EXHIBIT 10.19
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of
November 12, 1998, by and between X. Xxxxxxx Xxxxxx, an individual ("Executive")
and Gartner Group, Inc., a Delaware corporation (the "Company").
Recitals
A. Executive currently serves as the Executive Vice President and
President, Gartner Distribution Services of the Company.
B. The Company and Executive desire to provide for Executive's
continued employment with the Company upon and subject to the terms and
conditions set forth in this Agreement.
Agreement
Therefore, in consideration of the mutual covenants contained herein,
the parties hereby agree as follows:
I. Employment. The Company shall employ Executive in the position of Executive
Vice President and President, Gartner Distribution Services, as such position
has been defined in terms of responsibilities and compensation as of the
effective date of this Agreement; provided, however, that the Board of Directors
of the Company (the "Board") shall have the right, at any time or from time to
time, to revise such responsibilities and compensation as the Board in its
discretion may deem necessary or appropriate. Executive shall comply with and be
bound by the Company's operating policies, procedures and practices from time to
time in effect during his employment. During the term of Executive's employment
with the Company, Executive shall continue to devote his full time, skill and
attention to his duties and responsibilities, and shall perform them faithfully,
diligently and competently, and Executive shall use his best efforts to further
the business of the Company and its affiliated entities.
I. Term. The employment of Executive pursuant to this Agreement shall continue
through October 1, 1999, provided that such term (the "Employment Term") shall
automatically renew at the end of the initial term and each subsequent term
thereafter for a one (1) year period, unless Executive or the Company shall
elect to terminate the Agreement by written notice to the other party not less
than sixty (60) days prior to the end of the respective term.
I. Salary. As compensation for the services rendered by Executive under this
Agreement, the Company shall pay to Executive a base salary ("Base Salary")
initially equal to $255,000 per year for fiscal 1999, payable to Executive on a
monthly basis in accordance with the Company's payroll practices as in effect
from time to time during the Employment Term.
The Base Salary shall be subject to periodic adjustments by the Board or the
Compensation Committee of the Board, in the sole discretion of the Board or such
Committee.
I. Bonus. In addition to his Base Salary, Executive shall be entitled to
participate in the Company's executive bonus program. The annual target bonus
shall be established by the Board or its Compensation Committee, in the
discretion of the Board or such Committee, and shall be payable based on
achievement of specified Company and individual objectives. Executive's target
bonus for the fiscal year ending September 30, 1999 has previously been set at
$220,000, with a maximum bonus of $550,000.
I. Executive Benefits.
A. Employee and Executive Benefits. Executive will be entitled to receive all
benefits provided to executives and employees of the Company generally from time
to time, including medical, dental, life insurance and long-term disability, and
the executive split-dollar life insurance and executive disability plan, so long
as and to the extent the same exist; provided, that in respect to each such plan
Executive is otherwise eligible and insurable in accordance with the terms of
such plans.
A. Vacation, Sick Leave and Holidays. Executive shall be entitled to vacation,
sick leave and vacation in accordance with the policies of the Company and its
subsidiaries as they exist from time to time. Executive understands that under
the current policy he will receive four (4) weeks vacation per calendar year.
Vacation which is not used during any calendar year will not roll over to the
following year.
I. Employment Relationship. The Company and Executive acknowledge that
Executive's employment is and shall continue to be at-will, as defined under
applicable law. Either the Company or Executive may terminate this agreement and
Executive's employment at any time, with or without Business Reasons (as defined
in Section 8(a) below), in its or his sole discretion, upon fourteen (14) days'
prior written notice of termination. If Executive's employment terminates for
any reason, Executive shall not be entitled to any payments, benefits, damages,
awards or compensation other than as provided by this Agreement, or as may
otherwise be available in accordance with the Company's established employee
plans and policies at the time of termination.
