EXHIBIT 10.3
EXECUTION COPY
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into
as of October 18, 2002 by and between American Lawyer Media, Inc., a Delaware
corporation (the "Company"), and Xxxxxxx X. Xxxxxx, an individual residing at
00 Xxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000 ("Executive").
RECITALS:
Whereas, the Company and Executive are currently party to an
Employment Agreement dated February 9, 1998 (the "Prior Employment
Agreement"), providing for an employment period which is scheduled to expire
on the fifth anniversary of March 9, 1998, i.e., March 9, 2003 (the "Original
Expiration Date"); and
Whereas, the Company desires to secure the benefit of
Executive's experience and ability and to be assured of the continued services
of Executive by employing Executive in the capacity and on the terms set forth
below, and Executive desires to commit himself to serve the Company on the
terms herein provided.
Now therefore, in consideration of the premises and mutual
covenants contained herein, the Company and Executive agree as follows:
1. Employment Period. The effective date of this Agreement
will be the date first set forth above (the "Commencement Date"), and
Executive's employment hereunder will continue until March 9, 2008 (the
"Term"), unless sooner terminated in accordance with Section 9. The period
during which Executive is employed under this Agreement shall be referred to
herein as the "Employment Period". The date on which this Agreement terminates
pursuant to Section 1 or Executive's employment is terminated pursuant to
Section 9 shall be referred to herein as the "Termination Date".
2. Duties during Employment Period. Executive will be the
president and chief executive officer of the Company and will have the
customary duties of a president and chief executive officer relating to the
Company and its Affiliates as assigned to him from time to time by the
Company's Board of Directors (the "Board").
3. Executive's Duties during Employment Period. Executive
will devote substantially all of his energies, interest, abilities and
productive time during customary business hours to the business of the Company
and its subsidiaries and, absent the approval of the Board, Executive shall
not be actively engaged in any business activity other than that required of
him in connection with his duties described in Section 2. Executive will not,
without the Company's prior written consent, render to any other Person
services that are inconsistent with the performance of his duties hereunder.
4. Intellectual Property.
(a) If at any time during the Employment Period, Executive,
whether alone or with any other Person, makes, discovers or produces any
invention, process, development or design which relates to, or affects or, in
the reasonable opinion of the Board is capable of being used or adapted for
use or in connection with, the business or any product, process or
intellectual property of the Company or any Affiliate; (i) the invention,
process, development or design will be the absolute property of the Company
(except to the extent, if any, provided otherwise by United States law and any
other applicable jurisdictions' laws governing the protection of intellectual
property) and (ii) Executive will immediately disclose such invention,
process, development or design to the Company in writing.
(b) Executive will, if and when required to do so by the
Company (whether during the Employment Period or afterwards) and at the
Company's expense: (i) apply, or join with the Company in applying, for
protection in any part of the world for any invention, process, development or
design to which Section 4(a) applies; (ii) execute or procure to be executed
all instruments, and do or procure to be done all things, which are necessary
for vesting such protection in the name of the Company or any nominee of the
Company, or subsequently for renewing and maintaining the same in the name of
the Company or its nominees; and (iii) assist in defending any proceedings
relating to, or to any application for, such patents or other protection.
(c) Executive irrevocably appoints the Company as his
attorney in his name (with full power of substitution or resubstitution) and
on his behalf to execute all documents, and do all things, required in order
to give full effect to the provisions of this Section 4. The Company will
promptly provide Executive with copies of all documents so executed.
