Exhibit 10.23
EMPLOYMENT AGREEMENT
AGREEMENT dated as of December 15, 1999 between XXXX X. XXXXXXXXXX,
residing at 00 Xxxxxx Xxxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 ("Executive"), and
RESEARCH PARTNERS INTERNATIONAL, INC., a Delaware corporation having its
principal office at Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Company").
WHEREAS, the Company is engaged through its subsidiary corporations in the
business of operating and managing investment banking and securities brokerage
firms, as well as other enterprises; and
WHEREAS, the Company desires to employ Executive for the purpose of
securing for the Company the experience, ability and services of Executive; and
WHEREAS, Executive desires to be employed by the Company, pursuant to the
terms and conditions herein set forth;
IT IS AGREED:
1. Employment, Duties and Acceptance.
1.1 The Company hereby employs Executive as its Chief Executive
Officer ("CEO") and President ("President"). As long as Executive remains CEO
and President of the Company, the Company shall use its best efforts to cause
the Company's Board of Directors ("Board") to nominate Executive as a member of
the Company's Board of Directors ("Board"). All of Executive's powers and
authority in any capacity shall at all times be subject to the direction and
control of the Board. Executive shall report directly to the Board.
1.2 The Board may assign to Executive such general management and
supervisory responsibilities and executive duties for the Company or any
subsidiary of the Company, including serving as an executive officer and/or
director of any subsidiary, as are consistent with Executive's status as CEO and
President. The Company and Executive acknowledge that Executive's primary
functions and duties as CEO and President shall be (i) to establish policies and
strategies for the Company's overall business and operations, including plans
for growth and strategic partnerships, and (ii) to oversee and supervise
(subject to the employees of the Company who report to Executive remaining
primarily responsible for supervision of their designated divisions and
functions) the operations of the Company and its subsidiaries and divisions.
1.3 Executive accepts such employment and agrees to devote
substantially all of his business time, energies and attention to the
performance of his duties hereunder. Nothing herein shall be construed as
preventing Executive from making and supervising personal investments, provided
they will not interfere with the performance of Executive's duties hereunder or
violate the provisions of paragraph 5.4 hereof. In addition, notwithstanding
anything herein to the contrary, Executive may also perform outside consulting
services to a limited extent so long as they do not conflict with his duties
hereunder and they are not on behalf of a Competitive Business (as defined in
Section 5.4 hereof).
1.4 Executive shall be based in the New York Metropolitan area, and
shall undertake such occasional travel, within or without the United States, as
is reasonably necessary in the interests of the Company.
2. Compensation and Benefits.
2.1 The Company shall pay to Executive a salary at the minimum annual
rate of $220,000 for each twelve-month period during the term hereof.
Executive's compensation shall be paid in equal, periodic installments in
accordance with the Company's normal payroll procedures.
2.2 The Company shall also pay to Executive such bonuses as may be
determined from time to time by the Board. In determining the amount of bonus,
if any, the Board shall take into consideration the performance of the Company,
the achievement of the Company's and Executive's expectations and plans and the
Executive's performance. In addition, Executive shall receive a bonus in an
amount to be determined by the Board, for the realization of investment banking
revenues which result from business referred to the Company by Executive. The
Executive shall also be eligible to participate in the Company's 1996 Incentive
Compensation Plan, in a manner to be determined by the Committee administering
such plan.
2.3 Executive shall be entitled to such medical, life, disability and
other benefits as are generally afforded to other senior executives of the
Company, including comprehensive healthcare insurance, dental, life insurance
and long term disability, subject to applicable waiting periods and other
conditions.
2.4 Executive shall be entitled to four weeks of vacation in each
calendar year and to a reasonable number of other days off for religious
and personal reasons.
2.5 The Company will pay or reimburse Executive for all
transportation, hotel and other expenses reasonably incurred by Executive on
business trips and for all other ordinary and reasonable out-of-pocket expenses
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actually incurred by him in the conduct of the business of the Company against
itemized vouchers submitted with respect to any such expenses and approved in
accordance with customary procedures.
2.6 The Company shall pay a non-accountable expense allowance in the
aggregate monthly amount of $2,500 for the term of this Agreement. Such amount
shall be paid to Margaritis & Associates, Inc. or to whomever is designated in
writing by Executive.
3. Term and Termination.
3.1 The term of this Agreement commences as of December 15, 1999 and
shall continue until December 31, 2001, unless sooner terminated as herein
provided.
3.2 If Executive dies during the term of this Agreement, this
Agreement shall thereupon terminate, except that the Company shall pay to the
legal representative of Executive's estate (i) the base salary due Executive
pursuant to paragraph 2.1 hereof through the date of Executive's death, (ii) all
earned and previously approved but unpaid bonuses, (iii) all valid expense
reimbursements through the date of the termination of this Agreement and (iv)
all accrued but unused vacation pay.