X. Xxxxxxxxx Benefits.
A. Change in Control. If during the term of this Agreement the Company shall be
subject to a Change in Control (as defined below), then Executive shall be
entitled to receive the following: (A) Base Salary and vacation accrued through
the Termination Date, (B) an amount equal to two (2) years of Executive's Base
Salary then in effect, payable immediately upon the Change in Control, (C) an
amount equal to two (2) times Executive's target bonus for the fiscal year in
which the Change in Control occurs (as well as any unpaid bonus from the prior
fiscal year), all payable immediately upon the Change in Control, (D)
acceleration in full of vesting of all outstanding stock options, TARPs and
other equity arrangements subject to vesting and held by Executive (and in this
regard all options and other exercisable rights held by Executive shall remain
exercisable for ninety (90) days following any termination of
Executive's employment (or such longer period as may be provided in the
applicable stock option plan or agreement)), (E) forgiveness by the Company of
all outstanding principal and interest due to the Company under indebtedness
incurred by Executive to purchase shares of capital stock of the Company, (F)
continuation of group health benefits pursuant to the Company's standard
programs as in effect from time to time (or continuation of substantially
similar benefits through a third party carrier, at the Company's election) for a
period of not less than 18 months (or such longer period as may be required by
COBRA), provided that Executive makes the necessary conversion, with the cost of
such coverage to be paid by the Company for 18 months and by Executive for any
period beyond 18 months, (G) in the event of termination of Executive's
employment within 12 months following the Change in Control, outplacement
support at the Company's expense up to $15,000 and (H) no other compensation,
severance or other benefits. Notwithstanding the foregoing, however, Executive
shall be obligated to repay to the Company any amounts previously received
pursuant to clauses (B) and (C) hereof, to the extent the same correspond to any
period following the Termination Date during which Executive violates the
noncompetition agreement set forth in Section 13. Upon a Change in Control,
Executive may elect, in his sole discretion, (i) not to receive all or any
portion of any cash payment provided herein, or to defer all or any portion of
any such payment to one or more payment tranches over a period of up to 3 years,
(ii) not to have all or any portion of indebtedness forgiven or to defer such
forgiveness or any portion thereof to one or more forgiveness tranches over a
period of up to 3 years, and/or (iii) not to have all or any portion of vesting
restrictions lapse, in each such case in order to avoid or limit any "parachute
payment" under Section 280G(b)(2) of the Internal Revenue Code of 1986, as
amended.
A. Involuntary Termination. If during the term of this Agreement the Company
terminates the employment of Executive involuntarily and without Business
Reasons or a Constructive Termination occurs, then Executive shall be entitled
to receive the following: (A) Base Salary and vacation accrued through the
Termination Date plus continued Base Salary for a period of twelve (12) months
following the Termination Date, payable in accordance with the Company's regular
payroll schedule as in effect from time to time, (B) any bonus payment
previously fixed and declared by the Board or its Compensation Committee on
behalf of Executive and not previously paid to Executive, (C) the right to
exercise all outstanding stock options held by Executive for ninety (90) days
following the Termination Date (or such longer period as may be provided in the
applicable stock option plan or agreement) but only to the extent vested as of
the Termination Date, (D) continuation of group health benefits pursuant to the
Company's standard programs as in effect from time to time (or continuation of
substantially similar benefits, through a third party carrier, at the Company's
election), for a period of not less than 18 months (or such longer period as may
be required by COBRA), provided that Executive makes the necessary conversion,
with the cost of such benefits to be paid by the Company for 18 months and by
Executive for any period beyond 18 months, and (E) no other compensation,
severance or other benefits. Notwithstanding the foregoing, however, if
Executive violates the non-competition agreement set forth in Section 13 during
the three (3) year period following the Termination Date, the Company shall not
be required to continue to pay the salary or bonus specified in clause (A)
hereof for any period following the Termination Date, and in such event
Executive shall be obligated to repay to the Company any amounts previously
received pursuant to clause (A) hereof, to the extent the same relate to any
period following the Termination Date.
A. Termination for Death or Disability. If during the term of this Agreement
Executive's employment shall be terminated by reason of death or Executive shall
become unable to perform his duties as an employee as a result of incapacity,
which gives rise to termination of employment for Disability, then Executive
shall be entitled to receive the following: (A) Base Salary and vacation accrued
through the Termination Date only, (B) any bonus payment previously fixed and
declared by the Board or its Compensation Committee on behalf of Executive and
not previously paid to Executive, (C) continuation of group health benefits
pursuant to the Company's standard programs as in effect from time to time (or
continuation of substantially similar benefits, through a third party carrier,
at the Company's election), for a period of not less than 18 months (or such
longer period as may be required by COBRA), provided that Executive makes the
necessary conversion, with the cost of such benefits to be paid by the Company
for 18 months and by Executive for any period beyond 18 months, (D) the right to
exercise all outstanding stock options held by Executive for ninety (90) days
following the Termination Date (or such longer period as may be provided in the
applicable stock option plan or agreement), but only to the extent vested as of
the Termination Date, (E) such other benefits upon death or Disability, as the
case may be, as may then be established under the Company's then-existing
severance and benefit plans and policies at the time of such Disability or
death, and (F) no other compensation, severance or other benefits.