5. Confidentiality; Covenant Not to Compete. The parties
acknowledge that the Company and its Affiliates have developed and will
continue to develop valuable proprietary information, including, but not
limited to, client lists and marketing strategies and has devoted significant
time, effort and money to identifying and attracting new clients and expanding
into new markets. In addition, the parties acknowledge that the Company's and
its Affiliates' reputations for quality and service has earned the Company and
its Affiliates valuable good will and that the Company's and its Affiliates
recruitment and training of high quality reporting, editorial, sales,
marketing and operations personnel is a significant factor in its success. The
parties further acknowledge that (i) unauthorized disclosure or use of any of
the proprietary information of the Company or any Affiliate, (ii) any attempt
to interfere with a business relationship between the Company or any
Affiliate, on the one hand, and any clients thereof, on the other hand, (iii)
any attempt to thwart, interrupt or prevent the progress of the marketing
strategies of the Company or any Affiliate, (iv) any attempt to solicit
employees of the Company of any Affiliate, or (v) any attempt to malign or
impugn the reputation and good will of the Company or any Affiliate would
cause irreparable harm to the Company and its Affiliates. For these reasons,
the parties agree that:
(a) During the Employment Period and for an indefinite
period thereafter, Executive will not use or disclose any confidential
information relating to the business or affairs or products of or services
provided by the Company, any Affiliate or any Person having dealings
therewith, or permit or encourage the use of such confidential information by
another, unless such information, at the time of disclosure, is generally
available to the public (other than as a result of disclosure by Executive or
another Person who is under an obligation not to disclose such information),
it being understood that Executive will have the burden of proving that such
information was generally available to the public;
(b) During the Employment Period and at any time prior to
the first anniversary of the Termination Date (the "Covenant Period"),
Executive will not promote, participate, engage or have any other interest
(whether Executive is acting as owner, partner, stockholder, employee, broker,
agent, principal, trustee, corporate officer, director, consultant or in any
other capacity) in any business which is competitive with any product or
service offered by the Company or any Affiliate currently or at any time
during the Term relating to or involving the law or aimed primarily at the
legal community in any jurisdiction (including, but not limited to, those
products and services described in the Company's Offering Memorandum relating
to its #175,000,000 93/4% Senior Notes due 2007, dated December 17, 1997, (the
"Offering Memorandum")); provided, however, that this Agreement will not
prevent Executive from holding for investment up to 2% of any class of stock
or other securities of a publicly held company;
(c) During the Employment Period and at any time prior to
the expiration of the Covenant Period, Executive will not directly or
indirectly solicit, canvass or approach any Person, who, to the knowledge of
Executive after due injury, was provided with products or services by the
Company or any Affiliate at any time during the two year period before the
Termination Date or prior to the expiration of the Covenant Period, to offer
that Person products or services similar to or derivative of products or
services relating to or involving the law or aimed primarily at the legal
community in any jurisdiction, currently provided or previously provided at
any time within the two year period preceding the Termination Date or prior to
the expiration of the Covenant Period, in each case, by the Company or any
Affiliate (including, but not limited to, those products and services
described in the Offering Memorandum);
(d) During the Employment Period and at any time prior the
expiration of the Covenant Period, Executive will not directly or indirectly
solicit, canvass or approach any Person who, to the knowledge of Executive,
provided products or services to the Company or any Affiliate at any time
during the two years before the Termination Date or prior to the expiration of
the Covenant Period, to endeavor to cause such Person to cease providing
products or services to the Company or any Affiliate;
(e) During the Employment Period and at any time prior to
the expiration of the Covenant Period, Executive will not directly or
indirectly employ, solicit or entice away any Board member, director, officer
or employee of the Company or any Affiliate; and
(f) During the Employment Period and for an indefinite
period thereafter, Executive will not use the name of the Company or of any
Affiliate in the conduct of any business activities or for Executive's
personal use (except, for Executive's use on his resume) without the prior
consent of the Company, as applicable, except as necessary to perform his
employment functions during the Employment Period.
The restrictions in this Section 5 are separate and severable and, if any
restriction is unenforceable in whole or in part, for any reason, such
unenforceability shall not affect the enforceability of the remaining
restrictions or, in the case of restrictions unenforceable in part, the
remainder of that restriction. The parties agree that Executive's compliance
with the terms and conditions set forth in this Section 5 is a material
inducement to the Company's entry and performance of this Agreement,
including, but not limited to, the payment by the Company of the Bonus (as
defined in Section 6(b)).
6. Compensation.
(a) Salary. Each year during the Term, the Company shall pay
to Executive an annual salary of no less than $460,000 (each such annual
salary, the "Salary"), which Salary may be increased (but not decreased) in
the discretion of the Board. In this connection, an increase of 4% each year
during the Term will be considered by the Board. Such Salary shall be payable
during the applicable year semi-monthly in 24 installments.
