EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated October 8, 1998 (this "Agreement"), by
and between Xxxxxx Group Inc., a Delaware corporation (the "Company"), and Xxx
X. Xxxxxx (the "Executive").
WHEREAS, the Company desires to continue to employ the Executive as
Executive Vice President of the Company and President of Xxxxxx & Co., Inc.
("Xxxxxx"), a wholly-owned subsidiary of the Company, and the Executive desires
to continue to be retained in such capacities, on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements made herein, the Company and the Executive agree as follows:
1. Employment; Duties.
(a) The Company shall employ the Executive as Executive Vice
President of the Company and President of Xxxxxx for the "Employment Period" as
defined in Section 2. The Executive, in his capacity as Executive Vice
President of the Company and President of Xxxxxx, shall have such duties,
responsibilities and authority normally incident to such offices, subject to
the provisions of the bylaws of the Company and Xxxxxx, respectively. The
precise duties, responsibilities and authority of the Executive as Executive
Vice President of the Company may be expanded, limited or modified, from time
to time, at the discretion of the Board of Directors of the Company (the
"Board") or the Chief Executive Officer of the Company, consistent with the
ordinary duties, responsibilities and authority of such an Executive Vice
President. The precise duties, responsibilities and authority of the Executive
as President of Xxxxxx may be expanded, limited, or modified from time to time,
at the discretion of the Board of Directors of Xxxxxx (the "Xxxxxx Board") or
the Chief Executive Officer of Xxxxxx, consistent with the duties,
responsibilities and authority of a President.
(b) During the Employment Period, the Executive shall render his
services solely in the performance of his duties and responsibilities
hereunder. The Executive agrees that during the Employment Period, he shall
devote his full working time, attention, knowledge and experience and give his
best effort, skill and abilities, exclusively to promote the business and
interests of the Company and its direct or indirect subsidiaries. The Executive
may not serve as an officer or director of, make investments in, or otherwise
participate in, any other entity without the prior written approval of the
Board; provided, that the foregoing shall not be deemed to prohibit the
Executive from acquiring, directly or indirectly, solely as an investment, not
more than two percent (2%) of any class of securities of any entity that are
registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934,
as amended (the "1934 Act") or investments in non-public entities pursuant to
Section 8 of this Agreement and the policies and procedures generally
applicable to executives of the Company and its direct or indirect
subsidiaries; and provided further, that so long as it does not interfere with
the Executive's
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employment, the Executive may serve as an officer, director or otherwise
participate in purely educational, welfare, social, religious and civic
organizations.
(c) Subject to the conditions set forth in this Section 1(c)(1),
during the Employment Period, Executive shall be assigned as the trader
responsible for servicing certain accounts in the business areas specified as
shall be agreed upon from time to time in writing by the Executive and the
Company("Assigned Accounts").
(1) The Company retains the right to reassign any of the
Assigned Accounts to someone other than the Executive under any one of the
following circumstances:
(i) Executive fails to obtain or maintain in good standing any
registration, license or other authorization or approval with
all appropriate regulatory authorities, including maintaining
or taking and passing all necessary federal or state
registration examinations, compliance with applicable
continuing education requirements, and compliance in all
material respects with the rules of applicable
self-regulatory organizations (including without limitation
the New York Stock Exchange and the National Association of
Securities Dealers Regulation, Inc. (the "NASDR")) and the
Securities and Exchange Commission ("SEC");
(ii) an Assigned Account requests that the Assigned Account be
reassigned to someone other than Executive or requests that
Executive be removed from covering the Assigned Account; or
(iii) the level of commission revenues of an Assigned Account is
not commensurate with the prior level of commission revenues
generated by such Assigned Account given prevailing market
conditions.
(2) In the event that an Assigned Account is reassigned to
someone other than Executive pursuant to Section 1(c)(1), such Assigned Account
shall not constitute a Client Account for purposes of determining the Bonus
Formula payable to Executive under Section 3(b) or any payment due Executive
under Section 4(d)(2).
