EMPLOYMENT AGREEMENT
between
XXXXXX & XXXXXX GROUP, INC.
and
XXXXXXX X. XXXXXX
dated October 19, 1999
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement"), dated October 19, 1999, between
XXXXXX & XXXXXX GROUP, INC. (the "Company"), a New York corporation, and
XXXXXXX X. XXXXXX (the "Executive")
W I T N E S S E T H T H A T:
WHEREAS, the Executive is currently serving as Chairman and Chief
Executive Officer of the Company, pursuant to an Amended and Restated
Employment Agreement, dated as of January 1, 1998 (the "Prior Agreement");
and
WHEREAS, the Prior Agreement expires on December 31, 1999; and
WHEREAS, the Company and the Executive wish to set forth the terms and
conditions of Executive's employment by the Company commencing on the date
hereof ;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Employment. The Company shall employ the Executive, and the Executive
shall be employed by the Company, for the Period of Employment provided in
paragraph 3(a) below and upon the other terms and conditions set forth in this
Agreement.
2. Position and Responsibilities: During the Period of Employment, the
Executive shall:
(a) Serve as the Chairman and Chief Executive Officer of the Company;
(b) Be responsible for the general management of the affairs of the
Company and all its subsidiaries, reporting directly to the Board of Directors
of the Company (the "Board");
(c) Serve as a member of the Board for the period for which he is and
shall from time to time be elected or reelected; and
(d) Serve, if elected, as President of the Company and as an officer
and director of any subsidiary or affiliate of the Company.
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3. Terms and Duties
(a) Period of Employment.
(1) The period of the Executive's employment under this
Agreement (the "Period of Employment") shall commence on the date hereof and
shall terminate on December 31, 2004, subject to the earlier termination in
accordance with the terms of this Agreement and subject to extension in
accordance with the terms of paragraph 3(a)(2) below.
(2) The Period of Employment shall automatically be
extended for one additional day (subject to earlier termination in accordance
with the terms of this Agreement) for each day of the Period of Employment
that elapses until either the Executive or the Company notifies the other
party in writing that the Company or the Executive does not want the Period of
Employment extended thereafter.
(b) Duties. While employed by the Company, (except for illness or
incapacity and vacation periods) the Executive shall perform and discharge
well and faithfully the duties which the Board may assign to him from time to
time. The Executive shall not, without the prior consent of the Board, engage
in any business activity for which he is compensated unrelated to the
Company's business; provided, however, the foregoing shall not be deemed to
prohibit the Executive from devoting time to his personal investments or from
continuing the activities he had been engaged in at the time this Agreement is
entered into with respect to his then personal investments. The Executive
shall be permitted to perform and discharge his duties from any location.
4. Compensation. For all services rendered by the Executive in any
capacity during the Period of Employment, including, without limitation,
services as an executive, officer, director or member of any committee of the
Company or of any subsidiary, affiliate or division of the Company, the
Company shall compensate the Executive as described in paragraphs (a) through
(g) below. For purposes of this Section 4, the term "Board" shall mean either
the Board of Directors of the Company or a committee of the Board of Directors
(i.e., the Compensation Committee of the Board of Directors).
(a) Base Salary. During the Period of Employment, the Company shall
pay the Executive a fixed salary (the "Base Salary") at an annual rate of not
less than $202,980. On January 1, 2001, and on each January 1 thereafter
during the Period of Employment, the Base Salary shall be increased so that
the new Base Salary equals the product of the Base Salary in effect on the
immediately preceding December 31 times the quotient obtained by dividing A by
B, where:
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"A is the Consumer Price Index, All Urban Consumers (CPI-U), U.S.
City of Average for All Items (standard reference base period 1982-84 = 100)
(the "CPI"), as published during the September immediately preceding the
January 1 with respect to which the increased Base Salary is being computed;
and
B is the CPI as published during the September twelve months prior
to the September referred to in "A" above. If during the Period of
Employment, the United States Bureau of Labor Statistics (the "Bureau") ceases
publication of the CPI, the calculations required hereby shall thereafter be
made using the consumer price index published by the Bureau (or any successor
agency of the federal government) that is most nearly equivalent to the CPI."
