Exhibit 10.20
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of
February 8, 1999, between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual ("Executive") and
Gartner Group, Inc., a Delaware corporation (the "Company").
Recitals
A. Executive currently serves as the Executive Vice President, General
Manager IT Management Group, of the Company.
B. The Company and Executive desire to provide for Executive's
continued employment with the Company upon and subject to the terms and
conditions set forth in this Agreement.
Agreement
Therefore, in consideration of the mutual covenants contained herein,
the parties hereby agree as follows:
1. Employment. The Company shall employ Executive in the position of Executive
Vice President, General Manager IT Management Group, as such position has been
defined in terms of responsibilities and compensation as of the effective date
of this Agreement; provided, however, that the Board of Directors of the Company
(the "Board") shall have the right, at any time or from time to time, to revise
such responsibilities and compensation as the Board in its discretion may deem
necessary or appropriate. Executive shall comply with and be bound by the
Company's operating policies, procedures and practices from time to time in
effect during her employment. During the term of Executive's employment with the
Company, Executive shall continue to devote her full time, skill and attention
to her duties and responsibilities, and shall perform them faithfully,
diligently and competently, and Executive shall use her best efforts to further
the business of the Company and its affiliated entities.
2. Term. The employment of Executive pursuant to this Agreement shall continue
through October 1, 1999, provided that such term (the "Employment Term") shall
automatically renew at the end of the initial term and each subsequent term
thereafter for a one (1) year period, unless Executive or the Company shall
elect to terminate the Agreement by written notice to the other party not less
than sixty (60) days prior to the end of the respective term.
3. Salary. As compensation for the services rendered by Executive under this
Agreement, the Company shall pay to Executive a base salary ("Base Salary")
initially equal to $250,000 per year, payable to Executive on a bi-monthly basis
in accordance with the Company's payroll practices as in effect from time to
time during the Employment Term. The Base Salary shall be subject to periodic
adjustments by the Board or the Compensation Committee of the Board, in the sole
discretion of the Board or such Committee.
4. Bonus. In addition to her Base Salary, Executive shall be entitled to
participate in the Company's executive bonus program. The annual target bonus
shall be established by the Board or its Compensation Committee, in the
discretion of the Board or such Committee, and shall be payable based on
achievement of specified Company and individual objectives. Executive's target
bonus for the fiscal year ending September 30, 1999 has been set at $125,000.
5. Executive Benefits.
A. Employee and Executive Benefits. Executive will be entitled to receive all
benefits provided to executives and employees of the Company generally from time
to time, including medical, dental, life insurance and long-term disability, and
the executive split-dollar life insurance and executive disability plan, so long
as and to the extent the same exist; provided, that in respect to each such plan
Executive is otherwise eligible and insurable in accordance with the terms of
such plans.
B. Vacation, Sick Leave and Holidays. Executive shall be entitled to vacation,
sick leave and vacation in accordance with the policies of the Company and its
subsidiaries as they exist from time to time. Executive understands that under
the current policy she will receive four (4) weeks vacation per calendar year.
Vacation which is not used during any calendar year will not roll over to the
following year.
6. Employment Relationship. The Company and Executive acknowledge that
Executive's employment is and shall continue to be at-will, as defined under
applicable law. Either the Company or Executive may terminate this agreement and
Executive's employment at any time, with or without Business Reasons (as defined
in Section 8(A) below), in its or her sole discretion, upon fourteen (14) days'
prior written notice of termination. If Executive's employment terminates for
any reason, Executive shall not be entitled to any payments, benefits, damages,
awards or compensation other than as provided by this Agreement, or as may
otherwise be available in accordance with the Company's established employee
plans and policies at the time of termination.