2. Employment Term. The Executive's employment under this Agreement
shall have a term commencing January 1, 1999 and ending on December 31, 2001
(the "Employment Term"), unless sooner terminated in accordance with the
provisions of Section 4 (the "Employment Period").
3. Compensation and Benefits. The Executive shall be entitled to the
following compensation and benefits, in each case subject to applicable
statutory withholdings and applicable deductions:
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(a) Base Compensation. The Executive shall be paid an aggregate
base salary (the "Base Salary") at the rate of $400,000 per annum. The Base
Salary shall be payable in a manner consistent with the normal payroll
practices of the Company in effect from time to time. The Board, in its sole
discretion, or at the recommendation of the Compensation and Stock Option
Committee of Xxxxxx Group Inc. (the "Compensation Committee"), may increase
(but not decrease) the Base Salary, at any time.
(b) Annual Bonus. In addition to the Base Salary, the Executive
shall be entitled to receive an annual bonus for each fiscal year of the
Company that ends during the Employment Period equal to 30% of the amount of
Net Pre-Tax Profits (as defined in Section 3(b)(1) herein) for such fiscal year
(the "Bonus Formula"). In addition, Executive shall be entitled to a minimum
bonus award for each fiscal year of the Employment Period of $150,000 (the
"Minimum Bonus Award"). The Minimum Bonus Award and the Bonus Formula are
collectively referred to herein as the "Bonus Award". To the extent necessary
to avoid the limitation on the federal tax deductibility of the Bonus Award for
any year under Section 162(m) of the Internal Revenue Code of 1986, as amended
(the "Code"), payment thereof may, at the sole discretion of the Company, be
deferred to the first taxable year of the Company in which the payment would be
fully deductible. Except as provided in the preceding sentence, the Bonus Award
for a fiscal year shall be payable as soon as practicable after the release of
the Company's audited financial statements for such fiscal year, but in no
event later than 90 days after the end of the fiscal year. In the case of a
deferral as described above, amounts deferred shall be credited with such
interest and on such other terms as the Company and the Executive shall
mutually agree.
(1) "Net Pre-Tax Profits" shall mean the amount, if any,
determined in accordance with Generally Accepted Accounting Principles (GAAP)
consistently applied from year to year, by which the total gross equity
commission revenues and underwriting designation revenues generated by client
brokerage accounts which Executive is responsible for servicing, including the
Assigned Accounts (collectively, "Client Accounts"), exceed all expenses
incurred in generating such commissions, servicing those Client Accounts and in
the operation and conduct of the Executive's business. Such expenses include,
but are not limited to: the Base Salary paid to Executive, including related
payroll taxes; the Minimum Bonus Award payable to Executive; insurance and
other benefits relating to Executive, including any profit-sharing
contributions made on behalf of Executive and any benefits provided pursuant to
Section 3(c); the cost of research and other services provided to Client
Accounts; telephones; market data and quotation equipment and services;
electronic and other office equipment; business travel and entertainment;
clearance and settlement costs on transactions executed for Client Accounts,
determined in accordance with the Company's practices; registration fees and
expenses; and exchange and association membership dues and subscriptions.
(c) Benefits. Executive also shall be entitled to participate in
the employee and fringe benefit and group insurance programs provided by the
Company for its officers and employees generally and in accordance with the
terms of the applicable plan documents as they may be revised from time to
time. Executive shall be entitled to receive such other benefits as are
generally provided to executives of the Company and its direct or indirect
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subsidiaries. The Executive shall also be entitled to reimbursement for
reasonable out-of-pocket expenses incurred in connection with the business of
the Company in accordance with the Company's policies and procedures. In
addition, upon the request of Executive, the Company shall pay the premiums on
certain life insurance policies identified by the Executive up to an annual
maximum of $200,000. The cost of such premiums shall be deducted from any Bonus
Award due to Executive pursuant to Section 3(b).