(b) Discretionary Base Salary Increases. At any time or from time to
time during the Period of Employment, the Board may increase the Base Salary
to an amount exceeding the Base Salary determined pursuant to paragraph 3(a)
above. Following any such discretionary increase in the Base Salary, the
Board may or may not maintain the Base Salary at that increased level (or
further increase the Base Salary beyond that level). But in no event shall
the Base Salary in effect for any portion of the Period of Employment be an
annual amount less than the amount determinable in accordance with paragraph
3(a) above.
(c) Incentive Compensation. During the Period of Employment, the
Executive shall participate in the Company's Employee Profit Sharing Plan (the
"Profit Sharing Plan"), a copy of which is attached to this Agreement as
Schedule A. If during the Period of Employment, the Executive ceases to
participate in the Profit Sharing Plan, the Profit Sharing Plan is amended, or
his participation in the Profit Sharing Plan is diminished, the Company agrees
to restructure his compensation under this Agreement to provide for an
earnings opportunity substantially equivalent to that which existed while the
Executive participated in the Profit Sharing Plan, prior to the amendment of
the Profit Sharing Plan or prior to the time his participation was diminished,
as the case may be.
(d) Additional Benefits. In addition, the Executive shall be entitled
to participate in all compensation or employee benefit plans or programs, and
to receive all benefits, perquisites, and emoluments for which any salaried
employees are eligible under any plan or program, now or hereafter established
and maintained by the Company for salaried employees (which shall be
comparable to those provided to senior officers of other comparable
companies), to the extent permissible under the general terms and provisions
of such plans or programs and in accordance with the provisions thereof,
including group hospitalization, health, dental care, life or other insurance,
tax-qualified pension, savings, thrift and profit-sharing plans, termination
pay programs, sick-leave plans, travel or accident insurance, disability
insurance, auto allowance or auto lease plans, and executive contingent
compensation plans, including, without limitation, capital accumulation
programs and stock purchase, restricted stock or stock option plans.
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Specifically, but without limitation, the Company shall furnish the Executive,
with (1) cash reimbursement for the cost of term life insurance for the
benefit of the Executive's designated beneficiary in the amount of at least
$2,000,000, (2) supplemental uninsured medical reimbursement plan coverage of
$10,000 for expenses incurred by the Executive or his covered dependents which
are not covered by the Company's group hospitalization, health and dental care
insurance plans, provided that this $10,000 limit shall be increased so that
on a cumulative basis, such limit equals the product of $10,000 multiplied
times the quotient (the "CPI Factor") obtained by dividing the CPI published
during the most recent September by the CPI published for September, 1999, (3)
disability insurance (through an insurance carrier and/or self-insured by the
Company) for the benefit of the Executive in the amount of 100% of his Base
Salary and (4) long-term care insurance (through an insurance carrier) for the
benefit of the Executive and his spouse in an amount reasonable expected to
cover daily expenses of $250 (subject to cost of living adjustments) the
Executive and his spouse may each incur with respect to long-term care. After
an event of a Change of Control (as defined in the Severance Compensation
Agreement, made effective as of August 15, 1990, by and between the Company
and the Executive), the disability insurance referred to in clause (3) above
shall be provided through an insurance carrier. If such disability insurance
is provided to the Executive at any time though an insurance carrier, then at
the Executive's election, the Company shall increase the Executive's Base
Salary in an amount equal to the premium payments due with respect to such
insurance and the Executive shall thereafter be responsible for making the
premium payments for such coverage.
(e) Perquisites. The Company shall also furnish the Executive,
without cost to him, with (1) a Company-owned or leased automobile which will
be replaced with a new automobile every four years, provided that the
Executive may select the automobile and, if the value of the automobile
selected by the Executive is greater than $40,000 times the CPI Factor (for
purposes of this clause (1) only, the CPI Factor shall be based on the CPI
published for September, 1991 rather than for September, 1999), the Executive
shall pay to the Company, each month during which he shall have use of the
automobile, the difference between the monthly market rental of the vehicle
being furnished to the Executive and the monthly market rental of an
automobile with a value of $40,000 times the CPI Factor; and (2) membership in
one health club (including the cost of a personal trainer), one luncheon club,
and one social or country club of the Executive's choosing. The Company shall
also reimburse the Executive annually for the cost of (1) an annual physical
examination of the Executive by a physician selected by the Executive, and (2)
personal financial, investment or tax advice, not to exceed $5,000 times the
CPI Factor per annum. Any reimbursable amount for the cost of personal
financial, investment or tax advice not utilized in a year shall be available
to reimburse the Executive for such costs incurred in a prior or subsequent
year. The Executive shall properly document such costs for federal income
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taxation purposes to preserve any deduction for such reimbursements to which
the Company may be entitled.
