1
EXHIBIT 10.72
EMPLOYMENT AGREEMENT
This agreement dated as of the 31st day of January 2001 (the
"Agreement"), by and between Xxxxxxx X. Xxxxxxx, residing at 00 Xxxxxxxxx Xxxxx,
Xxxxxxx, Xxx Xxxx 00000 (the "Employee") and Tremont Advisers. Inc., a Delaware
corporation, with its principal offices located at 555 Xxxxxxxx Xxxxx Avenue,
Rye, New York (the "Company").
WHEREAS, the Company wishes to employ the Employee and the Employee
wishes to be employed by the Company, and the parties wish to embody and
memorialize, in a written agreement, the terms and conditions under which the
Employee shall be employed.
NOW, THEREFORE, in consideration of the mutual covenants contained
in this Agreement, the parties agree as follows:
1. Employment And Capacity.
Effective on the date written above, the Company shall employ
the Employee as its Chief Financial and Administrative Officer. In consultation
with the President, the Employee shall have such authority and perform such
duties as are customary and consistent with such position and as may be assigned
from time to time by the President. The Employee will comply with the direction
and orders of the President and other superior officers of the Company with
respect to the performance of his duties and obligations. Except as may
otherwise be approved in advance by the President, and except during vacation
periods and reasonable periods of absence due to sickness, personal injury,
family leave as permitted by law, or other disability, the Employee agrees to
devote all of his business time to his assigned duties and obligations to the
business of the Company. During the term of this Agreement, in the absence of
written permission from the President, the Employee shall not be engaged in any
other business activity whether such activity is pursued for gain, profit or
other financial advantage. Notwithstanding the foregoing, the Employee shall not
be precluded from (i) serving on the Board of Directors of a reasonable number
of trade associations and/or charitable organizations, and (ii) engaging in
charitable activities and community affairs, so long as such activities do not
interfere with the performance of the Employee's duties to the Company.
2. Pre-Employment Requirements.
The Employee will be required to produce appropriate work
authorization and complete an "I-9" form within three (3) days of employment.
The Employee Handbook and Code of Conduct must be read carefully, signed and
adhered to as a condition of continued employment with the Company.
3. Compensation.
(a) As compensation for the Employee's services and covenants
hereunder, the Company shall pay to the Employee a salary ("Base Salary") at the
annualized rate of $250,000; provided, however, that such Base Salary may be
reviewed and increased by the President or the Company's Board of Directors (the
"Board") during Employee's employ with the Company. Such Base
1
2
Salary shall be subject to withholdings and deductions required or authorized by
law, and shall be payable by the Company in accordance with the Company's
customary practice.
(b) From time to time during his employ, the Employee shall be
eligible to receive a bonus at the sole and absolute discretion of the Board or
a duly authorized committee thereof (the "Discretionary Bonus"). The Employee
acknowledges and agrees that whether such Discretionary Bonus shall be granted
to the Employee, and, if granted, the timing, amount and manner of payment of
any such Discretionary Bonus shall be and remain in the sole and absolute
discretion of the Board.
(c) Subject to the terms and conditions below, the Employee
will be entitled, from time to time, to the grant of stock options to purchase
shares of the Company's common stock. These options will be granted from a pool
of options to be set aside for employees of the Company in a stock option plan
or similar incentive plan as adopted by the Board, subject to the terms and
conditions set forth in such stock option plan or similar incentive plan
referred to above, and any agreements entered into in connection therewith.
Notwithstanding anything else to the contrary, in the event that the Employee's
employment is terminated by the Company in connection with a Change-in-Control
(as defined below), Employee's stock options which would otherwise vest or
become exercisable with the passage of time and Employee's continued employment
with the Company, shall immediately vest and become fully exercisable and all
rights relevant to such stock options and, upon exercise, the underlying
securities, shall accrue immediately to Employee.