7. Severance Benefits.
A. Change in Control. If during the term of this Agreement the Company
shall be subject to a Change in Control (as defined below), then Executive shall
be entitled to receive the following: (A) Base Salary and vacation accrued
through the Termination Date, (B) an amount equal to two (2) years of
Executive's Base Salary then in effect, payable immediately upon the Change in
Control, (C) an amount equal to two (2) times Executive's target bonus for the
fiscal year in which the Change in Control occurs (as well as any unpaid bonus
from the prior fiscal year), all payable immediately upon the Change in Control,
(D) acceleration in full of vesting of all outstanding stock options, TARPs and
other equity arrangements subject to vesting and held by Executive (and in this
regard all options and other exercisable rights held by Executive shall remain
exercisable for ninety (90) days following any termination of Executive's
employment (or such longer period as may be provided in the applicable stock
option plan or agreement)), (E) forgiveness by the Company of all outstanding
principal and interest due to the Company under indebtedness incurred by
Executive to purchase shares of capital stock of the Company, (F)
continuation of group health benefits pursuant to the Company's standard
programs as in effect from time to time (or continuation of substantially
similar benefits through a third party carrier, at the Company's election) for a
period of not less than 18 months (or such longer period as may be required by
COBRA), provided that Executive makes the necessary conversion, with the cost of
such coverage to be paid by the Company for 18 months and by Executive for any
period beyond 18 months, (G) in the event of termination of Executive's
employment within 12 months following the Change in Control, outplacement
support at the Company's expense up to $15,000 and (H) no other compensation,
severance or other benefits. Notwithstanding the foregoing, however, Executive
shall be obligated to repay to the Company any amounts previously received
pursuant to clauses (B) and (C) hereof, to the extent the same correspond to any
period following the Termination Date during which Executive violates the
noncompetition agreement set forth in Section 13. Upon a Change in Control,
Executive may elect, in her sole discretion, (i) not to receive all or any
portion of any cash payment provided herein, or to defer all or any portion of
any such payment to one or more payment tranches over a period of up to 3 years,
(ii) not to have all or any portion of indebtedness forgiven or to defer such
forgiveness or any portion thereof to one or more forgiveness tranches over a
period of up to 3 years, and/or (iii) not to have all or any portion of vesting
restrictions lapse, in each such case in order to avoid or limit any "parachute
payment" under Section 280G(b)(2) of the Internal Revenue Code of 1986, as
amended.
B. Involuntary Termination. If during the term of this Agreement the
Company terminates the employment of Executive involuntarily and without
Business Reasons or a Constructive Termination occurs, then Executive shall be
entitled to receive the following: (A) Base Salary and vacation accrued through
the Termination Date plus continued Base Salary for a period of twelve (12)
months following the Termination Date, payable in accordance with the Company's
regular payroll schedule as in effect from time to time, (B) any bonus payment
previously fixed and declared by the Board or its Compensation Committee on
behalf of Executive and not previously paid to Executive, (C) the right to
exercise all outstanding stock options held by Executive for ninety (90) days
following the Termination Date (or such longer period as may be provided in the
applicable stock option plan or agreement) but only to the extent vested as of
the Termination Date, (D) continuation of group health benefits pursuant to the
Company's standard programs as in effect from time to time (or continuation of
substantially similar benefits, through a third party carrier, at the Company's
election), for a period of not less than 18 months (or such longer period as may
be required by COBRA), provided that Executive makes the necessary conversion,
with the cost of such benefits to be paid by the Company for 18 months and by
Executive for any period beyond 18 months, and (E) no other compensation,
severance or other benefits. Notwithstanding the foregoing, however, if
Executive violates the non-competition agreement set forth in Section 13 during
the three (3) year period following the Termination Date, the Company shall not
be required to continue to pay the salary or bonus specified in clause (A)
hereof for any period following the Termination Date, and in such event
Executive shall be obligated to repay to the Company any amounts previously
received pursuant to clause (A) hereof, to the extent the same relate to any
period following the Termination Date.
C. Termination for Death or Disability. If during the term of this
Agreement Executive's employment shall be terminated by reason of death or
Executive shall become unable to perform her duties as an employee as a result
of incapacity, which gives rise to termination of employment for Disability,
then Executive shall be entitled to receive the following: (A) Base Salary and
vacation accrued through the Termination Date only, (B) any bonus payment
previously fixed and declared by the Board or its Compensation Committee on
behalf of Executive and not previously paid to Executive, (C) continuation of
group health benefits pursuant to the Company's standard programs as in effect
from time to time (or continuation of substantially similar benefits, through a
third party carrier, at the Company's election), for a period of not less than
18 months (or such longer period as may be required by COBRA), provided that
Executive makes the necessary conversion, with the cost of such benefits to be
paid by the Company for 18 months and by Executive for any period beyond 18
months, (D) the right to exercise all outstanding stock options held by
Executive for ninety (90) days following the Termination Date (or such longer
period as may be provided in the applicable stock option plan or agreement), but
only to the extent vested as of the Termination Date, (E) such other benefits
upon death or Disability, as the case may be, as may then be established under
the Company's then-existing severance and benefit plans and policies at the time
of such Disability or death, and (F) no other compensation, severance or other
benefits.