(d) On January 4, 1999 (the "Grant Date"), the Compensation
Committee shall grant Executive a non-qualified option to purchase 50,000
shares of the Company's common stock, par value $0.01 per share ("Common
Stock"), under the Company's 1996 Long-Term Stock Incentive Plan (the "1996
Plan") at an exercise price per share equal to one hundred percent (100%) of
the Fair Market Value (as defined in the 1996 Plan) of a share of the Common
Stock on the Grant Date. Subject to Section 3(d)(1) herein, the Option shall
become vested and exercisable with respect to 16,667 shares of Common Stock on
each of the first two anniversaries of the Grant Date and with resepct to
16,666 shares of common stock on the third anniversary of the Grant Date. The
term of the Option shall be ten years.
(1) Upon termination of Executive's employment for any reason
(except termination for Cause) (i) any portion of the Option that is not vested
shall immediately terminate, and (ii) that portion of the Option which has
vested at the time of such termination of employment shall remain exercisable
thereafter for a period of three months, or if such termination is by reason of
Death or Disability, for a period of one year. If Executive's employment is
terminated for Cause, the Option (both the vested and unvested portions)
immediately shall terminate. In no event may the Option, or any portion
thereof, be exercised more than ten years after the Grant Date.
4. Termination.
(a) The Company may, with or without prior notice, terminate the
Employment Period with or without Cause, or upon Executive's Disability.
Executive may terminate the Employment Period only for Good Reason. This
Agreement shall automatically terminate upon the Executive's death. The
Employment Period shall also terminate upon expiration of the Employment Term.
Except as provided in Sections 4(b), 4(c) and 4(d), in the event that the
Employment Period is terminated, the Executive's rights and the obligations of
the Company hereunder shall cease as of the effective date of such termination;
provided, however, that the Executive shall be entitled to receive any accrued
but unpaid Base Salary, any earned or deferred but unpaid Bonus Awards and any
amount accrued under Company benefit plans as provided pursuant to the terms of
such plans (the "Accrued Obligations").
(b) In the event that the Employment Period is terminated by reason
of the Executive's Disability, the Executive shall be entitled to receive, in
addition to the Accrued Obligations:
(1) a payment equal to the product of (i) the sum of
Executive's current Base Salary and the Minimum Bonus Award and (ii) the number
of years
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and/or fraction thereof then remaining in the Employment Term, which
amount shall be paid in equal monthly installments over such remaining
Employment Term, provided that such installments shall cease upon any
employment by the Executive on a full-time basis; and
(2) Executive shall participate, and the Company shall continue
contributions on the Executive's behalf, in all Company-sponsored health and
welfare plans on terms no less favorable than as in effect on the date of
termination by reason of Disability, which shall continue until the earlier of:
(A) one year from the date of termination;
(B) the entitlement to coverage of the Executive under
plans provided by a new employer; or
(C) the death of the Executive; or
(D) expiration of the Employment Term.
The cash amounts and benefits set forth in subsections 4(b)(1) and 4(b)(2) are
collectively referred to herein as "Disability Benefits."
(c) In the event that the Employment Period terminates by reason of
Executive's death, in addition to the Accrued Obligations, the Company shall
pay to the Executive's estate or designated beneficiaries within ninety (90)
days of such termination, a lump sum equal to (i) the Minimum Bonus Award, plus
(ii) the amount of any Bonus Formula (without regard to any deferral), for the
fiscal year ending immediately prior to such termination, such sum multiplied
by a fraction, the numerator of which shall be the number of days elapsed in
the fiscal year to the date of such termination and the denominator of which
shall be 365 ("Death Benefit"); provided that there shall be deducted from any
such Death Benefit the amount of any Bonus Award previously paid to the
Executive with respect to such period and the cost of any life insurance
premiums paid during such period pursuant to Section 3(c) hereof.
