EXHIBIT 10.6
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EMPLOYMENT AGREEMENT
This Employment Agreement ("AGREEMENT") dated as of June 26, 2004, is
entered into by and among Deerfield & Company LLC, an Illinois limited liability
company ("D&C"), Deerfield Capital Management LLC, a Delaware limited liability
company and wholly owned subsidiary of D&C ("DEERFIELD"), and Xxxxxxx X. Xxxxx
("EMPLOYEE"), and shall become effective as of (and subject to) the consummation
of the transactions (collectively, the "TRANSACTION") contemplated by the
Purchase Agreement, dated as of the date hereof, by and among Triarc Companies,
Inc., Sachs Capital Management LLC, Deerfield Partners Fund II LLC, Xxxxx X.
Xxxxxxx, Xxxxxx Xxxxxx, Employee and any other parties named therein (the
"PURCHASE AGREEMENT") (the date of the consummation of the Transaction being
referred to herein as the "EFFECTIVE DATE").
W I T N E S S E T H
WHEREAS, Deerfield and D&C (together, the "DEERFIELD COMPANIES") desire
to continue to employ Employee on and following the consummation of the
Transaction and to have the benefit of Employee's services, and Employee
similarly desires to continue to be employed by the Deerfield Companies, in each
case pursuant to the terms and conditions hereof; and
WHEREAS, the Deerfield Companies wish to assure that their respective
"Confidential Information" (as defined herein), which Employee obtains as a
result of Employee's status as Chairman of the Board of Directors and an
employee of the Deerfield Companies, will remain confidential and that the
Deerfield Companies' business interests will be protected.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other valuable consideration, the sufficiency of which is hereby
acknowledged, IT IS AGREED AS FOLLOWS:
1. EMPLOYMENT. Deerfield hereby continues to retain Employee as
Chairman of the Board of Directors of Deerfield during the Term and employ
Employee as Chief Executive Officer of Deerfield. In addition, during the Term,
Employee shall continue to serve as Chairman of the Board of Directors of D&C
(the "BOARD") and as Chief Executive Officer of D&C. Employee hereby agrees to
continue such service during the Term and agrees to perform the duties and
responsibilities hereunder in accordance with and subject to the terms and
conditions hereinafter set forth.
(a) TERM. The term of Employee's service under this
Agreement shall commence on the Effective Date and conclude on the day
preceding the fifth anniversary of the Effective Date, unless sooner
terminated according to Section 3 (the "TERM").
(b) DUTIES AND RESPONSIBILITIES. During the Term,
Employee shall serve as Chairman and Chief Executive Officer of the
Deerfield Companies, and shall devote such of his business time to the
Deerfield
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Companies as shall be necessary to perform his duties hereunder.
Employee shall be the senior most executive officer of the Deerfield
Companies and shall have responsibility for the day-to-day oversight
and management of the operations and activities of the Deerfield
Companies and their consolidated subsidiaries, subject to the terms of
the D&C LLC Agreement and the direction of the Board, and such other
powers, duties and responsibilities commensurate with the position of
Chairman and Chief Executive Officer of the Deerfield Companies as may
from time to time be assigned by the Board. Employee shall maintain all
regulatory licenses and registrations necessary for the performance of
Employee's duties hereunder. Employee shall have direct reporting
responsibility to the Board and shall be available during normal
business hours and at such times as may otherwise be reasonably
required. Employee shall not be required to report to any other person
other than members of the Board in their capacity as Board members.
Employee shall also serve without any additional compensation as an
officer and/or director of any direct or indirect subsidiary of D&C or
Deerfield, as the Board in its discretion may reasonably require.
Employee shall not be obligated to provide these services at any
location other than the location where Employee was employed
immediately preceding the Effective Date or any office which is the
headquarters of the Deerfield Companies and is within fifty (50) miles
of the metropolitan Chicago, Illinois area.
(c) OUTSIDE ACTIVITIES. Except as expressly provided in
this Agreement or the D&C LLC Agreement, during the Term, Employee
shall not engage or otherwise be involved in any other business, trade
or profession that creates a conflict with the interests of the
Deerfield Companies or any controlled Affiliate of the Deerfield
Companies, or that otherwise conflicts with Employee's ability to
perform Employee's duties and responsibilities hereunder; PROVIDED that
nothing shall preclude Employee from (i) serving on civic,
professional, educational, philanthropic or charitable boards or
committees or (ii) managing Employee's personal and family investments,
in either case so long as such activities do not significantly
interfere with the performance of Employee's duties and
responsibilities hereunder.
2. COMPENSATION AND BENEFITS.
(a) BASE SALARY. During the Term, Employee shall receive
a base salary of no less than $1,000,000 per year (the "BASE SALARY"),
payable in accordance with the payroll practices of Deerfield as in
effect from time to time.
(b) BONUS.
(i) Employee's bonus with respect to the D&C
2004 fiscal year shall be determined in the sole discretion of the
Board.
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(ii) Commencing with D&C's 2005 fiscal year,
Employee shall receive a bonus ("ANNUAL BONUS") in respect of each full
D&C fiscal year of the Term equal to 8% of the first $8,000,000 of
"EBITDA" (as defined below).
(iii) In addition, commencing with D&C's 2005
fiscal year, Employee shall receive an additional bonus ("ADDITIONAL
BONUS") in respect of each full D&C fiscal year of the Term equal to 8%
of EBITDA (as defined below) in excess of $8,000,000; PROVIDED,
HOWEVER, that to the extent that Section 162(m) of the Internal Revenue
Code of 1986, as amended (the "CODE"), may be applicable, such
Additional Bonus shall be subject to, and contingent upon, such
shareholder approval as is necessary to cause the Additional Bonus to
qualify as "performance-based compensation" under Section 162(m) of the
Code and the regulations promulgated thereunder (the "162(M)
APPROVAL"). To the extent necessary for determining administration and
procedures for providing such Additional Bonus, such Additional Bonus
shall be provided in accordance with the administrative and procedural
terms and conditions of the Triarc Companies, Inc. 1999 Executive Bonus
Plan.
(iv) Employee's total bonus under Sections
2(b)(ii) and 2(b)(iii) for each fiscal year during the Term shall in no
event be greater than $5,000,000.
(v) For purposes of this Agreement, "EBITDA"
shall mean the aggregate consolidated net income of the Deerfield
Companies and their subsidiaries for the applicable fiscal year of D&C
(or portion thereof) determined in accordance with United States
generally accepted accounting principles as in effect from time to time
applied on a basis consistent with the past practice of D&C plus
(without duplication and only to the extent such amount was deducted in
calculating such consolidated net income) the following items for D&C
and its subsidiaries on a consolidated basis: (A) interest expense, (B)
income taxes, (C) depreciation expense and (D) amortization expense.
(vi) Any such bonus described in this Section
2(b) shall be payable within seventy-five (75) days after the end of
the fiscal year of D&C and its consolidated subsidiaries to which such
bonus relates.