(f) Deferred Compensation. The Company agrees to adopt a supplemental
executive retirement plan (the "SERP") for the benefit of the Executive.
Under the SERP, the Company shall cause an amount equal to one-twelfth of the
Executive's current Base Salary to be credited each month (a "Monthly Credit")
to a special account maintained for this purpose on the books of the Company
for the benefit of the Executive (the "SERP Account"). The amounts credited
to the SERP Account shall be deemed invested or reinvested in such mutual
funds (or, if the Board makes a determination described in the last sentence
under this paragraph 4(f), such U.S. Government securities) as determined by
the Executive. The SERP Account shall be credited and debited to reflect the
deemed investment returns, losses and expenses attributed to such deemed
investments and reinvestments. The Executive's benefit under the SERP shall
equal the balance in the SERP Account and such benefit shall always be 100%
vested (i.e., not forfeitable). The Executive shall determine the form and
timing of the distribution of the balance in the SERP Account; provided,
however, in the event of the termination of the Period of Employment pursuant
to paragraphs 6, 7 or 8, the balance in the SERP Account shall be distributed
to the Executive or the Executive's beneficiary, as the case may be, in a
lump-sum payment within 30 days of such termination. The Company shall
establish a rabbi trust for the purpose of accumulating funds to satisfy the
obligations incurred by the Company pursuant to this paragraph 4(f). Each
time the Company credits a Monthly Credit to the SERP Account, the Company
shall make a corresponding dollar contribution to the trust. The Executive's
rights to benefits pursuant to this paragraph 4(f) shall be no greater than
those of a general creditor of the Company. The Executive's benefits pursuant
to this paragraph 4(f) may not be anticipated, alienated, pledged, encumbered
or subject to attachment, garnishment, levy, execution, or other legal or
equitable process. If the Board determines that the investment of the rabbi
trust assets in mutual funds will cause the Company to fail to comply with
certain statutory asset holding requirements, such assets shall be invested in
U.S. Government securities to the extent necessary to meet the statutory
requirements.
(g) Office Equipment. During the Period of Employment, the Company
shall provide the Executive with state of the art communication and office
equipment for use at a residence of the Executive's choice.
(h) Vacation. In each calendar year during the Period of Employment,
the Executive shall be entitled to 1 1/2 days of an annual vacation for each
full year of employment with the Company (e.g., for 2000, the Executive shall be
entitled to 25 1/2 vacation days).
5. Business Expenses. The Company shall pay or reimburse the Executive
for all reasonable travel or other expenses incurred by the Executive in
connection with the performance of his duties and obligations under this
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Agreement, including, without limitation, routine and necessary costs of
maintaining the automobile (including garage space) provided to the Executive
by the Company pursuant to paragraph 4(e) above, subject to the Executive's
presentation of appropriate vouchers in accordance with such procedures as the
Company may from time to time establish for senior officers and to preserve
any deductions for federal income taxation purposes to which the Company may
be entitled.
6. Disability.
(a) In the event of the disability of the Executive during the Period
of Employment, the Company shall, subject to the provisions of the next
following sentence, continue to pay to the Executive the compensation provided
in paragraph 4 above during the period of his disability. But if the
Executive's disability continues until the Executive becomes entitled to
receive the proceeds of the disability insurance described in paragraph 4(d)
above (such period commencing upon Executive's disability and end on the date
he is entitle to receive disability insurance proceeds, the "Disability
Period"), the Company may, at its election, terminate the Period of
Employment, in which event the Company's obligation to make payments under
paragraph 4 (except as provided in paragraph 4(f)) shall cease, except for (1)
earned (through the effective date of the termination) but unpaid Base Salary,
(2) incentive compensation, subject to the terms of the Profit Sharing Plan,
(3) Monthly Credits to the SERP Account through the effective date of
termination and (4) retirement benefits as described in paragraph 10 below.
