EXHIBIT 10.38
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is entered into and made effective as of
this ___ day of ____________, 1997, by and between Xxxxxx X. Xxxxxxxx
("Executive") and Law Companies Group, Inc., a Georgia corporation (the
"Company").
WHEREAS, the Company desires to employ the Executive upon certain terms
and conditions, and the Executive desires to accept such employment upon such
certain terms and conditions; and
WHEREAS, the Company and the Executive desire to set forth in a written
agreement the terms and conditions pursuant to which the Executive shall be
employed by the Company;
NOW, THEREFORE, in consideration of the premises and mutual promises
and covenants set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
EMPLOYMENT; DUTIES AND AUTHORITY; TERM
-1.1 Employment. Subject to the terms and conditions of this Agreement,
the Company hereby employs the Executive, and the Executive hereby agrees to be
employed by the Company, to render services on behalf of the Company pursuant to
the terms and provisions of this Agreement.
1.2 Duties and Authority. The Executive is engaged and agrees to
perform services for and on behalf of the Company as the Executive Vice
President, General Counsel and Secretary of the Company. The Executive shall
report directly to the Chairman of the Company and shall have such duties and
authority as may be assigned to him by the Chairman, the Bylaws of the Company
or by the Board of Directors of the Company (the "Board"). The Executive agrees
to perform such duties diligently and efficiently and in accordance with the
reasonable directions of the Chairman and the Board. The Executive also agrees
to serve, at the request of the Chairman or the Board, and, if elected, as an
officer or director of any affiliate, direct or indirect, of the Company
("Company Affiliate"). Any change in Executive's title and/or position shall not
serve to initiate, amend or otherwise modify this agreement.
1.3 Performance.
(a) The Executive shall conduct himself at all times in a
business-like and professional manner as appropriate for a person in his
position and shall represent the Company and the Company Affiliates in all
respects as complies with good business and ethical practices all subject to the
Companies' Code(s) of Ethics and/or Conduct. In addition, the Executive shall be
subject to and abide by the policies and procedures applicable to personnel of
the Company, as adopted from time to time.
(b) During the term of this Agreement, the Executive shall
devote his full time, attention, energies and efforts to performing services on
behalf of the Company and Company Affiliates, and shall not engage in any
outside employment without the express written consent of the Board.
1.4 Term. For purposes of this Agreement, the Term will commence on the
date hereof and shall continue until termination as provided in this Agreement.
ARTICLE II
COMPENSATION OF EXECUTIVE
2.1 Base Salary. The Company shall pay to the Executive as compensation
for his services provided hereunder an annual base salary ("Base Salary"),
payable in accordance with the Company's standard payroll practices.
The Base Salary paid to the Executive under this Agreement shall be
reviewed by the Chairman and the Compensation Committee of the Board annually,
and in the sole discretion of the Chairman and Compensation Committee, may be
increased (but not decreased).
2.2 Incentive. The Executive shall be eligible for Incentive
Compensation, as approved by the Compensation Committee from time to time.
2.3 Long-term incentive program.
The Executive shall be eligible for participation at Board's approval
in any approved Stock Option Plan or Senior Executive Retirement Plan.
2.4 The Executive shall be entitled to participate in all of the
employee benefit plans sponsored, maintained or contributed to by the Company
and which are generally available to salaried employees of the Company, in each
case in accordance with the terms and provisions of such plans. Such plans will
include any ESOP and any group health insurance plan, disability insurance plan
and dental insurance plan which may be provided to employees of the Company.
Contributions by the Executive to such plans shall be required only to the
extent required of similarly situated employees.
2.5 Vacation. Executive shall be entitled to four weeks paid vacation
time. All vacations shall be taken by Executive at such time or times as may be
approved by the Chairman of the Company. There will be no carryover of unused
vacation time or sick leave from one year to another, and there shall be no
additional compensation paid to Executive by the Company for such unused
vacation time.]
2.6 Miscellaneous Benefits. The Executive shall be entitled to any
"fringe benefit" which is generally provided to employees of the Company and
participation in any company automobile program.
2.7 Expense Reimbursement. Upon proper documentation, the Company shall
reimburse the Executive for reasonable and necessary travel and other business
related expenses, including entertainment expenses, incurred by him in
performance of the business of the Company.
2.8 Withholding, FICA, FUTA, Etc. Any amount to be paid to the
Executive under the provisions of this Agreement shall be subject to, and
reduced by, any applicable federal, state or local taxes imposed by law.