(c) BUSINESS EXPENSE REIMBURSEMENT. Upon submission to
the Board of appropriate documentation and receipts, Employee shall be
promptly reimbursed for Employee's reasonable and appropriate business
expenses, including reasonable travel, lodging and entertainment
expenses, within thirty (30) days of the date on which the expense was
submitted.
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(d) BENEFITS. Employee will be entitled to participate in
the benefit plans, practices, policies and programs sponsored or
maintained by Deerfield or D&C that are made available to other senior
executives of Deerfield or D&C, as the case may be, including without
limitation, medical, dental, life, long-term disability and retirement
plans as may be in effect from time to time. The benefits to be
provided to Employee pursuant to this Section 2(d) shall be at least
comparable in the aggregate to those benefits provided to Employee set
forth on EXHIBIT A attached hereto, subject to any changes to such
benefits that are applicable to all other senior executives of
Deerfield or D&C, as applicable.
(e) AUTOMOBILE. During the Term, Employee shall be
entitled to the use of an automobile, at Deerfield's expense,
reasonably acceptable to Employee or, in lieu of such an automobile, an
automobile allowance of up to $900.00 per month. For the avoidance of
doubt, the parties agree that the Lincoln Navigator leased by Deerfield
for Employee at the time of the Effective Date satisfies Employee's
entitlement pursuant to this Section 2(e).
(f) OTHER TRANSPORTATION.
(i) Employee shall be entitled to use a private
aircraft, including the "Aircraft" (as defined below) or any comparable
aircraft when the Aircraft is unavailable (the "SUBSTITUTE AIRCRAFT"),
for all worldwide travel that is primarily for a purpose related to
Employee's duties under this Agreement ("BUSINESS TRAVEL"). During the
Term, Employee or an Affiliate of Employee (or, in the case of a
Substitute Aircraft, a third party) shall be entitled to reimbursement
by Deerfield for (A) $4,000 per hour for actual flying time by Employee
for Business Travel on the Falcon 900 aircraft owned or leased by an
Affiliate of Employee (the "AIRCRAFT"), (B) out-of-pocket costs
(excluding any such costs described in clause (C) or (D) below) in an
amount of up to $4,000 per hour incurred for actual flying time by
Employee for Business Travel on a Substitute Aircraft, subject to the
receipt by the Board of appropriate documentation and receipts with
respect to such costs and flying time, (C) the reasonable cost incurred
by Employee or any Affiliate of Employee for any food consumed on board
the Aircraft or a Substitute Aircraft, as the case may be, during
Business Travel, subject to the receipt by the Board of appropriate
documentation and receipts with respect to such costs and (D) the
reasonable costs incurred by Employee or such Affiliate for any
overnight meals and lodging for the crew members of the Aircraft or a
Substitute Aircraft, as the case may be, incurred during Business
Travel, subject to the receipt by the Board of appropriate
documentation and receipts with respect to such meals and lodging.
(ii) In the event that Employee or an Affiliate
of Employee, as applicable, purchases or leases a private aircraft that
is
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comparable to, and intended to permanently replace, the Aircraft,
Deerfield shall continue the reimbursement arrangement for the Aircraft
described in clause (i) above with respect to such replacement
aircraft. In the event that Employee or an Affiliate of Employee, as
applicable, purchases or leases a private aircraft that is intended to
permanently replace the Aircraft, but is not comparable to the
Aircraft, Deerfield and Employee shall negotiate in good faith to
determine the appropriate hourly reimbursement rate for actual flying
time on such replacement aircraft, which rate shall consider the
average of the hourly rates of the three nationally recognized private
aircraft charter companies selected by Deerfield and Employee;
PROVIDED, HOWEVER, that in no event shall such hourly reimbursement
rate exceed $4,000.
(g) VACATION. During the Term, Employee shall be entitled
to six (6) weeks per year of paid vacation.
(h) ASSISTANCE. During the Term, Employee will be
entitled to substantially the same office and level of secretarial and
administrative support that Employee received immediately prior to the
Effective Date. In addition, during the Term, Employee shall be
entitled to the services of a driver; PROVIDED that Employee shall
reimburse Deerfield monthly in arrears for 50% of the cost of such
driver's salary, bonus and benefits, which shall be provided by
Deerfield.
(i) DEDUCTIONS. All salary and other payments and
allowances outlined in this Agreement are subject to such withholding
and deductions as may be required by law, as determined by Deerfield in
its sole discretion.
3. TERMINATION.
(a) TERMINATION BY DEERFIELD WITHOUT CAUSE; TERMINATION
BY EMPLOYEE FOR GOOD REASON.
(i) Employee's employment may be terminated by
the Deerfield Companies at any time without Cause (other than by reason
of Employee's death or Disability) following the delivery of a Notice
of Termination to Employee. In addition, Employee's employment
hereunder may be terminated by Employee for Good Reason following the
delivery of a Notice of Termination to the Board as provided herein.
(ii) If Employee's employment is terminated by
the Deerfield Companies without Cause (other than by reason of
Employee's death or Disability) or by Employee for Good Reason, the
Deerfield Companies shall pay Employee, in a lump sum in cash (A)
within ten (10) days after the date of the Notice of Termination, any
earned but unpaid Base Salary through the date of termination, (B) upon
the later of (x) ten
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(10) days following the date of the Notice of Termination or (y) ten
(10) days following the Board's receipt of the audited financials for
the fiscal year preceding the fiscal year in which the termination
occurs, any earned but unpaid bonus for any fiscal year preceding the
fiscal year in which the termination occurs and (C) within ten (10)
days after the date of the Notice of Termination, the lesser of (x)
$3,000,000 and (y) the Base Salary Employee would have received had
Employee remained employed with the Deerfield Companies from the date
of termination until the fifth anniversary of the Effective Date (the
"SEVERANCE BENEFIT"); PROVIDED, HOWEVER, that, solely in the event of a
termination pursuant to Section 3(a)(iii)(D) below, the Severance
Benefit shall be equal to the lesser of (x) $1,500,000 and (y) the Base
Salary Employee would have received had Employee remained employed with
the Deerfield Companies from the date of termination until the fifth
anniversary of the Effective Date. In addition, the Deerfield Companies
shall pay Employee a pro rata bonus within seventy-five (75) days after
the last day of the month in which such termination occurs, in an
amount equal to the lesser of (a) 8% of the actual EBITDA from the
first day of the D&C fiscal year in which such termination occurs
through the last day of the month in which such termination occurs and
(b) the product of (I) multiplied by (II), where (I) equals $5,000,000
and (II) equals a fraction, the numerator of which is the number of
days in the fiscal year through and including the date of such
termination and the denominator of which is 365 (the "PRO RATA BONUS").
Except as set forth in this Section 3(a)(ii), following such
termination Employee shall have no further rights to any compensation
(including any Base Salary or bonus) under this Agreement. All
benefits, if any, due Employee following a termination pursuant to this
Section 3(a) shall be determined in accordance with the plans, policies
and practices of Deerfield; PROVIDED, HOWEVER, that Employee shall not
participate in any severance plan, policy or program of the Deerfield
Companies.