D. Voluntary Termination or Termination for Business Reasons. If (i)
Executive voluntarily terminates her employment or (ii) Executive is terminated
involuntarily for Business Reasons, then in any such event Executive or her
representatives shall be entitled to receive the following: (A) Base Salary and
accrued vacation through the Termination Date only, (B) the right to exercise
all outstanding stock options held by Executive for thirty (30) days following
the Termination Date (or such longer period as may be provided in the applicable
stock option plan or agreement), but only to the extent vested as of the
Termination Date, (C) to the extent COBRA shall be applicable to the Company,
continuation of group health benefits pursuant to the Company's standard
programs as in effect from time to time (or continuation of substantially
similar benefits through a third party carrier, at the Company's election), for
a period of 18 months (or such longer period as may be applicable under the
Company's policies then in effect) following the Termination Date provided that
Executive makes the appropriate conversion and payments, and (D) no further
severance, benefits or other compensation.
E. Exclusivity. The provisions of this Section 7 are intended to be and
are exclusive and in lieu of any other rights or remedies to which Executive or
the Company may otherwise be entitled, either at law, tort or contract, in
equity, or under this Agreement, in the event of any termination of Executive's
employment. Executive shall be entitled to no benefits, compensation or other
payments or rights upon termination of employment other than those benefits
expressly set forth in paragraph (A), (B), (C), or (D) of this Section 7,
whichever shall be applicable.
8. Limitation on Payments.
A. In the event that the severance and other benefits provided for in
this Agreement or otherwise payable to Executive (i) constitute "parachute
payments" within the meaning of Section 280G of the Internal Revenue Code of
1986, as amended (the "Code") and (ii) but for this Section 8 would be subject
to the excise tax imposed by Section 4999 of the Code, then Executive's
severance benefits under Section 7 shall be payable either (i) in full, or (ii)
as to such lesser amount which would result in no portion of such severance
benefits being subject to excise tax under Section 4999 of the Code, whichever
of the foregoing amounts, taking into account the applicable federal, state and
local income taxes and the excise tax imposed by Section 4999, results in the
receipt by Executive on an after-tax basis, of the greatest amount of severance
benefits under this Agreement, notwithstanding that all or some portion of such
severance benefits may be taxable under Section 4999 of the Code.
B. If a reduction in the payments and benefits that would otherwise be
paid or provided to Executive under the terms of this Agreement is necessary to
comply with the provisions of Section 8(A), Executive shall be entitled to
select which payments or benefits will be reduced and the manner and method of
any such reduction of such payments or benefits (including but not limited to
the number of options that would accelerate as to vesting under Section 7),
subject to reasonable limitations (including, for example, express provisions
under the Company's benefit plans) (so long as the requirements of Section 8(A)
are met). Within thirty (30) days after the amount of any required reduction in
payments and benefits is finally determined in accordance with the provisions of
Section 8(C), Executive shall notify the Company in writing regarding which
payments or benefits are to be reduced. If no notification is given by
Executive, the Company will determine which amounts to reduce. If, as a result
of any reduction required by Section 8(A), amounts previously paid to Executive
exceed the amount to which Executive is entitled, Executive will promptly return
the excess amount to the Company.
C. Unless the Company and Executive otherwise agree in writing, any
determination required under this Section 8 shall be made in writing by the
Company's independent public accountants (the "Accountants"), whose
determination shall be conclusive and binding upon Executive and the Company for
all purposes. For purposes of making the calculations required by this Section
8, the Accountants may make reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good faith interpretations
concerning the application of Sections 280G and 4999 of the Code. The Company
and Executive shall furnish to the Accountants such information and documents as
the Accountants may reasonably request in order to make a determination under
this Section. The Company shall bear all costs the Accountants may reasonably
incur in connection with any calculations contemplated by this Section 8.
