Exhibit 10.1
EXECUTIVE EMPLOYMENT
AGREEMENT
This Executive Employment Agreement
(“Agreement”) is entered into as of this 11
th
day of December, 2006
(the “Effective Date”), by and between West Marine,
Inc. and West Marine Products, Inc . (collectively, the
“Company”), with offices at 500 Westridge Drive,
Watsonville, California 95076, and Thomas Moran (the
“Executive”), with an address at 39 Jones Street,
Hingham, Massachusetts 02043.
1. POSITION, EMPLOYMENT PERIOD
AND DUTIES.
(a) Executive shall diligently and
conscientiously devote Executive’s full business time,
attention, energy, knowledge, skill and diligent efforts to the
business of the Company and the discharge of Executive’s
duties hereunder. Executive will abide by all policies and
decisions made by the Company, as well as all applicable federal,
state and local laws, regulations or ordinances. Executive’s
duties under this Agreement shall be to serve as the Chief
Financial Officer, with the responsibilities, rights, authority and
duties customarily pertaining to such office and as may be
established from time to time by the Chief Executive Officer
(“CEO”) under the direction of the Board of Directors
of the Company (the “Board”) or its designees.
Executive shall also act as an officer and/or director and/or
manager of such affiliates of the Company as may be designated by
the Company under the direction of the Board from time to time,
commensurate with Executive’s office, all without further
compensation, other than as provided in this Agreement. As an
exempt, salaried employee, Executive will be expected to work such
hours as required by the nature of Executive’s work
assignments. The Company reserves the right to modify
Executive’s position and duties at any time in its sole and
reasonable discretion.
(b) Employment with the Company is
not for a specified term and is at the mutual consent of the
Company and Executive. Accordingly, either the Executive or the
Company can terminate the employment relationship at will, with or
without cause and with or without notice, at any time, subject to
the provisions of this Agreement. This is an integrated agreement
with respect to the at will nature of the employment relationship,
and there are not now and may not be in the future any implied or
oral agreements that in any way modify this at will employment
relationship.
(c) The date Executive is to
commence employment with the Company is January 8, 2007
(“Commencement Date”). During the period of time in
which the Executive is employed by Company (the “Employment
Period”), the Executive shall be subject to, and shall act in
accordance with, all reasonable instructions and directions of the
Company that are consistent with Executive’s
position.
2. PLACE OF
EMPLOYMENT. Executive’s performance of services under
this Agreement shall be rendered in Watsonville, California,
subject to necessary travel requirements of Executive’s
position and duties hereunder.
3. COMPENSATION, BONUS,
BENEFITS AND STOCK OPTIONS.
(a) Base Salary. The Company
shall pay to Executive base salary compensation at an annual rate
of not less than $ 290,000. On March 8, 2007, the
Executive’s base salary will be increased to $ 300,000 and
annually thereafter, the CEO shall review Executive’s base
salary in light of the performance of Executive and the Company,
and may maintain or increase such base salary by an amount the CEO
determines to be appropriate, subject to the guidelines established
by the Board from time to time for Executive’s position
(“Base Salary”). Executive’s Base Salary shall be
paid in accordance with the Company’s payroll practices in
effect from time to time for executive officers, including all
applicable withholdings.
(b) Bonus Plan. If the
Company adopts and/or maintains a bonus program providing for
annual bonus awards to its senior executives, the Executive shall
be entitled to participate therein, at a targeted rate equal to 40%
of Executive’s Base Salary, subject, however, to the
achievement of annual performance objectives and/or other criteria
which shall be established and approved (as may be modified from
time to time) by the Board or any authorized committee thereof for
the Executive and the other members of the Company’s senior
executives. The Executive’s bonus amount, if any, for each
fiscal year of the Employment Period shall be determined after the
close of such fiscal year at the usual time for such
determinations, and paid to Executive at the time such bonuses are
paid in accordance with the Company’s practices in effect
from time to time for senior executives, subject to applicable
withholdings, and further subject to the provisions of
Section 5(f) below.