(iii) For purposes of this Agreement, "GOOD
REASON" shall mean the occurrence of any of the following events: (A)
the willful material breach by Deerfield or D&C of any covenant or
agreement contained in this Agreement; (B) over the written objection
of Employee, any requirement of Deerfield or D&C that Employee be based
anywhere more than fifty (50) miles outside of the metropolitan
Chicago, Illinois area; (C) the assignment of any duties inconsistent
in any material and adverse respect with the duties and
responsibilities of Employee contemplated by Section 1(b) of this
Agreement and Employee's status as Chairman and Chief Executive Officer
of the Deerfield Companies; (D) the delivery by Employee of a "Put
Right Notice" (as defined in the D&C LLC Agreement) with respect to
100% of the "Membership Interests" (as defined in the D&C LLC
Agreement) held by the "Sachs Affiliated Parties" (as defined in the
D&C LLC Agreement) pursuant to Sections 9.11(e)(ii), 9.11(e)(iii)(B),
or 9.11(e)(iv) of the D&C LLC Agreement; (E) a Material Company
Operating Agreement Breach Event (as defined in the
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D&C LLC Agreement); or (F) the 162(m) Approval is not acquired at or
before the 2005 Annual Meeting of Shareholders of Triarc.
Notwithstanding the foregoing, "Good Reason" shall not exist with
respect to the matters set forth in clauses (A), (B) or (C) above if,
after written notice from Employee to the Board specifying the
circumstances giving rise to Good Reason under such clause, Deerfield,
D&C or Triarc, as the case may be, shall have cured the circumstances
giving rise to Good Reason to the reasonable satisfaction of Employee
within ten (10) business days after such notice. For purposes of this
Section, a good faith determination made by Employee that Good Reason
for termination has occurred and has not been adequately cured shall be
conclusive and binding.
(iv) In addition, effective upon the delivery by
Triarc of a "Call Option Notice" (as defined in the D&C LLC Agreement)
with respect to 100% of the Membership Interests held by the Sachs
Affiliated Parties pursuant to (A) Section 9.10(c)(iv) of the D&C LLC
Agreement, in which case Employee shall be deemed to have terminated
Employee's employment hereunder for "Good Reason" or (b) Section
9.10(c)(ii)(C) of the D&C LLC Agreement, in which case the Deerfield
Companies shall be deemed to have terminated Employee's employment
hereunder without Cause.
(b) TERMINATION FOR CAUSE.
(i) Employee's employment may be terminated by
the Deerfield Companies at any time for Cause following delivery of a
Notice of Termination to Employee.
(ii) For purposes of this Agreement, "CAUSE"
shall mean: (A) the willful material breach by Employee of any covenant
or agreement contained in this Agreement; (B) the willful and continued
failure of Employee to perform one or more of his material duties as
Chief Executive Officer of the Deerfield Companies (other than as a
result of death or Disability) where such failure has caused
substantial harm to the Deerfield Companies and their subsidiaries
(considered as a whole); (C) the occurrence of a Material Sachs
Operating Agreement Breach Event (as defined in the D&C LLC Agreement);
(D) Employee's conviction by a court of competent jurisdiction of (or
pleading guilty or no contest to) a felony (or similar equivalent crime
under the laws of a non-U.S. jurisdiction); (E) the willful violation
(other than as a result of death or Disability) of any written policy,
practice or procedure of Deerfield, D&C or Triarc applicable to
Employee or of any applicable laws with respect to Deerfield's, D&C's
or Triarc's business operations, which violation has had a material
adverse effect on the Deerfield Companies and their subsidiaries
(considered as a whole) or Triarc; (F) any willful failure to comply
with Deerfield's, D&C's or Triarc's written policies regarding
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xxxxxxx xxxxxxx; or (G) engaging in fraud, embezzlement or gross
misconduct in the course of Employee's employment hereunder which, in
the case of gross misconduct, results in substantial damage to the
Deerfield Companies and their subsidiaries (considered as a whole) or
Triarc; PROVIDED, HOWEVER, that the commission of any act or omission
described in clauses (A), (B) or (E) that is capable of being cured
shall not constitute Cause hereunder unless and until Deerfield or D&C
shall have provided written notice thereof to Employee specifying in
detail the manner in which the Board believes grounds for Cause exist
and Employee shall have failed promptly (but in any event within ten
(10) business days) thereafter to cure such act or omission to the
reasonable satisfaction of the Board; PROVIDED FURTHER that the Board
must notify Employee of any event constituting Cause within ninety (90)
days following the date on which a Triarc Director (as defined in the
D&C LLC Agreement) has actual knowledge of its existence or such event
shall not constitute Cause under this Agreement. For purposes of this
Agreement, no act or failure to act by Employee shall be considered
"willful" unless done or omitted to be done by Employee in bad faith
and without reasonable belief that Employee's action or omission was in
the best interests of the Deerfield Companies and their subsidiaries
(considered as a whole) or Triarc. Any act, or failure to act, based on
authority given pursuant to a resolution duly adopted by the Board or
based upon the advice of counsel for the Deerfield Companies or Triarc
shall be conclusively presumed to be done, or omitted by be done, by
Employee in good faith and in the best interests of the Deerfield
Companies or Triarc, as the case may be.
(iii) In the event Employee's employment is
terminated pursuant to this Section 3(b), the Deerfield Companies shall
pay Employee, in a lump sum (A) within ten (10) days after the date of
the Notice of Termination, any earned but unpaid Base Salary through
the date of termination, (B) upon the later of (x) ten (10) days
following the date of the Notice of Termination or (y) ten (10) days
following the Board's receipt of the audited financials for the fiscal
year preceding the fiscal year in which the termination occurs, any
earned but unpaid bonus for any fiscal year preceding the fiscal year
in which the termination occurs. Following such termination, Employee
shall have no further rights to any compensation (including any Base
Salary or bonus) under this Agreement. All benefits, if any, due
Employee following a termination pursuant to this Section 3(b) shall be
determined in accordance with the plans, policies and practices of the
Deerfield Companies; PROVIDED, HOWEVER, that Employee shall not
participate in any severance plan, policy or program of the Deerfield
Companies.