(d) In the event that the Company terminates the Employment Period
other than for Cause, or if the Executive terminates the Employment Period for
Good Reason, the Executive shall be entitled to receive, in addition to the
Accrued Obligations, the following payments ("Termination Payments"):
(1) a payment equal to the greater of (i) five hundred thousand
dollars ($500,000), or (ii) five hundred thousand dollars ($500,000) multiplied
by the number of years and/or fraction thereof then remaining in the Employment
Term; and
(2) a payment equal to (i) thirty percent (30%) of the Net
Pre-Tax Profits for the period beginning January 1 of the year in which such
termination occurs and ending on the date of such termination, plus (ii) the
Minimum Bonus Award multiplied by a
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fraction, the numerator of which shall be the number of days elapsed in the
fiscal year to the date of such termination and the denominator of which shall
be 365.
(3) The Company shall pay Executive the Termination Payments in
a lump sum within thirty (30) days of termination of the Employment Period
other than for Cause or for Good Reason; provided, however, that there shall be
deducted from such Termination Payments the amount of any bonus previously paid
to the Executive with respect to the period and the cost of any life insurance
premiums paid during such period pursuant to Section 3(c) herein.
(4) In the event of the Executive's death after the Employment
Period is terminated other than for Cause or for Good Reason, the Company shall
make any Termination Payments which would otherwise have been payable to the
Executive if he had lived under this Section 4(d) to Executive's estate or
designated beneficiary.
(e) All amounts payable pursuant to this Section 4 shall be subject
to applicable statutory withholdings and applicable deductions.
(f) A termination of the Executive's employment (i) upon expiration
of the Employment Term, or (ii) by reason of the Executive's Death or
Disability, shall not constitute a termination without Cause, a termination for
Cause or a termination for Good Reason under this Agreement.
(g) As a condition to his entitlement to receive Death or
Disability Benefits or Termination Payments, the Executive (or his estate or
designated beneficiary) shall (i) have executed and delivered to the Company a
waiver and release reasonably satisfactory to the Company waiving and releasing
all rights and claims against the Company (other than the right to receive
Death or Disability Benefits or Termination Payments) and its direct or
indirect subsidiaries and their respective officers, agents, directors and
employees, and such waiver and release shall have become irrevocable, and (ii)
comply with Sections 5 through 9.
(h) In the event that the Employment Period is terminated for any
reason (except by death), the Executive agrees that if at that time he is a
director or officer of the Company or any of its direct or indirect
subsidiaries, he will immediately deliver his written resignation as such
director or officer, such resignation to become effective immediately.
(i) Notwithstanding anything contained herein to the contrary, the
Company may reduce the Termination Payments to the extent such Termination
Payments, when added to other payments made to the Executive (including the
vesting of stock options), constitute an "excess parachute payment" as defined
in Section 280G of the Code.
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(j) For purposes of this Agreement:
(1) "Cause" shall mean an event where the Executive: (i)
commits any act of fraud, willful misconduct or dishonesty in connection with
his employment or which materially injures the Company or its direct or
indirect subsidiaries; (ii) breaches Section 8 or 9, or any other material
provision of this Agreement or any material representation, warranty, covenant
or condition in this Agreement or any material fiduciary duty to the Company or
any of its direct or indirect subsidiaries; (iii) fails, refuses or neglects to
timely perform any material duty or obligation under this Agreement and such
failure, refusal or neglect is not cured by the Executive within thirty (30)
days from the date the Company notifies the Executive thereof or, if such
default is curable but cannot reasonably be cured within thirty (30) days,
Executive fails to commence curing such default within such thirty (30) days
and fails to diligently pursue such cure, but in no event shall the total cure
period under this subsection 4(j)(1)(iii) exceed forty-five (45) days from the
date of notification; (iv) commits a material violation of any material law,
rule, regulation or by-law of any governmental authority (state, federal or
foreign), any securities exchange or association or other regulatory or
self-regulatory body or agency applicable to the Company or its direct or
indirect subsidiaries or any general policy or directive of the Company or its
direct or indirect subsidiaries communicated in writing to the Executive; (v)
is charged with a crime involving dishonesty, fraud or unethical business
conduct, or a felony; (vi) knowingly gives or accepts undisclosed commissions
or other payments in cash or in kind in connection with the affairs of the
Company or any of its direct or indirect subsidiaries or their respective
clients; (vii) is expelled or suspended in excess of eight weeks, or is subject
to an order temporarily (for a period in excess of eight weeks) or permanently
enjoining the Executive from the securities, investment management or
investment banking business or from acting in the capacity contemplated by this
Agreement by the SEC, the NASDR, any national securities exchange or any
self-regulatory agency or governmental authority, state, foreign or federal; or
(viii) fails to obtain or maintain any registration, license or other
authorization or approval that the Company or its direct or indirect
subsidiaries in their discretion reasonably believe is required for the
Executive to perform his duties and responsibilities hereunder after having
received notice form the Company of the need to obtain such registration,
license or other authorization or approval and such failure is not cured by
Executive within thirty (30) days from the date the Company notifies Executive
thereof. Any termination for Cause under this Agreement shall be made by
delivering written notice thereof to Executive, which notice shall include the
specific reason(s) that has given rise to a termination for Cause.
