15
days after receiving notice thereof from Executive, subject only to the
severance provisions set forth in Section 6(c) hereof.
(c) Certain Benefits upon Termination. Unless otherwise specifically
provided in this Agreement or otherwise required by law, all compensation and
benefits to Executive under this Agreement shall terminate on the date of
termination of the Employment Period. Notwithstanding the foregoing, in the
event of termination of the Employment Period pursuant to Sections 6(a) or 6(b)
hereof, the Company shall pay Executive an amount equal to the Base Salary for a
period of time equal to twelve months following such termination, and no other
compensation or benefits.
(d) Termination by Reason of Death. The Employment Period shall
terminate upon Executive's death and in such event, the Company shall pay to
Executive's estate or a beneficiary designated by Executive in writing prior to
his death an amount equal to the Base Salary for a period of time equal to
twelve months following such termination.
(e) Termination by Reason of Disability. In the event that Executive
shall become unable to efficiently perform his duties hereunder because of any
Permanent Disability, the Employment Period shall terminate and the Company
shall pay Executive an amount equal to the Base Salary for a period equal to
twelve months following such termination. As used herein, Executive shall be
deemed to be "Permanently Disabled" if:
(1) he is under a legal decree of incompetency (the date of
such decree being deemed to be the date on which such disability
occurred);
(2) he submits any claim for disability insurance benefits
or for early distribution of any amounts from a qualified pension or
profit sharing plan maintained by the Company on account of more than
fifty percent (50%) disability, and such claim is approved by the
insurance company or the trustee of the qualified pension or profit
sharing plan (the date of such approval shall be the date on which
such disability shall be deemed to have occurred); or
(3) he is subject to a medical determination that because of
a medically determinable disease, injury, or other mental or physical
disability, he is unable to
perform substantially all of his regular duties, and that such
disability is determined or reasonably expected to last at least
twelve (12) months, based on then available medical information;
provided
(i) a medical determination of disability will exist upon
the receipt by the Company of the written opinion of a physician who
has examined Executive if the Company is in agreement therewith,
(ii) if the Company disagrees with the opinion of such
physician (the "First Physician"), it may engage at its own expense
another physician (the "Second Physician") to examine Executive. The
Second Physician shall confer with the First Physician and, if they
together agree in writing that Executive is or is not disabled, their
written opinion shall be conclusive as to such disability. If the
First and Second Physician do not agree, they shall choose a third
consulting physician (the expense of which shall be borne by the
Company), and the written opinion of a majority of these three (3)
physicians shall be conclusive as to such disability. The date of any
written opinion that is conclusive as to such disability is the date
on which such disability, if that is the conclusion, will be deemed to
have occurred, and
(iii) in signing this Agreement, Executive consents to such
examination, to furnish any medical information requested by any
examining physician, and to waive any applicable physician-patient
privilege that may arise because of such examination. All physicians
except the First Physician selected hereunder must be board-certified
in the specialty most closely related to the nature of the disability
alleged to exist.
(f) Termination by the Company for Cause. If Executive is terminated
for Cause (as defined below), then the Employment Period shall terminate as of
the effective date set forth in the written notice of such termination (the
"Termination Date") and Executive shall be entitled to receive only that portion
of his Base Salary at the rate provided pursuant to Section 3 which is due and
payable but not yet paid prior to the Termination Date. "Cause" shall mean a
finding by the Board of Directors that the Executive has (a) acted with gross
negligence or willful misconduct in connection with the performance of his
material duties hereunder, (b) defaulted in the performance of his material
duties hereunder and has not corrected such action within fifteen (15) days of
receipt of written notice thereof; (c) committed a material act of common law
fraud against the Company or its executive officers, which act has had an
adverse impact on the financial affairs of the Company; (d) been convicted of a
felony; (e) breached a fiduciary duty owed to the Company; (f) embezzled assets
of the Company; (g) become insolvent or bankrupt; (h) failed to adequately treat
a drug or alcohol dependency or problem, which in the sole discretion of the
Board of Directors has had an adverse impact on the performance of Executive's
duties hereunder; or (i) voluntarily terminated his employment (other than
pursuant to Section 6(b) hereof).