(c) TERMINATION DUE TO DEATH OR DISABILITY. Employee's
employment shall terminate immediately upon Employee's death or,
following delivery of a Notice of Termination by Deerfield to Employee,
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due to Employee's Disability. In the event Employee's employment is
terminated pursuant to this Section 3(c), the Deerfield Companies shall
pay Employee (or Employee's estate, as the case may be) in a lump sum
in cash (i) within ten (10) days after the date of the Notice of
Termination, any earned but unpaid Base Salary through the date of
termination, (ii) upon the later of (A) ten (10) days following the
date of the Notice of Termination or (B) ten (10) days following the
Board's receipt of the audited financials for the fiscal year preceding
the fiscal year in which the termination occurs, any earned but unpaid
bonus for any fiscal year preceding the fiscal year in which the
termination occurs and (iii) within ten (10) days after the date of the
Notice of Termination, the Base Salary Employee would have received had
Employee remained employed with the Deerfield Companies from the date
of termination until the first to occur of (x) the first anniversary of
the date of such termination or (y) the fifth anniversary of the
Effective Date, which Base Salary amount shall be reduced by all
amounts Employee is entitled to receive under Deerfield's long term
disability policy during the period specified in (x) or (y), as
applicable. In addition, the Deerfield Companies shall pay Employee (or
Employee's estate, as the case may be) in a lump sum in cash within
seventy-five (75) days after the last day of the month in which the
date of termination occurs, the Pro Rata Bonus. Following such
termination, Employee (or Employee's estate, as the case may be) shall
have no further rights to any compensation (including any Base Salary
or bonus) under this Agreement. All benefits, if any, due Employee (or
Employee's estate, as the case may be) following a termination pursuant
to this Section 3(c) shall be determined in accordance with the plans,
policies and practices of the Deerfield Companies; PROVIDED, HOWEVER,
that Employee (or Employee's estate, as the case may be) shall not
participate in any severance plan, policy or program of the Deerfield
Companies. For the avoidance of doubt, Employee or Employee's estate or
designee, as the case may be, will be entitled to the proceeds from any
life insurance or disability insurance policy maintained by the
Deerfield Companies as to which Employee or Employee's designee or
estate is a beneficiary. For purposes of this Agreement, "DISABILITY"
shall mean: Employee's physical or mental incapacity as a result of
which Employee is unable for a period of one hundred eighty (180) days
during any three hundred sixty-five (365) day period to perform
Employee's duties with substantially the same level of quality as
immediately prior to such incapacity.
(d) TERMINATION BY EMPLOYEE WITHOUT GOOD REASON.
(i) Employee's employment hereunder may be
terminated by Employee without Good Reason following delivery of a
Notice of Termination at least five (5) business days prior to the date
of such termination, and Employee shall be deemed to have been
terminated hereunder for "Cause" pursuant to Section 3(b).
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(ii) Employee's employment hereunder shall be
deemed to be terminated by Employee without Good Reason upon the
delivery by Employee of a Put Right Notice with respect to 100% of the
Membership Interests held by the Sachs Affiliated Parties pursuant to
Section 9.11(e)(iii)(C) of the D&C LLC Agreement, and Employee shall be
entitled to the benefits described under Section 3(b)(iii) hereof.
(e) NOTICE OF TERMINATION. Any termination of Employee's
employment by the Deerfield Companies (other than the immediate and
automatic termination of Employee's employment upon Employee's death)
shall be communicated by a written Notice of Termination to Employee
or, in the case of a termination by Employee for Good Reason, to the
Board, delivered in accordance with Section 8(m). For purposes of this
Agreement, a "NOTICE OF TERMINATION" shall mean a notice that indicates
the specific termination provision in this Agreement relied upon and
the date of termination, as determined by the Board or, in the case of
a termination by Employee for Good Reason, the circumstances alleged to
give rise to Good Reason and the date of termination, which date shall
be at least five (5) business days following the date on which Employee
gives the Notice of Termination to the Board.
(f) OBLIGATIONS FOLLOWING NOTICE. If Employee's
employment is terminated, Employee shall, prior to the effective date
of such termination or as may otherwise be agreed by Deerfield and
Employee: (i) meet with Employee's supervisors as requested by
Deerfield for the purpose of winding up any pending work and providing
an orderly transfer of the duties, accounts, customers and/or clients
for which Employee has been responsible, identifying key Confidential
Information likely to be in Employee's possession, and discussing
Employee's future plans for employment in light of Employee's
obligations under this Agreement and the D&C LLC Agreement; (ii)
promptly deliver to Deerfield all property belonging to Deerfield and
any of its Corporate Affiliates, including any and all Confidential
Information, equipment (including, without limitation, any cell phones,
computers, printers, fax machines, pagers, Personal Digital Assistants,
Bloomberg terminals or Travellers and Reuters terminals), automobiles
and other property of Deerfield or any of its Affiliates that may be in
Employee's possession or under Employee's control, whether at
Deerfield's offices, Employee's home or elsewhere, including all such
papers, work papers, notes, documents and equipment in the possession
of Employee or Employee's counsel and any copies or duplicates thereof,
and all originals and copies of papers, notes and documents (in any
medium, including computer disks) prepared, received or obtained by
Employee or Employee's counsel during the course of Employee's
employment with the Deerfield Companies; and (iii) tender his
resignation as a director and as Chairman of the Board of D&C, as a
director and Chairman of the Board of Directors of Deerfield, as an
officer or director of any Affiliate of the Deerfield Companies or
Triarc
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and as an officer or director of Triarc, as the case may be, in each
case, effective as of the date of termination.
4. DEFINITIONS. As used in this Agreement, the following terms
shall have the following meanings:
(a) "162(M) APPROVAl" shall have the meaning set forth in
Section 2(b)(iii).
(b) "ADDITIONAL BONUS" shall have the meaning set forth
in Section 2(b)(iii).
(c) "AFFILIATE" shall mean, with respect to any Person,
any other Person that directly or indirectly controls, is controlled
by, or is under common control with that first Person. For purposes of
this definition, "control" of a Person shall mean the power, direct or
indirect, to direct or cause the direction of the management and
policies of such Person, whether through the ownership of Voting Stock,
by contract, or otherwise. When referencing an "Affiliate" of Deerfield
or D&C in this Agreement, the parties specifically acknowledge that
such term includes Triarc and its Corporate Affiliates and shall
include any Corporate Affiliate that may be organized in the future. A
"CORPORATE AFFILIATE" shall mean any Affiliate that is a corporation,
limited liability company, partnership, limited partnership, trust or
other entity.
(d) "AIRCRAFT" shall have the meaning set forth in
Section 2(f)(i).
(e) "ANNUAL BONUS" shall have the meaning set forth in
Section 2(b)(ii).
(f) "BASE SALARY" shall have the meaning set forth in
Section 2(a).
(g) "BOARD" shall have the meaning set forth in Section
1.
(h) "BUSINESS TRAVEL" shall have the meaning set forth in
Section 2(f)(i).
(i) "CAUSE" shall have the meaning set forth in Section
3(b)(ii).
(j) "CLIENT" shall mean all Past Clients, Present Clients
and Potential Clients, subject to the following general rules: (i) with
respect to each such Client, the term shall also include any Persons
that, to the Knowledge of Employee, are Affiliates of such Client,
directors, officers or employees of such Client or any such Affiliates
thereof, or Persons who are members of the Immediate Family of any of
the foregoing Persons or Affiliates of any of them; (ii) with respect
to any such Client that is a
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collective investment vehicle (PROVIDED that, for the avoidance of
doubt, a 401(k) retirement plan shall not itself be considered a
"collective investment vehicle"), the term shall also include any
Person who, to the Knowledge of Employee, is an investor or participant
in such Client (PROVIDED that, in the case of any collective investment
vehicle that is a registered investment company, an investor or
participant therein shall not be deemed a "Client" hereunder unless
such investor or participant has in the aggregate at least $500,000
under management by Deerfield, D&C and their respective Affiliates
(whether through investments in registered investment companies or
otherwise)); and (iii) with respect to any such Client that is a trust
or similar entity, the term shall include Persons who, to the Knowledge
of Employee, are the settler and each of the beneficiaries of such
Client and the Affiliates and Immediate Family members of any such
Persons.