(b) Bonus. In addition to his Salary, the Company shall
provide Executive with the opportunity to achieve a bonus of 0% to 150% of his
then current Salary with the Company with a target bonus opportunity equal to
100% of his then current Salary with the Company (a "Bonus"). The amount of
the Bonus payable in each year will be determined based on the level of
achievement (or surpassing) of budgeted annualized earnings before interest,
taxes, depreciation and amortization less capital expenditures (and/or such
other financial objectives as reasonably specified by Board prior to the
commencement of the applicable fiscal year) as described in Exhibit A for
2002. Prior to the commencement of each applicable fiscal year, the Board
shall specify the form of payment of the Bonus, if any, earned in such year in
cash or in Options (as such term is defined below) or a combination thereof as
described in Exhibit A for 2002.
7. Benefits.
(a) Benefits. Executive shall be entitled to participate in
such then-available insurance programs, equity-based plans and other benefits
as the Company regularly provides to its other senior executive officers;
provided, however, that nothing contained herein shall preclude the Company
from amending or terminating any particular employment benefit plans.
Notwithstanding the foregoing, Executive will not be entitled to participate
in any severance pay plan of the Company, other than as set forth in Section
9.
(b) Vacation. Executive shall be entitled to five weeks of
vacation time each calendar year, to be pro-rated monthly for partial calendar
years, during the term of Executive's employment hereunder.
(c) Expenses. Subject to compliance with the Company's
normal and customary policies regarding substantiation and verification of
business expenses, Executive is authorized to incur on behalf of the Company
and the Company shall pay, or reimburse Executive for, all customary and
reasonable expenses incurred in connection with the performance of duties
hereunder or for promoting, pursuing or otherwise furthering the business of
the Company, or any of its subsidiaries, including, but not limited to,
expenses for travel, entertainment and similar items. Executive shall also be
entitled to reimbursement for, or the Company will pay directly, the
reasonable costs (including, but not limited to, lease or note payments,
insurance and maintenance) of an automobile used by Executive in connection
with the business of the Company and a parking space reasonably proximate to
the Company's headquarters in New York City, subject to compliance by
Executive with the Company's normal and customary policies regarding
substantiation and verification of business expenses.
(d) American Lawyer Media Holdings, Inc. Options. The
parties understand that American Lawyer Media Holdings, Inc. ("Holdings") has
adopted a stock option plan (the "Plan") providing for the grant of options
("Options") to certain employees of one or more Affiliates of Holdings,
including, but not limited to, Executive, to purchase shares of common stock,
par value $.01 per share, of Holdings ("Common Stock"). Pursuant to the stock
option award agreement to be delivered by the Company to Executive (the "Award
Agreement") on or about January 1, 2003, Executive shall have the right to
purchase an aggregate of 12,003 shares of Common Stock (based on an aggregate
of 1,200,300 issued and outstanding shares of Common Stock) on the terms set
forth in the Award Agreement and in accordance with the Plan. Except as
expressly provided below, the terms and conditions of the Award Agreement will
be determined by the Board (or a duly appointed committee hereof) and may be
amended by the Board from time to time in any manner not adverse to Executive.
The parties understand and agree that the shares of Common Stock obtained by
Executive upon exercise of the Option ("Option Stock") and rights to purchase
the same will be diluted by incremental equity capital raised by, or otherwise
contributed to, Holdings through an offering of capital stock or otherwise,
but will not be diluted by stock splits or capital restructuring transactions
similar to stock splits not involving incremental equity capital. The parties
agree that the Award Agreement will contain (i) an exercise price equal to the
fair market value per share of Option Stock on January 1, 2003 as determined
by the Board and (ii) a vesting schedule providing for the vesting of 25% of
the shares of Option Stock on each of the following vesting dates commencing
on the first anniversary of March 9, 2003:
March 9, 2004 - 25%
March 9, 2005 - an additional 25%
March 9, 2006 - an additional 25%
March 9, 2007 - an additional 25%
Notwithstanding the foregoing, the Award Agreement will
provide that such vesting schedule will be accelerated upon a Change of
Control of the Company (as defined below) provided that such Change of Control
occurs on or after March 9, 2003 and not prior thereto. Other than as
described in clauses (i) and (ii) of this Section 7(d), the terms and
conditions set forth in the Award Agreement will be determined by the Board
(or a duly appointed committee thereof).
