EMPLOYMENT AGREEMENT
Exhibit 10.19
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made as of this 28th day of December 2010, between Xxxxx X. Xxxxx (“Executive”), Titanium Asset Management Corp., a Delaware corporation (the “Company”) and Xxxx Xxxxxxxxx Asset Management, LLC (“BWAM”).
Executive and BWAM, entered into an Employment Agreement as of November 7, 2008 (the “Original Employment Agreement”).
The parties desire to supersede the Original Employment Agreement with the terms of this Agreement.
2
(a) a good faith finding by the Company that Executive has engaged in dishonesty, willful misconduct, gross negligence or insubordination with respect to the Company that is materially injurious to the Company;
(b) intentional failure by Executive to comply with applicable laws or governmental regulations with respect to the Company’s operations or the performance of Executive’s duties;
(c) Executive’s conviction or entry of nolo contendere to any felony crime or other crime involving theft or embezzlement of Company property; or
(d) Executive’s material breach of Executive’s obligations under this Agreement, which breach, if curable, has not been cured by Executive within 30 days after he shall have received written notice from the Company stating with reasonable specificity the nature of such breach.
3
4
(a) delivered in full, or
5
(b) delivered as to such lesser extent which would result in no portion of such Benefits being subject to the Excise Tax (such reduced amount is hereinafter referred to as the “Limited Amount”),
whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by the Executive on an after-tax basis, of the greatest amount of Benefits, notwithstanding that all or some portion of such Benefits may be subject to the Excise Tax. If applicable, in order to effectuate the Limited Amount, the Company shall first reduce those Benefits which are not payable in cash and then reduce cash payments, in each case in reverse order beginning with Benefits which are to be paid the farthest in time from the date of determination that the Benefits will be limited by (b) above. A determination as to whether the Benefits shall be reduced to pursuant to (b) above and the amount of the Limited Benefit shall be made by the Company’s independent public accountants or another certified public accounting firm of national reputation designated by the Company (the “Accounting Firm”) at the Company’s expense. The Accounting Firm shall provide its determination, together with detailed supporting calculations regarding the amount of any relevant matters, both to the Company and to Executive within seven (7) business days of the Executive’s separation from service, if applicable, or such earlier time as is requested by the Company. Such determination shall be made by the Accountants using reasonable good faith interpretations of the Code and with reasonable input from Executive’s accountant or accounting firm. Any determination by the Accountants shall be binding upon the Company and the Executive, absent manifest error.
(a) Executive agrees that all information and know-how, whether or not in writing, of a private, secret or confidential nature concerning the Company’s business or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of the Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques, formulas, designs, drawings, slogans, tests, logos, ideas, practices, projects, developments, plans, research data, financial data, personnel data, computer programs and codes, and customer and supplier lists. Executive shall not, either during or after Executive’s employment, disclose any Proprietary Information to others outside the Company or use the same for any unauthorized purposes without written approval by an officer of the Company unless and until such Proprietary Information has become public knowledge or generally known within the industry without fault by Executive, or unless otherwise required by law. Nothing in this Agreement reduces Executive’s obligation to comply with applicable laws relating to trade secrets, confidential information and unfair competition. Accordingly, notwithstanding the foregoing, Executive’s obligations under this Section 6.1(a) with respect to Proprietary Information that constitutes a trade secret under applicable law shall continue until such Proprietary Information no longer constitutes a trade secret.
(b) Executive agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program listings, or other written, photographic, electronic or other material containing Proprietary Information, whether created by Executive or others, which shall come into Executive’s custody or possession, shall be and are the exclusive property of the Company to be used by Executive only in the performance of Executive’s duties for the Company.
6
(c) Executive agrees that Executive’s obligation not to disclose or use information, know-how and records of the types set forth in paragraphs (a) and (b) above also extends to such types of information, know-how, records and tangible property of any Subsidiary, customers of the Company and Subsidiaries or suppliers to the Company and Subsidiaries or other third parties who may have disclosed or entrusted the same to the Company or to Executive in the course of the Company’s business.