(k) "CODE" shall have the meaning set forth in Section
2(b)(iii).
(l) "CONFIDENTIAL INFORMATION" shall mean all proprietary
information or data relating to the business of Deerfield or any of its
Affiliates to which Employee has access and/or learns prior to or
during the Term, including, but not limited to: business and financial
information; new product development; formulas, identities of and
information concerning Clients, vendors and suppliers; development,
expansion and business strategies, plans and techniques; computer
programs, devices, methods, techniques, processes and inventions;
research and development activities; compilations and other materials
developed by or on behalf of Deerfield, D&C or any of their respective
Affiliates (whether in written, graphic, audio-visual, electronic or
other media, including computer software). Confidential Information
also includes information of any third party doing business with
Deerfield or any of its Affiliates that such third party identifies as
being confidential or that is subject to a confidentiality agreement
with such third party. Confidential Information shall not include any
information that is in the public domain or otherwise publicly
available (other than as a result of a wrongful act of Employee,
including a breach of Section 5(b) below), or, to the Knowledge of
Employee, a wrongful act of an agent or other employee of Deerfield or
any of its Affiliates.
(m) "D&C LLC AGREEMENT" shall mean the Fourth Amended and
Restated Operating Agreement of Deerfield & Company LLC dated as of the
date hereof, as amended, supplemented or otherwise modified from time
to time.
(n) "DISABILITY" shall have the meaning set forth in
Section 3(c).
13
(o) "EBITDA" shall have the meaning set forth in Section
2(b)(v).
(p) "GOOD REASON" shall have the meaning set forth in
Section 3(a)(iii).
(q) "IMMEDIATE FAMILY" shall mean, with respect to any
individual: such individual's spouse; the descendants (natural or
adoptive, of the whole or half blood) of such individual or such
individual's spouse; the parents and grandparents (natural or adoptive)
of such individual or such individual's spouse; and the descendants of
the parents (natural or adoptive) of such individual or such
individual's spouse.
(r) "INTELLECTUAL PROPERTY" shall have the meaning set
forth in Section 5(b).
(s) "INVESTMENT MANAGEMENT SERVICES" shall mean any
services (including sub-advisory services) that involve (a) the
management of an investment account or fund (or portions thereof), or a
group of investment accounts or funds, of any Person for compensation
or (b) the rendering of advice with respect to the investment and
reinvestment of assets or funds (or any group of assets or funds) of
any Person for compensation (but excluding the rendering of such advice
to any subsequent employer of Employee that is not in the business of
managing investment accounts or funds or rendering advice to or for the
benefit of third parties with respect to investment or reinvestment of
assets or funds, where such advice is rendered solely for such
employer's own proprietary use and the only compensation received by
Employee is in the form of salary, wages or bonus paid by such
employer), and, in the case of both (a) and (b) performing activities
related or incidental thereto.
(t) "KNOWLEDGE OF EMPLOYEE" shall mean Employee's actual
knowledge and the knowledge Employee reasonably should have possessed
under the circumstances.
(u) "MEMBERS" or "MEMBER" shall mean the Persons (or each
of them) that are holders of Membership Interests from time to time.
(v) "MEMBERSHIP INTERESTS" shall mean the interests in
D&C owned by the Members.
(w) "NOTICE OF TERMINATION" shall have the meaning set
forth in Section 3(e).
(x) "PAST CLIENT" shall mean any Person who, to the
Knowledge of Employee, had been an advisee or investment advisory
customer of, or was otherwise a recipient of Investment Management
Services from, Deerfield, D&C or any of their respective controlled
14
Affiliates at any time during the one (1) year period immediately
preceding the date of termination of Employee's employment, but at such
date is not an advisee or investment advisory customer or client of, or
recipient of Investment Management Services from, Deerfield, D&C or any
of their respective controlled Affiliates.
(y) "PERMITTED TRANSFEREE" shall mean any Person to whom
a Member transfers Membership Interests in compliance with the terms of
the D&C LLC Agreement.
(z) "PERSON" or "PERSONS" means any individual,
corporation, partnership, joint venture, association, joint-stock
company, business trust, limited liability company, trust,
unincorporated organization or government or a political subdivision,
agency or instrumentality thereof or other entity or organization of
any kind.
(aa) "POTENTIAL CLIENT" shall mean any Person to whom
Employee or, to the Knowledge of Employee, Deerfield, D&C or any of
their respective controlled Affiliates, or any owner, part owner,
shareholder, partner, member, director, officer, trustee, employee,
agent or consultant (or Person acting in a similar capacity) of any
such Person (acting on their behalf), has, within the one (1) year
period prior to the date of termination of Employee's employment,
offered (whether by means of a personal meeting or by telephone call,
letter, written proposal or otherwise) to provide Investment Management
Services, but who is not on the date of termination of Employee's
employment an advisee or investment advisory customer of, or otherwise
a recipient of Investment Management Services from, Deerfield, D&C or
any of their respective controlled Affiliates (directly or indirectly).
The preceding sentence is meant to exclude (i) advertising, if any,
through mass media in which the offer, if any, is available to the
general public, such as magazines, newspapers and sponsorships of
public events and (ii) "cold calls" and mass-mailing form letters, in
each case to the extent not directed towards any particular Person and
not resulting in an indication of interest or a request for further
information.
(bb) "PRESENT CLIENT" shall mean, at any particular time,
any Person who, to the Knowledge of Employee, at the time of Employee's
employment or thereafter is an advisee or investment advisory customer
of, or otherwise a recipient of Investment Management Services from,
Deerfield, D&C or any of their respective controlled Affiliates
(directly or indirectly).
(cc) "PROHIBITED COMPETITION ACTIVITY" shall mean any of
the following activities:
15
(i) directly or indirectly, whether as owner,
part owner, partner, shareholder, member, director, officer, trustee,
financing source, employee, agent or consultant (or Person acting in a
similar capacity) for or on behalf of any Person other than Deerfield,
D&C or any of their respective controlled Affiliates: (A) diverting or
taking away any funds or investment accounts with respect to which
Deerfield, D&C or any of their respective controlled Affiliates is
performing Investment Management Services; or (B) soliciting any Person
to divert or take away any such funds or investment accounts, in each
case other than funds of which Employee and/or members of Employee's
Immediate Family are the sole beneficial owners, subject to any
applicable restrictions relating thereto set forth in any agreement to
which Employee or any of Employee's Affiliates is a party; or
(ii) directly or indirectly, whether as owner,
part owner, partner, shareholder, member, director, officer, trustee,
financing source, employee, agent or consultant (or Person acting in a
similar capacity) for or on behalf of any Person other than Deerfield
or any of its Affiliates, performing any Investment Management Services
that are competitive with, are similar to, may be used as substitutes
for or may detract from any services of Deerfield, D&C or any of their
respective controlled Affiliates, whether such services were performed
by Deerfield, D&C or any of their respective controlled Affiliates or
by another Person on behalf of Deerfield, D&C or any of their
respective controlled Affiliates (PROVIDED that if Employee directly
performs Investment Management Services for Employee's own account or a
member of Employee's Immediate Family without a fee or other
remuneration, Employee shall not be considered to have engaged in a
Prohibited Competition Activity solely due to the performance of such
Investment Management Services).