9. Definition of Terms. The following terms referred to in this Agreement shall
have the following meanings:
A. Business Reasons. "Business Reasons" shall mean (i) any act of
personal dishonesty taken by Executive in connection with her responsibilities
as an employee and intended to result in substantial personal enrichment of
Executive, (ii) commission of a felony or
other offense which involves moral turpitude or is otherwise injurious to the
Company, (iii) a willful act by Executive which constitutes gross misconduct and
which is injurious to the Company, (iv) material breach of this Agreement by
Executive, including (A) any material breach of the provisions of Section 10,
11, or 12 or 13 hereof, or (B) continued violation by Executive of Executive's
obligations under Section 1 of this Agreement that are demonstrably willful and
deliberate on Executive's part after there has been delivered to Executive a
written demand for performance from the Company which describes the basis for
the Company's belief that Executive has not substantially performed her duties.
B. Disability. "Disability" shall mean that Executive has been unable
to perform her duties as an employee as the result of Executive's incapacity due
to physical or mental illness, and such inability, at least 26 weeks after its
commencement, is determined to be total and permanent by a physician selected by
the Company or its insurers and acceptable to Executive or Executive's legal
representative (such Agreement as to acceptability not to be unreasonably
withheld). In the event that Executive resumes the performance of substantially
all of her duties hereunder before the termination of her employment becomes
effective, the notice of intent to terminate shall automatically be deemed to
have been revoked.
C. Termination Date. "Termination Date" shall mean (i) if this
Agreement is terminated on account of death, the date of death; (ii) if this
Agreement is terminated for Disability, the date specified in Section 9(B);
(iii) if this Agreement is terminated by the Company, the termination date
specified in the notice of termination given by the Company to Executive; (iv)
if the Agreement is terminated by Executive, the termination date specified in
the notice of termination given by Executive to the Company; or (v) if this
Agreement expires by its terms, then the last day of the term of this Agreement.
C. Constructive Termination. A "Constructive Termination" shall be deemed to
occur if (A) without the consent of Executive, (i) there is a significant
reduction in Executive's duties, authorities and responsibilities, (ii)
Executive is required to relocate her place of employment, other than a
relocation within 50 miles of Executive's current business location or to Fort
▇▇▇▇▇, Florida, or (iii) there is a reduction of more than 20% of Executive's
Base Salary or target bonus (other than any such reduction consistent with a
general reduction of pay across the executive staff as a group, as an economic
or strategic measure due to poor financial performance by the Company) and (B)
within the thirty (30) day period immediately following such material adverse
change or reduction Executive elects to terminate her employment voluntarily.
E. Change in Control. A "Change in Control" shall be deemed to have
occurred if:
1. any "Person," as such term is used for purposes of Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (other than (A) the Company, (B) IMS Health, Inc., a Delaware corporation,
or any wholly-owned subsidiary of IMS Health, Inc. (collectively, "IMS"), until
IMS shall cease to be the "Beneficial Owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company representing
at least 15% of the combined voting power of the Company's then-outstanding
securities, (C) any trustee or other fiduciary holding securities under an
employee benefit plan of the Company or IMS, or (D) any company owned, directly
or indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company), becomes the Beneficial
Owner (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 20% or more of the
combined voting power of the Company's then-outstanding securities; provided
that, in the case of any Person which (i) has filed and has in effect a report
of beneficial ownership on Schedule 13-G in which such Person is reported as a
"passive" investor for the purpose of such Schedule 13-G, for so long as such
person continues to be a passive investor thereunder in the Company, (ii) is the
Beneficial Owner of less than 15% of the combined voting power of the
outstanding securities of the Company immediately prior to the Proposed
Recapitalization (defined below) and immediately prior to the Proposal Spinoff
(defined below), (iii) is the Beneficial Owner of less than 15% of the combined
voting power of the outstanding securities of IMS Health, Inc. immediately prior
to the Proposed Recapitalization and immediately prior to the Proposed Spinoff,
and (iv) acquires more than 15% but less than 20% of the combined voting power
of the Company's then-outstanding securities solely by virtue of the Proposed
Recapitalization and Proposed Spinoff, then a Change in Control shall not be
deemed to occur so long as (i) such Person remains a passive investor in the
Company under Schedule 13-G and (ii) such Person beneficially owns shares in the
Company representing no more than the combined voting power of the outstanding
securities of the Company beneficially owned by such Person immediately
following the Proposed Spinoff plus five percent (5%);
2. during any period of twenty-four months (not including any
period prior to the execution of this Agreement), individuals who at the