3.3 The Company, by notice to Executive, may terminate this Agreement
if Executive shall fail because of illness or incapacity to render, for six
consecutive months, services of the character contemplated by this Agreement.
Notwithstanding such termination, the Company shall pay to Executive (i) the
base salary due Executive pursuant to paragraph 2.1 hereof through the date of
such notice, less any amount Executive receives for such period from any
Company-sponsored or Company-paid source of insurance, disability compensation
or government program, (ii) all earned and previously approved but unpaid
bonuses, (iii) all valid expense reimbursements through the date of the
termination of this Agreement and (iv) all accrued but unused vacation pay.
3.4 The Company, by notice to Executive, may terminate this Agreement
for cause. As used herein, "Cause" shall mean: (a) the refusal or failure by
Executive to carry out specific directions of the Board which are of a material
nature, are not illegal and are consistent with his status as CEO and President,
or the refusal or failure by Executive to perform a material part of Executive's
duties hereunder; (b) the commission by Executive of a material breach of any of
the provisions of this Agreement; (c) fraud or dishonest action by Executive in
his relations with the Company or any of its subsidiaries or affiliates
("dishonest" for these purposes shall mean Executive's knowingly or recklessly
making of a material misstatement or omission for his personal benefit); or (d)
the conviction of Executive of any crime involving an act of moral turpitude, or
the imposition against Executive of a permanent bar from association with a
securities firm by any Federal, State or Regulatory Agency or self-regulatory
body after the exhaustion of all judicial and administrative appeals therefrom.
Notwithstanding the foregoing, no "Cause" for termination shall be deemed to
exist with respect to Executive's acts described in clauses (a) or (b) above,
unless the Company shall have given written notice to Executive specifying the
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"Cause" with reasonable particularity and, within thirty calendar days after
such notice, Executive shall not have cured or eliminated the problem or thing
giving rise to such "Cause;" provided, however, that a repeated breach after
notice and cure of any provision of clauses (a) or (b) above involving the same
or substantially similar actions or conduct, shall be grounds for termination
for "Cause" without any additional notice from the Company. In addition,
notwithstanding the foregoing, no "Cause" for termination shall be deemed to
exist with respect to Executive's acts described in clause (c) above, unless
fraud or dishonest action on the part of Executive is determined by an
arbitrator in New York City pursuant to applicable American Arbitration
association rules.
3.5 If Executive's employment hereunder is terminated for any reason,
then Executive shall, at the Company's request, resign as a director of the
Company and all of its subsidiaries, effective upon the occurrence of such
termination.
3.6 The Executive, by notice to the Company, may terminate this
Agreement if a "Good Reason" exists. For purposes of this Agreement, "Good
Reason" shall mean the occurrence of any of the following circumstances without
the Executive's prior express written consent: (a) a material adverse change in
the nature of Executive's title, duties or responsibilities with the Company
that represents a demotion from his title, duties or responsibilities as in
effect immediately prior to such change; (b) a material breach of this Agreement
by the Company; (c) a failure by the Company to make any payment to Executive
when due, unless the payment is not material and is being contested by the
Company, in good faith; (d) (i) any person or entity other than the Company
and/or any officers or directors of the Company as of the date of this Agreement
acquires securities of the Company (in one or more transactions) having 25% or
more of the total voting power of all the Company's securities then outstanding
and (ii) the Board of Directors of the Company does not authorize or otherwise
approve such acquisition; or (e) a liquidation, bankruptcy or receivership of
the Company. Notwithstanding the foregoing, no Good Reason shall be deemed to
exist with respect to the Company's acts described in clauses (a), (b) or (c)
above, unless Executive shall have given written notice to the Company
specifying the Good Reason with reasonable particularity and, within thirty
calendar days after such notice, the Company shall not have cured or eliminated
the problem or thing giving rise to such Good Reason; provided, however, that a
repeated breach after notice and cure of any provision of clauses (a), (b) or
(c) above involving the same or substantially similar actions or conduct, shall
be grounds for termination for Good Reason without any additional notice from
Executive.
3.7 In the event that Executive terminates this Agreement for Good
Reason, pursuant to the provisions of paragraph 3.6, or the Company terminates
this Agreement without "Cause," as defined in paragraph 3.4, the Company shall
continue to pay to Executive (or in the case of his death, the legal
representative of Executive's estate or such other person or persons as
Executive shall have designated by written notice to the Company), all payments,
compensation and benefits required under paragraph 2 hereof through the term of
this Agreement; provided, however, that (i) a minimum bonus of no less than
$220,000 per annum shall be paid; (ii) Executive's insurance coverage shall
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terminate upon the Executive becoming covered under a similar program by reason
of employment elsewhere; and (iii) Executive shall use reasonable efforts to
obtain employment elsewhere as an employee or consultant and all compensation
for services paid or earned and deferred in connection therewith shall be a
reduction against the Company's then future obligations hereunder.