(dd) "PRO RATA BONUS" shall have the meaning set forth in
Section 3(a)(ii).
(ee) "SEVERANCE BENEFIT" shall have the meaning set forth
in Section 3(a)(ii).
(ff) "SUBSTITUTE AIRCRAFT" shall have the meaning set
forth in Section 2(f)(i).
(gg) "TERM" shall have the meaning set forth in Section
1(a).
(hh) "TRIARC" shall mean Triarc Companies, Inc. and any
entity to which it has assigned its rights, interest and obligations
under the Purchase Agreement, together with its successors and assigns.
(ii) "VOTING STOCK" means, with respect to any Person, the
capital stock or other equity or profits interests of any class or kind
16
ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
5. ALL BUSINESS TO BE THE PROPERTY OF DEERFIELD; ASSIGNMENT OF
INTELLECTUAL PROPERTY; CONFIDENTIALITY.
(a) Employee agrees that any and all presently existing
investment advisory businesses of D&C, Deerfield and their respective
controlled Affiliates (including businesses of any of their
predecessors), and all businesses developed by D&C, Deerfield, any of
their respective controlled Affiliates or any predecessor thereto,
including by Employee or any other employee of D&C, Deerfield, any of
their respective controlled Affiliates or any predecessor thereto,
including, without limitation, all investment methodologies, all
investment advisory contracts, fees and fee schedules, commissions,
records, data, client lists, agreements, trade secrets, and any other
incident of any business developed by D&C, Deerfield, any of their
respective controlled Affiliates or any predecessor thereto, or earned
or carried on by Employee for D&C, Deerfield, any of their respective
controlled Affiliates or any predecessor thereto, and all trade names,
service marks and logos under which D&C, Deerfield, any of their
respective controlled Affiliates or any predecessor thereto, do or have
done business, and any combinations or variations thereof and all
related logos, are and shall be the exclusive property of D&C,
Deerfield or such controlled Affiliate, as applicable, for its or their
sole use, and (where applicable) shall be payable directly to D&C,
Deerfield or such controlled Affiliate (as applicable). In addition,
Employee acknowledges and agrees that the investment performance of the
accounts or funds managed by D&C, Deerfield or any of their respective
controlled Affiliates, or any predecessor thereto, was attributable to
the efforts of the team of professionals at D&C, Deerfield, such
controlled Affiliate or such predecessor thereto, and not to the
efforts of any single individual or subset of such team of
professionals, and that therefore, the performance records of the
accounts or funds managed by D&C, Deerfield or any of their respective
controlled Affiliates, or any predecessor thereto, are and shall be the
exclusive property of D&C, Deerfield or such controlled Affiliate, as
applicable (and not of any other Person or Persons), and may not be
used by Employee except in the performance of Employee's obligations
under this Agreement.
(b) Employee acknowledges that, in the course of
performing services hereunder and otherwise (including, without
limitation, for Deerfield's predecessors), Employee has had, and will
from time to time have, access to Confidential Information, including
without limitation, confidential or proprietary investment
methodologies, trade secrets, proprietary or confidential plans, client
identities and information, client lists, service providers, business
operations or techniques, records and data ("INTELLECTUAL PROPERTY")
owned or used in the course of business by D&C,
17
Deerfield or any of their respective Affiliates. Employee agrees always
to keep secret and not ever publish, divulge, furnish, use or make
accessible to anyone (otherwise than in the regular business of D&C,
Deerfield and their respective Affiliates or as required by court order
or by law (after consultation with outside counsel)) any Confidential
Information of D&C, Deerfield or any of their respective Affiliates.
(c) In accordance with Section 3 of the Illinois Employee
Patent Act, Illinois Public Act 83-493, Employee is hereby advised
that, notwithstanding any other provision of this Section 5 to the
contrary, Employee shall not be required to assign to D&C, Deerfield or
any of their respective subsidiaries, any invention, discovery or
improvement conceived or made by Employee for which no equipment,
supplies, facility or Confidential Information of D&C, Deerfield or any
of their respective subsidiaries was used and that was developed
exclusively and entirely on Employee's own time unless such invention,
discovery or improvement (i) relates to the business or the
demonstrably anticipated research or development of D&C, Deerfield or
any of their respective subsidiaries or (ii) results from or relates to
any work performed by Employee for D&C, Deerfield or any of their
respective subsidiaries.
6. NON-COMPETITION AND OTHER COVENANTS.
(a) Employee agrees that during the Term and (i) in the
event of the termination of Employee's employment with the Deerfield
Companies by the Deerfield Companies without Cause or by Employee for
Good Reason, for the period commencing on the date of Employee's
termination hereunder and ending on the first to occur of (x) the third
anniversary of the date of such termination or (y) the seventh
anniversary of the Effective Date, or (ii) in the event of the
termination of Employee's employment with the Deerfield Companies for
any other reason (including, without limitation, a termination due to
the expiration of the Term on the day preceding the fifth anniversary
of the Effective Date), for the period commencing on the date of
Employee's termination hereunder and ending on the seventh anniversary
of the Effective Date, Employee shall not engage in any Prohibited
Competition Activity without the prior written consent of the Board,
which consent may (or may not) be provided at the sole discretion of
the Board.