However, the benefits described in paragraph 4(d) and the perquisites
described in paragraph 4(e), shall continue to be provided for a period of ten
years, except that the Company shall only continue to provide the automobile
described in paragraph 4(d) for six months following termination of the Period
of Employment and then allow the Executive to assume (without any continuing
obligations under the lease, if any, on the part of the Company) the Company's
rights and obligations to lease or purchase such automobile (to the extent any
lease is so assumable) or to purchase such automobile at its then book value.
(b) During the period the Executive is receiving payments, either
under paragraph 6 or under the disability insurance described in paragraph
4(d) above, to the extent that he is physically and mentally able to do so, he
shall furnish information and assistance to the Company and, upon a reasonable
request in writing by the Board from time to time, he shall make himself
available to the Company to undertake reasonable assignments consistent with
the dignity, importance, and scope of his prior position with the Company and
his physical and mental health. During the Disability Period, the Executive
shall report directly to the Board. If the Company fails to make a payment or
provide a benefit required under paragraph 6(a), the Executive's obligation to
furnish information and assistance and undertake assignments shall terminate.
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(c) Upon any cessation of payments under the disability insurance
described in paragraph 4(d) above, the Company shall also pay to the Executive
or his wife, if he predeceases her during such period, for a period of three
years, the Base Salary amount that existed at the time of the Disability
Period in the form of severance or disability benefits, or both. Such Base
Salary amount shall be paid by the Company in 36 monthly installments
commencing in the month following the cessation of payments under the
disability insurance.
(d) If the Executive dies during the Disability Period, the Company
shall pay his wife, if she survives him, for a period of two years the Base
Salary amount that existed at the onset of the disability in the form of a
death benefit. Such Base Salary amount shall be paid by the Company in 24
monthly installments commencing in the month following the Executive's death.
(e) As used in this Agreement, the term "disability" shall have the
following meaning:
Executive is unable to perform with reasonable continuity the material
duties of his position with the Company as a result of sickness, illness, or
accidental bodily injury.
7. Death. If the Executive dies during the Period of Employment, the
Executive's designated beneficiary shall be entitled to receive the proceeds
of any life or other insurance or other death benefit program provided
pursuant to paragraph 4(d) above in accordance with the provisions thereof,
and the Period of Employment and the Company's obligation to make payments
under paragraph 4 (except as provided in paragraph 4(f)) shall cease as of the
date of death, except (1) for earned (through the date of death) but unpaid
Base Salary, (2) incentive compensation, subject to the terms of the Profit
Sharing Plan, (3) Monthly Credits to the SERP Account through the date of
death and (4) retirement benefits as described in paragraph 10 below. The
Company shall pay the Executive's wife, if she survives him, for a period of
two years the Base Salary amount that existed at the time of death in the form
of a death benefit. Such Base Salary amount shall be paid by the Company in
24 monthly installments commencing in the month following the Executive's
death.
