EXHIBIT 10.13
EMPLOYMENT AGREEMENT
AGREEMENT, dated this 1st day of January, 2002 (the "Agreement"),
between Xxxxxxxx & Struggles, Inc., a Delaware corporation, and any successor
(the "Employer") and Xxxxx X. Xxxxxxxx (the "Employee"). The parties hereby
agree, as follows:
1. Employment. The Employer shall employ the Employee as President and
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Chief Operating Officer and the Employee hereby accepts such position and agrees
to serve the Employer in such capacity during the employment period fixed by
Section 3 hereof (the "Employment Period"). The Employee shall report to the
Chief Executive Officer of the Employer (the "Board"). The Employee's duties and
responsibilities shall be such duties and responsibilities as are consistent
with the position of President and Chief Operating Officer of the Employer. The
Employee shall devote substantially all of his business time and attention to
the performance of his duties and responsibilities hereunder.
2. Compensation.
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(a) Annual Base Salary. The Employer shall pay the Employee,
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pursuant to the Employer's normal and customary payroll procedures, a base
salary of $600,000 per annum (the "Annual Base Salary").
(b) Annual Bonus. In addition to the Annual Base Salary, during
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the Employment Period, the Employee may receive an annual bonus (the "Annual
Bonus"), based on the achievement of performance objectives, which shall be
determined by the Compensation Committee of the Board.
(c) Incentive Compensation. Commencing in January 2002, the
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Employee shall participate in the Employer's Annual Bonus Plan, Performance
Share Plan, Management Stock Option Plan, Change in Control Severance Plan,
Deferred Compensation Plan and the Severance Plan (such Plans being hereinafter
referred to collectively as the "Incentive Compensation Plans").
(d) Benefit Plans. In addition, during the Employment Period
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(i) the Employee shall be entitled to participate in all other savings and
retirement plans, practices, policies and programs of the Employer which are
made available generally to other employees of the Employer; provided, however,
that the Employee shall be entitled to participate in bonus, incentive
compensation or stock-based plans and programs only to the extent determined by
the Compensation Committee of the Board. The Employee and/or the Employee's
family, as the
case may be, shall be eligible for participation in, and shall receive all
benefits under, all welfare benefit plans, practices, policies and programs
provided by the Employer (including, without limitation, vacation, medical,
prescription, dental, disability, life insurance, group life insurance,
accidental death and travel accident insurance plans and programs, together the
"Benefit Plans") which are made available generally to other employees of the
Employer.
3. Employment Period.
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The Employment Period shall commence on January 1, 2002 (the
"Effective Date") and shall end on the day preceding the third anniversary of
the Effective Date. Notwithstanding the foregoing, the Employee's employment
hereunder may be terminated during the Employment Period upon the earliest to
occur of the following events:
(a) Death. The Employee's employment hereunder shall terminate
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immediately upon his death.
(b) Disability. The Employer may terminate the Employee's
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employment hereunder for "Disability," which shall mean (i) a physical or mental
incapacity of the Employee which entitles the Employee to benefits under the
long-term disability plan applicable to the Employee and maintained by the
Employer; or (ii) in the event that no such long-term disability plan is
maintained by the Employer, the Employee has been unable to perform his duties
hereunder for a period of 180 days within any twelve-month period as a result of
the Employee's incapacity due to physical or mental illness.
(c) Cause. The Employer may terminate the Employee's employment
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hereunder for Cause. For purposes of this Agreement, the term "Cause" shall mean
(i) fraud, or the embezzlement or misappropriation of funds or property of the
Employer or any of its affiliates by you, the conviction of, or the entrance of
a plea of guilty or nolo contendere by Employee, to a felony, or a crime
involving moral turpitude; (ii) neglect, misconduct or willful malfeasance which
is materially injurious to the Employer or any of its affiliates; or (iii)
willful failure or refusal to perform your duties, or a willful, material breach
of contract. If, subsequent to the Employee's termination of services hereunder
for other than Cause, it is discovered that the Employee's services could have
been terminated for Cause, the Employee's services shall, at the election of the
Employer, be deemed to have been terminated for Cause retroactively to the date
the events giving rise to Cause occurred.