8. Deductions and Withholdings. All amounts payable or which
become payable hereunder shall be subject to any deductions and withholdings
required by law.
9. Termination.
(a) Termination by the Company Without Cause or by Executive
With Good Reason. The Company, solely and exclusively by Action of the Board
of Directors (as defined below), may terminate Executive's employment
hereunder without Cause (as defined below) at any time, upon 30 calendar days'
written notice to Executive, and Executive may terminate his employment
hereunder with Good Reason (as defined below) at any time, upon 30 calendar
days' written notice to the Company. In the event Executive is terminated by
the Company without Cause or Executive terminates his employment with Good
Reason as aforesaid, the Company shall pay to Executive, subject to
Executive's compliance with Section 5, an amount equal to the sum of (i)
Executive's Salary through the Termination Date, to the extent accrued on the
books and records of the Company and unpaid at the Termination Date together
with business expenses incurred prior to the Termination Date on a basis
consistent with Section 7(c), but unreimbursed prior to the Termination Date;
(ii) in the event that the Termination Date is prior to the Original
Expiration Date (as defined in the recitals to this Agreement), Executive's
Salary for twelve months commencing on the Termination Date, as such Salary
was in effect immediately prior to the Termination Date, or, in the event that
the Termination Date is on or after the Original Expiration Date, Executive's
Salary for six months commencing on the Termination Date, as such Salary was
in effect immediately prior to the Termination Date (amounts referred to in
clauses (i) and (ii) of this Section 9(a), collectively, the "Applicable
Salary Severance Payment"); and (iii) an amount equal to the amount of the
Bonus that would have been earned by Executive if he remained employed until
the end of the year for the year in which the Termination Date occurs as
determined, in good faith, by the Board based upon the bonus criteria
described in Exhibit A, prorated on the basis of the number of days Executive
was employed during the year in which the Termination Date occurred (the
"Bonus Severance Payment"). The Applicable Salary Severance Payment shall be
paid to Executive in semi-monthly installments in accordance with Section
6(a). The Bonus Severance Payment, if any, shall be paid to Executive in a
lump sum as soon as practicable following the end of the year in which the
Termination Date occurs. The payments to be made in accordance with this
Section 9(a) shall constitute liquidated damages payable as a result of the
termination of Executive's employment by the Company without Cause or
Executive's termination of his employment for Good Reason. In addition, in the
event Executive is terminated by the Company without Cause or Executive
terminates his employment hereunder with Good Reason, the Company shall pay to
Executive all unreimbursed expenses incurred in accordance with this
Agreement, which payments shall become due and payable within 30 calendar days
of the Termination Date.
(b) Termination by Executive Without Good Reason. Executive
may terminate his employment hereunder for other than Good Reason, provided
that Executive first gives to the Company a written notice of intent to
terminate at least 30 calendar days prior to the Termination Date. In the
event Executive terminates his employment without Good Reason, the Company
shall pay to Executive Salary through the Termination Date to the extent
accrued on the books and records of the Company and unpaid at the Termination
Date together with business expenses incurred prior to the Termination Date on
a basis consistent with Section 7(c), but unreimbursed prior to the
Termination Date. All other rights of Executive under this Agreement, except
to the extent contemplated to survive under Section 7(d), shall terminate on
the Termination Date.
(c) Termination by the Company for Cause. The Company,
solely and exclusively by Action of the Board of Directors shall have the
right to terminate Executive's employment hereunder for Cause upon written
notice to Executive. In the event Executive's employment is terminated by
Action of the board of Directors for Cause, Executive shall be entitled to
receive his unpaid Salary and unreimbursed business expenses through the
Termination Date to the extent then accrued on the books and records of the
Company, and, if such termination occurs by reason of death or Disability,
Executive shall be entitled to receive a pro rata portion of his Bonus for the
year in which the termination occurs, measured at the then current target. All
other rights of Executive under this Agreement, except to the extent
contemplated to survive under Section 7(d), shall terminate on the Termination
Date.