ARTICLE III
COVENANT NOT TO SOLICIT OR COMPETE AND CONFIDENTIALITY
3.1 Survival. The Executive's obligations under this Article 3 shall
survive termination of this Agreement.
3.2 Covenant Not to Compete. Executive acknowledges and agrees that,
because of his employment under this Agreement, he does and will continue to
have access to "Proprietary Information." For purposes of this Agreement,
"Proprietary Information" shall mean (a) information relating to Company or any
Company Affiliate or their respective business that meets the definition of
"trade secret" under the laws of the State of Georgia (i.e., O.C.G.A.
ss.10-1-760, et seq.), (b) any technical information, financial information,
business plans, design, process, procedure, formula or improvement that is
secret and of value to any Company Affiliate, (c) information that Company or
any Company Affiliate takes reasonable efforts to protect from disclosure and
that is not generally known by others and from which Company or any Company
Affiliate derives actual or potential economic value due to its confidential
nature, including, but not limited to, technical or nontechnical data, formula,
patterns, programs, devices, methods, techniques, drawings, processes, financial
data, lists of actual or potential customers, customer account records, training
and operations materials and memoranda, personnel records, business plans,
financial information, accounts, employees and affairs of Company or any Company
Affiliate, and any information marked "confidential" by Company or any Company
Affiliate. Executive agrees that during Executive's employment and for a
one-year period thereafter, Executive shall not, directly or indirectly, either
individually or in conjunction with any other "Person" (as defined herein)
compete with Company or any Company Affiliate in the business of the engineering
consulting within the "Restricted Territory, which shall mean the State of
Georgia." "Person" shall mean any individual, entity, corporation, partnership,
limited liability company, joint venture or other incorporated or unincorporated
association or organization.
3.3 Covenant Not to Solicit. Executive acknowledges and agrees that,
because of his employment under this Agreement, he does and will continue to
have access to Proprietary Information, including information about other
employees of the Company or Company Affiliates. Executive agrees that during the
Term and for a one-year period thereafter, Executive shall not solicit or
contact, for the purpose of providing services or products the same as or
substantially similar to those provided by Company or any Company Affiliate, any
Person that during the Term was a customer of Company or any Company Affiliate,
and Executive shall not persuade or attempt to persuade any person who was
employed by Company or any Company Affiliate as of the Severance Date (as
defined herein), to terminate or modify his employment relationship with Company
or any Company Affiliate.
3.4 Confidentiality. (a) The Executive acknowledges that, prior to and
during the Term of this Agreement, the Company or Company Affiliates have
furnished and shall furnish to the Executive Proprietary Information which could
be used by the Executive on behalf of a competitor of the Company or Company
Affiliates to the Company or Company Affiliates' substantial detriment.
Moreover, the parties recognize that the Executive during the course of his
employment with the Company and/or any other Company Affiliate may develop
important relationships with customers and others having valuable business
relationships with the Company or Company Affiliates. In view of the foregoing,
the Executive acknowledges and agrees that the restrictive covenants contained
in this Article 3 are reasonably necessary to protect the Company and Company
Affiliates' legitimate business interest and good will.
(b) The Executive agrees that he shall protect the Proprietary
Information and shall not disclose to any Person, or otherwise use, except in
connection with his duties performed in accordance with this Agreement, any
Confidential Information; provided, however, that the Executive may make
disclosures required by a valid order or subpoena issued by a court or
administrative agency of competent jurisdiction, in which event the Executive
shall promptly notify the Company of such order or subpoena to provide the
Company an opportunity to protect its interest.
(c) Upon the termination of Executive's employment under this
Agreement, the Executive agrees to deliver promptly to the Company all files,
customer lists, management reports, memoranda, research, forms, financial data
and reports, business plans, and other documents supplied to or created by him
or any other employee of Company or any Company Affiliate in connection with his
employment with Company (including all copies of the foregoing) in his
possession or control and all of the Company's and each Company Affiliates'
equipment and other materials in his possession or control.