(d) Good Reason. The Employee may terminate his employment
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hereunder for Good Reason (and such termination shall be treated as if it were a
termination by the Employer without Cause, and not a voluntary termination by
the Employee). "Good Reason," shall mean the occurrence of any of the following
events during the Employment Period:
(i) The assignment to the Employee of any duties materially
inconsistent with, or the reduction of powers,
responsibilities or functions associated with, the
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Employee's positions and status with the Employer, or any
removal of the Employee from, or any failure to reelect
the Employee to, membership on the Board and President and
Chief Operating Officer with the Employer, except in
connection with the termination of the Employee's
employment by the Employer for Cause or on account of
Disability pursuant to the terms of this Agreement;
(ii) A reduction by the Employer of the Annual Base Salary
except in connection with the termination of the
Employee's employment by the Employer for Cause or on
account of Disability pursuant to the terms of this
Agreement;
(iii) The failure by the Employer to pay the Employee any
portion of his current compensation, or any portion of his
compensation deferred under any plan, agreement or
arrangement of or with the Employer within seven (7) days
of the date such compensation is due; or
(iv) The requirement by the Employer that the Employee relocate
his primary residence to a city other than Dallas, Texas.
Notwithstanding the foregoing, an isolated and inadvertent action
taken in good faith and which is remedied by the Employer within 30 days after
receipt of written notice thereof given by the Employee shall not constitute
Good Reason.
(e) Without Cause. The Employer may terminate the Employee's
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employment hereunder without Cause.
(f) Without Good Reason. The Employee may terminate his employment
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hereunder without Good Reason, provided that the Employee provides the Employer
with notice of his intent to terminate his employment without Good Reason at
least six (6) months in advance of the Date of Termination; provided, however,
that the Employer may treat such notice as a resignation and accept it prior to
the expiration of six (6) months at the Employer's sole discretion.
4. Expense Reimbursement. During the Employment Period, the Employer
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shall reimburse the Employee for all reasonable business expenses upon the
presentation of statements of such expenses in accordance with the Employer's
policies and procedures now in force or as such policies and procedures may be
modified with respect to all employees of the Employer. The Employer shall pay
or reimburse the Employee for business class travel and accommodation
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expenses for his spouse at times the Employee is required to be away from home
for up to four round trips per year.
5. Termination Payments.
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A. In the event of termination of the Employee's employment during
the Employment Period:
(i) by the Employer without Cause (pursuant to Section 3(e));
(ii) by the Employee for Good Reason (pursuant to Section 3(d));
or
(iii) on the day prior to the third anniversary of the Effective
Date (and not prior thereto) and no renewal of the
Employment Period has taken place as of such date by
amendment of this Agreement or pursuant to a new agreement
between the Employer and the Employee
then, the Employee shall be entitled to the following payments:
(a) Annual Base Salary through the Date of Termination (to the
extent not paid) within 10 days following the Date of
Termination;
(b) Earned but unpaid Annual Bonus in respect of the year ended
prior to the Date of Termination;
(c) A pro rata portion of his target Annual Bonus based upon the
number of months worked in the year in which the Date of
Termination occurs;
(c) Severance pay pursuant to the Severance Plan;
(d) Amounts under the terms of Benefits Plans in which he is a
participant under the terms thereof; and
(e) Unreimbursed expenses under Section 4 of this Agreement.
B. The Employee shall not be entitled to any further payments or
benefits under this Agreement in respect of any termination of the Employee's
employment during the Employment Period by the Employer without Cause (pursuant
to Section 3(e)) or by the Employee for Good Reason (pursuant to Section 3(d))
or for expiration without renewal (pursuant to this Section 5A(iii)). The
payments and benefits provided in this Section 5A (a) (b) and (c) are subject to
and conditioned upon the Employee's compliance with the restrictive covenants
provided in Section 7 and shall be subject to and conditioned upon the Employee
executing a valid general release and waiver, waiving all claims the Employee
may have against the Employer, its successors, assigns, affiliates, employees,
officers and directors.
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C. If the Employee's employment is terminated during the Employment
Period by the Employer for Cause, by the Employee without Good Reason, or as a
result of the Employee's death or Disability pursuant to Sections 3(c), 3(f),
3(a) and 3(b), respectively, the Employer shall pay the amounts referred to in
Section 5A(a) and 5A(b) to the Employee (or the Employee's estate or legal
representative in the event of the Employee's death) within thirty (30) days
following the Date of Termination and the Employee shall not be entitled to any
further payments or benefits under this Agreement.
6. Non-Exclusivity of Rights. Any vested benefits and other amounts
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that the Employee is otherwise entitled to receive under any Incentive
Compensation Plans or Benefit Plans or other employee benefit plan, policy,
practice or program of the Employer shall be payable in accordance with such
Incentive Compensation Plan or Benefit Plan or other employee benefit plan,
policy, practice or program as the case may be, except as explicitly modified by
this Agreement.