8. Effect of Termination of Employment.
(a) If the Period of Employment hereunder terminates because of either
a Without Cause Termination or Constructive Discharge, the Executive shall be
entitled to (1) earned (through the effective date of the termination) but
unpaid Base Salary, (2) incentive compensation, subject to the terms of the
Profit Sharing Plan, (3) Monthly Credits to the SERP Account through the
effective date of the termination and (4) retirement benefits as described in
paragraph 10 below. In addition, if the Period of Employment is terminated
because of either a Without Cause Termination or Constructive Discharge, the
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Company shall, as liquidated damages or severance pay, or both, pay to the
Executive two times his Base Salary in effect at the time of such termination,
in the manner and at the times provided in paragraph 4(a) above to the
Executive or, in the event of his subsequent death, to his estate. Such
payments shall commence immediately following such termination and shall
continue for a period of time equal to the remainder of the Period of
Employment immediately prior to such termination (the "Severance Period"). In
addition, benefits described in paragraph 4(d), the perquisites described in
paragraph 4(e) and the communication and office equipment described in
paragraph 4(g) shall continue to be provided during the Severance Period,
except that the Company shall only continue to provide the automobile
described in paragraph 4(e) for six months following such termination and then
allow the Executive to assume (without any continuing obligations under the
lease, if any, on the part of the Company) the Company's rights and
obligations to lease or purchase such automobile (to the extent any lease is
so assumable) or to purchase such automobile at its then book value and that
the Company shall continue to provide communication and office equipment to
the Executive for only 18 months. To the extent that the Executive is
entitled to receive cash compensation that is (or would be, if any elective
deferral were disregarded) subject to federal income taxation in respect of
any other employment or a consulting position with another company during the
Severance Period, the payments to be made pursuant to this paragraph 8(a)
shall be correspondingly reduced by such cash compensation and, to the extent
that benefits of the kind required by this paragraph 8(a) to be continued are
payable in respect of such other employment or consulting position, such
benefits provided by the other Company shall be deemed the primary coverage
for purposes of coordination of benefits and avoiding duplication of benefits.
However, at no time shall such benefits of a kind described herein, be less
than those required by this paragraph 8(a) or paragraphs 4(d) and 4(e).
(b) If the Period of Employment hereunder terminates because of a
Termination for Cause, (1) earned (through the effective date of termination)
but unpaid Base Salary, (2) incentive compensation, subject to the terms of
the Profit Sharing Plan and (3) Monthly Credit to the SERP Account through the
effective date of the termination shall be payable to the Executive, but no
other payments (except deferred compensation as provided in paragraph 4(f))
shall be made, or benefits provided, by the Company.
(c) As used in this Agreement:
(1) "Termination for Cause" means a termination of the
Period of Employment by the Company, by written notice to the Executive,
specifying the event relied upon for such termination, because of the
Executive's serious, willful misconduct in respect of his duties under this
Agreement, including, without limitation, conviction of a felony or for
perpetration of a common law fraud which has resulted in material economic
damage to the Company or any of its subsidiaries or affiliates. If the
Executive's misconduct can be cured, a Termination for Cause shall not occur
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until the Executive fails to so cure within 30 days from delivery to the
Executive of a written demand by the Company that he do so, which demand shall
specify the misconduct being relied upon for termination pursuant to this
paragraph 8(c)(1).
(2) "Constructive Discharge" means a termination of the
Period of Employment by the Executive because of (A) a failure of the Company
to fulfill its obligations under this Agreement in any material respect,
including any failure to elect or reelect or to appoint or reappoint the
Executive to the offices of Chairman of the Company and its Chief Executive
Officer or as a member of the Board or other material change by the Company in
the functions, duties, or responsibilities of the Executive's position with
the Company which would reduce the ranking or level, dignity, responsibility,
importance, or scope of such position, or (B) any assignment or reassignment
by the Company of the Executive to a place of employment other than the
Company's headquarters, (which shall be located in New York, New York, or
other location of the Executive's choosing). A Constructive Discharge shall
apply to any case in which the Company shall have failed to remedy within 30
days from delivery to the Company of a written demand by the Executive that it
do so, which demand shall specify the circumstances being relied upon for
termination pursuant to this paragraph 8(c)(2).
(3) "Without Cause Termination" means a termination of the
Period of Employment by the Company other than because of disability or
expiration of the Period of Employment and other than a Termination for Cause.
The exercise by the Company or the Executive, as the case may be of a right to
terminate the Period of Employment under this paragraph 8(c) shall not
abrogate the rights and remedies of the terminating party in respect of the
circumstances giving rise to such termination.
9. Other Duties of Executive During and After Period of Employment.
(a) The Executive shall, upon reasonable notice, during or after the
Period of Employment, furnish such information as may be in his possession to,
and cooperate with, the Company, as the Company may reasonably request in
connection with the analysis, negotiation, and settlement of any pending
claims and any litigation in which the Company or any of its subsidiaries or
affiliates, is, or may become, a party.
