FORM OF EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of this day of , 1998, is made by and
between SNOWDANCE, INC., a Delaware corporation (the "Company"), and XXXXX X.
XXXXXXXXXXX (the "Executive").
WHEREAS, the Company desires to obtain the services of the Executive, and
the Executive is willing to render such services, in accordance with the terms
hereinafter set forth; and
WHEREAS, the Board of Directors of the Company by appropriate resolution
have authorized the employment of the Executive as provided for in this
Agreement.
NOW, THEREFORE, the Company and the Executive agree as follows:
ARTICLE I.
DEFINITIONS
1.1 "Accrued Annual Base Salary" means that portion of the Executive's
Annual Base Salary which is accrued but unpaid as of the Date of Termination.
1.2 "Accrued Annual Incentive Bonus" means the amount of any Annual
Incentive Bonus earned with respect to the Fiscal Year ending prior to the Date
of Termination but which is unpaid as of the Date of Termination.
1.3 "Annual Base Salary" has the meaning specified in Section 4.1 of this
Agreement.
1.4 "Annual Incentive Bonus" has the meaning specified in Section 4.2 of
this Agreement.
1.5 "Beneficiary" shall have the meaning specified in Section 6.2 of this
Agreement.
1.6 "Board" means the Board of Directors of the Company.
1.7 "Cause" means (a) the Executive's committing any felony or other crime
involving dishonesty; (b) any serious willful misconduct in the course of the
Executive's employment; or (c) the Executive's habitual neglect of the
Executive's duties (other than on account of Disability), except that (d) Cause
as defined in clauses (b) and (c) shall not mean:
(i) bad judgment;
(ii) negligence other than habitual neglect of duty;
(iii) any act or omission believed by the Executive in good faith to
have been in or not opposed to the interest of the Company (without intent
of the Executive to gain therefrom, directly or indirectly, a profit to
which the Executive was not legally entitled); or
(iv) any act or omission which can be the subject of indemnification
of the Executive under the Bylaws or Articles of Incorporation of either
of the Company or applicable law.
Notwithstanding the foregoing, the Executive shall not be deemed to have been
terminated for Cause without (1) advance written notice provided to the
Executive not less than fourteen (14) days prior to the Date of Termination
setting forth the Company's intention to consider terminating the Executive
including a statement of the Date of Termination and the specific detailed basis
for such consideration for Cause, (2) an opportunity for the Executive, together
with his counsel, to be heard before the Board during the fourteen day period
ending on the Date of Termination, (3) determinations by the members of the
Board that the actions of the Executive constituted Cause and that the
Executive's employment should accordingly be terminated for Cause; and (4) a
written determination provided by the Board setting forth in full specificity
the basis of such Termination of Employment.
1.8 "Code" means the Internal Revenue Code of 1986 and any subsequent
Internal Revenue Code, as amended from time to time.
1.9 "Commencement Date" shall have the meaning specified in Section 3.1 of
this Agreement.
1.10 "Company" has the meaning specified in the Recitals to this
Agreement.
1.11 "Contract Term" has the meaning specified in Section 3.1 of this
Agreement.
1.12 "Date of Termination" means the date as of which the Executive's
employment with the Company is terminated by either of the Company or by the
Executive for any reason including, but not limited to, death or Disability.
1.13 "Disability" means a mental or physical condition which, in the
opinion of the Board, renders a Participant unable or incompetent to carry out
the job responsibilities which such Participant held or the duties to which such
Participant was assigned at the time the disability was incurred, which has
existed for at least six (6) months and which is expected to be permanent or to
last for an indefinite duration.
1.14 "Executive" has the meaning specified in the recitals to this
Agreement.
1.15 "Fiscal Year" means the period beginning July 1 and ending June 30 of
each year.
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1.16 "Good Reason" means the occurrence of any one of the following
events:
(a) failure of the Executive to be appointed and to continue to be
appointed to the position of Chief Financial Officer of the Company or any
present or future affiliate of the Company;
(b) assignment to the Executive of any duties materially and
adversely inconsistent with the Executive's position as specified in
Article II hereof (or such other position to which he may be promoted),
including status, offices, or responsibilities as contemplated under
Article II of this Agreement or any other action by the Company which
results in a material and adverse change in such position, status,
offices, titles or responsibilities;
(c) any material breach by the Company of the provisions of this
Agreement;
(d) any purported termination of the Executive's employment under
this Agreement which is not for Cause in strict accordance with Section
1.7 hereof; or
1.17 "Termination of Employment" occurs on the first day on which an
individual is for any reason no longer employed by the Company.
