Exhibit 10.18
XXXXXX & XXXXX, INC.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As of January 1, 2000
Xx. Xxxxxxx Xxxxxx
00 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxxxxxx, Xxx Xxxxxx 00000
Dear Xx. Xxxxxx:
This letter agreement is intended to amend and restate the letter
agreement between us dated as of July 25, 1993, as amended as of April 1, 1998
(the "Original Agreement"), regarding your employment by Xxxxxx & Xxxxx, Inc.
The Original Agreement is hereby amended and restated to read in its entirety as
follows:
1. Employment; Duties. Xxxxxx & Noble, Inc. (the "Company") hereby employs you,
and you hereby accept employment, as Vice Chairman of the Board of the Company.
Your principal duties shall be to oversee and develop investments in the
Company's existing and future affiliates, including but not limited to
xxxxxxxxxxxxxx.xxx and xXxxxxxxx.xxx, and such other duties and responsibilities
as are prescribed by the Chairman of the Board or the Board of Directors of the
Company consistent with the office of Vice Chairman of the Company. While you
are the Company's employee, you agree to devote your full business time and
attention to the performance of your duties and responsibilities as Vice
Chairman of the Board of the Company. With your approval and subject to the
terms hereof, the Company may also designate you to hold officer and/or director
positions on subsidiaries and/or affiliates of the Company.
2. Term. The term of this Agreement will be for a period beginning on the date
hereof and ending on the fifth anniversary of the date hereof.
3. Compensation.
3.1. Salary. The Company will pay you, for all services you perform
hereunder, an annual salary of $500,000, or such higher amount as the
Company may determine, payable in accordance with the Company's
payroll schedule applicable to executive officers of the Company.
3.2. Bonus Compensation. In addition to your above-mentioned salary, we
will pay you, within 90 days following the end of each fiscal year of
the Company during the term of your employment, annual bonus
compensation in an amount determined in accordance with the Company's
Supplemental Compensation Plan.
3.3. Options and Payments from Affiliates. You shall be eligible to receive
from affiliates of the Company stock options and similar incentives,
as agreed to by such affiliates. Unless otherwise agreed to by the
Company, you shall not be entitled to participate in any incentive
stock option or similar incentive plan maintained by the Company. To
the extent in any year during the term hereof you receive any cash
compensation from any affiliate of the Company for services rendered
by you on its behalf, such compensation shall be credited against the
annual salary and bonus due to you hereunder for such year.
3.4. Employee Benefits. Except as provided in Section 3.3 above, during the
term of your employment, you will participate in and receive any
benefits to which you are entitled under employee benefit plans which
the Company provides for all employees, as well as those benefits
which the Company provides, or may at any time in the future provide,
for its executive officers.
3.5. Expenses; Car Allowance. During the term of your employment, we will:
(a) pay you a car allowance per month in an amount to be determined by
the Company; and (b) reimburse you for all expenses incurred by you in
the performance of your duties and responsibilities under this
Agreement, including, without limitation, entertainment and travel
expenses, in accordance with the policies and procedures established
by the Board of Directors of the Company.
3.6. Life and Disability Insurance. In addition to the foregoing, we will
obtain in your name a life insurance policy providing for a death
benefit of $1,000,000 payable to any beneficiary or beneficiaries
named by you, and a disability insurance policy providing for monthly
payments to you at a rate of 60% of your then annual salary during the
period of any disability until the earlier of your attaining age 65 or
death. During the term of your employment, we will pay all premiums
due on such policies.
4. Non-Competition.
4.1. Covenant. You agree that so long as you are actively employed under
this Agreement or any agreement in renewal hereof and for a period of
two years after your voluntary termination of your employment or the
termination of your employment by the Company for cause (other than
following a change of control of the Company), you will not directly
or indirectly either as principal, agent, stockholder, employee or in
any other capacity, engage in or have a financial interest in, any
business that is competitive with the businesses operated by the
Company, its subsidiaries and affiliates.
4.2. Ownership of Other Securities. Nothing herein contained in this
Section 4 shall be construed as denying you the right to own
securities of any corporation listed on a
national securities exchange or quoted in the NASDAQ System to the
extent of an aggregate of 5% of the outstanding shares of such
securities.
4.3. Reasonableness. You acknowledge that the foregoing limitations are
reasonable and properly required by the Company and that in the event
that any such limitations are found to be unreasonable by a court of
competent jurisdiction, you will submit to the reduction of such
limitations as the court shall find reasonable.
4.4. Severability. If any of the restrictions set forth in this Section 4
should for any reason whatsoever be declared invalid by a court of
competent jurisdiction, the validity or enforceability of the
remainder of such restrictions or any other provision of this
Agreement will not be adversely affected thereby.
4.5. Remedies. The remedies provided under this Section 4 are non-exclusive
and shall be in addition to, and not in lieu of, any rights or
remedies that the Company may possess.
5. Severance. In the event your employment is terminated at any time during the
term hereof other than as a result of your death, disability or resignation, the
Company will continue to pay you the annual salary which you were being paid
under Section 3.1 above during the two-year period immediately following the
termination of your employment. Such payments shall be in lieu of any other
payments which would otherwise be due you under this Agreement.
6. Miscellaneous.
6.1. Entire Agreement. This Agreement constitutes the entire agreement
between you and the Company with respect to the terms and conditions
of your employment by the Company and supersedes all prior agreements,
understandings and arrangements, oral or written, between you and the
Company with respect to the subject matter hereof, including without
limitation the Original Agreement.
6.2. Binding Effect; Benefits. This Agreement shall inure to the benefit of
and shall be binding upon you and the Company and our respective
heirs, legal representatives, successors and assigns.
6.3. Amendments and Waivers. This Agreement may not be amended or modified
except by an instrument or instruments in writing signed by the party
against whom enforcement of any modification or amendment is sought.
Either party may, by an instrument in writing, waive compliance by the
other party with any term or provision of this Agreement to be
performed or complied with by such other party.
6.4. Assignment. Neither this Agreement nor any rights or obligations which
either party may have by reason of this Agreement shall be assignable
by either party without the prior written consent of the other party.
6.5. Litigation Expenses. The Company will pay any actual expenses for
reasonable attorneys' fees and disbursements incurred by you, or your
personal representative, in seeking to obtain or enforce any right or
benefit under this Agreement, if you or your representative is the
prevailing party.
6.6. No Mitigation. In the event of termination of this Agreement by you as
a result of the breach by the Company of any of its obligations
hereunder, or in the event of the termination of your employment by
the Company in breach of this Agreement, you shall not be required to
seek other employment in order to mitigate damages hereunder.
6.7. Notices. Any notice which may or must be given under this Agreement
shall be in writing and shall be personally delivered or sent by
certified or registered mail, postage prepaid, addressed to the party
at his or its respective address as set forth on the first page
hereof, or to such other address as he or it may designate in writing
in accordance with the provisions of this section.
6.8. Section and Other Headings. The section and other headings contained
in this Agreement are for reference purposes only and are not deemed
to be a part of this Agreement or to affect the meaning and
interpretation of this Agreement.
6.9. Governing Law. This Agreement shall be construed (both as to validity
and performance) and enforced in accordance with and governed by the
laws of the State of New York applicable to agreements made and to be
performed wholly within the State of New York.
If the foregoing accurately reflects our agreement, kindly date, sign and
return to us the enclosed duplicate copy of this letter.
Very truly yours,
XXXXXX & XXXXX, INC.
By: /s/J. Xxxx Xxxx
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Name:J. Xxxx Xxxx
Title:Chief Operating Officer
ACCEPTED AND AGREED TO:
/s/Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