beginning of such period constitute the Board, and any new director (other than
(A) a director nominated by a Person who has entered into an agreement with the
Company to effect a transaction described in Sections (2)(a)(i), (iii) or (iv)
hereof, (B) a director nominated by any Person (including the Company) who
publicly announces an intention to take or to consider taking actions
(including, but not limited to, an actual or threatened proxy contest) which if
consummated would constitute a Change in Control or (C) a director nominated by
any Person who is the Beneficial Owner, directly or indirectly, of securities of
the Company representing 10% or more of the combined voting power of the
Company's securities) whose election by the Board or nomination for election by
the Company's stockholders was approved in advance by a vote of at least
two-thirds (2/3) of the directors then still in office who either were directors
at the beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute at lease a majority
thereof;
3. the stockholders of the Company approve any transaction or
series of transactions under which the Company is merged or consolidated with
any other company, other than a merger or consolidation (A) which would result
in the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) more than 66 2/3% of the
combined voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation and (B) after
which no Person holds 20% or more of the combined voting power of the
then-outstanding securities of the Company or such surviving entity;
4. the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets; or
5. the Board adopts a resolution to the effect that, for
purposes of this Agreement, a Potential Change in Control has occurred.
A transfer of shares of stock of the Company from IMS to an affiliated
company, subsidiary or spin-off entity of IMS, or the reduction in ownership of
capital stock of the Company by IMS by means of a spin-off of such shares to IMS
stockholders or sales of shares into the public market, shall not alone be
deemed to meet the requirements of clause (8)(e)(i) hereof.
For the purposes hereof, the "Proposed Recapitalization" refers to the
proposed recapitalization by the Company of its outstanding equity securities in
which a new class of Class B Common Stock having special voting rights will be
created and issued to IMS in exchange for the shares of Class A Common Stock of
the Company held by IMS, and the "Proposed Spinoff" refers to the proposed
spinoff by IMS to its shareholders on a tax-free basis of a significant portion
of the shares of Company Common Stock owned by IMS.
10. Confidential Information.
A. Executive acknowledges that the Confidential Information (as defined
below) relating to the business of the Company and its subsidiaries which
Executive has obtained or will obtain during the course of her association with
the Company and subsidiaries and her performance under this Agreement are the
property of the Company and its subsidiaries. Executive agrees that she will not
disclose or use at any time, either during or after the Employment period, any
Confidential Information without the written consent of the Board of Directors
of the Company. Executive agrees to deliver to the Company at the end of the
Employment period, or at any other time that the Company may request, all
memoranda, notes, plans, records, documentation and other materials (and copies
thereof) containing Confidential Information relating to the business of the
Company and its subsidiaries, no matter where such material is located and no
matter what form the material may be in, which Executive may then possess or
have under her control. If requested by the Company, Executive shall provide to
the Company written confirmation that all such materials have been delivered to
the Company or have been destroyed. Executive shall take all appropriate steps
to safeguard Confidential Information and to protect it against disclosure,
misuse, espionage, loss and theft.
B. "Confidential Information" shall mean information which is not
generally known to the public and which is used, developed, or obtained by the
Company or its subsidiaries relating to the businesses of any of the Company and
its subsidiaries or the business of any customer thereof including, but not
limited to: products or services; fees, costs and pricing structure; designs;
analyses; formulae; drawings; photographs; reports; computer software, including
operating systems, applications, program listings, flow charts, manuals and
documentation; databases; accounting and business methods; inventions and new
developments and methods, whether patentable or unpatentable and whether or not
reduced to practice; all copyrightable works; the customers of any of the
Company and its subsidiaries and the Confidential Information of any customer
thereof; and all similar and related information in whatever form. Confidential
Information shall not include any information which (i) was rightfully known by
Executive prior to the Employment Period; (ii) is publicly disclosed by law or
in response to an order of a court or governmental agency; (iii) becomes
publicly available
through no fault of Executive or (iv) has been published in a form generally
available to the public prior to the date upon which Executive proposes to
disclose such information. Information shall not be deemed to have been
published merely because individual portions of the information have been
separately published, but only if all the material features comprising such
information have been published in combination.