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(c) Option Grant. As
additional consideration for the services to be rendered by
Executive under this Agreement, the Company will grant to
Executive, from the Company’s 2006 Omnibus Equity Incentive
Plan, as amended from time to time (the “Plan”), stock
options to purchase 50,000 shares of the Company’s common
stock, subject to approval by the Board at its next regularly
scheduled Board meeting, and further subject to the terms and
conditions applicable to stock options granted under the Plan (or
any successor plan) and to stock option agreement related to such
grant. The stock options will be granted on the next regularly
scheduled meeting of the Board at an exercise price per share equal
to 100% of the fair market value per share on such grant date. The
stock options will have a term of 5 years and will vest at
25% per year over a four-year period if and until all shares
are vested.
(d) Benefits. Executive shall
be eligible to participate in all employee benefit programs of the
Company offered from time to time during the Employment Period by
the Company to employees or senior executive officers of
Executive’s rank, at the Company’s cost, subject to any
portion of the costs required to be contributed by Executive, to
the extent that Executive qualifies under the eligibility
provisions of the applicable plan or plans, in each case consistent
with the Company’s then-current practice as approved by the
Board from time to time.
(e) Paid Time Off. Executive
shall be entitled to paid time off (“PTO”) of up to 4
weeks per calendar year, with such number of weeks being pro-rated
for the remainder of the 2006 calendar year. Executive may
roll-over unused PTO time from one calendar year to another,
subject to the Company’s policy in effect from time to time
relative to PTO accrual, roll-over and advance payout.
(f) Business Expenses. The
Company shall promptly reimburse Executive for Executive’s
reasonable and necessary expenditures for travel, entertainment and
similar items made in furtherance of Executive’s duties under
this Agreement consistent with the policies of the Company as
applied to all executive officers. Executive shall document and
substantiate such expenditures as required by the policies of the
Company as applied to all executive officers, including an itemized
list of all expenses incurred, the business purposes for which such
expenses were incurred, and such receipts as Executive reasonably
has been able to obtain.
(g) Relocation Expenses. With
respect to the Executive’s relocation to the Northern
California area, the Company will provide the following benefits or
reimbursements of expenses:
i. If required, the Company will
provide the Executive with or reimburse the Executive for temporary
living quarters in the Northern, California area for a reasonable
period of time, not to exceed 3 months after the Commencement Date,
and for a reasonable cost, not to exceed $ 2,300 per
month;
ii. If required, the Company will
provide round-trip coach class airline tickets, purchased through
the Company’s travel service, for up to six (6) trips
for the Executive’s spouse during the Executive’s first
three (3) months of employment in connection with finding
suitable housing;
iii. The Company will reimburse the
Executive for reasonable, customary closing costs including, but
not limited to: inspection fees, title charges, processing fees,
and escrow fees paid by Executive for the sale of Executive’s
current residence and the purchase of a new residence in Northern
California, provided that Company’s reimbursement of closing
costs related to such sale and/or purchase, in the aggregate, does
not exceed $40,000; and
iv. The Company will reimburse the
Executive for all reasonable, standard costs approved by the
Company in advance in connection with moving the Executive’s
home furnishings and personal belongings, which approval shall not
be unreasonably withheld.
(h) Modification of Benefits Plan.
Nothing contained in this Agreement shall be construed to require
the Company or the Board to establish any benefit plans or to
prevent the modification or termination thereof once established,
and no such action or failure thereof shall affect this Agreement.
Executive recognizes that the Company has the right, in its sole
discretion, to amend, modify or terminate any benefit plans without
creating any rights in Executive.
4. INSURANCE &
INDEMNIFICATION . The
Company, at its expense, shall provide the Executive with coverage
under the Company’s directors’ and officers’
liability insurance policy at the same level provided the other
directors and officers of the Company (“D&O
Insurance”). The Company shall indemnify the Executive as set
forth in the form of Indemnification Agreement attached hereto as
Exhibit “A” and incorporated herein by this
reference.
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5. TERMINATION OF EMPLOYMENT.
(a) Death. The Executive’s
employment hereunder shall terminate upon Executive’s
death.
(b) Disability. The Company shall be
entitled to terminate the Executive’s employment hereunder
for “Disability” if, as a result of the
Executive’s incapacity due to physical or mental illness or
injury, the Executive shall have been unable to perform
Executive’s duties hereunder for a period of ninety
(90) consecutive days, and within thirty (30) days after
Notice of Termination (as defined in Section 6 below) for
Disability is given following such 90-day period the Executive
shall not have returned to the performance of Executive’s
duties on a full-time basis.