(g) Effect of Termination. Upon termination of the Employment Period
for any of the reasons set forth in this Section 6, only the provisions of
Sections 1, 2, 3, 4, and 5 shall terminate, and the remainder of this Agreement
shall remain in full force and effect.
7. Noncompetition. Because Executive's services to the Company are
essential and because Executive has access to the Company's confidential
information, Executive covenants and agrees that during the Employment Period
and until the date one (1) year following the termination of the Employment
Period, Executive will not, without the express prior written consent of the
Board of Directors, (a) manage, own, be employed by, or invest in any business
or venture which competes directly with the Company in the acquisition,
management or operation of newsletters and other publishing and information
entities, (b) solicit or encourage any employee of the Company to terminate his
or her employment by the Company and to become employed by Executive, or any
business or entity with which Employer is affiliated as an owner, investor,
lender or in any other capacity, (c) solicit for or on behalf of any business or
entity, any past or present customer, author, advertiser or subscriber of the
Company, and (d) divert to any business or entity any present or future author,
customer, advertiser or subscriber of the Company. Notwithstanding anything
contained herein to the contrary, Executive is not prohibited by this Section 7
from making investments in any entity that owns, invests in, manages or operates
newsletters and other publishing and information entities if the shares of such
entity are publicly traded and Executive's aggregate investment in such entity
constitutes less than 5% of the equity ownership of such entity or from making
passive investments in any such businesses.
8. Remedies For Breach. If Executive materially breaches the terms of this
Agreement, in addition to any other remedies which it may have, the Company may
terminate Executive's employment and any further participation in any Executive
plan in accordance with employment policies of the Company, as in effect from
time to time, and Executive shall forfeit any further compensation. In addition,
the provisions of this Agreement may be specifically enforced if not performed
according to their terms. Without limiting the generality of the foregoing the
parties acknowledge that the Company would be irreparably damaged and there
would be no adequate remedy at law for Executive's breach of Sections 7 and 9
hereof and, accordingly, Executive hereby consents to the entry of any temporary
restraining order or preliminary or ex parte injunction, in addition to any
other remedies available at law or in equity, to enforce the provisions thereof.
This Section shall survive the termination of this Agreement.
9. Records and Nondisclosure of Confidential Information. During the
Employment Period and until the date five years following the termination of the
Employment Period, Executive will not (nor will Executive assist any other
person to do so) directly or indirectly furnish, divulge, reveal, report,
publish, disclose or make accessible (other than as may be required under
applicable law) any Confidential Information (as hereinafter defined) to any
person, firm, corporation or other entity, or use (or assist any person to use)
such Confidential Information except for the benefit of the Company. For
purposes of this Agreement, the term "Confidential Information" means all
information or material not generally known outside of the Company, which gives
the Company a competitive business advantage or the opportunity of obtaining
such advantage or the disclosure of which could be detrimental to the interests
of the Company, including without limitation, trade secrets, inventions,
drawings, file data, documentation, diagrams, specifications, know how,
processes, formulas, models, subscriber lists, sales representative lists,
proprietary information, research and development procedures and test results,
marketing techniques and materials, marketing and development plans, price
lists, pricing policies, business plans, information relating to customers
and/or suppliers' identities,
characteristics and agreements, financial information and projections, and
employee files. Unless generally available to others outside of the Company,
"Confidential Information" also includes any information described above which
the Company obtains from another party and which the Company treats as
proprietary or designates as Confidential Information, whether or not owned or
developed by the Company.
10. Waiver. The failure of the Company to require the performance of any
term or obligation provided for herein, or the waiver by the Company of any
breach of this Agreement, shall not prevent enforcement of such term or
obligation or be deemed a waiver of any subsequent breach.
11. Conflicting Agreements. Executive hereby represents and warrants that
the execution of this Agreement and the performance of his duties and
obligations hereunder will not breach or be in conflict with any other agreement
to which he is a party or is bound, and that he is not now subject to any
covenants against competition or similar covenants in favor of any other person
or entity which could affect the performance of his duties hereunder.
12. Entire Agreement. This Agreement constitutes the entire agreement among
the parties hereto with respect to the subject matter hereof. This Agreement
supersedes and replaces any prior agreement or arrangement relative to
Executive's employment by the Company, and all such prior agreements and
arrangements are hereby terminated.