11. Inventions and Patents. In the event that Executive, as a part of
Executive's activities on behalf of the Company, generates, authors or
contributes to any invention, new development or method, whether or not
patentable and whether or not reduced to practice, any copyrightable work, any
trade secret, any other Confidential Information, or any information that gives
any of the Company and its subsidiaries an advantage over any competitor, or
similar or related developments or information related to the present or future
business of any of the Company and its subsidiaries (collectively "Developments
and Information"), Executive acknowledges that all Developments and Information
are the exclusive property of the Company. Executive hereby assigns to the
Company, its nominees, successors or assigns, all rights, title and interest to
Developments and Information. Executive shall cooperate with the Company's Board
of Directors to protect the interests of the Company and its subsidiaries in
Developments and Information. Executive shall execute and file any document
related to any Developments and Information requested by the Company's Board of
Directors including applications, powers of attorney, assignments or other
instruments which the Company's Board of Directors deems necessary to apply for
any patent, copyright or other proprietary right in any and all countries or to
convey any right, title or interest therein to any of the Company's nominees,
successors or assigns.
12. No Conflicts.
A. Executive agrees that in her individual capacity she will not enter
into any agreement, arrangement or understanding, whether written or oral, with
any supplier, contractor, distributor, wholesaler, sales representative,
representative group or customer, relating to the business of the Company or any
of its subsidiaries, without the express written consent of the Board of
Directors of the Company.
B. As long as Executive is employed by the Company or any of its
subsidiaries, Executive agrees that she will not, except with the express
written consent of the Board of Directors of the Company, become engaged in,
render services for, or permit her name to be used in connection with, any
business other than the business of the Company, any of its subsidiaries or any
corporation or partnership in which the Company or any of its subsidiaries have
an equity interest.
13. Non-Competition Agreement.
A. Executive acknowledges that her services are of a special, unique
and extraordinary value to the Company and that she has access to the Company's
trade secrets, Confidential Information and strategic plans of the most valuable
nature. Accordingly, Executive agrees that for the period of three (3) years
following the Termination Date, Executive shall not directly or indirectly own,
manage, control, participate in, consult with, render services for, or in any
manner engage in any business competing with the businesses of the Company or
any of its subsidiaries as such businesses exist or are in process of
development on the Termination Date, including without limitation the
publication of periodic research and analysis of the information technology
industries. Nothing herein shall prohibit Executive from being a passive owner
of not more than 1% of the outstanding stock of any class of a corporation which
is publicly traded, so long as Executive has no active participation in the
business of such corporation.
B. In addition, for a period of three (3) years commencing on the
Termination Date, Executive shall not (i) induce or attempt to induce any
employee of the Company or any subsidiary to leave the employ of the Company or
such subsidiary, or in any way interfere with the relationship between the
Company or any subsidiary and any employee thereof, (ii) hire directly or
through another entity any person who was an employee of the Company or any
subsidiary at any time during the Employment Period, or (iii) induce or attempt
to induce any customer, supplier, licensee or other business relation of the
Company or any subsidiary to cease doing business with the Company or such
subsidiary, or in any way interfere with the relationship between any such
customer, supplier, licensee or business relation and the Company or any
subsidiary.
C. Executive agrees that these restrictions on competition and
solicitation shall be deemed to be a series of separate covenants not-to-compete
and a series of separate non-solicitation covenants for each month within the
specified periods, separate covenants not-to-compete and non-solicitation
covenants for each state within the United States and each country in the world,
and separate covenants not-to-compete for each area of competition. If any court
of competent jurisdiction shall determine any of the foregoing covenants to be
unenforceable with respect to the term thereof or the scope of the subject
matter or geography covered thereby, such remaining covenants shall nonetheless
be enforceable by such court against such other party or parties or upon such
shorter term or within such lesser scope as may be determined by the court to be
enforceable.
D. Because Executive's services are unique and because Executive has
access to Confidential Information and strategic plans of the Company of the
most valuable nature, the parties agree that the covenants contained in this
Section 13 are necessary to protect the value of the business of the Company and
that a breach of any such covenant would result in irreparable and continuing
damage for which there would be no adequate remedy at law. The parties agree
therefore that in the event of a breach or threatened breach of this Agreement,
the Company or its successors or assigns may, in addition to other rights and
remedies existing in their favor, apply to any court of competent jurisdiction
for specific performance and/or injunctive or other relief in order to enforce,
or prevent any violations of, the provisions hereof.