(c) By Company for
“Cause.” The Company may terminate the
Executive’s employment hereunder immediately for
“Cause.” For purposes of this Agreement, the term
“Cause” shall mean:
i. Executive’s breach of any
of the covenants contained in Sections 6(a) (confidentiality), 6(b)
(exclusive employment and non-solicitation), 6(c) (works for hire),
and 6(d) (non-disparagement) provisions of this
Agreement;
ii. Executive’s conviction by,
or entry of a plea of guilty or nolo contendere in, a court of
competent and final jurisdiction for any crime involving moral
turpitude or punishable by imprisonment in the jurisdiction
involved;
iii. Executive’s commission of
an act of fraud, whether prior to or subsequent to the Effective
Date hereof upon the Company;
iv. Executive’s continuing
repeated willful failure or refusal to perform Executive’s
duties as required by this Agreement (including, without
limitation, Executive’s inability to perform
Executive’s duties hereunder as a result of chronic
alcoholism or drug addiction and/or as a result of any failure to
comply with any laws, rules or regulations of any governmental
entity with respect to Executive’s employment by the
Company);
v. Executive’s gross
negligence, gross insubordination or material violation of any duty
of loyalty to the Company or any other material misconduct on the
part of Executive;
vi. Executive’s intentional
commission of any act which Executive knows (or reasonably should
know) is likely to be materially detrimental to the Company’s
business or goodwill; or
vii. Executive’s breach of any
material provision of this Agreement.
(d) Without Cause; for Good Reason.
The Company may terminate the Executive’s employment
hereunder during the Employment Period without Cause (which
termination shall be effective on the date specified by Company),
and the Executive may terminate Executive’s employment
hereunder during the Employment Period for Good Reason, provided
that Executive serves notice on the Company specifically
identifying the conduct that the Executive believes constitutes
Good Reason and gives the Company fifteen (15) days to cure
such conduct. For purposes of this Agreement, the term “Good
Reason” shall mean: (i) a material diminution of the
authority, duties or responsibilities of the Executive as provided
in Section 1 hereof; (ii) a material diminution in the
Executive’s title; or (iii) a breach of any material
provision of this Agreement by the Company.
(e) Voluntarily. The Executive may
voluntarily terminate Executive’s employment hereunder,
provided that the Executive provides the Company with notice of
Executive’s intent to terminate Executive’s employment
at least forty-five (45) days in advance of the effective date
of termination.
(f) Termination Payments.
i. Without Cause or For Good Reason.
In the event of the termination of the Executive’s employment
during the Employment Period by the Company without Cause or by the
Executive for Good Reason, the Company’s obligations to
Executive under this Agreement shall be limited to: (A) the
payment of Executive’s Base Salary through the date of
termination to the extent accrued but not paid by then;
(B) the payment of any unused accrued PTO through the date of
termination; (C) the payment of any reimbursable business
expenses documented and incurred by Executive prior to termination
in accordance with the Company’s policies in effect at such
time and that were not reimbursed by the Company at the time of the
termination; (D) the payment of severance to Executive in an
amount equal to six (6) months of the Executive’s then
current Base Salary (“Severance Period”), payable over
the Severance Period in substantially equal payments on the
Company’s regularly scheduled payroll dates, except if such
termination occurs at any time during the first year of employment,
Executive’s severance payment shall be prorated to an amount
equal to the number of months, or portion thereof, during which
Executive was employed; (E) in addition, if the effective date
of Executive’s termination occurs at any time
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after the first six (6) months of the
Company’s then current fiscal year, the Executive’s
annual bonus will be prorated for the period of Executive’s
employment during the then current fiscal year (i.e., from the
commencement of such fiscal year up through the effective date of
termination), payable at the time the Company normally pays such
bonuses, provided that Executive will receive no bonus amount if
the effective date of termination occurs at any time on or before
such six (6) month period. Moreover, Executive acknowledges
that, during the Severance Period, Executive will not earn any
bonus amount; (F) Executive hereby waives any other Company
benefits not specifically mentioned herein, except that Executive