(b) The Executive recognizes and acknowledges that all information
pertaining to the affairs, business, or clients of the Company or any of its
subsidiaries or affiliates, as such information may exist from time to time,
is confidential information and is a unique and valuable asset of the Company,
access to and knowledge of which are essential to the performance of the
Executive's duties under this Agreement. The Executive shall not, during the
Period of Employment or thereafter, except to the extent reasonably necessary
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in the performance of his duties under this Agreement, divulge to any person,
firm, association, corporation or governmental agency, any information
concerning the affairs, business, clients, or customers of the Company or any
of its subsidiaries or affiliates (except such information as it is required
by law to be divulged to a government agency), or make use of any such
information for his own purposes or for the benefit of any person, firm,
association or corporation (except the Company or its subsidiaries or
affiliates) and shall use his best efforts to prevent the disclosure of any
such information by others. All records, memoranda, letters, books, papers,
reports, accountings, experience or other data, and other records and
documents relating to the business of the Company or any of its subsidiaries
or affiliates, whether made by the Executive or otherwise coming into his
possession, are confidential information and are, and shall be, and shall
remain the property of the Company.
(c) During the Period of Employment and for a one year period
thereafter in the event of (1) a Termination for Cause, (2) a termination of
the Period of Employment by the Executive that is not a Constructive
Discharge, or (3) the disability of the Executive, the Executive shall not:
Make any statement or perform any act intended to advance an
interest of any existing or prospective competitor of the Company or any of
its subsidiaries or affiliates in any way that will injure an interest of the
Company or any of its subsidiaries or affiliates in its relationship and
dealings with existing or potential clients, customers or brokers or to do any
act that is disloyal to the Company or inconsistent with the Company's
interests or in violation of any provision of this Agreement.
(d) The Company's obligation to make payments under paragraph 4, other
than the deferred compensation described in paragraph 4(f), shall cease upon
any violation of the provisions of paragraph 9 which is not inadvertent and
which has resulted in material economic damage to the Company or any of its
subsidiaries.
10. Retirement Benefits. At the termination of Executive's employment with
the Company, the Executive, his spouse and dependents shall be entitled to
medical and health insurance coverage comparable to what they were receiving
immediately prior to the termination of the Executive's employment. The
coverage shall be secondary to any government provided or subsequent employer
provided health insurance plans. The Company shall reasonably and fairly
determine and pay to the Executive or the Executive's spouse, if he dies prior
to such payment, the present value of such medical and health insurance
benefits (the "Present Value"), together with such additional amount necessary
to provide the Executive or his spouse, as the case may be, with an after-tax
amount equal to the Present Value. Any dispute as to whether the Company has
complied with its obligations under this paragraph 10 may be referred to final
and binding arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association, and the Company agrees to reimburse the
Executive or the Executive's spouse, as the case maybe, for reasonable
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attorney fees and expenses incurred by the Executive or the Executive' spouse
in connection with such arbitration.
11. Indemnification, Litigation.
(a) Throughout the Period of Employment and thereafter, the Executive
shall continue to be entitled to indemnification from the Company pursuant to
the Indemnification Agreement, dated as of December 15, 1992 between the
Company and the Executive (the "Indemnification Agreement"), a copy of which
is attached hereto as Exhibit B.
(b) In the event of any litigation or other proceeding between the
Company and the Executive with respect to the subject matter of this Agreement
and the enforcement of rights hereunder, the Company shall reimburse the
Executive for all costs and expenses relating to such litigation or other
proceeding, including reasonable attorneys' fees and expenses, provided that
such litigation or proceeding results in any:
(1) Settlement requiring the Company to make a payment to
the Executive; or
(2) Judgment, order, or award in favor of the Executive,
regardless of whether such judgment, order, or award is subsequently reversed
on appeal or in a collateral proceeding.
(c) In no event shall the Executive be required to reimburse the
Company for any of the costs and expenses relating to such litigation or other
proceeding referred to in paragraph 11(b).
12. Withholding Taxes. The Company may directly or indirectly withhold
from any payments made under this Agreement all federal, state, city, or other
taxes as shall be required pursuant to any law or governmental regulation or
ruling.
13. Consolidation, Merger, or Sale of Assets; Change of Control. Nothing
in this Agreement shall preclude the Company from consolidating or merging
into or with, or transferring all or substantially all of its assets to,
another corporation which assumes this Agreement and all obligations and
undertakings of the Company hereunder. Upon such a consolidation, merger, or
transfer of assets and assumption, the term "Company" as used herein shall
mean such other corporation and this Agreement shall continue in full force
and effect.