4. Executive Indemnity
4.1 The Company agrees to indemnify Executive and hold Executive
harmless against all costs, expenses (including, without limitation, reasonable
attorneys' fees) and liabilities (other than settlements to which the Company
does not consent, which consent shall not be unreasonably withheld)
(collectively, "Losses") reasonably incurred by Executive in connection with any
claim, action, proceeding or investigation commenced by someone other than the
Company or any of its Subsidiaries brought against or involving Executive with
respect to, arising out of or in any way relating to Executive's employment with
the Company or Executive's service as a director of the Company; provided,
however, that the Company shall not be required to indemnify Executive for
Losses incurred as a result of Executive's intentional misconduct or gross
negligence (other than matters where Executive acted in good faith and in a
manner he reasonably believed to be in and not opposed to the Company's best
interests). Executive shall promptly notify the Company of any claim, action,
proceeding or investigation under this paragraph and the Company shall be
entitled to participate in the defense of any such claim, action, proceeding or
investigation and, if it so chooses, to assume the defense with counsel selected
by the Company; provided that Executive shall have the right to employ counsel
to represent him (at the Company's expense) if Company counsel would have a
"conflict of interest" in representing both the Company and Executive. The
Company shall not settle or compromise any claim, action, proceeding or
investigation without Executive's consent, which consent shall not be
unreasonably withheld; provided, however, that such consent shall not be
required if the settlement entails only the payment of money and the Company
fully indemnifies Executive in connection therewith. The Company further agrees
to advance any and all expenses (including, without limitation, the fees and
expenses of counsel) reasonably incurred by the Executive in connection with any
such claim, action, proceeding or investigation, provided Executive first enters
into an appropriate agreement for repayment of such advances if indemnification
is found not to have been available.
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5. Protection of Confidential Information; Non-Competition.
5.1 Executive acknowledges that:
(a) As a result of his current and prior employment with the
Company, Executive has obtained and will obtain secret and confidential
information concerning the business of the Company and its subsidiaries and
affiliates (referred to collectively in this paragraph 5 as the "Company"),
including, without limitation, financial information, proprietary rights, trade
secrets and "know-how," strategic plans and partners, customers and sources
("Confidential Information").
(b) The Company will suffer substantial damage which will be
difficult to compute if, during the period of his employment with the Company or
thereafter, Executive should enter a business competitive with the Company or
divulge Confidential Information.
(c) The provisions of this Agreement are reasonable and necessary
for the protection of the business of the Company.
5.2 Executive agrees that he will not at any time, either during
the term of this Agreement or thereafter, divulge to any person or entity any
Confidential Information obtained or learned by him as a result of his
employment with the Company, except (i) in the course of performing his duties
hereunder, (ii) with the Company's express written consent; (iii) to the extent
that any such information is in the public domain other than as a result of
Executive's breach of any of his obligations hereunder; or (iv) where required
to be disclosed by court order, subpoena or other government process. If
Executive shall be required to make disclosure pursuant to the provisions of
clause (iv) of the preceding sentence, Executive promptly, but in no event more
than 72 hours after learning of such subpoena, court order, or other government
process, shall notify, by personal delivery or by electronic means, confirmed by
mail, the Company and, at the Company's expense, Executive shall: (a) take all
reasonably necessary and lawful steps required by the Company to defend against
the enforcement of such subpoena, court order or other government process, and
(b) permit the Company to intervene and participate with counsel of its choice
in any proceeding relating to the enforcement thereof.
5.3 Upon termination of his employment with the Company, Executive
will promptly deliver to the Company all memoranda, notes, records, reports,
manuals, drawings, blueprints and other documents (and all copies thereof)
relating to the business of the Company and all property associated therewith,
which he may then possess or have under his control; provided, however, that
Executive shall be entitled to retain copies of such documents reasonably
necessary to document his financial relationship with the Company.