1.18 "Termination of Employment Without Cause" or "Without Cause" means a
termination of the Executive's employment by the Company for any reason other
than Cause.
ARTICLE II.
DUTIES
2.1 Duties. The Executive shall be Chief Financial Officer of the Company,
and shall assume the duties and responsibilities as specified in the Company's
By-Laws, if applicable, and/or as assigned as of the date hereof by the Board of
Directors of the Company, it being contemplated that the Directors of the
Company will elect and re-elect the Executive to that office throughout the
Contract Term. During the Contract Term, and excluding any periods of vacation,
sick leave or Disability to which the Executive is entitled, the Executive
agrees to devote 100% of the Executive's working time to the business and
affairs of the Company as is necessary for the performance of his duties and to
use the Executive's best efforts to perform faithfully and efficiently the
duties and responsibilities of the Executive's positions as described herein.
2.2 Other Activities. During the Contract Term, it shall not be a
violation of this Agreement for the Executive to (a) serve on corporate, civic
or charitable boards or committees,
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(b) deliver lectures, fulfill speaking engagements or teach at educational
institutions or (c) manage personal investments, so long as such activities do
not significantly interfere with the performance of the Executive's duties in
accordance with this Agreement.
ARTICLE III.
TERM OF AGREEMENT
3.1 Term. Subject to the termination provisions hereinafter provided, the
initial term of this Agreement shall commence on the date hereof as set forth in
the first paragraph of this Agreement (the "Commencement Date") and end three
years after such date. The term "Contract Term" shall mean the initial term of
this Agreement plus any extensions thereto. Except as provided in Article VI,
the Agreement shall not be terminated prior to the end of the Contract Term.
ARTICLE IV.
COMPENSATION
4.1 Salary. Commencing with the date hereof, the Company shall pay to the
Executive in accordance with the normal payroll practices of the Company (not
less frequently than monthly) an annual salary at a rate of $100,000 per year
for each year of the Contract Term ("Annual Base Salary"). During the Contract
Term, the Annual Base Salary may be increased at any time and from time to time
as may be determined from time to time by the Board or the Compensation
Committee designated by the Board. Any increase in Annual Base Salary shall not
serve to limit or reduce any other obligation to the Executive under this
Agreement. Annual Base Salary shall not be reduced after any such increase
without the express written consent of the Executive. The term Annual Base
Salary as used in this Agreement shall refer to the Annual Base Salary as so
increased.
4.2 Bonus. The Company shall pay or cause to be paid to the Executive an
annual bonus ("Annual Incentive Bonus") in either cash or options to purchase
the Company's Shares. In determining the amount of such bonus, the Company shall
consider the Company's profitability, the Executive's performance, and the total
compensation given to executives in a similar position at companies similar to
the Company.
ARTICLE V.
OTHER BENEFITS
5.1 Incentive, Savings and Retirement Plans. In addition to Annual Base
Salary and Annual Incentive Bonus, the Executive shall be entitled to
participate during the Contract Term in all incentives, savings and retirement
plans, practices, policies and programs applicable to other senior executives of
the Company, and other perquisites which are available to senior executives of
the Company or which hereafter are made available to the senior executive
employees of the Company.
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5.2 Life Insurance. During the Contract Term, the Company shall pay the
premiums on a life insurance policy for the Executive, such policy to contain
coverage of not less than $ .
5.3 Welfare Benefits. During the Contract Term, the Executive and/or the
Executive's family, as the case may be, shall be eligible for participation in
and shall receive any and all benefits under welfare benefit plans, practices,
policies and programs provided by the Company (including, and without
limitation, medical, prescription, dental, disability, salary continuance,
employee life, group life, dependent life, accidental death and travel accident
insurance plans and programs) applicable to other senior executives of the
Company.
5.4 Fringe Benefits. During the Contract Term, the Executive shall be
entitled to fringe benefits applicable to other senior executives of the
Company.