(b) In addition to, and not in limitation of, the
provisions of Section 6(a), Employee agrees, for the benefit of
Deerfield, D&C and their respective controlled Affiliates, during the
Term and (i) in the event of the termination of Employee's employment
with the Deerfield Companies by the Deerfield Companies without Cause
or by Employee for Good Reason, for the period commencing on the date
of Employee's termination hereunder and ending on the first to occur of
(x) third anniversary of the date of such termination or (y) the
seventh anniversary of the Effective
18
Date, or (ii) in the event of the termination of Employee's employment
with the Deerfield Companies for any other reason (including, without
limitation, a termination due to the expiration of the Term on the day
preceding the fifth anniversary of the Effective Date), for the period
commencing on the date of Employee's termination hereunder and ending
on the seventh anniversary of the Effective Date, Employee shall not,
directly or indirectly, whether as owner, part owner, shareholder,
partner, member, director, officer, trustee, employee, agent or
consultant, or in any other capacity, on behalf of Employee or any
Person other than Deerfield, D&C or their respective Affiliates,
without the prior written consent of the Board, which consent may (or
may not) be provided at the sole discretion of the Board:
(i) provide Investment Management Services to
any Person that is a Client; PROVIDED, HOWEVER, that this clause (i)
shall not be applicable to Clients who are also members of the
Immediate Family of Employee;
(ii) solicit or induce, whether directly or
indirectly, any Person for the purpose of (A) causing any funds (other
than funds of which Employee and/or members of Employee's Immediate
Family are the sole beneficial owners) with respect to which Deerfield,
D&C or their respective controlled Affiliates provides Investment
Management Services to be withdrawn from such management, or (B)
causing any Client not to engage Deerfield, D&C or their respective
controlled Affiliates to provide Investment Management Services for any
additional funds; PROVIDED, HOWEVER, that this clause (ii)(B) shall not
be applicable to Clients who are also members of the Immediate Family
of Employee;
(iii) initiate communication with, whether
directly or indirectly, any Clients in connection with Investment
Management Services; PROVIDED, HOWEVER, that this clause (iii) shall
not be applicable to Clients who are also members of the Immediate
Family of Employee;
(iv) (A) solicit or induce, or attempt to solicit
or induce, directly or indirectly, any employee or agent of, or
consultant to, Deerfield, D&C or their respective controlled Affiliates
to terminate its, his or her relationship therewith, (B) hire or engage
any employee, external researcher or similar agent or consultant, or
former employee, external researcher or similar agent or consultant of
Deerfield, D&C or their respective controlled Affiliates who was
employed by or acted as an external researcher or similar agent or
consultant of Deerfield, D&C or their respective controlled Affiliates
at any time during the eighteen (18) month period preceding such hiring
or engagement of such Person
19
(excluding for all purposes of this sentence, secretaries, drivers and
persons holding other similar positions); or
(v) work in any enterprise, or any division of
an enterprise, the business of which enterprise or division, as the
case may be, primarily involves the provision of Investment Management
Services, with any employee, external researcher or similar agent or
former employee, external researcher or similar agent of Deerfield or
any of its Affiliates who, to the Knowledge of Employee, was employed
by or acted as an agent to Deerfield, D&C or their respective
controlled Affiliates at any time during the eighteen (18) month period
preceding the termination of Employee's employment (excluding for all
purposes of this sentence, secretaries, drivers and persons holding
other similar positions).
Notwithstanding the provisions of Sections 6(a) and 6(b), Employee may
make passive personal investments in an enterprise that is competitive
with Deerfield, D&C or their respective controlled Affiliates, the
shares or other equity interests of which are publicly traded; PROVIDED
that Employee's holdings therein, together with any holdings of
Employee's Affiliates and members of Employee's Immediate Family, are
less than five percent (5%) of the outstanding shares or comparable
interests in such entity.
(c) Employee and the Deerfield Companies agree that the
periods of time and the unlimited geographic area applicable to the
covenants of this Section 6 are reasonable in view of (i) the receipt
by Employee or any of Employee's Affiliates of consideration for the
sale of all or a portion of Employee's or Employee's Affiliates'
ownership interest in D&C (including without limitation the resulting
transfer of goodwill of D&C associated therewith) pursuant to the
Purchase Agreement, (ii) the right of Employee or any of Employee's
Affiliates to receive consideration for the sale of all or a portion of
Employee's or Employee's Affiliate's ownership interest in D&C pursuant
to any put or call provision in the D&C LLC Agreement, (iii) Employee's
receipt of the payments specified in Sections 2 and (if applicable) 3
above, (iv) the geographic scope and nature of the business in which
Deerfield, D&C and their respective controlled Affiliates are engaged
(including Deerfield's predecessors), including the geographic location
of its Clients, (v) Employee's knowledge of Deerfield's, D&C's and
their respective controlled Affiliates' businesses, (vi) Employee's
relationships with Deerfield's, D&C's and their respective controlled
Affiliates' investment advisory clients and (vii) Employee's continued
employment with the Deerfield Companies and Employee's receipt of other
payments and benefits pursuant to this Agreement. However, if such
period or such area nonetheless should be adjudged unreasonable in any
judicial proceeding, then the period of time shall be reduced by such
number of months or such area shall be reduced by elimination of such
portion of such area, or both,
20
as are deemed unreasonable, so that this covenant may be enforced in
such maximum area and during such maximum period of time as are
adjudged to be reasonable.
(d) NONDISPARAGEMENT.
(i) Employee agrees (on behalf of Employee and
Employee's Affiliates) not to make any communication to any third party
(including, by way of example and not of limitation, any Client or
employee of Deerfield or any of its Affiliates) at any time that would
disparage, create a negative impression of or in any way be harmful to
the business or business reputation of Deerfield or any of its
Affiliates or their respective successors and assigns, and the then
current and former officers, directors, shareholders, partners,
members, employees, agents and consultants (or Person acting in a
similar capacity) of each of the foregoing, other than truthful
statements as required by law.
(ii) The Deerfield Companies agree (on behalf of
Deerfield and its Affiliates, including, without limitation, Triarc) to
instruct the members of the board of directors and the senior officers
of Deerfield and each of its Affiliates not to make any communication
to any third party (including, by way of example and not of limitation,
any Client) at any time that would disparage, create a negative
impression of, or in any way be harmful to Employee, other than
truthful statements as required by law.
7. REMEDIES UPON BREACH. Employee agrees that any breach of any
of the covenants contained in this Agreement by Employee could cause irreparable
damage to Deerfield and its Affiliates, and that Deerfield and/or any of its
Affiliates (or the successors or assigns of any of them) shall have the right to
specific performance and/or an injunction or other equitable relief (in addition
to other legal remedies) to enforce or prevent any violation of Employee's
obligations hereunder. Nothing in this Agreement shall be construed as limiting
Deerfield's, any of its Affiliates' or their successors' or assigns' protections
and remedies under any applicable statute or common law cause of action.
8. MISCELLANEOUS.
(a) SEVERABILITY. Whenever possible, each section,
portion and provision of this Agreement will be interpreted in such
manner as to be effective and valid under applicable law. If any
section, portion or provision of this Agreement, however, is held to be
invalid, illegal or unenforceable in any respect under any applicable
law or rule in any jurisdiction, and a court of competent jurisdiction
or an arbitrator cannot modify such section, portion or provision or
enforce the modified section, portion or provision, such invalidity,
illegality or unenforceability will not affect any other section,
portion or provision, but this Agreement will be
21
reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable section, portion or provision had
never been contained herein.