(2) "Disability" shall mean the Executive's inability to
perform his duties and responsibilities by reason of mental or physical
disability for at least one hundred and twenty (120) consecutive days or any
one hundred and twenty (120) days (whether or not consecutive) in any
one-hundred eighty (180) consecutive day period. In the event of a dispute as
to whether the Executive is Disabled within the meaning hereof, either party
may from time to time request a medical examination of the Executive by a
doctor appointed by the Chief of Staff of a hospital selected by mutual
agreement of the parties, or as the parties may otherwise agree, or, failing
agreement, a hospital selected in good faith by the Board of Directors of the
Company. The written medical opinion of such doctor shall be conclusive and
binding upon the parties as to
8
whether the Executive has become disabled and the date when such disability
arose. The cost of any such medical examination shall be borne by the Company.
(3) "Good Reason" shall mean (i) the Company changes the
Executive's status, title or position as Executive Vice President of the
Company and/or President of Xxxxxx and such change represents a material change
or alteration in such status, title or position conferred hereunder; (ii) the
Company requires Executive to be based at an office located more than fifty
(50) miles from Rye Brook, New York; or (iii) the Company materially breaches
this Agreement, and such change or breach is not cured by the Company within
thirty (30) days from the date the Executive delivers a Notice of Termination
for Good Reason. Such "Notice of Termination for Good Reason" shall include the
specific section of this Agreement which is relied upon and the reasons that
the Company's act or failure to act has given rise to a termination for Good
Reason.
5. Trade Secrets. The Executive recognizes that it is in the
legitimate business interest of the Company and its direct and indirect
subsidiaries to restrict his disclosure or use of Trade Secrets and
Confidential Information relating to the Company and its direct or indirect
subsidiaries for any purpose other than in connection with his performance of
his duties and responsibilities to the Company and its direct or indirect
subsidiaries, and to limit any potential appropriation of such Trade Secrets
and Confidential Information by the Executive. The Executive therefore agrees
that all Trade Secrets and Confidential Information relating to the Company and
its direct or indirect subsidiaries heretofore or in the future obtained by the
Executive shall be considered confidential and the proprietary information of
the Company and its direct or indirect subsidiaries. During the Employment
Period, the Executive shall not use or disclose, or authorize any other person
or entity to use or disclose, any Trade Secrets and Confidential Information,
other than as necessary to further the business objectives of the Company and
its direct or indirect subsidiaries in accordance with the terms of his
employment hereunder. The term "Trade Secrets and Confidential Information"
includes, by way of example and without limitation, matters of a technical
nature, "know-how", formulas, secret processes, works of authorship, computer
programs (including without limitation documentation of such programs),
services, materials, patent applications, new product plans, other plans,
technical information, technical improvements, test data, progress reports and
research projects, and matters of a business nature, such as business plans,
prospects, financial information, marketing plans and strategies, proprietary
information about costs, profits, markets and sales, lists of customers and
suppliers of the Company and its direct or indirect subsidiaries, procurement
and promotional information, credit and financial data concerning customers or
suppliers of the Company and its direct or indirect subsidiaries, information
relating to the management, operation and planning of the Company and its
direct and indirect subsidiaries, plans for future development, and other
information of a similar nature to the extent not available to the public.