5.5 Vacation. During the Contract Term, the Executive shall be entitled to
paid vacation time in accordance with the plans, practices, policies, and
programs applicable to other senior executives of the Company, but in no event
shall such vacation time be less than four weeks per year.
5.6 Expenses. During the Contract Term, the Executive shall be entitled to
receive prompt reimbursement for all reasonable employment-related expenses
incurred by the Executive upon the Company's receipt of accountings in
accordance with practices, policies and procedures applicable to senior
executives of the Company.
5.7 Legal Fees and Expenses.
(a) If the Executive incurs legal or other fees and expenses in an
effort to establish entitlement to compensation and benefits under this
Agreement or to negotiate and draft a new employment agreement with the
Company, the Company shall reimburse the Executive for such fees and
expenses.
(b) The Company shall provide reimbursement of fees and expenses, as
described in paragraph (a) above, to the Executive on a monthly basis upon
the Executive's written submission of a request for reimbursement together
with proof that the fees and expenses were incurred.
(c) If Executive does not prevail (after exhaustion of all available
judicial remedies), and a court of competent jurisdiction decides that the
Executive had no reasonable basis for bringing an action hereunder or
there was an absence of good faith for bringing an action hereunder, no
further reimbursement for legal fees and expenses shall be due to the
Executive, and Executive shall repay the Company for any amounts
previously paid by the Company hereunder with respect to any such action
subject to such determination.
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ARTICLE VI.
TERMINATION BENEFITS
6.1 Termination of Employment for Cause or Other Than for Good Reason. If,
before the end of the Contract Term, the Company terminates the Executive's
employment for Cause or the Executive terminates employment other than for Good
Reason, the Company shall pay immediately after the Date of Termination to the
Executive, in a lump sum, an amount equal to the sum of (a) the Executive's
Accrued Annual Base Salary, and (b) his Accrued Annual Incentive Bonus.
6.2 Termination of Employment for Death or Disability. If, before the end
of the Contract Term, the Executive's employment terminates due to death or
Disability, the Company shall pay to the Executive, the beneficiaries designated
in writing by the Executive, or the Executive's estate, as the case may be,
immediately after the Date of Termination, in a lump sum, an amount which is
equal to the sum of (a) the Executive's Accrued Annual Base Salary as of the
Date of Termination, and (b) the Executive's Accrued Annual Incentive Bonus, and
(c) the Executive's Annual Base Salary for the remainder of the Contract Term.
If the Executive dies prior to receiving all of the compensation and benefits
payable hereunder, such compensation and benefits shall be paid in the form, at
the times and in such amounts as are provided in this contract to the
beneficiary designated in writing by the Executive ("Beneficiary") and if no
such Beneficiary is designated, to the Executive's estate.
6.3 Termination of Employment By The Company Without Cause Or By the
Executive for Good Reason. If, before the end of the Contract Term, there is a
Termination of Employment Without Cause or a Termination of Employment by the
Executive for Good Reason:
(a) the Company shall pay the Executive, immediately after the Date
of Termination in immediately available funds, in a lump sum, an amount
equal to the sum of (1) the Executive's Accrued Annual Base Salary, (2)
any Accrued Annual Incentive Bonus, (3) the Executive's Annual Base Salary
for the remainder of the Contract Term, and (4) the Executive's Annual
Incentive Bonus for the remainder of the Contract Term, such amount to be
equal to the amount of the last Annual Incentive Bonus multiplied by a
fraction the numerator of which is the number of months remaining in the
Contract Term and the denominator of which is twelve; and
(b) for a period equal to the greater of two years or the remainder
of the Contract Term, Executive shall continue to participate and shall
continue to receive all benefits under any Company sponsored incentives,
savings and retirement plans, welfare benefit plans, health plans, etc. to
which the Executive participates prior to such Termination of Employment;
provided, however, that any amounts paid under this Subsection 6.3(b)
shall be reduced by any similar benefits earned by the Executive as a
result of employment by another employer.
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6.4 Other Termination Benefits. In addition to any amounts or benefits
payable upon Termination of Employment hereunder and except as otherwise
provided herein, the Executive shall be entitled to any payments or benefits
explicitly provided under the terms of any plan, policy or program of the
Company or as otherwise required by applicable law.