3.5 Reasonableness. Executive has carefully considered the nature and
extent of the restrictions upon him and the rights and remedies conferred on the
Company under this Article 3, and Executive hereby acknowledges and agrees that:
(a) the restrictions and covenants contained herein, and the
rights and remedies conferred upon the Company, are necessary to
protect the goodwill and other value of the business of the Company and
Company Affiliates;
(b) the restrictions placed upon Executive hereunder are
narrowly drawn, are fair and reasonable in time and territory, will not
prevent him from earning a livelihood, and place no greater restraint
upon the Executive than is reasonably necessary to secure the business
and goodwill of the Company and Company Affiliates;
(c) the Company is relying upon the restrictions and covenants
contained herein in continuing to make available to Executive
information concerning the business of the Company and Company
Affiliates; and
(d) Executive's employment hereunder places him in a position
of confidence and trust with the Company and Company Affiliates and
their respective employees, merchants, customers and suppliers.
3.6 Remedy for Breach. Executive acknowledges and agrees that his
breach of any of the covenants contained in this Article 3 will cause
irreparable injury to the Company and the Company Affiliates and that remedies
at law available to the Company and the Company Affiliates for any actual or
threatened breach by the Executive of such covenants will be inadequate and that
the Company shall be entitled to specific performance of the covenants in this
Article or injunctive relief against activities in violation of this Article by
temporary or permanent injunction or other appropriate judicial remedy, writ or
order, without the necessity or proving actual damages. This provision with
respect to injunctive relief shall not diminish the right of the Company or
Company Affiliates to claim and recover monetary damages against the Executive
for any breach of this Agreement, in addition to injunctive relief. The
Executive acknowledges and agrees that the covenants contained in this Article
shall be construed as agreements independent of any other provision of this or
any other contract between the parties hereto, and that the existence of any
claim or cause of action by the Executive against the Company or Company
Affiliates, whether predicated upon this or any other contract, shall not
constitute a defense to the enforcement by the Company or the Company Affiliates
of said covenants.
ARTICLE IV
TERMINATION
4.1 Termination by the Company. (a) The Company shall have the right to
terminate the Executive's employment under this Agreement at any time (the
"Severance Date"), for "Cause." For purposes of this Agreement, "Cause" shall
mean a finding by a court of law of (a) an act or acts by the Executive
involving the use, or the disclosure to unauthorized Persons, of any Proprietary
Information or other confidential information or trade secrets of the Company or
any Company Affiliate, the breach by the Executive of any contract with the
Company or any Company Affiliate, including this Agreement, or the Executive's
willful misconduct, dishonesty, theft, embezzlement, fraud, deceit, or other
unlawful acts; or, the violation by the Executive of any fiduciary obligation to
the Company or any Company Affiliate; or, the conviction of a felony, which is
directly associated with the performance of Executive's job duties. In the event
the Company terminates the Executive's employment under this Agreement for
Cause, the Company's obligations under this Agreement shall terminate on the
Severance Date provided that the Company shall pay to the Executive any earned
but unpaid Base Salary up to and including the Severance Date. In the event the
Company terminates the Executive without Cause, Executive shall be entitled to
severance payments pursuant to (b) below. For purposes of this Agreement,
"without cause" shall include, without limitation, any material change in
Executive's reporting level, duties, pay, benefits and/or other status within
the Corporation.
(b) Notwithstanding the foregoing, in the event the Company
terminates the Executive's employment under this Agreement without cause within
two years of closing of the transaction set forth in Exhibit "A" hereto
(referred to hereafter as "Xxxxxxxx transaction"), the Executive shall be
entitled to severance payments of two years at Executive's compensation level on
the Termination Date and severance payments of one year at Executive's
compensation level on the Termination Date, in the event Company terminates
Executive's employment under this Agreement without cause after two years from
closing "Xxxxxxxx transaction". In any event, and notwithstanding the above, in
the event Company terminates Executive's employment under this agreement in
connection with a "change of control" of Company to an entity not a party to the
Xxxxxxxx transaction, then Executive shall be entitled to severance payments of
two years at Executive's compensation on the Termination Date. "Change of
Control" shall mean the occurrence of any entity or individual or related groups
of entities or individuals who shall obtain (i) the beneficial ownership, or the
power to vote more than fifty percent (50%) of the outstanding securities (or
any class or type) of the Company; or (ii) the right to elect a majority of the
Board of Directors of the Company.
