EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated November 26, 1996 (this
"Agreement"), by and between Xxxxxx Group Inc., a Delaware corporation (the
"Company"), and Xxx X. Xxxxxx (the "Executive").
WHEREAS, the Company desires 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 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 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 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 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 employment, the Executive may serve as an officer, director or
otherwise participate in purely educational, welfare, social, religious and
civic organizations.
2. Employment Period. This Agreement shall have a term
commencing January 1, 1997 and ending on December 31, 1998 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:
(a) Base Compensation. The Executive shall be paid
an aggregate base salary (the "Base Salary") 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 15% 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. 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
commission revenues generated by client brokerage accounts for which Executive
is responsible for servicing ("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; telephones; tickers and quotes;
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; and exchange and
association membership dues and subscriptions.
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(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
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. The
Company shall continue to pay lease payments on the automobile provided to the
Executive as of the date hereof for the remainder of the lease term. The
Executive shall maintain adequate contemporaneous records concerning the use
of the automobile, including a specific record detailing the number of miles
traveled for personal purposes. The Executive acknowledges that the Company
has elected, pursuant to Section 3402(s) of the Code, not to withhold income
taxes with respect to the personal use of the vehicle, but the Company will
report the value of such use on a Form W-2 to the extent it determines that it
is required to do so. 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).
4. Termination.
(a) The Company may, with or without prior notice,
terminate this Agreement with or without Cause, or upon Executive's
Disability. Executive may terminate this Agreement for Good Reason. This
Agreement shall automatically terminate upon the Executive's death. This
Agreement shall also terminate upon expiration of the Employment Period.
Except as provided in Sections 4(b), 4(c) and 4(d) in the event this Agreement
is terminated, the Executive's rights and the obligations of the Company
hereunder shall cease as of the effective date of the termination, provided,
however, that the Executive shall be entitled to receive any accrued but
unpaid Base Salary, any earned 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 this Agreement 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 Base Salary and the Minimum Bonus Award and (ii) the number of
years and/or fraction thereof remaining in the then existing Employment
Period, which amount shall be paid in equal monthly installments over such
remaining Employment Period, 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
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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) the remaining term of the Employment
Period.
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 this Agreement 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 paid to Executive, including
any Bonus Formula (without taking into account any Minimum Bonus Award and
without regard to any deferral necessary to comply with Section 162(m) of the
Code), 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 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 the Company terminates this
Agreement other than for Cause, or if the Executive terminates this Agreement
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 product of (i) the sum
of Executive's Base Salary and any amount paid as bonus, including any Bonus
Awards (without regard to any deferral necessary to comply with Section 162(m)
of the Code), for the three fiscal years ending prior to such termination,
divided by three, and (ii) the number of years and/or fraction thereof
remaining in the then existing Employment Period, which shall be paid in equal
monthly installments over such remaining Employment Period; and
(2) a payment equal to (i) the Minimum Bonus Award,
plus (ii) the amount of any bonus paid to the Executive, including any Bonus
Formula (without taking into account any Minimum Bonus Award and without
regard to any deferral necessary to comply with Section 162(m) of the Code)
for the immediately preceding fiscal year, such sum multiplied by a fraction,
the numerator of which shall be the number of days elapsed in the fiscal year
to the
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date of such termination and the denominator of which shall be 365; provided
there shall be deducted from any such Bonus Award 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.
(3) In the event of the Executive's death after
this Agreement 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 deductions.
(f) A termination of the Executive's employment (i)
upon expiration of this Agreement, 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 this Agreement 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 a "parachute payment" as
defined in Section 280G of the Code.
(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 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
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Executive within fifteen (15) days from the date the Company notifies the
Executive thereof or, if such default is curable but cannot reasonably be
cured within fifteen (15) days, Executive fails to commence curing such
default within such fifteen (15) days and fails to diligently pursue such
cure, but in no event shall the total cure period under this subsection
4(f)(1)(iii) exceed thirty (30) 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 moral turpitude, dishonesty, fraud or unethical business
conduct, or a felony; (vi) is subject to the occurrence of an event or
condition which makes it unlawful for the Executive to perform his duties
hereunder, including the issuance of any order, decree, decision or judgment,
which remains in effect for eight weeks or more; (vii) 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; (viii) 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 NASD, any national
securities exchange or any self-regulatory agency or governmental authority,
state, foreign or federal; or (ix) 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 hereunder. 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 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
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 President of Xxxxxx and such change represents a material
reduction in such status, title or position conferred hereunder; and (ii) 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
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the specific section of this Agreement which is relied upon and the reason
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 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 to the Company, 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 or other Confidential Information, other than as
necessary to further the business objectives of the Company in accordance with
the terms of his employment hereunder. The term "Trade Secrets or other
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 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 Executive's employment with the Company for any
reason, the Executive shall not use or disclose Trade Secrets or other
Confidential Information.