will be offered continued health care benefits required to be
offered under Federal or state law [e.g., COBRA]; and (G) in
accordance with the terms of Executive’s equity award
agreement(s), Executive may exercise Executive’s
vested stock options for the period of time specified under
such applicable award agreement(s) after termination of employment
(currently at ninety (90) days) (“Extended
Period”) and upon termination of the Extended Period any
unexercised vested stock options or other vested but unexercised
equity awards automatically will be forfeited. Also, upon
termination any unvested stock options or other unvested equity
awards automatically will be forfeited. Executive acknowledges
that, during the Severance Period, Executive will not earn or
receive any further equity award grants. Except for payment under
clause (C), the benefits described herein will be subject to
applicable withholding and/or authorized deductions (including
offsets permitted under this Agreement), as required by Company
policy and/or by applicable laws and regulations and shall be paid
at the time expressly set forth herein in accordance with the
Company’s usual practices as they exist from time to time,
subject to applicable law. No other benefits will accrue to
Executive during the Severance Period. Except as specifically
provided herein or otherwise provided by applicable law, as of the
date of termination, the Company’s obligations to Executive
shall terminate and the Company shall have no further obligation to
pay Executive any compensation or any other amounts. The payments
and rights provided in clauses (D) through (G) hereof are
subject to and conditioned upon the Executive executing the Release
Agreement referenced in Section 6(e) below.
ii. Disability or Death,
Termination for Cause and Voluntary Termination . If the
Executive’s employment is terminated during the Employment
Period as a result of the Executive’s death or disability,
Executive’s voluntary termination or the Company’s
termination of the Executive for Cause, the Company’s
obligations to Executive under this Agreement shall be limited to:
(A) the prorated payment of Executive’s Base Salary
through the date of termination to the extent accrued but not paid
by then; (B) the payment of any unused accrued PTO through the
date of termination; and (C) the payment of any reimbursable
business expenses that were documented by Executive prior to
termination in accordance with the Company’s policies in
effect at such time and that were not reimbursed by the Company at
the time of the termination. Such payments shall be made less
applicable withholdings and authorized deductions within the time
period required under applicable law. As of the date of such
termination, the Company’s obligations to Executive shall
terminate and the Company will have no further obligation to pay
Executive or Executive’s estate, beneficiaries or
representatives any compensation or any other amounts, except as
provided in this Agreement or otherwise provided by law.
(g) Obligations of Executive on
Termination .
i. Executive acknowledges and agrees
that all property, including keys, credit cards, books, manuals,
records, reports, notes, contracts, customer lists, Confidential
Information (as defined in this Agreement), copies of any of the
foregoing, and any equipment or assets furnished to Executive by
the Company, belong to the Company and shall be promptly returned
to the Company upon termination of employment.
ii. Upon termination of employment,
Executive shall be deemed to have resigned from all offices and
directorships, if any, then held with the Company.
iii. Executive agrees that following
termination of Executive’s employment, Executive shall not
access or use any of the Company’s computer systems, e-mail,
systems, voicemail systems, intranet system or other system, except
as authorized by the Company.
iv. Executive shall cooperate with
the Company, as requested by the Company, to effect a transition of
Executive’s responsibilities and to ensure that the Company
is aware of all matters being handled by Executive and that such
matters are transferred to another employee designated by Company.
In addition, upon request by the Company, Executive agrees to
cooperate to the extent necessary to protect the interests of the
Company or any of its affiliates or related entities, including
without limitation, in providing any information that Executive has
about the Company’s business and its operations and/or in
providing truthful testimony as a witness or declarant in
connection with any potential future litigation which may arise as
to which Executive may have any relevant information.
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6. Covenants of Executive.
(a) Confidential Information
.