"Change-in-Control" shall mean:
(i) Any sale, lease, exchange or other transfer (in one
transaction or a series of transactions) of all or substantially all of the
assets of the Company;
(ii) Individuals who, as of the date hereof, constitute the entire
Board of Directors of the Company (the "Incumbent Directors") cease for any
reason to constitute at least a majority of the Board of Directors, provided
that any individual becoming a Director subsequent to the date hereof whose
election was approved by at least a majority vote of the then Incumbent
Directors shall be, for the purposes of this provision, considered as though
such individual were an Incumbent Director;
(iii) Any consolidation or merger of the Company with any other
entity where the stockholders of the Company immediately prior to the
consolidation or merger would not, immediately after the consolidation or
merger, beneficially own, directly or indirectly, shares representing fifty
percent (50%) of the combined voting power of all the outstanding securities of
the entity issuing cash or securities in the consolidation or merger (or its
ultimate parent corporation, if any);
(iv) A third person, including a "person" who becomes the
"beneficial owner" as defined in Sections 13(d)(3) or 14(d)(2) of the Exchange
Act, directly or indirectly of securities of the Company representing
seventy-five percent (75%) or more of the total number of votes that may be cast
for the election of the Board of Directors of the Company; or
(v) The Board of Directors of the Company, by a vote of the majority
of all the Directors, adopts a resolution to the effect that a
"Change-in-Control" has occurred for the purposes of this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time. References to any provision of the Exchange Act shall
be deemed to include rules thereunder and successor provisions and rules
thereto.
2
3
4. Benefits And Expenses.
(a) During his employ with the Company, the Employee will be
eligible to participate in a similar manner as other Employees in such health,
medical, insurance, vacation, savings, retirement, fringe and holiday benefit
plans and other employee benefit plans and programs as may be established and
maintained by the Company for its executive employees.
(b) During the Employee's employment hereunder, the Employee
shall be reimbursed by the Company for all reasonable expenses incurred by him
in connection with the business of the Company upon the submission of
appropriate documentation with respect thereto.
5. Termination of Employment.
(a) Unless otherwise terminated as provided for in this
agreement, this Agreement shall terminated on December 31, 2002. This agreement
may be terminated any time prior to December 31, 2002 with the provision of at
least thirty (30) days notice (i) by the Employee voluntarily without Cause,
(ii) by the Employee for Good Reason, (iii) by the Company without Cause (iv) by
the Company with Cause, or without notice (v) due to the death or disability of
the Employee (as defined by the Company's long-term disability plan). Nothing in
this Agreement constitutes an offer of employment for any definite period of
time. The employment relationship is "at will" and remains at will, which
affords wither party the right to terminate the relationship at any time for any
reason or for no reason not otherwise prohibited by law.
If severance pay (see below) is due to the Employee, any such
severance pay will commence as of the date of the provision of notice to the
Employee. Immediately upon written notice to the Employee, the Company may
relieve the Employee of all his duties and responsibilities and may relieve the
Employee of authority to act on behalf of, or legally bind the Company or any of
its direct or indirect subsidiaries, provided that any such action by the
Company shall be without prejudice to the Employee's right to compensation and
Benefits provided under this Agreement.
In subsections (i), (iv) or (v), the Company will have no
further obligation or liability to pay any salary, compensation or other
benefits beyond the period that the Employee actually worked, provided, however,
that in the event of termination as a result of subsection (v), the Employee, or
his estate, as the case may be, shall be entitled to a pro rata portion (based
on the period the Employee actually worked) of any Discretionary Bonus to which
he would have otherwise been entitled. The amount and payment date of such bonus
shall be determined consistent with the process for awarding discretionary
bonuses to other executive employees of the Company.
Termination by the Employee for Good Reason may be invoked by
the Employee if any of the following has occurred: (i) the Employee's duties are
materially and adversely changed without the Employee's consent or (ii) the
Employee's title, reporting relationship, salary or benefits are reduced other
than as a general reduction of salaries and benefits by the Company.
Notwithstanding the foregoing, an isolated, insubstantial or inadvertent action
by the Company which is remedied by the Company after receipt of notice from the
Employee shall not constitute sufficient grounds for a termination for Good
Reason by the Employee.
3
4
Termination with Cause shall mean those instances in which the
Company determines that the termination of the Employee is appropriate by reason
of (i) the Employee's fraud or willful misconduct with respect to the business
or affairs of the Company; (ii) the Employee's conviction of a felony or any
other crime involving moral turpitude; (iii) the Employee's material breach of
this Agreement; (iv) the Employee's negligence in the performance of his duties
hereunder or his non-performance or mis-performance of such duties; or (v) the
Employee's refusal to abide by or comply with the directives, policies or
procedures promulgated by the Company or his superior officers. No termination
for Cause based on the reasons set forth in subsections (iii), (iv) or (v) of
this Section 5(a) will be effective unless the Employee shall have been given
written notice of the Company's intention to terminate the Employee for Cause.