(b) The provisions of the Severance Compensation Agreement, made
effective as of August 15, 1990, by and between the Company and the Executive,
(the "Severance Compensation Agreement"), a copy of which is attached hereto
as Exhibit C shall continue to be effective except that references to an
"Employment Agreement" therein shall hereafter refer to this Agreement and the
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computation provided for in Section 2(a) thereof shall not include the
Executive's incentive compensation and bonus.
14. Effect of Prior Agreements. This Agreement between the Company
and the Executive, together with the Indemnification Agreement and the
Severance Compensation Agreement, contains the entire understanding between
the Company and the Executive with respect to the subject matter hereof and
supersedes any prior employment agreement (including the "Prior Agreement")
between the Company or any predecessor of the Company and the Executive,
except that this Agreement shall not affect or operate to reduce any benefit
or compensation inuring to the Executive of a kind elsewhere provided and not
expressly provided in this Agreement.
15. Notices. All notice, requests, demands, and other communications
required or permitted hereunder shall be given in writing and shall be deemed
to have been duly given if hand delivered or mailed, postage prepaid by same
day or overnight mail as follows:
(1) To the Company: Xxxxxx & Xxxxxx Group, Inc.
Xxx Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn.: Secretary
(2) To the Executive: Xxxxxxx X. Xxxxxx
000 Xxxxx Xxxxxx, #00X
Xxx Xxxx, XX 00000
or to such other address as either party shall have previously specified in
writing to the other.
16. No Attachment. Except as required by law, no right to receive
payments under this Agreement shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge, or hypothecation or
to execution, attachment, levy, or similar process or assignment by operation
of law, and any attempt, voluntary or involuntary, to effect any such action
shall be null, void, and of no effect. But nothing in this paragraph 16 shall
preclude the executors, administrators, or other legal representatives of the
Executive from assigning any rights hereunder to the person or persons
entitled thereto.
17. Binding Agreement. This Agreement shall benefit and bind (a) the
Executive, his heirs, beneficiaries, and personal representatives, and (b) the
Company and its successors and assigns.
18. Severability. If any provision of this Agreement shall be held or
deemed to be invalid, inoperative or unenforceable in any jurisdiction or
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jurisdictions, because of conflicts with any constitution, statute, rule or
public policy or for any other reason, such circumstance shall not have the
effect of rendering the provision in question unenforceable in any other
jurisdiction or in any other case of circumstance or of rendering any other
provisions herein contained unenforceable to the extent that such other
provisions are not themselves actually in conflict with such constitution,
statute or rule or public policy, but this Agreement shall be reformed and
construed in any such jurisdiction or case as if such invalid, inoperative, or
unenforceable provision had never been contained herein and such provision
reformed so that it would be enforceable to the maximum extent permitted in
such jurisdiction or in such case.
19. Modification and Waiver. This Agreement may not be modified or amended
except by an instrument in writing signed by the parties hereto. No terms or
condition of the Agreement shall be deemed to have been waived, nor shall
there be any estoppel against the enforcement of any provision of this
Agreement except by written instrument signed by the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing
waiver unless specifically stated therein, and each such waiver shall operate
only as to the specific term or condition waived and shall not constitute a
waiver of such term or condition for the future as to any act other than that
specifically waived.
20. Headings of No Effect. The paragraph headings contained in this
Agreement are included solely for convenience of reference and shall not in
any way affect the meaning or interpretation of any of the provisions of this
Agreement.
21. Governing Law. The laws of New York shall govern the validity,
construction, and interpretation of this Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
and its seal to be affixed hereunto by its duly authorized officers, and the
Executive has signed and delivered this Agreement, on the dates set forth
below.
XXXXXX & XXXXXX GROUP, INC.
BY: /s/ Xxx X. Xxxxxxxxxx
Title: President
Date: October 20, 1999
/s/ Xxxxxxx X. Xxxxxx
----------------------
Xxxxxxx X. Xxxxxx
Date: October 19, 1999