i. Existence of Confidential
Information : The Company owns and has developed and complied,
and will develop and compile, certain proprietary and confidential
information that has great value to its business (referred to in
this Agreement collectively as “Confidential
Information”). Confidential Information includes information,
whether or not designated as confidential or “company
private” by the Company, from any source, which is either
disclosed to, or learned by, Executive during the course of
Executive’s employment with the Company and which has or
could have commercial value in the business in which the Company is
engaged or contemplates engaging, which could be detrimental to the
interests of the Company if disclosed without authorization, which
gives the Company a competitive advantage or the opportunity to
obtain a competitive advantage or which is not generally known to
the public. Examples of confidential information include, without
limitation: Company’s personnel and financial, information,
vendor names and information, product cost information, and
operational and procedural manuals; Company’s proprietary
computer software of any type, whether in source code, object code,
annotations, coding notes, or any other form, in any stage of
research and development, production, or manufacture; information
relating to any of Company’s proprietary rights or
information., information concerning product research and
development, including technical, engineering, or production data,
test data or results, and information concerning Company’s
efforts to acquire, protect, and license proprietary rights;
Company’s price, cost and fee data, pricing and billing
policies, data, forecasts, plans, and strategies for all aspects of
Company operations, marketing, and sales, whether or not in effect;
the names and all other information concerning the Company’s
customers or vendors, including customer and vendor lists, and all
data relating to the type, quantity, specifications, and price of
Company products and/or services received or provided by any
customer or vendor; any and all work product created by Executive
relating to or resulting from the engagement of Executive by
Company including, without limitation, all notes, research, drafts,
and final product; and any and all information concerning Company
trade secrets, research, development, test results, reports,
specifications, business plans or strategies, forecasts, marketing
plans or strategies, unpublished financial information, budgets,
projections and Company agreements.
ii. Protection of Confidential
Information : Executive will not, either during or after
employment with the Company, directly or indirectly, disclose, or
otherwise communicate to any third party, any of the
Company’s Confidential Information without prior written
approval of the Company’s Chief Executive Officer, except as
authorized in the normal exercise of Executive’s assigned job
duties for the Company and for the benefit of the Company.
Executive acknowledges that Executive is aware that the
unauthorized disclosure of Confidential Information of the Company
may be highly prejudicial to its interests, an invasion of privacy
and an improper disclosure of trade secrets. Moreover, if, at any
time, Executive becomes aware of any unauthorized access, use,
possession, or knowledge of any Confidential Information, Executive
shall immediately notify the Company’s General Counsel.
Executive also agrees that to the extent any court or agency seeks
to have him disclose Confidential Information, Executive shall
promptly inform the Company and shall take such reasonable steps as
are available to Executive to prevent disclosure of such
Confidential Information until the Company has been informed of the
requested disclosure and the Company has an opportunity to respond
to such court or agency. Nothing provided in this paragraph shall
require Executive to take any action that would cause Executive to
incur personal, financial, or other risk.
iii. Delivery of Confidential
Information : Upon request or when Executive’s employment
with the Company terminates, Executive will immediately deliver to
the Company all copies of any and all materials and writings
received from, created for or belonging to the Company including,
but not limited to, any which relate to or contain Confidential
Information.
(b) Exclusive Employment and
Non-Solicitation : During Executive’s employment with the
Company, Executive will not do anything, directly or indirectly, to
compete with the Company’s present or contemplated business,
nor will Executive plan or organize any competitive business
activity including, without limitation, engaging in any activity or
entering into any agreement that conflicts with the interests of
the Company or Executive’s job duties or obligations to the
Company or providing services for, owning, managing, or operating
any business that is at that time in, competition with the Company.
At any time during or following the termination of
Executive’s employment, Executive shall not engage in unfair
competition with the Company, aid others in any unfair competition
with the Company, in any way breach the confidence that the Company
placed in Executive during Executive’s employment,
misappropriate any Confidential Information as defined in this
Agreement, or breach any of the provisions of this Section
of
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this Agreement. Executive also will not within
two (2) years after Executive’s employment terminates,
directly or indirectly, influence, hire, solicit, divert or attempt
to influence, hire, solicit, divert or encourage to terminate or
alter any relationship with the Company of any employee,
independent contractor, supplier, customer, consultant or any other
person or company without the Company’s express written,
consent.
(c) Works for Hire . All
inventions, ideas, processes, programs, software, procedures,
projects, plans and designs (including improvements), equipment, or
products conceived (whether or not actually conceived during
regular business hours), developed, or made through efforts in
whole or in part of Executive during the course of
Executive’s employment with Company and (ii) related to
the business of Company shall be disclosed promptly to Company and
shall be the sole and exclusive property of Company. Executive
shall cooperate with Company and its attorneys in the preparation
of patent, trademark and copyright applications for the foregoing
developments and Executive does hereby assign all of
Executive’s right, title and interest in and to all such
inventions, ideas, processes, programs, software, procedures,
projects, plans, designs, equipment or products to Company. The
decision to file a patent, trademark or copyright protection, or to
maintain such developments as a trade secret, shall be in the sole
discretion of Company and Executive shall be bound by such decision
and shall execute such documents as may be necessary to carry out
the intent of this Section.
