Exhibit 10.11
May 20, 2004
Xx. Xxxxx X. Xxxxx
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Dear Xxxxx:
The purpose of this letter is to confirm the services (the "Services") to be
provided by you or on your behalf to MDC Partners Inc. (the "Company") and its
affiliates following your departure from Canada on or about July 31, 2004 (the
"Departure Date"). Prior to the Departure Date, your current employment
agreement with the Company dated July 19, 1999 (the "Employment Agreement")
will remain in full force and effect. Effective as of the Departure Date, you
shall make your services available to the Company for a minimum of 15 days per
month. Services are to include, but are not limited to, management and merger
and acquisition advisory services. You will report to Miles X. Xxxxx, Chairman,
President and Chief Executive Officer of the Company and will work with senior
management of the Company that require your services.
Fees for the services provided, whether billed directly by you or through a
holding company, will consist of an annual retainer fee of Cdn$435,000.
Retainer fee payments will be paid on the last day of each month commencing in
the first full calendar month following the Departure Date. Additional annual
retainer fees, to a maximum of Cdn$400,000, may potentially be earned based on
criteria established on a mutually agreeable basis, which shall include:
o Performance of the Company;
o Corporate cost of the acquisitions in which you have had a significant
role;
o Capital amount of financings in which you have had a significant role;
o Other criteria to be established on a mutually agreeable basis.
All stock options and stock appreciation rights held by you as at the Departure
Date will continue, in the normal course, throughout the term of this
agreement, except such rights that expire pursuant to their terms prior to the
termination of this agreement.
You will be reimbursed for all travel, mobile phone and entertainment expenses
incurred in the performance of the Services hereunder.
The term of this agreement shall be for a period of two years from the
Departure Date.
In the course of providing the Services hereunder, you will have access to
confidential information and records, data, specifications and other trade
secrets of the Company and its affiliates (collectively, "Confidential
Information"). Both during and after the term of this agreement, you shall not,
directly or indirectly, disclose Confidential Information to any person or use
any Confidential Information except as required in the course of providing the
Services. You hereby acknowledge that all Confidential Information shall be and
remains the Company's sole property. Upon termination of this agreement, you
shall return any and all Confidential Information.
In consideration of the entering into of this agreement by the Company, you
covenant and agree to and in favour of the Company that you will not, so long
as you are retained by the Company hereunder, (a) directly or indirectly, in
any manner whatsoever, including, without limitation, either individually or in
partnership or jointly, or in conjunction with any other person, as principal,
agent, shareholder or in any other manner whatsoever, carry on or be engaged in
or be concerned with or interested in or lend money to, guarantee the debts or
obligations of or permit her name or any part thereof to be used or employed by
any person engaged or concerned with or interested in a business which is
substantially similar to the business of the Company or any of its
subsidiaries, or (b) directly or indirectly, employ, solicit, service,
interfere with or endeavour to entice away from the Company any person, who, at
any time during your retainer hereunder, was an officer, director, shareholder,
employee, client or active prospect of, the Company or any of its subsidiaries.
It is understood and acknowledged by the parties hereto that the covenants set
out in this paragraph are essential elements to this agreement. Without
intending to limit the remedies available to the Company, you acknowledge that
damages at law will be an insufficient remedy in view of the irrevocable harm
which will be suffered if you violate the terms of this paragraph and you agree
that the Company may apply for and have injunctive relief or specific
performance in any court of competent jurisdiction specifically to enforce any
such covenants upon the breach or threatened breach of any such provisions or
otherwise specifically to enforce any such covenants and hereby waives any
defences thereto.
This agreement may be amended only by an agreement in writing signed by each of
the parties. This agreement shall be binding upon and enure to the benefit of
and shall be enforceable by and against the Company and its successors and
assigns and you and your heirs, beneficiaries and legal representatives. It is
agreed that your rights and obligations hereunder may not be delegated or
assigned without the consent of the Company.
This agreement shall be governed by and construed in accordance with the laws
of the Province of Ontario and the federal laws of Canada applicable therein,
and the parties hereto hereby irrevocably attorn to such jurisdiction.
This agreement contains the entire agreement of the parties with respect to the
provision of Services following the Departure Date and supersedes any prior
agreements between the parties, whether written or oral. Upon acceptance of
this agreement by you evidenced by your signature below, it is agreed that the
Employment Agreement will be automatically terminated effective as of the
Departure Date, with neither party thereunder having any rights or obligations
outstanding thereunder.
Sincerely yours,
MDC PARTNERS INC.
/s/ Miles X. Xxxxx
___________________________
Miles X. Xxxxx
Chairman, President & Chief Executive Officer
Accepted and Agreed:
/s/ Xxxxx X. Xxxxx
___________________________
Xxxxx X. Xxxxx
Reviewed and approved by the MDC Compensation Committee Members:
/s/ Xxxxxxx X. Xxxxxxx
____________________________
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxxx
____________________________
Xxxxxx X. Xxxxxxxx
/s/ Xxx X. Xxxxxx
____________________________
Xxx X. Xxxxxx
