XXXXXXX PARTNERS , INC.
EMPLOYMENT AGREEMENT
BY THIS AGREEMENT, made this 19th day of July, 1996, XXXXXXX
PARTNERS, INC., an Illinois corporation ("Company") and D. Xxxx
Xxxxxxx ("Employee"), in consideration of mutual benefits set
forth herein, hereby agree as follows:
1. Employment. The Company hereby employs the Employee
and the Employee hereby accepts employment upon the terms and
conditions hereinafter set forth.
2. Term. Subject to the provisions for the termination as
hereafter provided, the term of this Agreement shall begin on the
date hereof and shall terminate on December 31, 1997.
Thereafter, this Agreement shall be automatically renewed for
successive one-year terms unless either party notifies the other
of non-renewal at least 30 days prior to the expiration of the
then current term. The compensation and other benefits provided
for herein shall be subject to annual review and adjustment where
appropriate by the Company's Board of Directors.
3. Compensation. For all services rendered by the
Employee under this Agreement, the Company shall compensate the
Employee by paying the Employee the sum of the following:
(i) $135,000 per year payable in equal installments in
accordance with the Company's normal payroll policies (called
"Regular Compensation");
(ii) Such bonus, if any, for each calendar quarter as is
specified by the Board of Directors of Company for each quarter
during which Employee's employment continues (called "Profit
Bonus"), based on the Company's performance relative to budget
for the quarter, together with any other factors the Board of
Directors deems appropriate, such bonus normally not to exceed
thity-three percent (33%) of the Employee's Regular Compensation
for the applicable quarter.
In the event of certain early terminations of this Agreement
as provided hereafter, compensation payable to the Employee shall
(unless otherwise stated) be limited to amounts Fully Accrued.
The term "Fully Accrued" means (a) as to Regular Compensation,
the percentage of a year's Regular Compensation as shall equal
the percentage of the year which has expired on the termination
date, and (b) as to Profit Bonus, only that Profit Bonus which
has been awarded by the Company's Board of Directors.
4. Duties. The Employee is engaged as President and Chief
Operating Officer. The precise services of the Employee may be
extended or curtailed, from time to time, at the direction of the
Company. The Employee also shall perform such corporate
development services for the Company's parent corporation and
affiliates as the Company's Board of Directors may specify from
time to time, without additional compensation.
5. Extent of Services. The Employee shall devote the
Employee's entire time, attention and energy to the business of
the Company, and shall not, during the term of this Agreement,
engage in any other business activity whether or not such
business activity is pursued for gain, profit or other pecuniary
advantage; but this shall not be construed as preventing the
Employee from investing Employee's assets in such form or manner
as will not require services on the part of Employee in the
operation of the affairs of the Company to which investments are
made.
6. Expenses. The Employee is authorized to incur
reasonable expenses for promoting the business of the Company,
including expenses for travel and similar items. The Company
will reimburse the Employee for all such expenses upon
presentation by the Employee, from time to time, of an itemized
account of such expenditures in accordance with the Company's
expense reimbursement policies. Additionally, the Company's
existing practice of reimbursing the full cost of all cellular
phone bills associated with the main cellular phone used for
business will be continued for Employee. Also, Employee will be
provided with a full size company car ("Company Car") for which
all costs in operating such Company Car, including insurance,
repairs, maintenance, gasoline, any taxes thereon, and other
necessary operating costs, will continue to be borne by Xxxxxxx
after closing.
7. Fringe Benefits. The Employee shall enjoy the same
fringe benefits (other than stock options) as provided generally
to other senior executives of Company, including health, life and
disability insurance. The Company will maintain such health,
life and disability insurance with benefits at a minimum
consistent with the existing Company health, life and disability
insurance. Furthermore, the Company will continue offering the
benefit of a deferred compensation arrangement, commonly referred
to as a "401(K) Plan" whose contributions and benefits structure
will at a minimum be consistent with the existing Xxxxxxx
Partners, Inc. Retirement Savings Plan.