14. Miscellaneous Provisions.
A. Notice. Notices and all other communications contemplated by this
Agreement shall be in writing, shall be effective when given, and in any event
shall be deemed to have been duly given (i) when delivered, if personally
delivered, (ii) three (3) business days after deposit in the U.S. mail, if
mailed by U.S. registered or certified mail, return receipt requested, or (iii)
one (1) business day after the business day of deposit with Federal Express or
similar overnight courier, if so delivered, freight prepaid. In the case of
Executive, notices shall be addressed to her at the home address which she most
recently communicated to the Company in writing. In the case of the Company,
notices shall be addressed to its corporate headquarters, and all notices shall
be directed to the attention of its Corporate Secretary.
B. Notice of Termination. Any termination by the Company or Executive
shall be communicated by a notice of termination to the other party hereto given
in accordance with paragraph (A) hereof. Such notice shall indicate the specific
termination provision in this Agreement relied upon.
C. Successors.
1. Company's Successors. Any successor to the Company (whether
direct or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company's business
and/or assets shall be entitled to assume the rights and shall be obligated to
assume the obligations of the Company under this Agreement and shall agree to
perform the Company's obligations under this Agreement in the same manner and to
the same extent as the Company would be required to perform such obligations in
the absence of a succession. For all purposes under this Agreement, the term
"Company" shall include any successor to the Company's business and/or assets
which executes and delivers the assumption agreement described in this
subsection (i) or which becomes bound by the terms of this Agreement by
operation of law.
2. Executive's Successors. The terms of this Agreement and all
rights of Executive hereunder shall inure to the benefit of, and be enforceable
by, Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
D. No Other Assignment of Benefits. Except as provided in this Section
14(D), the rights of any person to payments or benefits under this Agreement
shall not be made subject to option or assignment, either by voluntary or
involuntary assignment or by operation of law, including (without limitation)
bankruptcy, garnishment, attachment or other creditor's process, and any action
in violation of this subsection (iii) shall be void.
E. Waiver. No provision of this Agreement shall be modified, waived or
discharged unless the modification, waiver or discharge is agreed to in writing
and signed by Executive and by an authorized officer of the Company (other than
Executive). No waiver by either party of any breach of, or of compliance with,
any condition or provision of this Agreement by the other
party shall be considered a waiver of any other condition or provision or of the
same condition or provision at another time.
F. Entire Agreement. Employee acknowledges and reaffirms her
obligations contained in (i) the Company's standard form of Agreement Regarding
Certain Conditions of Employment, which was previously executed by Employee (or,
if Employee has not previously executed such agreement, by which Employee hereby
agrees to be bound in consideration for the mutual agreements herein), and (ii)
Notices of Stock Options, if any, which were previously executed by Employee,
which documents include, without limitation, obligations regarding confidential
information, non-competition and non-solicitation. If there is any conflict
between the terms of this Agreement, and the Agreement Regarding Certain
Conditions of Employment, and the Notices of Stock Options, the terms of the
more restrictive provisions shall control. This Agreement, the Agreement
Regarding Certain Conditions of Employment and the Notices of Stock Options
collectively contain the entire understanding of the parties with respect to the
subject matter hereof and supersede any prior understandings or agreements
between the parties with respect to such subject matter.
G. Severability. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision hereof, which shall remain in full force and effect.
H. Governing Law; Arbitration. This Agreement shall be construed in
accordance with and governed by the laws of the State of Connecticut as they
apply to contracts entered into and wholly to be performed within such state by
residents of such state. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Stamford, Connecticut, in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrator's award in
any court having jurisdiction. No party shall be entitled to seek or be awarded
punitive damages. All attorneys' fees and costs shall be allocated or
apportioned by the parties, and in the absence of any agreement or allocation or
apportionment shall be awarded to the prevailing party.
I. Employment Taxes. All payments made pursuant to this Agreement will
be subject to withholding of applicable taxes.
J. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together will constitute
one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by its duly authorized officer, as of the day and year
first above written.
GARTNER GROUP, INC.
By:
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President and Chief Executive Officer
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