5.4 During the period commencing on the date hereof and ending on the
one-year anniversary of the date Executive's employment hereunder is terminated
(and, if Executive is terminated with "Cause" or Executive terminates this
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Agreement without "Good Reason," until December 31, 2002), Executive, without
the prior written permission of the Company, shall not, anywhere within 100
miles of any office of the Company or any subsidiary at the time of termination,
(i) be employed by, or render any services to, any person, firm or corporation
engaged in any business which is directly in competition with the Company or any
of its subsidiaries ("Competitive Business"); (ii) engage in any Competitive
Business for his own account; (iii) be associated with or interested in any
Competitive Business as an individual, partner, shareholder, creditor, director,
officer, principal, agent, employee, trustee, consultant, advisor or in any
other relationship or capacity; (iv) employ or retain, or have or cause any
other person or entity to employ or retain, any person who was employed or
retained by the Company while Executive was employed by the Company; or (v)
solicit, interfere with, or endeavor to entice away from the Company, for the
benefit of a Competitive Business, any of its customers or other persons with
whom the Company has a contractual relationship. Notwithstanding the foregoing,
nothing in this Agreement shall preclude Executive from investing his personal
assets in any manner he chooses, provided, however, that Executive may not,
during the period referred to in this Section 5.4, own more than 4.9% of the
equity securities of any Competitive Business.
5.5 If Executive commits a breach, or threatens to commit a breach, of
any of the provisions of Sections 5.2 or 5.4, the Company shall have the
right and remedy:
(a) to have the provisions of this Agreement specifically
enforced by any court having equity jurisdiction, it being acknowledged and
agreed by Executive that the services being rendered hereunder to the Company
are of a special, unique and extraordinary character and that any such breach or
threatened breach will cause irreparable injury to the Company and that money
damages will not provide an adequate remedy to the Company; and
(b) to require Executive to account for and pay over to the
Company all monetary damages suffered by the Company as the result of any
transactions constituting a breach of any of the provisions of Sections 5.2 or
5.4, and Executive hereby agrees to account for and pay over such damages to the
Company.
Each of the rights and remedies enumerated in this Section 5.5 shall
be independent of the other, and shall be severally enforceable, and such rights
and remedies shall be in addition to, and not in lieu of, any other rights and
remedies available to the Company under law or equity.
In connection with any legal action or proceeding arising out of or
relating to this Agreement, the prevailing party in such action or proceeding
shall be entitled to be reimbursed by the other party for the reasonable
attorneys' fees and costs incurred by the prevailing party.
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5.6 If any provision of Sections 5.2 or 5.4 is held to be
unenforceable because of the scope, duration or area of its applicability, the
tribunal making such determination shall have the power to modify such scope,
duration, or area, or all of them, and such provision or provisions shall then
be applicable in such modified form.
5.7 The provisions of this paragraph 5 shall survive the termination
of this Agreement for any reason, except in the event Executive is terminated by
the Company without "Cause" in breach of this Agreement, or if Executive
terminates this Agreement with "Good Reason," in either of which events, this
paragraph 5 shall be null and void and of no further force or effect.
6. Miscellaneous Provisions.
6.1 All notices provided for in this Agreement shall be in writing,
and shall be deemed to have been duly given when (i) delivered personally to the
party to receive the same, or (ii) when mailed first class postage prepaid, by
certified mail, return receipt requested, addressed to the party to receive the
same at his or its address set forth below, or such other address as the party
to receive the same shall have specified by written notice given in the manner
provided for in this Section 6.1. All notices shall be deemed to have been given
as of the date of personal delivery or mailing thereof.
If to Executive:
Xxxx Xxxxxxxxxx
00 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
If to the Company:
Research Partners International, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Legal Department
With a copy in either case to:
Xxxxx Xxxx Xxxxxx, Esq.
Xxxxxxxx Xxxxxx & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
6.2. This Agreement sets forth the entire agreement of the parties
relating to the employment of Executive and is intended to supersede all prior
negotiations, understandings and agreements. No provisions of this Agreement,
may be waived or changed except by a writing by the party against whom such
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waiver or change is sought to be enforced. The failure of any party to require
performance of any provision hereof or thereof shall in no manner affect the
right at a later time to enforce such provision.
6.3 All questions with respect to the construction of this Agreement,
and the rights and obligations of the parties hereunder, shall be determined in
accordance with the law of the State of New York applicable to agreements made
and to be performed entirely in New York.
6.4 This Agreement shall inure to the benefit of and be binding upon
the successors and assigns of the Company. This Agreement shall not be
assignable by Executive, but shall inure to the benefit of and be binding upon
Executive's heirs and legal representatives.
6.5 Should any provision of this Agreement become legally
unenforceable, no other provision of this Agreement shall be affected, and this
Agreement shall continue as if the Agreement had been executed absent the
unenforceable provision.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
EXECUTIVE
/s/ Xxxx X. Xxxxxxxxxx
------------------------
Xxxx X. Xxxxxxxxxx
RESEARCH PARTNERS INTERNATIONAL, INC.
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