(c) The benefit coverages defined in paragraph 2.4 provided to
the Executive by the Company as of the Severance Date shall be continued
throughout the severance payment period following the Severance Date at the same
level and in the same manner as if his employment had not terminated (subject to
the customary changes in such coverages if the Executive retires, reaches age 65
or similar events and subject to any changes in such insurance benefits provided
to employees of the Company generally). The health insurance coverage provided
by the Company on the Executive's dependents as of the Severance Date will be
continued throughout the severance payment period on the same terms to the
extent permitted by the applicable policies or contracts and subject to the
customary changes in such coverages if the Executive retires, reaches age 65 or
similar events and subject to any changes in such insurance benefits provided to
employees of the Company generally. Any costs the Executive was paying for such
coverages as of the Severance Date shall continue to be payable by the Executive
by payroll deduction or by separate check payable to the Company each month in
advance. [If the terms of any insurance plan sponsored by the Company do not
permit continued participation by the Executive, the Company will arrange for
other health insurance coverage providing substantially similar benefits. Such
other coverage shall be provided at the Company's expense throughout the
severance payment period following the Severance Date subject to the payment by
the Executive of any costs the Executive was paying for health insurance
coverage as of the Severance Date]; and
(d) [To the extent permitted by applicable law and the
respective plan, the Executive shall be entitled to continue to participate,
consistent with past practices, in all employee benefit plans sponsored,
maintained or contributed to by the Company as of the Severance Date and which
are generally available to salaried employees of the Company.]
ARTICLE V
MISCELLANEOUS PROVISIONS
5.1 Invalidity of Any Provision. It is the intention of the parties hereto
that the provisions of this Agreement shall be enforced to the fullest extent
permissible under the laws and public policies of each state and jurisdiction in
which such enforcement is sought, but that the unenforceability (or the
modification to conform with such laws or public policies) of any provision
hereof shall not render unenforceable or impair the remainder of this Agreement
which shall be deemed amended to delete or modify, as necessary, the invalid or
unenforceable provisions. The parties further agree to alter the balance of this
Agreement in order to render the same valid and enforceable. The terms of the
noncompetition provisions of this Agreement shall be deemed modified to the
extent necessary to be enforceable and, specifically, without limiting the
foregoing, if the term of the noncompetition is too long to be enforceable, it
shall be modified to encompass the longest term which is enforceable and, if the
scope of the geographic area of noncompetition is too great to be enforceable,
it shall be modified to encompass the greatest area that is enforceable.
5.2 Arbitration of Disputes: Expenses. The parties agree that all
disputes that may arise between them relating to the interpretation or
performance of this Agreement, including matters relating to any funding
arrangements for the benefits provided under this Agreement, shall be determined
by binding arbitration through an arbitrator approved by the American
Arbitration Association or other arbitrator mutually acceptable to the parties.
The award of the arbitrators shall be final and binding upon the parties and
judgment may be entered in any court having jurisdiction. Each party shall pay
its own legal fees and other expenses associated with the arbitration, provided
that the fee for the arbitrator shall be shared equally.
5.3 Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Georgia, without giving effect to
principles of conflicts of law.
5.4 Wavier of Breach. The waiver of a breach of any provision of this
Agreement by a party hereto shall not operate or be construed as a wavier of any
subsequent breach by the other party hereto.
5.5 Successors and Assigns. This Agreement shall inure to the benefit
of the Company its respective subsidiaries and affiliates, and their respective
successors and assigns.
5.6 Assignment of Agreement. This Agreement is not assignable by the
Executive, but shall be freely assignable by the Company with the written
consent of the Executive.
5.7 Notices. All notices, demands and other communications hereunder
shall be in writing and shall be delivered in person or sent via overnight
courier or sent by facsimile with a copy deposited in the United States mail,
certified or registered, with return receipt requested, addressed as follows:
(i) if to Executive:
Xxxxxx X. Xxxxxxxx
Law Companies Group, Inc.
0 Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
(000) 000-0000
(000) 000-0000 - Facsimile
(ii) if to Company:
Law Companies Group, Inc.
0 Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxx
CEO, Chairman and President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any party may change the address to which notices, requests, demands
and other communications shall be delivered or mailed by giving notice thereof
to the other party in the same manner provided herein.
5.8 Entire Agreement. This Agreement contains the entire agreement of
the parties with respect to the subject matter hereof. It may not be changed
orally but only by an agreement in writing signed by the party against whom
enforcement of any waiver, change, modification, extension, or discharge is
sought.
5.9 Captions. The captions appearing in this Agreement are inserted
only as a matter of convenience and in no way define, limit, construe or
describe the scope or intent of any provisions of this Agreement or in any way
affect this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal as of this _____________ day of ___________________________, 1997.
Xxxxxx X. Xxxxxxxx
--------------------------------------
[Executive]
Company:
LAW COMPANIES GROUP, INC.
By:____________________________________
[Name]
[Title]