13. Governing Law and Severability. This Agreement shall be governed by and
construed under the laws of the State of New York and shall not be modified or
discharged in whole or in part except by an agreement in writing signed by the
parties hereto. In case any one or more of the provisions or parts of a
provision contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or part of a provision of
this Agreement, but this Agreement shall be construed as if such invalid or
illegal or unenforceable provision or part of a provision had been limited or
modified (consistent with its general intent) to the extent necessary so that it
shall be valid, legal and enforceable, or if it shall not be possible to so
limit or modify such invalid, illegal or unenforceable provision or part of a
provision, this Agreement shall be construed as if such invalid, illegal or
unenforceable provision or part of a provision had never been contained herein,
and the parties will use their best efforts to substitute a valid, legal and
enforceable provision which, insofar as practicable, implements the purpose and
intent of the provision or part of such provision originally contained herein.
14. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns; provided, however, that this Agreement may not be assigned by
Executive without the prior written consent of the Company. The Company shall
require any successor of the Company which shall acquire, directly or
indirectly, by merger, consolidation, purchase or otherwise, all or
substantially all of the assets of the Company, by an agreement in form and
substance satisfactory to Executive, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent as the Company would be
required to perform if no such succession had taken place. It is hereby
expressly agreed that the noncompetition provisions of
Section 7 hereof shall be fully assignable to any entity which purchases an
interest in the Company.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall
constitute one agreement.
16. Dispute Resolution. Except for claims for equitable relief provided for
herein, any dispute arising out of or relating to this Agreement or the breach,
termination or validity hereof shall be finally settled by arbitration conducted
expeditiously in accordance with the Center for Public Resources Rules for
Nonadministered Arbitration of Business Disputes (the "CPR Rules"). The Center
for Public Resources shall appoint a neutral advisor from its national CPR
Panel. The arbitration shall be governed by the United Sates Arbitration Act, 9
U.S.C. **1-16, and judgment upon the award rendered by the arbitrators may be
entered by any court having jurisdiction thereof. The place of arbitration shall
be New York, New York.
Such proceedings shall be administered by the neutral advisor in accordance
with the CPR Rules as he/she deems appropriate, however, such proceedings shall
be guided by the following agreed upon procedures:
(a) mandatory exchange of all relevant documents, to be accomplished
within forty-five (45) days of the initiation of the procedure;
(b) hearings before the neutral advisor shall consist of a summary
presentation by each side of not more than three hours; and
(c) decision to be rendered not more than ten (10) days following such
hearings.
Notwithstanding anything to the contrary contained herein, the provisions
of this Section 16 shall not apply with regard to any equitable remedies to
which any party may be entitled hereunder.
Each of the parties hereto (a) hereby irrevocably submits to the
jurisdiction of the United States District Court for the Southern District of
New York for the purpose of enforcing the award or decision in any such
proceeding and (b) hereby waives, and agrees not to assert, by way of motion, as
a defense, or otherwise, in any such suit, action or proceeding, any claim that
it is not subject personally to the jurisdiction of the above-named courts, that
its property is exempt or immune from attachment or execution, that the suit,
action or proceeding is brought in an inconvenient forum, that the venue of the
suit, action or proceeding is improper or that this Agreement or the subject
matter hereof may not be enforced in or by such court, and (c) hereby waives and
agrees not to seek any review by any court of any other jurisdiction which may
be called upon to grant an enforcement of the judgment of any such court. Each
of the parties hereto hereby consents to service of process by registered mail
at the address to which notices are to be given. Each of the parties hereto
agrees that its submission to jurisdiction and its consent to service of process
by mail is made for the express benefit of the other parties hereto. Final
judgment against any party hereto in any such action, suit or proceeding may be
enforced in other jurisdictions by suit, action or proceeding on the judgment,
or in any other manner
provided by or pursuant to the laws of such other jurisdiction; provided,
however, that any party hereto may at its option bring suit, or institute other
judicial proceedings, in any state or federal court of the United States or of
any country or place where the other parties or their assets may be found.
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IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as an instrument under seal as of the date first set forth above.
HAIGHTS CROSS COMMUNICATIONS, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: EVP and Chief Financial Officer
EXECUTIVE
/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Address: 00 Xxxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