(d) Termination Following a Change of Control. In the event
that a termination described in Section 9(a) occurs following a Change of
Control of the Company (as defined below), Executive's Applicable Salary
Severance Payment will be equal to Executive's Salary for twelve months
following the Termination Date, as such Salary was in effect immediately prior
to the Termination Date (but not taking into account any reduction in
Executive's Salary on or after such Change of Control).
(e) Notwithstanding any provision of this Agreement to the
contrary, if any amount or benefit to be paid or provided under this Agreement
would be an "excess parachute payment," within the meaning of Section 280G of
the Internal Revenue Code of 1986, as amended (the "Code"), or any successor
provision thereto, but for the application of this sentence, then the payments
and benefits to be paid or provided under this Agreement will be reduced to
the minimum extent necessary (but in no event to less than zero) so that no
portion of any such payment or benefit, as so reduced, constitutes an "excess
parachute payment"; provided, however, that the foregoing reduction will be
made only if and to the extent that such reduction would result in an increase
in the aggregate payment and benefits to be provided, determined on an
after-tax basis (taking into account the excise tax imposed pursuant to
Section 4999 of the Code, or any successor provision thereto, any tax imposed
by any comparable provision of state law, and any applicable federal, state
and local income taxes). The determination of whether any reduction in such
payments or benefits to be provided under this Agreement or otherwise is
required pursuant to the preceding sentence will be made at the expense of the
Company, and if requested by Executive or the Company, by the Company's
independent accountants. The fact that Executive's right to payments or
benefits may be reduced by reason of the limitations contained herein will not
of itself limit or otherwise affect any other rights of Executive other than
pursuant to this Agreement.
(f) Executive shall have no duty to mitigate the payments to
be made to him pursuant to this Section 9 by obtaining subsequent employment
or otherwise and any amounts he earns through subsequent employment or
otherwise shall not reduce any payments to which he is entitled hereunder.
10. Definitions. For purposes of this Agreement, the
following definitions shall be applicable to the terms set forth below:
"Action of the Board of Directors" means a motion,
resolution or action approved by the affirmative vote of a majority of the
members of the Board at a duly called meeting thereof.
"Affiliate" means American Lawyer Media Holdings, Inc.
("Holdings") and any other Person directly or indirectly controlled by
Holdings or the Company as of the date of this Agreement or at any time during
the Term.
"Cause" means (i) Executive's Disability; (ii) the willful
and continued failure by Executive substantially to perform his duties
hereunder (other than such failure resulting from Executive's incapacity due
to physical or mental illness); (iii) the indictment or conviction of
Executive of any felony, (iv) fraud, embezzlement or misappropriation by
Executive relating to the Company or any of its Affiliates or their respective
funds, properties, opportunities or other assets, (v) the commission of a
crime by Executive involving moral turpitude, (vi) Executive acting in a
manner or making any statements, in either case intentionally which the
Company reasonably determines to be detrimental or damaging to the reputation,
operations, prospects or business relations of the Company or any of its
Affiliates, (vii) a breach by Executive of any of the terms of Section 5 of
this Agreement, or (viii) the violation by Executive of any written Company
policy and, in the case of this clause (viii), Executive shall not have cured
any such violation (capable of being cured) within 30 days after written
notice thereof has been given to Executive by the Company.