A. Voluntary Termination or Termination for Business Reasons. If (i) Executive
voluntarily terminates his employment or (ii) Executive is terminated
involuntarily for Business Reasons, then in any such event Executive or his
representatives shall be entitled to receive the following: (A) Base Salary and
accrued vacation through the Termination Date only, (B) the right to exercise
all outstanding stock options held by Executive for thirty (30) days following
the Termination Date (or such longer period as may be provided in the applicable
stock option plan or agreement), but only to the extent vested as of the
Termination Date, (C) to the extent COBRA shall be applicable to the Company,
continuation of group health benefits pursuant to the Company's standard
programs as in effect from time to time (or continuation of substantially
similar benefits through a third party carrier, at the Company's election), for
a period of 18 months (or such longer period as may be applicable under the
Company's policies then in effect) following the Termination Date provided that
Executive makes the appropriate conversion and payments, and (D) no further
severance, benefits or other compensation.
A. Exclusivity. The provisions of this Section 7 are intended to be and are
exclusive and in lieu of any other rights or remedies to which Executive or the
Company may otherwise be entitled, either at law, tort or contract, in equity,
or under this Agreement, in the event of any termination of Executive's
employment. Executive shall be entitled to no benefits, compensation or other
payments or rights upon termination of employment other than those benefits
expressly set forth in paragraph (a), (b), (c), or (d) of this Section 7,
whichever shall be applicable.
I. Limitation on Payments.
A. In the event that the severance and other benefits provided for in this
Agreement or otherwise payable to Executive (i) constitute "parachute payments"
within the meaning of Section 280G of the Internal Revenue Code of 1986, as
amended (the "Code") and (ii) but for this Section 8 would be subject to the
excise tax imposed by Section 4999 of the Code, then Executive's severance
benefits under Section 7 shall be payable either (i) in full, or (ii) as to such
lesser amount which would result in no portion of such severance benefits being
subject to excise tax under Section 4999 of the Code, whichever of the foregoing
amounts, taking into account the applicable federal, state and local income
taxes and the excise tax imposed by Section 4999, results in the receipt by
Executive on an after-tax basis, of the greatest amount of severance benefits
under this Agreement, notwithstanding that all or some portion of such severance
benefits may be taxable under Section 4999 of the Code.
A. If a reduction in the payments and benefits that would otherwise be paid or
provided to Executive under the terms of this Agreement is necessary to comply
with the provisions of Section 8(a), Executive shall be entitled to select which
payments or benefits will be reduced and the manner and method of any such
reduction of such payments or benefits (including but not limited to the number
of options that would accelerate as to vesting under Section 7), subject to
reasonable limitations (including, for example, express provisions under the
Company's benefit plans) (so long as the requirements of Section 8(a) are met).
Within thirty (30) days after the amount of any required reduction in payments
and benefits is finally determined in accordance with the provisions of Section
8(c), Executive shall notify the Company in writing regarding which payments or
benefits are to be reduced. If no notification is given by Executive, the
Company will determine which amounts to reduce. If, as a result of any reduction
required by Section 8(a), amounts previously paid to Executive exceed the amount
to which Executive is entitled, Executive will promptly return the excess amount
to the Company.
A. Unless the Company and Executive otherwise agree in writing, any
determination required under this Section 8 shall be made in writing by the
Company's independent public accountants (the "Accountants"), whose
determination shall be conclusive and binding upon Executive and the Company for
all purposes. For purposes of making the calculations required by this Section
8, the Accountants may make reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good faith interpretations
concerning the application of Sections 280G and 4999 of the Code. The Company
and Executive shall furnish to the Accountants such information and documents as
the Accountants may reasonably request in order to make a determination under
this Section. The Company shall bear all costs the Accountants may reasonably
incur in connection with any calculations contemplated by this Section 8.