8. Vacation. The Employee shall be entitled each year to
10 holidays, 10 vacation days and 10 personal days, during which
time the Employee's compensation shall be paid in full.
9. Disability. If the Employee is unable to perform his
services by reason of illness or incapacity, the Company will
continue to pay Employee's compensation (until such time as
Employee begins to receive payments under the disability
insurance maintained by Company as to Employee), at which time
compensation from the Company shall cease; provided, however,
that compensation shall not be paid by the Company beyond the
existing term of this Agreement.
10. Termination.
(i) Without Cause. Without cause, the Company may
terminate this Agreement at any time upon 30 days' written notice
to the Employee. In such event, the Employee shall continue to
receive Regular Compensation throughout the original or any one
year renewal term as more fully explained in Section 2 of this
Agreement, which shall not be less than two (2) years of such
Regular Compensation, unless taking place during the original
term of this agreement in which case it shall be three (3) years
of such Regular Compensation, but shall be entitled to Profit
Bonus only to the extent Fully Accrued on the date of
termination.
(ii) With Cause. The Company may terminate the
employment of the Employee hereunder immediately upon written
notice thereof in the event of material fraud or dishonesty by
the Employee in connection with his employment or if the Employee
is convicted of a felony. In such event, the Company shall pay
the Employee only such compensation as shall have Fully Accrued
on the date of termination.
(iii) Termination by Employee. The Employee may
terminate this Agreement at any time upon 30 days' prior written
notice to the Company. In such event, the Employee shall be
entitled to receive his or her compensation only to the extent
Fully Accrued on the date of termination.
11. Death During Employment. If the Employee dies during
the term of this Employment Agreement, the Company shall pay to
the estate of the Employee the compensation which would be Fully
Accrued as of the end of the calendar month in which his death
occurs , and Employee's surviving spouse shall continue to
receive such Regular Compensation throughout the original term or
any one year renewal term as more fully explained in Section 2 of
this Agreement, which shall not be less than two (2) years of
such Regular Compensation ("Extended Compensation"), unless
taking place during the original term of this agreement in which
case it shall be three (3) years of such Regular Compensation,
but shall be entitled to Profit Bonus only to the extent Fully
Accrued on the date of death. Under no circumstances will
Extended Compensation be paid beyond December 31, 2000.
12. Non-Disclosure.
Employee hereby agrees with Company that Employee will keep
confidential any and all confidential information of the Company,
including Company's know-how, trade secrets, customer lists, and
other information, data and proprietary information relating to
Company's business (herein called "Proprietary Information") and
will not at any time, without prior written consent of Company,
disclose or make known or allow to be disclosed or made known
such Proprietary Information to any person, firm, corporation, or
other business entity other than Company and persons or entities
designed by the Company. This provision shall survive the
termination of this Agreement.
13. Notices. Any notice required or permitted to be
given under this Agreement shall be sufficient if in writing, and
sent by certified mail or hand delivery to the Employee's
residence in the Employee, or to the principal office in case of
the Company.
14,. Waiver of Breach. The waiving by the Company of a
breach of any provision in this Agreement by the Employee shall
not operate or be construed as a waiver of any subsequent breach
by the Employee.
15. Assignment. The rights and obligation of the Company
under this Agreement shall inure to and be binding upon the
successors and assigns of the Company.
16. Entire Agreement. This instrument contains the entire
agreement of the parties. It may not be changed or altered
except by an Agreement in writing signed by the party against
whom enforcement of any waiver, change, modification, extension
or discharge is sought.
17. Attorney's Fees. In the event of any litigation or
arbitration proceeding arising out of this Agreement, the
prevailing party shall be entitled to reasonable attorney's fees
and expenses from the losing party, whether incurred before suit
is brought, before or at trial or the arbitration proceeding, on
appeal or in insolvency proceedings.
18. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State
of Illinois, exclusive of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
Xxxxxxx Partners, Inc.
("Company")
Employee
Xxxxxx X. Xxxxxxx,
Secretary and Vice
President
D. Xxxx Xxxxxxx