7
(a) solicit or invest in, own, manage, operate, finance, control or participate in the ownership, management, operations, financing or control of, render services or advice to, or otherwise assist any person or entity (except the Company or any Subsidiary) who or which solicits for a Competing Business the business of any person or entity who or which is a Client (or any successor thereto) or a prospective customer or client of the Company or any Subsidiary or to which the Company or any Subsidiary have made Substantial Sales Efforts in the 18 month period prior to the expiration or termination of the Term; provided, however, that the foregoing shall not prohibit Executive from purchasing or otherwise acquiring, and holding, any class of securities of any enterprise (as a passive investment and without otherwise participating in the activities of such enterprise) if such securities are listed on any national securities exchange or have been registered under Section 12(g) of the Securities Exchange Act and represent less than five percent (5%) in value of the outstanding securities of such enterprise; or
(b) otherwise induce or attempt to induce (or assist any other person or entity in inducing) any Client to cease doing business with the Company (or any Subsidiary), or in any way interfere with the relationship between any Client and the Company or any Subsidiary.
8
(c) For purposes hereof:
(i) “Substantial Sales Efforts” means marketing or sales activities undertaken on behalf of the Company or any Subsidiary in an effort to secure foreseeable business opportunities with a prospective customer, provided that such efforts (1) enjoy a reasonable prospect of success and (2) include either (A) multiple in person, written or email communications or (B) the preparation of a quotation or proposal made in connection with an on site visit.
(ii) “Competing Business” means any business, enterprise, employment, or investment management or advisory service (whether as sub-adviser, adviser or otherwise) that competes in any Designated Field with the Company or any Subsidiary (or any successor thereto) in their business of providing asset management, investment advisory and related services.
(iii) “Designated Field” means the provision of discretionary, non-discretionary or other portfolio management or investment advisory services (whether as adviser, subadviser, or otherwise, and whether in the form of model portfolios, discretionary management or otherwise) with respect to any account, fund, pooled investment vehicle or other product or service (whether registered or exempt from registration under the Investment Company Act of 1940, as amended).
(iv) “Subsidiary” means any entity that, directly or indirectly through one or more intermediaries, is controlled by the Company and the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through owners of voting securities, by contract or otherwise.
(v) “Client” means each of the investment advisory, advisory or subadvisory clients (including, without limitation, SMA Account clients and the ERISA clients) of the Company and Subsidiaries. Without limiting the foregoing, “Client” shall also include wrap program sponsors and any other person or entity considered to be a “client” of the Company or any Subsidiary as that term is defined in the Investment Advisors Act of 1940, as amended.
9
7. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements and understandings, whether written or oral, including, without limitation, the Original Employment Agreement, relating to the subject matter of this Agreement.
10
10. Governing Law. This Agreement shall be construed, interpreted and enforced in accordance with the laws of the State of Ohio without regard to principles of conflicts of laws thereunder.
If to Executive, to the last address for the Executive on the books and records of the Company:
If to the Company or to BWAM, to:
000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx LLP
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
11
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
12
EXECUTIVE:
|
||
/s/ Xxxxx X. Xxxxx
|
||
Name: Xxxxx X. Xxxxx
|
||
COMPANY:
|
||
TITANIUM ASSET MANAGEMENT
CORP.
|
||
By:
|
/s/ Xxxxxx Xxxxxx
|
|
Xxxxxx Xxxxxx, Chief Executive Officer
|
||
BWAM:
|
||
XXXX XXXXXXXXX ASSET
MANAGEMENT, LLC
|
||
By: |
/s/ Xxxxxxx Bee
|
13
Exhibit A
1. Your Release of Claims. You hereby agree and acknowledge that by signing this release agreement (this “Release), and for other good and valuable consideration, you are waiving your right to assert any and all forms of legal claims against the Company1/ of any kind whatsoever, whether known or unknown, arising from the beginning of time through the date you execute this Release (the “Execution Date”). Except as set forth below, your waiver and release herein is intended to bar any form of legal claim, complaint or any other form of action (jointly referred to as “Claims”) against the Company seeking any form of relief including, without limitation, equitable relief (whether declaratory, injunctive or otherwise), the recovery of any damages, or any other form of monetary recovery whatsoever (including, without limitation, back pay, front pay, compensatory damages, emotional distress damages, punitive damages, attorneys fees and any other costs) against the Company, for any alleged action, inaction or circumstance existing or arising through the Execution Date. This Release does not include a waiver and release of any of your currently vested rights to pension benefits (including benefits pursuant to Company’s 401(k) pension plan), workers’ compensation benefits, or unemployment compensation benefits. This Agreement does not waive or release any rights that may arise after the date on which you sign this Release, or claims concerning an alleged breach of the outstanding obligations of the Company under your Employment Agreement. This Release also does not include claims that cannot be waived by law.