I. Definition of Terms. The following terms referred to in this Agreement
shall have the following meanings:
A. Business Reasons. "Business Reasons" shall mean (i) any act of personal
dishonesty taken by Executive in connection with his responsibilities as an
employee and intended to result in substantial personal enrichment of Executive,
(ii) commission of a
felony or other offense which involves moral turpitude or is otherwise injurious
to the Company, (iii) a willful act by Executive which constitutes gross
misconduct and which is injurious to the Company, (iv) material breach of this
Agreement by Executive, including (A) any material breach of the provisions of
Section 10, 11, or 12 or 13 hereof, or (B) continued violation by Executive of
Executive's obligations under Section 1 of this Agreement that are demonstrably
willful and deliberate on Executive's part after there has been delivered to
Executive a written demand for performance from the Company which describes the
basis for the Company's belief that Executive has not substantially performed
his duties.
A. Disability. "Disability" shall mean that Executive has been unable to perform
his duties as an employee as the result of Executive's incapacity due to
physical or mental illness, and such inability, at least 26 weeks after its
commencement, is determined to be total and permanent by a physician selected by
the Company or its insurers and acceptable to Executive or Executive's legal
representative (such Agreement as to acceptability not to be unreasonably
withheld). In the event that Executive resumes the performance of substantially
all of his duties hereunder before the termination of his employment becomes
effective, the notice of intent to terminate shall automatically be deemed to
have been revoked.
A. Termination Date. "Termination Date" shall mean (i) if this Agreement is
terminated on account of death, the date of death; (ii) if this Agreement is
terminated for Disability, the date specified in Section 9(b); (iii) if this
Agreement is terminated by the Company, the termination date specified in the
notice of termination given by the Company to Executive; (iv) if the Agreement
is terminated by Executive, the termination date specified in the notice of
termination given by Executive to the Company; or (v) if this Agreement expires
by its terms, then the last day of the term of this Agreement.
A. Constructive Termination. A "Constructive Termination" shall be deemed to
occur if (A) without the consent of Executive, (i) there is a significant
reduction in Executive's duties, authorities and responsibilities, (ii)
Executive is required to relocate his place of employment, other than a
relocation within 50 miles of Executive's current business location or to Fort
Xxxxx, Florida, or (iii) there is a reduction of more than 20% of Executive's
Base Salary or target bonus (other than any such reduction consistent with a
general reduction of pay across the executive staff as a group, as an economic
or strategic measure due to poor financial performance by the Company) and (B)
within the thirty (30) day period immediately following such material adverse
change or reduction Executive elects to terminate his employment voluntarily.
A. Change in Control. A "Change in Control" shall be deemed to have occurred if:
1. any "Person," as such term is used for purposes of Section 13(d) or 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than
(A) the Company, (B) IMS Health, Inc., a Delaware corporation, or any
wholly-owned subsidiary of IMS Health, Inc. (collectively, "IMS"), until IMS
shall cease to be the "Beneficial Owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company representing
at least 15% of the combined voting power of the Company's then-outstanding
securities, (C) any trustee or other fiduciary holding securities under an
employee benefit plan of the Company or IMS, or (D) any company owned, directly
or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company), becomes the Beneficial Owner (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company representing 20% or more of the combined voting power of the Company's
then-outstanding securities; provided that, in the case of any Person which (i)
has filed and has in effect a report of beneficial ownership on Schedule 13-G in
which such Person is reported as a "passive" investor for the purpose of such
Schedule 13-G, for so long as such person continues to be a passive investor
thereunder in the Company, (ii) is the Beneficial Owner of less than 15% of the
combined voting power of the outstanding securities of the Company immediately
prior to the Proposed Recapitalization (defined below) and immediately prior to
the Proposal Spinoff (defined below), (iii) is the Beneficial Owner of less than
15% of the combined voting power of the outstanding securities of IMS Health,
Inc. immediately prior to the Proposed Recapitalization and immediately prior to
the Proposed Spinoff, and (iv) acquires more than 15% but less than [20%] of the
combined voting power of the Company's then-outstanding securities solely by
virtue of the Proposed Recapitalization and Proposed Spinoff, then a Change in
Control shall not be deemed to occur so long as (i) such Person remains a
passive investor in the Company under Schedule 13-G and (ii) such Person
beneficially owns shares in the Company representing no more than the combined
voting power of the outstanding securities of the Company beneficially owned by
such Person immediately following the Proposed Spinoff plus [five percent (5%)];
