EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of February
26, 1998, by and between Xxxxxxx X. Xxxxxxxx, an individual ("Executive") and
Gartner Group, Inc., a Delaware corporation (the "Company").
Recitals
A. Executive currently serves as the President & Chief Operating Officer
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:
1. Employment. The Company shall employ Executive in the position of
President & Chief Operating Officer, 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.
2. Term. The employment of Executive pursuant to this Agreement shall
continue through October 1, 2000, 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.
3. 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 $25,000.00 per month for fiscal 1998, 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.
4. 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, 1998 has previously been set at
$250,000, with a maximum bonus of $500,000.
5. 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.
(b) 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.
6. 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.
7. Severance Benefits.
(a) Involuntary Termination following Change in Control. If during
the term of this Agreement the Company shall be subject to a Change in Control
(as defined below) and within twelve (12) months thereafter (i) the Company or
its successor terminates the employment of Executive involuntarily and without
Business Reasons or (ii) 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 two (2)
years 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) acceleration in
full of vesting of all outstanding stock options held by Executive (and in this
regard all options held by Executive shall remain exercisable for ninety (90)
days following the Termination Date (or such longer period as may be provided in
the applicable stock option plan or
agreement)), (D) 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, (E) 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, and (F)
no other compensation, severance or other benefits. Notwithstanding the
foregoing, however, the Company shall not be required to continue to pay the
Base Salary specified in clause (A) hereof for any period following the
Termination Date if Executive violates the noncompetition agreement set forth in
Section 13 during the three (3) year 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
relates to any period following the Termination Date.
(b) Involuntary Termination in Absence of Change in Control. If
during the term of this Agreement the Company terminates the employment of
Executive involuntarily and without Business Reasons or a Constructive
Termination occurs (other than any such termination following a Change in
Control to which Section 7(a) applies), 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.
(c) 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
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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.
(d) 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.
(e) 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.
8. 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.
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(b) 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.
(c) 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.
9. 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.
(b) 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
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termination of his employment becomes effective, the notice of intent to
terminate shall automatically be deemed to have been revoked.
(c) 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.
(d) 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.
(e) Change in Control. A "Change in Control" shall be deemed to have
occurred if:
(i) 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) Cognizant Corporation, a Delaware
corporation, or any wholly-owned subsidiary of Cognizant Corporation
(collectively, "Cognizant"), until Cognizant 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 Cognizant, 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;
(ii) 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
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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;
(iii) 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;
(iv) 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
(v) 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 Cognizant Corporation to an
affiliated company, subsidiary or spin-off entity of Cognizant Corporation, or
the reduction in ownership of capital stock of the Company by Cognizant
Corporation or any affiliated subsidiary or spin-off of Cognizant Corporation by
means of sales of shares to the public, shall not alone be deemed to meet the
requirements of clause (8)(e)(A) hereof.
10. 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.
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(b) "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.
11. 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.
12. 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.
(b) 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
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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.
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13. 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.
(b) 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.
(c) 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.
(d) 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.
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14. 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.
(b) 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.
(c) Successors.
(i) 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.
(ii) 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.
(iii) 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.
(d) 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.
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(e) 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.
(f) 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.
(g) 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.
(h) Employment Taxes. All payments made pursuant to this Agreement
will be subject to withholding of applicable taxes.
(i) 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.
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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
Chairman & Chief Executive Officer
EXECUTIVE
Xxxxxxx X. Xxxxxxxx
President & Chief Operating Officer
__________________________________________________
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