(b) GOVERNING LAW; JURISDICTION AND VENUE; JURY TRIAL
WAIVER. Notwithstanding principles of conflicts of law of any
jurisdiction to the contrary, all terms and provisions of this
Agreement are to be construed and governed by the internal laws of the
State of Illinois. Any and all proceedings relating to this Agreement
shall be maintained in either the courts of the State of Illinois or
the federal District Courts sitting in Xxxx County, Illinois or the
courts of the state of New York or the federal District Courts sitting
in Manhattan, New York; PROVIDED, HOWEVER, that any and all proceedings
relating to Section 4, Section 5, Section 6, and, solely as it relates
to Section 4, Section 5 or Section 6, Section 7 hereof may be brought
by Deerfield in any court of competent jurisdiction, and Employee
hereby agrees to submit to the personal jurisdiction of any such courts
and not to argue that such courts are FORUM NON CONVENIENS. THE PARTIES
EXPRESSLY AND KNOWINGLY WAIVE ANY RIGHT TO A JURY TRIAL IN THE EVENT
ANY ACTION ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT IS
LITIGATED OR HEARD IN ANY COURT.
(c) POST-TERMINATION COVENANT. Following the termination
of Employee's employment for any reason, Employee agrees to cooperate,
at the sole expense of the Deerfield Companies, with all reasonable
requests by D&C, Deerfield and any of their respective controlled
Affiliates at reasonable times and places with respect to any
litigation, administrative proceedings or investigation relating to the
activities of D&C, Deerfield or any of their respective controlled
Affiliates during the period of Employee's employment with the
Deerfield Companies including, without limitation, being available for
depositions and to be a witness at any trial or proceedings, assisting
in preparation of any legal documentation and providing affidavits and
any advice or support that D&C, Deerfield or any of their respective
controlled Affiliates may reasonably request of Employee in connection
with such litigation, proceeding or investigation; PROVIDED that such
cooperation shall not unreasonably interfere with Executive's
subsequent employment.
(d) DISPUTE RESOLUTION. Except to the extent contemplated
by Section 8(b) of this Agreement, all disputes arising in connection
with Employee's employment hereunder or any rights arising pursuant to
this Agreement shall first be settled through discussions and good
faith negotiation. If any dispute cannot be settled through such
discussions and negotiation, the parties agree to attempt in good faith
to settle such dispute by non-binding mediation, before resorting to
litigation. The parties agree to evenly split the costs for such
mediation and to keep the dispute confidential during the mediation
process. The parties shall mutually
22
agree upon a mediator and, in the event the parties cannot so agree, a
mediator will be selected by, and the mediation shall be administered
by, JAMS (or any successor thereto). Any such dispute that has not been
resolved within thirty (30) days of the initiation of the mediation
procedure may be thereafter litigated. Oral and written communications
between the parties in connection with such mediation proceedings may
not be used as evidence in any subsequent litigation between the
parties. The mediation proceedings will occur in Xxxx County, Illinois
or Manhattan, New York, as determined by JAMS (or any successor
thereto). The language of the mediation shall be in English.
(e) EMPLOYEE'S REPRESENTATIONS AND WARRANTIES.
(i) Employee represents and warrants that,
except as may be provided by law, Employee is not covered by any
employment agreement, covenant-not-to-compete, confidentiality
agreement or any other contractual or other obligation that would
preclude Employee from entering into this Agreement or performing
Employee's obligations under this Agreement.
(ii) Employee represents and warrants that
Employee has had an opportunity to be represented by legal counsel in
connection with this Agreement and has in fact been represented by
legal counsel.
(f) EFFECT OF WAIVER OR CONSENT. A waiver or consent,
express or implied, of or to any breach or default by any party in the
performance by such party of such party's obligations to any other
party under this Agreement is not a waiver or consent of or to any
other breach or default in the performance by such party of the same or
any other obligations of such party with respect to such other party.
No failure or delay on the part of any party hereto in the exercise of
any right hereunder shall impair such right or be construed to be a
waiver of, or acquiescence in, any breach of any representation,
warranty or agreement herein, nor shall any single or partial exercise
of any such right preclude any other or further exercise thereof or of
any other right.
(g) ENTIRE AGREEMENT. This Agreement, together with the
Purchase Agreement, the D&C LLC Agreement and the "Purchaser Commitment
Letter" (as defined in the Purchase Agreement), constitute the entire
agreement between the parties as of the Effective Date and supersedes
all previous agreements and understandings between the parties with
respect to the subject matter hereof and thereof.
(h) FURTHER ASSURANCES. The parties hereto agree to
execute and deliver to each other such other documents and to do such
other acts and things that the other party may reasonably request for
the purpose of
23
carrying out the intent of this Agreement and the documents referred to
in this Agreement.
(i) TERMINATION OF AGREEMENT; SURVIVAL. This Agreement
shall automatically terminate upon a termination of Employee's
employment pursuant to the Section 3 or due to the expiration of the
Term on the fifth anniversary of the Effective Date. Notwithstanding
the foregoing, Sections 3, 4, 5, 6, 7 and 8 shall survive and continue
in full force and effect in accordance with their terms following the
termination of Employee's employment for any reason.
(j) THIRD PARTY BENEFICIARIES; ASSIGNABILITY. Triarc
shall be a third-party beneficiary with respect to Sections 4, 5, 6 and
7 of this Agreement. This Agreement and all of the provisions hereof
shall inure to the benefit of the Deerfield Companies and to any
successor of all or substantially all of the business or assets of the
Deerfield Companies. This Agreement shall inure to the benefit of and
be binding upon Employee's heirs, executives, administrators and legal
personal representatives, but Employee may not assign Employee's rights
or obligations hereunder without the prior written consent of the
Deerfield Companies.
(k) EFFECTIVENESS OF THIS AGREEMENT. Notwithstanding
anything to the contrary herein, this Agreement shall not become
effective until the Effective Date, I.E., if and only if the
Transaction is consummated. If the Purchase Agreement is terminated in
accordance with its terms, or if the Transaction is not otherwise
consummated, then this Agreement shall be of no force or effect.
(l) CAPTIONS. The captions used in this Agreement are for
convenience of reference only and do not constitute a part of this
Agreement and will not be deemed to limit, characterize or in any way
affect any provision of this Agreement, and all provisions of this
Agreement will be enforced and construed as if no captions had been
used in this Agreement.
(m) NOTICES. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be
deemed given upon receipt, and may be given by personal delivery,
certified mail (return receipt requested), facsimile or nationally
recognized overnight courier service.
If to Employee:
Xxxxxxx X. Xxxxx
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
24
If to Deerfield:
Deerfield Capital Management LLC
0000 Xxxx Xxxx Xxxx Xxx., 00 Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Fax No.: (000) 000-0000
with a copy to:
Triarc Companies, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Fax No.: (000) 000-0000
If to D&C:
Deerfield & Company LLC
0000 Xxxx Xxxx Xxxx Xxx., 00 Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Fax No.: (000) 000-0000
with a copy to:
Triarc Companies, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Fax No.: (000) 000-0000
25
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
EMPLOYEE DEERFIELD CAPITAL MANAGEMENT LLC
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx Xxxxxx
-------------------------------- --------------------------------
Xxxxxxx X. Xxxxx Name: Xxxxxx Xxxxxx
Title: Chief Financial Officer
and Manager
DEERFIELD AND COMPANY LLC
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: Secretary & Treasurer
and Director