1. during any period of twenty-four months (not including any period prior to
the execution of this Agreement), individuals who at the beginning of such
period constitute the Board, and any new director (other than (A) a director
nominated by a Person who has entered into an agreement with the Company to
effect a transaction described in Sections (2)(a)(i), (iii) or (iv) hereof, (B)
a director nominated by any Person (including the Company) who publicly
announces an intention to take or to consider taking actions (including, but not
limited to, an actual or threatened proxy contest) which if consummated would
constitute a Change in Control or (C) a director nominated by any Person who is
the Beneficial Owner, directly or indirectly, of securities of the Company
representing 10% or more of the combined voting power of the Company's
securities) whose election by the Board or nomination for election by the
Company's stockholders was approved in advance by a vote of at least two-thirds
(2/3) of the directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute at lease a majority
thereof;
1. the stockholders of the Company approve any transaction or series of
transactions under which the Company is merged or consolidated with any other
company, other than a merger or consolidation (A) which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) more than 66 2/3% of the
combined voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation and (B) after
which no Person holds 20% or more of the combined voting power of the
then-outstanding securities of the Company or such surviving entity;
1. the stockholders of the Company approve a plan of complete liquidation of
the Company or an agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets; or
1. the Board adopts a resolution to the effect that, for purposes of this
Agreement, a Potential Change in Control has occurred.
A transfer of shares of stock of the Company from IMS to an affiliated
company, subsidiary or spin-off entity of IMS, or the reduction in ownership of
capital stock of the Company by IMS by means of a spin-off of such shares to IMS
stockholders or sales of shares into the public market, shall not alone be
deemed to meet the requirements of clause (8)(e)(i) hereof.
For the purposes hereof, the "Proposed Recapitalization" refers to the
proposed recapitalization by the Company of its outstanding equity securities in
which a new class of Class B Common Stock having special voting rights will be
created and issued to IMS in exchange for the shares of Class A Common Stock of
the Company held by IMS, and the "Proposed Spinoff" refers to the proposed
spinoff by IMS to its shareholders on a tax-free basis of a significant portion
of the shares of Company Common Stock owned by IMS.
I. Confidential Information.
A. Executive acknowledges that the Confidential Information (as defined below)
relating to the business of the Company and its subsidiaries which Executive has
obtained or will obtain during the course of his association with the Company
and subsidiaries and his performance under this Agreement are the property of
the Company and its subsidiaries. Executive agrees that he will not disclose or
use at any time, either during or after the Employment period, any Confidential
Information without the written consent of the Board of Directors of the
Company. Executive agrees to deliver to the Company at the end of the Employment
period, or at any other time that the Company may request, all memoranda, notes,
plans, records, documentation and other materials (and copies thereof)
containing Confidential Information relating to the business of the Company and
its subsidiaries, no matter where such material is located and no matter what
form the material may be in, which Executive may then possess or have under his
control. If requested by the Company, Executive shall provide to the Company
written confirmation that all such materials have been delivered to the Company
or have been destroyed. Executive shall take all appropriate steps to safeguard
Confidential Information and to protect it against disclosure, misuse,
espionage, loss and theft.
A. "Confidential Information" shall mean information which is not generally
known to the public and which is used, developed, or obtained by the Company or
its subsidiaries relating to the businesses of any of the Company and its
subsidiaries or the business of any customer thereof including, but not limited
to: products or services; fees, costs and pricing structure; designs; analyses;
formulae; drawings; photographs; reports; computer software, including operating
systems, applications, program listings, flow charts, manuals and documentation;
databases; accounting and business methods; inventions and new developments and
methods, whether patentable or unpatentable and whether or not reduced to
practice; all copyrightable works; the customers of any of the Company and its
subsidiaries and the
Confidential Information of any customer thereof; and all similar and related
information in whatever form. Confidential Information shall not include any
information which (i) was rightfully known by Executive prior to the Employment
Period; (ii) is publicly disclosed by law or in response to an order of a court
or governmental agency; (iii) becomes publicly available through no fault of
Executive or (iv) has been published in a form generally available to the public
prior to the date upon which Executive proposes to disclose such information.