After termination of the Employment Period for any reason, the Executive shall
not knowingly use or disclose Trade Secrets and Confidential Information.
6. Return of Documents and Property. Upon the termination of the
Employment Period, or at any time upon the request of the Company, the
Executive (or his heirs or personal representatives) shall deliver to the
Company (a) all documents and materials
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(including, without limitation, computer files) containing Trade Secrets and
Confidential Information relating to the business and affairs of the Company or
its direct and indirect subsidiaries, and (b) all documents, materials and
other property (including, without limitation, computer files) belonging to the
Company or its direct or indirect subsidiaries, which in either case are in the
possession or under the control of the Executive (or his heirs or personal
representatives).
7. Discoveries and Work. All Discoveries and Works made or conceived
by the Executive during his employment by the Company, whether during the
Employment Period or prior thereto, jointly or with others, that relate to the
present or anticipated activities of the Company or its direct or indirect
subsidiaries, or are used or usable by the Company or its direct or indirect
subsidiaries, shall be owned by the Company or its direct or indirect
subsidiaries. The term "Discoveries and Works" includes, by way of example but
without limitation, Trade Secrets and Confidential Information, patents and
patent applications, trademarks and trademark registrations and applications,
service marks and service xxxx registrations and applications, trade names,
copyrights and copyright registrations and applications. The Executive shall
(a) promptly notify, make full disclosure to, and execute and deliver any
documents requested by, the Company, as the case may be, to evidence or better
assure title to Discoveries and Works in the Company or its direct or indirect
subsidiaries, (b) renounce any and all claims, including but not limited to
claims of ownership and royalty, with respect to all Discoveries and Works and
all other property owned or licensed by the Company or its direct or indirect
subsidiaries, (c) assist the Company or its direct or indirect subsidiaries in
obtaining or maintaining for itself at its own expense United States and
foreign patents, copyrights, trade secret protection or other protection of any
and all Discoveries and Works, and (d) promptly execute, whether during the
Employment Period or thereafter at the Company's expense, all applications or
other endorsements necessary or appropriate to maintain patents and other
rights for the Company or its direct or indirect subsidiaries and to protect
the title of the Company or its direct or indirect subsidiaries thereto,
including but not limited to assignments of such patents and other rights. Any
Discoveries and Works which, within six months after the termination of the
Employment Period, are made, disclosed, reduced to a tangible or written form
or description, or are reduced to practice by the Executive and which pertain
to the business carried on or products or services being sold or developed by
the Company or its direct or indirect subsidiaries at the time of such
termination shall, as between the Executive and, the Company, be rebuttably
presumed to have been made during the Executive's employment by the Company.
The Executive acknowledges that all Discoveries and Works shall be deemed
"works made for hire" under the Copyright Act of 1976, as amended, 17 U.S.C.
ss.101.