Such notice shall state in detail the circumstances that constitute the grounds
on which the proposed termination of the Employee for Cause is based. The
Employee will have a period of ten (10) days after receiving such notice in
which to cure such grounds, to the extent such grounds are curable and subject
to the reasonable satisfaction of the Company.
(b) In the event this Agreement is terminated by the Company
without Cause or by the Employee for Good Reason, the Employee shall receive
compensation continuation (his then salary and an amount equal to 1/12 per month
equivalent of the bonus paid to him in year 2000) through December 31, 2002 or
until he accepts other employment or an independent consulting position
(including self-employment, temporary and ad hoc employment) providing the same
or greater compensation, whichever occurs first. In the event that the Employee
secures new employment or an independent consulting position providing less
compensation (which shall be calculated to include the market value of any
payments-in-kind), such compensation shall offset and reduce any payment
required to be paid to the Employee through December 31, 2002, based upon the
provision of documentation certifying the compensation difference. Subject to
applicable law, Benefits and any other employee entitlements shall immediately
cease as of the termination of Employee, unless Employee is terminated without
Cause or by the Employee for Good Reason in which case the Company shall
continue all Benefits through December 31, 2002 or until he secures other
employment, whichever occurs first.
6. Non-Solicitation And Confidentiality.
Upon termination of employment for any reason, the Employee
agrees that for a period of one (1) year following such termination, the
Employee will not, directly or indirectly, solicit the employment of or offer
employment to or induce or attempt to induce the termination of any other person
employed by the Company or any of its affiliates, whether on behalf of the
Employee or any third person or entity.
The Employee will not disclose during or following the period
of his employment with the Company any Confidential Information or Trade Secrets
regarding the Company, its affiliates, customers or employees acquired by the
Employee during the period of his employment to any person, partnership,
corporation, firm, association or other entity, provided that this obligation
shall not apply where disclosure is compelled by judicial process.
Upon termination of this Agreement, the Employee shall return
all documents, correspondence, work papers, manuals, reports, lists, records,
data, books, computer disks, printouts, or materials of or pertaining to the
Company, its subsidiaries or affiliates without regard to the format in which it
has been maintained in his possession or control.
4
5
The Employee agrees that the terms "Confidential Information"
and "Trade Secrets" means information (i) regarding the Company's personnel,
customers and clients (including but not limited to their identity, location,
service requirements and charges), business associates and contacts, sales and
sales methods, accounts, suppliers, vendors, products or service presentations,
pricing and cost practices, marketing strategies, plans for future development
and other secrets relating to the business of the Company which was obtained,
learned, or created by the Employee in carrying out the Company's business and
(ii) pertaining to the Company on any computer or electronic data base to which
the Employee had access during his employment with the Company including
information on PCs, networks, disks or other magnetic media and any copies that
were made, received or downloaded onto any laptop or other privately owned
computer.
The commitments set forth above do not extend to any
information received that was: (i) was known and used by the Employee prior to
the date of disclosure by the Company as evidenced by the Employee's prior
written records, (ii) was known to the public prior to the date that disclosure
was made to the Employee by the Company, (iii) became known to the public
subsequent to the date it was received through no act or failure to act on the
part of the Employee, (iv) corresponds in substance to information disclosed to
the Employee at any time by a third party having a bona fide right to disclose
or to make the same available to the Employee, or (v) became known to the
Employee through his efforts independent of any information received
The Employee agrees to inform any new employer prior to
accepting employment, of the existence of the provisions of this Section 6.
7. Non-Competition.
If the Employee is terminated with or without Cause or if the
Employee voluntarily resigns without Cause or for Good Reason, the Employee
agrees not to engage, directly or indirectly (whether as an officer, director,
agent, employee, consultant or by ownership or otherwise) in a competitive
business in the Company's market area or solicit or accept business from any of
the Company's customers or accounts for a competitive business in the Company's
market area for a period of one year following the cessation of his employ with
the Company. The Company's market area extends a radius of forty (40) miles from
Rye, New York. A competitive business is one that is the same or similar to the
type of business conducted by the Company at the time of the cessation of the
Employee's employment.
The Employee acknowledges that he understands that the
Employee's agreement not to compete was and remains a significant inducement for
the Company to enter into this Agreement. The Company acknowledges that the
Employee possesses substantial experience and expertise in accounting, financial
reporting and general business management and use of that experience or
expertise will not be deemed a violation of this Agreement.