"Change in Control" means (a) (i) the sale of Voting Stock
of Holdings held, directly or indirectly, by Xxxxxxxxxxx (including through an
initial Public Offering or a subsequent Public Offering) or (ii) a merger,
consolidation, combination, reorganization or other transaction, in the case
of either clause (i) or clause (ii) above, (A) resulting in less than 50% of
the Voting Stock of Holdings being held, directly or indirectly, by
Xxxxxxxxxxx and (B) provided that (I) immediately after such sale or other
transaction, Xxxxxxxxxxx does not have the right or ability, directly or
indirectly, by voting power, contract or otherwise to elect or designate the
election of a majority of the Board and (II) individuals representing a
majority of the voting power of the Board immediately prior to consummation of
such sale or other transaction cease to be members of the Board after
consummation of such sale or other transaction (provided that any such
individual who is replaced with an employee of Xxxxxxxxxxx will not be deemed
to cease being a member of the Board for purposes of this clause (II)); or (b)
the liquidation or dissolution of Holdings or Media or the sale of all or
substantially all of the assets or business of Holdings or Media and its
respective subsidiaries to a Person who is not a Xxxxxxxxxxx affiliate. For
purposes of this paragraph, (i) "Media" means American Lawyer Media, Inc., a
Delaware corporation and a wholly-owned subsidiary of Holdings; (ii) "Public
Offering" means any primary or secondary public offering of equity securities
of Holdings pursuant to an effective registration statement under the
Securities Act of 1933, as amended, and the rules and regulations thereunder,
as such law, rules and regulations may be amended from time to time (other
than pursuant to a registration statement on Form S-4 or Form S-8 or any
successor or similar form); (iii) "Voting Stock" means, with respect to any
Person, the capital stock of any such Person entitled to vote generally in the
election of members of the Board of Directors of Holdings; and (iv)
"Xxxxxxxxxxx" means WPPN, L.P., together with its successors and assigns and
any Xxxxxxxxxxx Affiliates.
"Control", when used with respect to any Person means the
possession, directly or indirectly of the power to direct or cause the
direction of the management and the policies of any such Person, whether
through the ownership of voting securities, by contract or otherwise; and the
terms "controlled" and "controlling" have the meanings correlative to the
foregoing.
"Disability" means the death of Executive or a physical or
mental incapacity as a result of which Executive becomes unable to continue
the proper performance of his duties hereunder for 120 or more business days
in any 12 month period or upon the determination by a medical doctor
reasonably acceptable to the Board that Executive will be unable to return to
work and perform his duties on a full-time basis within 120 business days
following the date of such determination on account of mental or physical
incapacity. In the event Executive's employment is terminated for Cause
because of Executive's Disability, Executive or, in the event of Executive's
death, the Person Executive has designated in writing, shall be entitled to
receive any disability payments provided by the Company's insurance plans.
"Good Reason" means the failure of the Company to comply
with any material provision of this Agreement (including, but not limited to
Section 2), and the Company has not cured such failure within 30 calendar days
after written notice of such noncompliance has been given by Executive to the
Company, or if such failure is not capable of being cured in such time, a cure
shall not have been diligently initiated by the Company within such 30
calendar day period and the Company shall not have cured such failure within
60 calendar days thereafter.
"Person" means any individual, corporation, partnership,
trust, association or other entity or organization, including, but not limited
to, a government or political subdivision or any agency or instrumentality
thereof.
"Xxxxxxxxxxx Affiliate" means any person controlling,
controlled by or under common control with WPPN, L.P.
11. Notices. Any notice, request, demand or other communication required or
permitted hereunder shall be deemed to be properly given when personally
delivered in writing to the person being served or the designated officer of
the corporate party being served; deposited in the United States mail, first
class, registered or certified with return receipt requested, postage prepaid
and addressed as specified below to the person otherwise designated, on the
date of receipt, refusal or non-delivery indicated on the return receipt;
communicated to a public telegraph company for transmittal; or sent by
telecopies; and addressed to the Company or Executive at the following
addresses:
To the Company: American Lawyer Media, Inc.
c/o Wasserstein, Perella Co., Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx, Vice President
Telecopier: (000) 000-0000
Phone: (000) 000-0000
Copy to: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxxxx
Telecopier: (000) 000-0000
Phone: (000) 000-0000
To Executive: Xxxxxxx X. Xxxxxx
00 Xxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Phone: 000-000-0000
Copy to: Xxx X. Xxxxxx
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: 000-000-0000
Each party may change its address by written notice in accordance with this
Section 11.
12. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the heirs and representatives of Executive and the
successors and permitted assigns of the Company. This Agreement shall be
assignable by the Company to any entity which is owned, directly or
indirectly, entirely by the Company or its parent or to an acquiror of all or
substantially all of the assets of the Company. The Company shall require any
successor (whether direct or indirect, by purchase, merger, reorganization,
consolidation, acquisition of property or stock, liquidation or otherwise) to
all or a substantial portion of its assets to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. Regardless of
whether such an agreement is executed, this Agreement shall be binding on any
successor of the Company in accordance with the operation of law, and such
successor or assignee shall be deemed "the Company" for all purposes under
this Agreement.