6. Return of Documents and Property. Upon the
termination of the Executive's employment with the Company, 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
(including, without limitation, computer files) containing Trade Secrets or
other Confidential Information relating to the business and affairs of the
Company and 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
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indirect subsidiaries. The term "Discoveries and Works" includes, by way of
example but without limitation, Trade Secrets and other 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, as so requested, (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 his employment
with the Company 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
Executive's employment with the Company, 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 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) directly or indirectly, own,
manage, operate, join, or have a financial interest in, control or participate
in the ownership, management, operation 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 this Agreement 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 this Agreement,
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
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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 the period during which the Executive is employed by the Company or any
of its direct or indirect subsidiaries, and (i) the lesser of one year
following termination of this Agreement or the remaining term of the
Employment period if this Agreement is terminated by the Company for Cause or
by the Executive for other than Good Reason; and (ii) the period during which
the Executive is receiving Termination Payments. Notwithstanding the
foregoing, in the event that the Company terminates this Agreement other than
for Cause, or if the Executive terminates this Agreement for Good Reason, the
Executive may elect at any time after such termination, by ten days advance
written notice to the Company, to be relieved of the provisions of this
Section 8 and Section 9. On and after such election, the Company shall have no
further obligation to make any payments to the Executive pursuant to Section
4(d) hereof, except for such amounts as shall have been accrued prior to the
date of such election. Such election shall not effect any of the rights of the
Company with respect to any violation of this Section 8 or Section 9 occurring
prior to such election. Notwithstanding anything hereinabove contained to the
contrary, Executive shall be relieved of the provisions of this Section 8 and
Section 9 upon expiration of this Agreement (other than by reason of
termination without Cause, termination with Cause or termination for Good
Reason) without further renewal or extension.
9. Non-Solicitation. During the Noncompetition
Period, the Executive agrees, directly or indirectly, whether for his own
account or for the account of any other individual or entity, not to 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 this Agreement, 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 the date of termination or expiration, as
the case may be. The Executive further agrees that during the Noncompetition
Period, he shall not, directly or indirectly, (i) solicit, induce, enter into
any 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.
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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 a temporary or permanent injunction or
injunctions or temporary restraining order or orders to prevent breaches 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
although the Company and the Executive consider the restrictions contained in
Sections 5 through 9 to be reasonable for the purpose of preserving the
goodwill, proprietary rights and going concern value of the Company, 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 Sections 5 through 9 or any remedy provided herein is
unenforceable, and such restriction or remedy cannot be amended so as to make
it enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained therein or the availability of any other remedy.
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 (i) he is able to perform fully
his duties and responsibilities contemplated by this Agreement and (ii) 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 term of this
Agreement, the Company may at any time effect 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.
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 to a purchaser of all or substantially all of the
assets of the Company.
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14. Notices. Any notice required or permitted under
this Agreement shall be deemed to have been effectively made or given if in
writing and personally delivered, mailed properly addressed in a sealed
envelope, postage prepaid by certified or registered mail, or 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.
Royal Executive Park
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. In the
event that any provision of this Agreement shall be held by a court of proper
jurisdiction to be indefinite, invalid, void or voidable or otherwise
unenforceable, the balance of the Agreement shall continue in full force and
effect unless such construction would clearly be contrary to the intentions of
the parties or would result in an unconscionable injustice.
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. Notwithstanding anything
to the contrary contained herein, if this Agreement or the Executive's
employment is validly terminated pursuant to Section 4 or expires by its
terms, the provisions of Sections 5 through 10 and 18 shall continue in full
force and effect.
18. Governing Law and Consent to Jurisdiction. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York without giving effect to principles of conflicts of law.
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 State District Court for
the Southern District of New York in connection with any claim or controversy
arising out of or relating to this Agreement, on the condition that, with
respect to any federal litigation, the amount in controversy meets the
statutory requirements in force of the date of this Agreement. Each of the
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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. 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 as of the day and year first above written.
XXXXXX GROUP INC.
By:_____________________________
Title:__________________________
------------------------------
Xxx X. Xxxxxx
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