Without limiting the foregoing general waiver and release, you specifically waive and release the Company from any Claim arising from or related to your prior employment relationship with the Company or the termination thereof, including, without limitation:
|
**
|
Claims under any state or federal discrimination, fair employment practices or other employment related statute, regulation or executive order (as they may have been amended through the Execution Date) prohibiting discrimination or harassment based upon any protected status including, without limitation, race, national origin, age, gender, marital status, disability, veteran status or sexual orientation. Without limitation, specifically included in this paragraph are any Claims arising under the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Equal Pay Act, the Americans With Disabilities Act and any similar Federal and state statute.
|
|
**
|
Claims under any other state or federal employment related statute, regulation or executive order (as they may have been amended through the Execution Date) relating to wages, hours or any other terms and conditions of employment.
|
|
**
|
Claims under any state or federal common law theory including, without limitation, wrongful discharge, breach of express or implied contract, promissory estoppel, unjust enrichment, breach of a covenant of good faith and fair dealing, violation of public policy, defamation, interference with contractual relations, intentional or negligent infliction of emotional distress, invasion of privacy, misrepresentation, deceit, fraud or negligence.
|
1 For purposes of this Release, the Company includes the Company and any of its divisions, affiliates (which means all persons and entities directly or indirectly controlling, controlled by or under common control with the Company), subsidiaries and all other related entities, and its and their directors, officers, employees, trustees, agents, successors and assigns.
14
|
**
|
Any other Claim arising under state or federal law.
|
You acknowledge and agree that, but for providing this waiver and release, you would not be receiving the economic benefits being provided to you under the terms of this Agreement.
It is the Company’s desire and intent to make certain that you fully understand the provisions and effects of this Release. To that end, you have been encouraged and given the opportunity to consult with legal counsel for the purpose of reviewing the terms of this Agreement. Also, because you are over the age of 40, the Age Discrimination in Employment Act (“ADEA”), which prohibits discrimination on the basis of age, allows you at least twenty-one (21) days to consider the terms of this Release. ADEA also allows you to rescind your assent to this Release if, within seven (7) days after you sign this Agreement, you deliver by hand or send by mail (certified, return receipt and postmarked within such 7 day period) a notice of rescission to the Company. If no such rescission notice is provided by you to the Company, then the eighth day following the Execution Date is the “Effective Date” of this Release.
Furthermore, nothing in this Release shall be deemed to prohibit you from challenging the validity of this Release under the federal discrimination laws of the United States (the “Federal Discrimination Laws”) or from filing a charge or complaint of employment-related discrimination with the Equal Employment Opportunity Commission (“EEOC”), or from participating in any investigation or proceeding conducted by the EEOC. Further, nothing in this Release shall be deemed to limit the Company’s right to seek immediate dismissal of such charge or complaint on the basis that your signing of this Agreement constitutes a full release of any individual rights under the Federal Discrimination Laws, or to seek restitution to the extent permitted by law of the economic benefits provided to you under this Agreement in the event that you successfully challenge the validity of this Release and prevail in any claim under the Federal Discrimination Laws.
(a) that, on the date your employment with the Company is terminated, you will promptly return to the Company all Company documents (and any copies thereof) and property. Further, you agree that you will abide by any agreements regarding confidentiality or other post-employment obligations.
15
(b) that you will not make any statements that are professionally or personally disparaging about, or adverse to, the interests of the Company (including its officers, directors, employees and consultants) and that could reasonably be expected to have a material adverse effect on the Company’s business, including, but not limited to, any statements that disparage any person, product, service, finances, financial condition, capability or any other aspect of the business of the Company; likewise, the senior management of the Company shall not make any such disparaging remarks about you.
|
||
Name: Xxxxx X. Xxxxx
|
||
Date signed: _____________
|
16