Information shall not be deemed to have been published merely because individual
portions of the information have been separately published, but only if all the
material features comprising such information have been published in
combination.
I. Inventions and Patents. In the event that Executive, as a part of Executive's
activities on behalf of the Company, generates, authors or contributes to any
invention, new development or method, whether or not patentable and whether or
not reduced to practice, any copyrightable work, any trade secret, any other
Confidential Information, or any information that gives any of the Company and
its subsidiaries an advantage over any competitor, or similar or related
developments or information related to the present or future business of any of
the Company and its subsidiaries (collectively "Developments and Information"),
Executive acknowledges that all Developments and Information are the exclusive
property of the Company. Executive hereby assigns to the Company, its nominees,
successors or assigns, all rights, title and interest to Developments and
Information. Executive shall cooperate with the Company's Board of Directors to
protect the interests of the Company and its subsidiaries in Developments and
Information. Executive shall execute and file any document related to any
Developments and Information requested by the Company's Board of Directors
including applications, powers of attorney, assignments or other instruments
which the Company's Board of Directors deems necessary to apply for any patent,
copyright or other proprietary right in any and all countries or to convey any
right, title or interest therein to any of the Company's nominees, successors or
assigns.
I. No Conflicts.
A. Executive agrees that in his individual capacity he will not enter into any
agreement, arrangement or understanding, whether written or oral, with any
supplier, contractor, distributor, wholesaler, sales representative,
representative group or customer, relating to the business of the Company or any
of its subsidiaries, without the express written consent of the Board of
Directors of the Company.
A. As long as Executive is employed by the Company or any of its subsidiaries,
Executive agrees that he will not, except with the express written consent of
the Board of Directors of the Company, become engaged in, render services for,
or permit his name to be used in connection with, any business other than the
business of the Company, any of its subsidiaries or any corporation or
partnership in which the Company or any of its subsidiaries have an equity
interest.
I. Non-Competition Agreement.
A. Executive acknowledges that his services are of a special, unique and
extraordinary value to the Company and that he has access to the Company's trade
secrets, Confidential Information and strategic plans of the most valuable
nature. Accordingly, Executive agrees that for the period of three (3) years
following the Termination Date, Executive shall not directly or indirectly own,
manage, control, participate in, consult with, render services for, or in any
manner engage in any business competing with the businesses of the Company or
any of its subsidiaries as such businesses exist or are in process of
development on the Termination Date, including without limitation the
publication of periodic research and analysis of the information technology
industries. Nothing herein shall prohibit Executive from being a passive owner
of not more than 1% of the outstanding stock of any class of a corporation which
is publicly traded, so long as Executive has no active participation in the
business of such corporation.
A. In addition, for a period of three (3) years commencing on the Termination
Date, Executive shall not (i) induce or attempt to induce any employee of the
Company or any subsidiary to leave the employ of the Company or such subsidiary,
or in any way interfere with the relationship between the Company or any
subsidiary and any employee thereof, (ii) hire directly or through another
entity any person who was an employee of the Company or any subsidiary at any
time during the Employment Period, or (iii) induce or attempt to induce any
customer, supplier, licensee or other business relation of the Company or any
subsidiary to cease doing business with the Company or such subsidiary, or in
any way interfere with the relationship between any such customer, supplier,
licensee or business relation and the Company or any subsidiary.
A. Executive agrees that these restrictions on competition and solicitation
shall be deemed to be a series of separate covenants not-to-compete and a series
of separate non-solicitation covenants for each month within the specified
periods, separate covenants not-to-compete and non-solicitation covenants for
each state within the United States and each country in the world, and separate
covenants not-to-compete for each area of competition. If any court of competent
jurisdiction shall determine any of the foregoing covenants to be unenforceable
with respect to the term thereof or the scope of the subject matter or geography
covered thereby, such remaining covenants shall nonetheless be enforceable by
such court against such other party or parties or upon such shorter term or
within such lesser scope as may be determined by the court to be enforceable.