13. Applicable Law: Venue; Jurisdiction. This Agreement is
made and is to be governed by and construed under the internal laws of New
York without regard to principles of conflict of laws. Any suit, action or
proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement or the transactions contemplated
hereby may be brought in any court of competent jurisdiction in the Borough of
Manhattan or the United States District for the Southern District of New York
and each of the parties hereby consents to the jurisdiction of such courts
(and of the appropriate appellate courts therefrom) in any such suit, action
or proceeding and irrevocably waives, to the fullest extent permitted by law,
any objection which it may now or hereafter have to the laying of the venue of
any such suit, action or proceeding in any such court or that any such suit,
action or proceeding which is bought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be
served on any party anywhere in the world, whether within of without the
jurisdiction of any such court. Without limiting the foregoing, each party
agrees that service of process on such party as provided in Section 13 will be
deemed effective service of process on such party.
14. Waiver of Breach. A waiver by either party of any breach
of the provisions of this Agreement by the other party, or, in any particular
instance or series of instances, of any term or condition of this Agreement,
shall constitute or be deemed a waiver of such breach or of any such term or
condition in any other instance nor shall any waiver constitute a continuing
waiver hereunder. No waiver shall be binding unless executed in writing by the
party making the waiver.
15. Warranties; Covenants; Acknowledgement.
(a) As an inducement to the Company to enter into this
Agreement, Executive represents and warrants as follows: (i) he is not a party
to any other agreement or obligation for personal services (other than the
Prior Employment Agreement which shall be superceded by this Agreement); (ii)
there exist no impediments or restraints, contractual or otherwise on
Executive's power, right or ability to enter into this Agreement and to
perform his duties and obligations hereunder; and (iii) the performance of his
obligations under this Agreement do not and will not violate or conflict with
any agreement relating to confidentiality, non-competition or exclusive
employment to which Executive is or was subject. As an inducement to Executive
to enter into this Agreement, the Company represents and warrants as follows:
(i) there exist no impediments or restraints, contractual or otherwise on the
Company's power, right or ability to enter into this Agreement and to perform
its duties an obligations hereunder and (ii) it has delivered to Executive a
true and complete copy of the Offering Memorandum.
(b) Executive hereby acknowledges and agrees that (i) his
bonus entitlement for 2001, which arose under the Prior Employment Agreement
and which was previously waived by Executive, is permanently and totally
waived and (ii) Executive will not pursue any claim with respect to any bonus
in respect of 2001.
16. Amendment; Termination. The provisions of this Agreement
may be amended, modified, supplemented, or otherwise altered only by an
agreement, in writing, executed by the Company and Executive. Except as
provided in Section 9 hereof, this Agreement may not be terminated other than
by an agreement in writing, executed by the Company and Executive.
17. Attorney's Fees. If any legal action or other proceeding
is brought for the enforcement of this Agreement, or because of an alleged
dispute, breach, default or misrepresentation in connection with any of the
provisions of this Agreement, the successful or prevailing party shall be
entitled to recover reasonable attorneys' fees and other costs incurred in
that action or proceeding, in addition to any other relief that may be
granted.
18. Captions and Section Headings. Captions and Section
headings used herein are for convenience only and are not a part of this
Agreement and shall not be used in construing it. References to Sections are
to Sections in this Agreement.
19. Severability. The provisions of this Agreement are
severable. If any provision of this Agreement shall be held to be invalid or
otherwise unenforceable, in whole or in part, the remaining provisions or
enforceable parts thereof shall not be affected thereby and shall be enforced
to the fullest extent permitted by law. In addition, should any provision or
any portion thereof ever be adjudicated by a court of competent jurisdiction
to exceed the time or other limitation permitted by applicable law as
determined by such court in such action, then such provisions shall be
decreased, performed to the maximum time or other limitations prescribed by
applicable law, the parties acknowledging their desire that in such event such
action be taken.