(d) Non-Disparagement .
Executive agrees that both during and after Executive’s
employment with Company, Executive will not disparage, denigrate,
or criticize the Company or any of its management personnel or
members of the Board, whether or not such activity has as its
purpose or outcome, the interference or competition with, or the,
reduction, interruption, disruption, or obstruction of, the conduct
of Company’s businesses.
(e) Release . Upon
termination of employment, and if Executive elects to receive the
benefits outlined in Section 5(f) above, Executive agrees to
execute and deliver to Company a general release (substantially in
the form attached hereto as Exhibit “B”) releasing
Company and its officers, directors, owners, affiliates, successors
and assigns, from any and all actual or potential, suspected or
unsuspected, foreseen or unforeseen, and patent or latent causes of
actions, claims and demands whatsoever, whether in law or in
equity, which may exist as of the date of the release or which may
arise after such date as a result of Executive’s employment
or termination of employment with the Company. Such release also
will include a waiver of § 1542 of the California Civil Code,
which provides as follows: “A general release does not extend
to claims which the creditor does not know or suspect to exist in
his favor at the time of executing the release, which if known by
him must have materially affected his settlement with the
debtor,” Executive’s agreement to indemnify, defend,
and hold harmless each released person or entity against any claim,
including attorney fees and costs, resulting from a breach of
Executive’s covenants contained in the release, and a
provision that such covenants survive the termination of
Executive’s employment and/or of Agreement.
(f) Covenants as Essential
Elements of this Agreement . It is understood by and between
the parties hereto that the covenants set forth in Sections 5
(g) and Sections 6 (a)-(e) are essential elements of this
Agreement, and are required for the protection of Company’s
legitimate business interests, and that, but for the agreement of
the Executive to comply with such covenants, the Company would not
have entered into this Agreement, including the Company’s
agreement to provide the severance compensation set forth in
Section 5(f). Accordingly, in addition to all other rights and
remedies available to Company under this Agreement, Executive
acknowledges and agrees that Executive’s failure to comply
with any of these covenants shall entitle Company to immediately
terminate any compensation or benefits otherwise payable in
accordance with Section 5(f). Moreover, such covenants are
independent of any other contractual obligations in this Agreement.
The existence of any claim or cause of action by Executive against
Company, whether based on this Agreement or otherwise created,
shall not create a defense to the enforcement by Company of any
such covenants.
(g) Modification by Court .
It is agreed by the Company and Executive that if any portion of
this covenants set forth in this Section 6 are held to be
invalid, unreasonable, arbitrary, or against public policy, then
such portion of such covenants shall be considered divisible
(including divisible as to time and geographical area, as
applicable) and a lesser time period, geographical area or other
modification which is determined to be reasonable, non-arbitrary
and not against public policy may be enforced against the
Executive. The Company and the Executive agree that covenants set
forth in this Section 6 are appropriate and reasonable when
considered in light of the nature and extent of the business
conducted by the Company.
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(h) Survival of Covenants .
The covenants contained in this Section 6 shall survive the
termination of Executive’s employment and this
Agreement.
7. Miscellaneous
:
(a) Assignment and Transfer :
Executive’s rights and obligations under this Agreement are
personal and shall not be transferable by assignment or otherwise,
and any purported assignment, transfer or delegation thereof shall
be void. This Agreement shall inure to the benefit of, and be
enforceable by, any purchaser of substantially all of
Company’s assets, any successor to Company or any assignee
thereof.
(b) No Inconsistent
Obligations : Executive is aware of no obligations, legal or
otherwise, inconsistent with the terms of this Agreement or with
Executive’s job duties for the Company. Executive will not
disclose to the Company, or use, or induce the Company to use, any
proprietary information or trade secrets of others. Executive
represents and warrants that Executive has returned all property
and confidential information belonging to all prior
employers.
(c) Construction, and Governing
Law : The captions used in connection with this Agreement
are