8. Non-Competition. From and after the date hereof, the Executive will
not, except pursuant to the terms hereof, directly or indirectly, own, manage,
operate, join, finance, control or participate in the ownership, management,
operation, financing or control of, or be employed or be otherwise connected in
any manner with, any business under a name similar to the name of the Company
or any direct or indirect subsidiary thereof. During the Non-competition
Period, the Executive will not (except as an officer, director, employee, agent
or consultant of the Company or its direct or indirect subsidiaries) directly
or indirectly, own, manage, operate, join, or have a financial interest in,
control or participate in the ownership,
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management, operation, financing or control of, or be employed as an employee,
agent or consultant, or in any other individual or representative capacity
whatsoever, or use or permit his name to be used in connection with, or be
otherwise connected in any manner with (i) any business or enterprise engaged
(wherever located) in the design, development, manufacture, distribution or
sale of any products, or the provision of any services, which the Company or
its direct or indirect subsidiaries were designing, developing, manufacturing,
distributing, selling or providing at any time during the one year immediately
preceding the termination of the Employment Period or (ii) any business which
is similar to or competitive with the business carried on or planned by the
Company or its direct or indirect subsidiaries at any time during the one year
immediately preceding the termination of the Employment Period, unless the
Executive shall have obtained the prior written consent of the Board, provided
that the foregoing restriction shall not be construed to prohibit the ownership
by the Executive of not more than two percent (2%) of any class of securities
of any corporation which is engaged in any of the foregoing businesses, having
a class of securities registered pursuant to Sections 12(b) or 12(g) of the
1934 Act, which securities are publicly owned and regularly traded on any
national exchange or in the over-the-counter market, provided further, that
such ownership represents a passive investment and that neither the Executive
nor any group of persons including the Executive in any way, either directly or
indirectly, manages or exercises control of any such corporation, guarantees
any of its financial obligations, otherwise takes part in its business other
than exercising his rights as a stockholder, or seeks to do any of the
foregoing. For purposes of this Agreement, the Noncompetition Period shall mean
(i) the Employment Period, and (ii) the lesser of one year following
termination of the Employment Period or the remaining term of the Employment
Term if Executive's employment is terminated by the Company for Cause or by the
Executive for other than Good Reason. Notwithstanding anything hereinabove
contained to the contrary, Executive shall be relieved of the provisions of
this Section 8 and Section 9 solely upon expiration of the Employment Term or
in the event of termination of the Employment Period by the Executive for Good
Reason.
9. Non-Solicitation.
(a) During the Noncompetition Period, the Executive agrees that he
shall not, directly or indirectly, whether for his own account or for the
account of any other individual or entity, solicit or canvas the trade,
business or patronage of, or sell any products or services which are the same
as or similar to those designed, developed, manufactured, distributed or sold
by the Company or its direct or indirect subsidiaries to, any individuals or
entities that were either customers of the Company or any of its direct or
indirect subsidiaries during the twelve months immediately preceding the
termination of the Employment Period, or prospective customers with respect to
whom a sales effort, presentation or proposal was made by the Company or any of
its direct or indirect subsidiaries during the twelve months immediately
preceding such termination. Upon the written request of Executive following
termination of the Employment Period, the Company shall provide Executive with
a list of customers and prospective customers subject to this Section 9.
(b) The Executive further agrees that, during the Noncompetition
Period, he shall not, directly or indirectly, (i) solicit, induce, enter into
any
11
agreement with, or attempt to influence any individual who was an employee or
consultant of the Company or any of its direct or indirect subsidiaries at any
time during the time the Executive was employed by the Company, to terminate
his or her employment relationship with the Company or any of its direct or
indirect subsidiaries or to become employed by the Executive or any individual
or entity by which Executive is employed or (ii) interfere in any other way
with the employment, or other relationship, of any employee or consultant of
the Company or any of its direct or indirect subsidiaries.
10. Enforcement. (a) The Executive agrees that the remedies at law for
any breach or threat of breach by him of any of the provisions of Sections 5
through 9 will be inadequate, and that, in addition to any other remedy to
which the Company may be entitled at law or in equity, the Company shall be
entitled to seek a temporary or permanent injunction or injunctions or
temporary restraining order or orders to prevent breaches of any of the
provisions of Sections 5 through 9 and to enforce specifically the terms and
provisions thereof, in each case without the need to post any security or bond.
Nothing herein contained shall be construed as prohibiting the Company from
pursuing, in addition, any other remedies available to the Company for such
breach or threatened breach. A waiver by the Company of any breach of any
provision hereof shall not operate or be construed as a waiver of a breach of
any other provision of this Agreement or of any subsequent breach by the
Executive.
(b) It is expressly understood and agreed that if a final judicial
determination is made by a court having jurisdiction that the time or territory
or any other restriction contained in such Sections 5 through 9 is an
unenforceable restriction on the Executive's activities, the provisions of such
Sections 5 through 9 shall not be rendered void but shall be deemed amended to
apply as to such maximum time and territory and to such other extent as such
court may judicially determine or indicate to be reasonable. Alternatively, if
the court referred to above finds that any restriction contained in such
Sections 5 through 9 herein is unenforceable, and such restriction cannot be
amended so as to make it enforceable, such finding shall not affect the
enforceability of any of the other restrictions contained therein. The
provisions of Sections 5 through 9 shall in no respect limit or otherwise
affect the Executive's obligations under other agreements with the Company.