A. Because Executive's services are unique and because Executive has access to
Confidential Information and strategic plans of the Company of the most valuable
nature, the parties agree that the covenants contained in this Section 13 are
necessary to protect the value of the business of the Company and that a breach
of any such covenant would result in irreparable and continuing damage for which
there would be no adequate remedy at law. The parties agree therefore that in
the event of a breach or threatened breach of this Agreement, the Company or its
successors or assigns may, in addition to other rights and remedies existing in
their favor, apply to any court of competent jurisdiction for specific
performance and/or injunctive or other relief in order to enforce, or prevent
any violations of, the provisions hereof.
I. Miscellaneous Provisions.
A. Notice. Notices and all other communications contemplated by this Agreement
shall be in writing, shall be effective when given, and in any event shall be
deemed to have been duly given (i) when delivered, if personally delivered, (ii)
three (3) business days after deposit in the U.S. mail, if mailed by U.S.
registered or certified mail, return receipt requested, or (iii) one (1)
business day after the business day of deposit with Federal Express or similar
overnight courier, if so delivered, freight prepaid. In the case of Executive,
notices shall be addressed to him at the home address which he most recently
communicated to the Company in writing. In the case of the Company, notices
shall be addressed to its corporate headquarters, and all notices shall be
directed to the attention of its Corporate Secretary.
A. Notice of Termination. Any termination by the Company or Executive shall be
communicated by a notice of termination to the other party hereto given in
accordance with paragraph (a) hereof. Such notice shall indicate the specific
termination provision in this Agreement relied upon.
A. Successors.
1. Company's Successors. Any successor to the Company (whether direct or
indirect and whether by purchase, lease, merger, consolidation, liquidation or
otherwise) to all or substantially all of the Company's business and/or assets
shall be entitled to assume the rights and shall be obligated to assume the
obligations of the Company under this Agreement and shall agree to perform the
Company's obligations under this Agreement in the same manner and to the same
extent as the Company would be required to perform such obligations in the
absence of a succession. For all purposes under this Agreement, the term
"Company" shall include any successor to the Company's business and/or assets
which executes and delivers the assumption agreement described in this
subsection (i) or which becomes bound by the terms of this Agreement by
operation of law.
1. Executive's Successors. The terms of this Agreement and all rights of
Executive hereunder shall inure to the benefit of, and be enforceable by,
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
1. No Other Assignment of Benefits. Except as provided in this Section 14(c),
the rights of any person to payments or benefits under this Agreement shall not
be made subject to option or assignment, either by voluntary or involuntary
assignment or by operation of law, including (without limitation) bankruptcy,
garnishment, attachment or other creditor's process, and any action in violation
of this subsection (iii) shall be void.
A. Waiver. No provision of this Agreement shall be modified, waived or
discharged unless the modification, waiver or discharge is agreed to in writing
and signed by Executive and by an authorized officer of the Company (other than
Executive). No waiver by either party of any breach of, or of compliance with,
any condition or provision of this
Agreement by the other party shall be considered a waiver of any other condition
or provision or of the same condition or provision at another time.
A. Entire Agreement. This Agreement shall supersede any and all prior
agreements, representations or understandings (whether oral or written and
whether express or implied) between the parties with respect to the subject
matter hereof.
A. Severability. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision hereof, which shall remain in full force and effect.
A. Governing Law; Arbitration. This Agreement shall be construed in accordance
with and governed by the laws of the State of New York as they apply to
contracts entered into and wholly to be performed within such state by residents
of such state. Any dispute or controversy arising under or in connection with
this Agreement shall be settled exclusively by arbitration in Stamford,
Connecticut, in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrator's award in
any court having jurisdiction. No party shall be entitled to seek or be awarded
punitive damages. All attorneys' fees and costs shall be allocated or
apportioned by the parties, and in the absence of any agreement or allocation or
apportionment shall be awarded to the prevailing party.
A. Employment Taxes. All payments made pursuant to this Agreement will be
subject to withholding of applicable taxes.
A. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together will constitute one and
the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by its duly authorized officer, as of the day and year
first above written.
COMPANY
GARTNER GROUP, INC.
By: ____________________________________
Xxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
EXECUTIVE
X. XXXXXXX XXXXXX
EVP & President, Gartner Distribution
________________________________________