ARTICLE VII.
MISCELLANEOUS
7.1 Full Settlement. The Company's obligation 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 Company may have against the Executive or others. In no event
shall the Executive be obligated to seek other employment or take any other
action by way of mitigation of the amounts payable to the Executive under any of
the provisions of this Agreement, nor shall the amount of any payment hereunder
be reduced, except as otherwise specifically provided herein, by any
compensation earned by the Executive as result of employment by another
employer.
7.2 Assignment, Successors. The Company may freely assign its respective
rights and obligations under this Agreement to a successor of the Company's
business, without the prior written consent of the Executive, provided that any
such assignment of the Company's obligations under this Agreement shall not
release the Company from such obligations to Executive. This Agreement shall be
binding upon and inure to the benefit of the Executive and the Executive's
estate and the Company and any assignee of or successor to the Company.
7.3 Nonalienation of Benefits. Benefits payable under this Agreement shall
not be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, charge, garnishment, execution or levy of any
kind, either voluntary or involuntary, prior to actually being received by the
Executive, and any such attempt to dispose of any right to benefits payable
hereunder shall be void.
7.4 Severability. If all or any part of this Agreement is declared by any
court or governmental authority to be unlawful or invalid, such unlawfulness or
invalidity shall not serve to invalidate any portion of this Agreement not
declared to be unlawful or invalid. Any paragraph or part of a paragraph so
declared to be unlawful or invalid shall, if possible, be construed in a manner
which will give effect to the terms of such paragraph or part of a paragraph to
the fullest extent possible while remaining lawful and valid.
7.5 Amendment and Waiver. This Agreement shall not be altered, amended or
modified except by written instrument executed by the Company and Executive. A
waiver of any term, covenant, agreement or condition contained in this Agreement
shall not be deemed a waiver of any other term, covenant, agreement or
condition, and any waiver of any default in any such term, covenant, agreement
or condition shall not be deemed a waiver of any later default thereof or of any
other term, covenant, agreement or condition.
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7.6 Arbitration of Disputes. Any controversy or claim arising out of or
relating to this Agreement or the breach thereof or otherwise arising out of the
Executive's employment or the termination of that employment (including without
implication of limitation any claims of unlawful employment discrimination
whether based on age or otherwise) shall, to the fullest extent permitted by
law, be settled by arbitration in any forum and form agreed upon by the parties
or, in the absence of such an agreement, under the auspices of the American
Arbitration Association ("AAA"), in accordance with the Employment Dispute
Resolution Rules of the AAA, including, but not limited to, the rules and
procedures applicable to the selection of arbitrators. Judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. Notwithstanding the foregoing, this provision shall not preclude either
party from pursuing a court action for the sole purpose of obtaining a temporary
restraining order or a preliminary injunction in circumstances in which such
relief is appropriate, provided that any other relief shall be pursued through
an arbitration proceeding pursuant to this Section 7.6.
7.7 Notices. All notices and other communications hereunder shall be in
writing and delivered by hand or by first class registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
If to the Company: Snowdance, Inc.
Xxxxx 00
Xxxxxxxxxxx, Xxxxxxx 00000
If to the Executive: Xxxxx X. Xxxxxxxxxxx
____________________________________
____________________________________
With copy to: Xxxxxx X. Xxxxxx, Esq.
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
1221 Avenue of the Americas
New York, NY 1221
Either party may from time to time designate a new address by notice given in
accordance with this Section. Notice and communications shall be effective when
actually received by the addressee.
7.8 Counterpart Originals. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
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7.9 Entire Agreement. This Agreement forms the entire agreement between
the parties hereto with respect to any severance payment and with respect to the
subject matter contained in the Agreement.
7.10 Applicable Law. The provisions of this Agreement shall be interpreted
and construed in accordance with the laws of the state of Delaware, without
regard to its choice of law principles.
7.11 Survival of Executive's Rights. All of the Executive's rights
hereunder, including but not limited to his rights to compensation and benefits
shall survive the termination of the Executive's employment and/or the
termination of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
ATTEST: SNOWDANCE, INC.
_________________________________ By: ____________________________________
Its: _______________________________
ATTEST: EXECUTIVE:
_________________________________ ________________________________________
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