11. Executive's Representations. The Executive represents and warrants
to the Company that (a) he is able to perform fully his duties and
responsibilities contemplated by this Agreement and (b) there are no
restrictions, covenants, agreements or limitations of any kind on his right or
ability to enter into and fully perform the terms of this Agreement.
12. Key Man Life Insurance. During the Employment Period, the Company
may at any time apply for insurance on the Executive's life and/or health in
such amounts and in such form as the Company may in its sole discretion decide.
The Executive shall not have any interest in such insurance, but shall, if the
Company requests, submit to such medical examinations, supply such information
and execute such documents as may be required in connection with, or so as to
enable the Company to effect, such insurance. The Company's inability to obtain
insurance on the Executive's life and/or health shall not constitute a breach
of
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this Agreement; provided Executive has submitted to medical examinations,
supplied information, executed documents and otherwise cooperated with the
Company in its efforts to obtain such insurance.
13. Assignment. The rights and obligations of the parties under this
Agreement shall not be assignable by either the Company or the Executive,
provided that this Agreement is assignable by the Company to any affiliate of
the Company, to any successor in interest to the business of any of the Company
or Xxxxxx, or to a purchaser of all or substantially all of the assets of the
Company or Xxxxxx.
14. Notices. Any notice required or permitted under this Agreement
shall be in writing and shall be deemed to have been effectively made or given
upon receipt if personally delivered, on the third business day after having
been mailed properly addressed in a sealed envelope, postage prepaid by
certified or registered mail, or on the first business day after having been
delivered by a reputable overnight delivery service. Unless otherwise changed
by notice, notice shall be properly addressed to the Executive if addressed to:
Xxx X. Xxxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and properly addressed to the Company if addressed to:
Xxxxxx Group Inc.
0 Xxxxxxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: General Counsel
15. Severability. Wherever there is any conflict between any provision
of this Agreement and any statute, law, regulation or judicial precedent, the
latter shall prevail, but in such event the provisions of this Agreement thus
affected shall be curtailed and limited only to the extent necessary to bring
them within the requirements of the law.
16. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
17. Effect of Termination. Any termination of the Employment Period
shall not terminate any provisions of this Agreement except as expressly
provided herein.
18. Governing Law and Consent to Jurisdiction. This Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of New York without giving effect to principles of conflicts of law.
Notwithstanding and superceding any prior agreement to which Executive and/or
the Company or Xxxxxx is a party that might otherwise require arbitration or
non-judicial litigation of the claims described in this Section 18,
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each of the parties hereto expressly submits to and consents to the
jurisdiction and venue of the courts of the State of New York within the
counties of New York and Westchester and the United States District Court for
the Southern District of New York in connection with any claim or controversy
between them arising out of or relating to this Agreement or Executive's
employment by the Company or Xxxxxx on the condition that, with respect to any
federal litigation, the jurisdictional requirements are met with respect to
such controversy for litigation in federal court. Each of the parties hereto
agrees that service of process may be effected by personal delivery, overnight
courier or registered mail, postage prepaid, to the respective addresses listed
in Section 14 hereof.
19. Complete Agreement. Other than the Employment Agreement between
the parties dated November 25, 1996 which expires on December 31, 1998, this
Agreement constitutes the entire agreement, and supersedes all prior
agreements, of the parties hereto relating to the subject matter hereof, and
there are no written or oral terms or representations made by either party
other than those contained herein.
IN WITNESS WHEREOF, the parties have executed this Employment
Agreement on this day and year first above written.
XXXXXX GROUP INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-----------------------------
Title: Chief Executive Officer
--------------------------
/s/ Xxx X. Xxxxxx
-----------------------------
Xxx X. Xxxxxx
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