20. Entire Agreement. This Agreement contains the entire
agreement of the Company and Executive, and supersedes any and all other
agreements, either oral or written, between the Company, its predecessors or
subsidiaries, and Executive with respect to the employment of Executive by the
Company, including, without limitation, the Prior Employment Agreement. Each
party to this Agreement acknowledges that no representations, inducements,
promises or agreements, oral or otherwise, have been made by any party, or
anyone acting on behalf of any party, which are not embodied herein, and that
no other agreement, statement or promise with respect to the subject matter
hereof not contained in this Agreement shall be valid or binding. For the
avoidance of doubt, the Award Agreements entered into by Executive pursuant to
the Prior Employment Agreement and this Agreement shall remain in effect in
accordance with the terms of such Award Agreements.
21. Injunctive Relief. Executive and the Company (a) intend
that the provisions of Section 5 be and become valid and enforceable, (b)
acknowledge and agree that the provisions of Section 5 are reasonably
necessary to protect the legitimate interests of the Company, its Affiliates
and their businesses and (c) that any violation of Section 5 will result in
irreparable injury to the Company and its Affiliates, the exact amount of
which will be difficult to ascertain and the remedies at law for which will
not be reasonable or adequate compensation to the Company and its Affiliates
for such a violation. Accordingly, Executive agrees that if he violates any of
the provisions of Section 5 in addition to any other remedy available at law
or in equity, the Company shall be entitled to specific performance or
injunctive relief without posting a bond, or other security, and without the
necessity of proving actual damages.
22. Waiver of Jury Trial. EACH OF THE PARTIES HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
23. Representation by Counsel; Mutual Negotiation. Each
party has had the opportunity to be represented by counsel of its choice in
negotiating this Agreement. This Agreement shall therefore be deemed to have
been negotiated and prepared at the joint request and direction of the
parties, at arm's length, with the advice and participation of counsel, and
shall be interpreted in accordance with its terms and without favor to any
party.
24. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, all of which
together shall constitute one and the same instrument.
The parties have executed this Agreement as of the date
first written above.
EXECUTIVE AMERICAN LAWYER MEDIA, INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx Xxxxxxx
------------------------ ------------------------
Xxxxxxx X. Xxxxxx Name: Xxxx Xxxxxxx
Title: Vice President
EXHIBIT A
AMERICAN LAWYER MEDIA SENIOR MANAGEMENT BONUS PLAN
BONUS TARGET AND PAYOUT CRITERIA FOR -- Xxxxxxx Xxxxxx
2002 Bonus Target 460,000
Percent of Target
Bonus Bonus $
---------- --------
2002 Bonus Criteria LONDON PROFORMA EBITDA 10% 46,000
ALM EXPENSE 10% 46,000
ALM Adj. EBITDA- Cap Ex 80% 368,000
TOTAL 100% 460,000
Criterion #1-- LONDON PROFORMA EBITDA
-------------- ----------------------
Bonus payout will be 150% 130% 110% 100% 50% 0%
If actual is % of budget -50.0% 0.0% 50.0% 100.0% 130.0% 160.0%
If London proforma EBITDA= 00 0 -00 -000 -000 -000
Bonus payout = 69,000 59,800 50,600 46,000 23,000 0
Criterion #2-- ALM EXPENSE
-------------- -----------
Bonus payout will be 150% 130% 110% 100% 50% 0%
If actual is % of budget 90.0% 93.0% 96.0% 100.0% 102.5% 105.0%
If ALM Expenses= 107,600 111,187 114,774 119,556 122,545 125,534
Bonus payout = 69,000 59,800 50,600 46,000 23,000 0
Criterion #3-- ALM Adj. EBITDA- Cap Ex
-------------- -----------------------
Bonus payout will be 150% 130% 110% 100% 50% 0%
If actual is % of budget 110.0% 107.5% 105.0% 100.0% 97.5% 95.0%
If ALM Adj.EBITDA-CapEx = 31,309 30,598 29,886 28,463 27,751 27,040
Bonus payout = 552,000 478,400 404,800 368,000 184,000 0
TOTAL BONUS $ 690,000 598,000 506,000 460,000 230,000 0
Payouts will be interpolated for actual performance between percentages shown.
Payouts up to target bonus will be paid in options of ALMH with a value equal
to the target amount Payouts above target bonus will be paid out in cash