7. Confidentiality of Information; Duty of Non-Disclosure;
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Non-Competition; Non-Solicitation.
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(a) Confidential Information; Duty of Non-Disclosure. The
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Employee's employment under this Agreement necessarily involves his access to
and understanding of certain trade secrets and confidential information
pertaining to the business of the Employer and its affiliates. During the
Employment Period and thereafter, he will not, directly or indirectly, without
the prior written consent of the Employer, disclose or use for the benefit of
any person, corporation or other entity, or for himself any and all files, trade
secrets or other confidential information concerning the internal affairs of the
Employer or its affiliates, including, but not limited to, information
pertaining to its clients, services, products, earnings, finances, operations,
methods or other activities; provided, however, that the foregoing shall not
apply to information which is of public record or is generally known, disclosed
or available to the general public or the industry generally (other than as a
result of the Employee's breach of this Section 7(a)). Notwithstanding the
foregoing, the Employee may disclose such information as is required by law
during any legal proceeding or to the Employee's personal representatives and
professional advisers and, with respect to such personal representatives and
professional advisers, the Employee shall inform them of his obligations
hereunder and take all reasonable steps to ensure that such professional
advisers do not disclose the existence or substance thereof. Further, the
Employee shall not, directly or indirectly, remove or retain, without the
express prior written consent of the Employer, and upon termination of
employment for any reason shall return to the Employer, any records, computer
disks, computer printouts, business plans or any copies or reproductions
thereof, or any information or instruments derived therefrom, arising out of or
relating to the business of the Employer and its affiliates or obtained as a
result of his employment.
(b) Non-Competition. During the Employment Period and for a
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period of six (6) months after the termination of the Employee's employment with
the Employer, the Employee
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shall not work for or provide services to a principal competitor of the
Employer and its affiliates in a substantially similar function as the Employee
held with the Employer during the two-year period prior to the Employee's
termination of employment with the Employer.
(c) Non-Solicitation. During the Employment Period and for a
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period of one (1) year after the termination of the Employee's employment with
the Employer, the Employee shall not: (i) work on the account of any client of
the Employer and its affiliates with whom such Employee had a direct
relationship or as to which the Employee had a significant supervisory
responsibility or otherwise was significantly involved at any time during the
two (2) years prior to such termination; (ii) hire, solicit for hire, or assist
any other person in soliciting or hiring any employment candidate with whom the
Employee has had contact while at the Employer during the two (2) years prior to
such termination; or (iii) directly or indirectly solicit or hire, or assist any
other person in soliciting or hiring, any employee of the Employer and its
affiliates (as of the Employee's termination of employment) or any person who,
as of such date, was in the process of being recruited by the Employer and its
affiliates, or induce any such employee to terminate his or her employment with
the Employer and its affiliates
(d) Remedies. The parties hereto hereby agree that it is
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impossible to measure in money the damages which will accrue to the Employer by
reason of a failure by the Employee to perform any of his obligations under this
Section 7 and the Employee acknowledges that such obligations are a material
condition to the Employer's decision to enter into this Agreement. Accordingly,
if the Employer institutes any action or proceeding to enforce the provisions
hereof, to the extent permitted by applicable law, the Employee hereby waives
the claim or defense that the Employer has an adequate remedy at law, and the
Employee shall not urge in any such action or proceeding the defense that any
such remedy exists at law. The restrictive covenants in this Section 7 are in
addition to any rights the Employer may have in law or at equity or under any
other agreement. In the event that a court of competent jurisdiction finds the
Employee to be in violation of the provisions of Sections 7(b) or 7(c), the
non-competition and/or non-solicitation period shall be extended by the period
of time during which such court found the Employee to have been in such
violation. The foregoing shall not prejudice the Employer's right to require the
Employee to account for and pay over to the Employer any profit obtained by the
Employee as a result of any transaction constituting a breach of this Section 7.
(e) Survival of Covenants. This Section 7 shall survive the
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termination of the Employment Period.
8. Arbitration. This Agreement contains our entire understanding and
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Employee and Chief Legal Officer of the Employer. The Employee specifically
acknowledges that no promises or commitments have been made to him that are not
set forth in this Agreement.
Any controversy or claim arising out of or relating to this
Agreement or for the breach thereof, or Employee's employment, including without
limitation any statutory claims (for example, claims for discrimination
including but not limited to discrimination based on race, sex, sexual
orientation, religion, national origin, age, marital status,
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handicap or disability; and claims relating to leaves of absence mandated by
state or federal law), breach of any contract or covenant (express or implied),
tort claims, violation of public policy or any other alleged violation of
statutory, contractual or common law rights (and including claims against
officers, directors, employees or agents of the Employer) if not otherwise
settled between the parties, shall be conclusively settled by arbitration to be
held in New York, New York, in accordance with the American Arbitration
Association's Employment Dispute Resolution Rules (the "Rules"). Arbitration
shall be the parties' exclusive remedy for any such controversies, claims or
breaches. The parties agree they shall not seek any award for punitive damages
for any claims they may have under this Agreement. The parties also consent to
personal jurisdiction in New York, New York with respect to such arbitration.
The award resulting from such arbitration shall be final and binding upon both
parties. Judgment upon said award may be entered in any court having
jurisdiction.
Employee and the Employer hereby waive the right to pursue any
claims, including but not limited to employment termination - related claims,
through civil litigation outside the arbitration procedures of this provision,
unless otherwise required by law. Employee and the Employer each have the right
to be represented by counsel with respect to arbitration of any dispute pursuant
to this paragraph. The arbitrator shall be selected by agreement between the
parties, but if they do not agree on the selection of an arbitrator within 30
days after the date of the request for arbitration, the arbitrator shall be
selected pursuant to the Rules.
In the event of any arbitration hereunder, the parties agree each
shall bear its or his own attorneys' fees and costs associated with or arising
from such arbitration or other proceeding.
9. Miscellaneous.
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(a) Notices. Any notice to be given hereunder shall be given in
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writing. Notice shall be deemed to be given when delivered by hand, or three (3)
days after being mailed, postage prepaid, registered with return receipt
requested, addressed as follows.
If to the Employer:
Xxxxxxxx & Struggles, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Chief Legal Officer
If to the Employee:
Xxxxx X. Xxxxxxxx
00000 Xxxxxx Xxx
Xxxxxx, Xxxxx 00000
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or to such other address as any party hereto may designate by notice to the
others, and shall be deemed to have been given upon receipt.
(b) Entire Agreement. This Agreement constitutes the entire
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agreement among the parties hereto with respect to the Employee's employment.
This Agreement expressly supersedes the Agreement, dated May 28, 1992 as amended
January 30, 2001, between the Employer and the Employee and shall be of no
further force and effect.
(c) Modification or Amendment; Waiver. This Agreement may be
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amended only by an instrument in writing signed by the parties hereto, and any
provision hereof may be waived only by an instrument in writing signed by the
party or parties against whom or which enforcement of such waiver is sought. The
failure of any party hereto at any time to require the performance by any other
party hereto of any provision hereof shall in no way affect the full right to
require such performance at any time thereafter, nor shall the waiver by any
party hereto of a breach of any provision hereof be taken or held to be a waiver
of any succeeding breach of such provision or a waiver of the provision itself
or a waiver of any other provision of this Agreement.
(d) Successors. This Agreement is binding on and is for the benefit
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of the parties hereto and their respective successors, heirs, executors,
administrators and other legal representatives. Neither this Agreement nor any
right or obligation hereunder may be assigned by the Employer or by the
Employee.
(e) Severability. Each provision hereof is severable from this
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Agreement, and if one or more provisions hereof are declared invalid, the
remaining provisions shall nevertheless remain in full force and effect. If any
provision of this Agreement or portion thereof is so broad, in scope or duration
or otherwise, as to be unenforceable, such provision or portion thereof shall be
interpreted to be only so broad as is enforceable.
(f) Tax Withholding. The Employer may withhold from any amounts
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payable to the Employee hereunder all federal, state, city or other taxes that
the Employer may reasonably determine are required to be withheld pursuant to
any applicable law or regulation.
(g) Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of NEW YORK, without
reference to its principles of conflicts of law.
(h) Counterparts. This Agreement may be executed in several
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counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
(i) Headings. The headings in this Agreement are inserted for
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convenience of reference only and shall not be a part of or control or affect
the meaning of any provision hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Xxxxxxxx & Struggles, Inc.
/s/ Xxxxxxxxx X. Xxxxxxxx
By:_______________________________________
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Chief Legal Officer, Secretary
/s/ Xxxxx X. Xxxxxxxx
__________________________________________
Xxxxx X. Xxxxxxxx
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