The Employee agrees to inform any new employer prior to
accepting employment of the existence of the provisions of this Section 7.
5
6
8. Discoveries And Works.
All Discoveries and Works made or conceived by the Employee
during his employment by the Company, jointly or with others, that relate to the
present or reasonably anticipated activities of the Company or its direct or
indirect subsidiaries, or are used or usable by the Company or its direct or
indirect subsidiaries shall be owned by the Company. The term "Discoveries and
Works" includes, by way of example but without limitation, Trade Secrets and
other Confidential Information, patents and patent applications, trademarks and
trademark registrations and applications, service marks and service xxxx
registrations and applications, trade names, copyrights and copyright
registrations and applications. The Employee shall (i) promptly notify, make
full disclosure to, and execute and deliver any documents requested by, the
Company, to evidence or better assure title to Discoveries and Works in the
Company, as so requested, (ii) renounce any and all claims, including but not
limited to claims of ownership and royalty, with respect to all Discoveries and
Works and all other property owned or licensed by the Company or its direct or
indirect subsidiaries or affiliates, (iii) assist the Company or its direct or
indirect subsidiaries in obtaining or maintaining for itself at its own expense
United States and foreign patents, copyrights, trade secret protection or other
protection of any and all Discoveries and Works, and (iv) promptly execute,
whether during his employment with the Company or thereafter, all applications
or other endorsements necessary or appropriate to maintain patents and other
rights for the Company or its direct or indirect subsidiaries and to protect the
title of the Company or its direct or indirect subsidiaries thereto, including
but not limited to assignments of such patents and other rights. Any Discoveries
and Works which, within nine (9) months after the termination of the Employee's
employment with the Company, are made, disclosed, reduced to a tangible or
written form or description, or are reduced to practice by the Employee and
which relate to the present or reasonably anticipated activities of the Company
or its direct or indirect subsidiaries at the time of such termination shall, as
between the Employee and the Company, be presumed to have been made during the
Employee's employment by the Company.
The Employee acknowledges that all Discoveries and Works
covered by this Agreement shall be deemed "works made for hire" under the
Copyright Act of 1976, as amended, 17 U.S.C. Section 101.
9. Enforceability.
The Employee acknowledges and agrees that his services
hereunder are and will continue to be of a unique and extraordinary character,
and that it is impossible to measure in money the damages which will accrue to
the Company in the event, by Employee, of a breach, a threatened breach or a
default of any of Employee's representations, agreements, covenants or other
obligations in this Agreement. Accordingly, the Employee agrees that if he
breaches or threat thereof, or violates any of such representations, agreements,
covenants or other obligations, the Company shall have the full right to seek
injunctive relief, in addition to any other existing rights provided in this
Agreement or by operation of law, without the requirement of posting bond, and
to terminate any payments to the Employee. In any action or proceeding
instituted by or on behalf of the Company to enforce any provision of this
Agreement, the Employee hereby waives any claim or defense thereto that the
Company has an adequate remedy at law or that the Company has not been, or is
not being, irreparably injured by the Employee's breach or violation. Upon any
breach, or violation by the Employee of this Agreement, or any threat thereof,
the Company shall be entitled to recover from the Employee any and
6
7
all damages, losses, costs and expenses it incurs (including, without
limitation, reasonable attorneys' fees and expenses) in connection with such
breach or violation (or threat thereof) and any enforcement of the Company's
rights hereunder. The rights and remedies of the Company pursuant to this
Section 9 are cumulative, in addition to and shall not be deemed to exclude, any
other right or remedy which the Company may have pursuant to this Agreement or
otherwise, at law or in equity.
If, in a judicial proceeding, a court shall refuse to enforce
one or more of the covenants contained in Sections 6 or 7 because the duration
is too long or the scope is too broad, it is expressly agreed that for the
purpose of such proceeding, the duration and scope will be deemed reduced to the
extent necessary to permit the enforcement of these covenants. The existence or
any claims or causes of action of the Employee against the Company, whether
predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement by the Company of the covenants in Sections 6 or 7.
10. Representation.
The Employee represents to the Company that neither the
acceptance of employment, nor the execution, delivery and performance of this
Agreement by the Employee results or will result in a breach or a default under
any other agreement.
11. Waiver Of Breach.
Waiver by either party of a beach of any provision of this
Agreement by the other party shall not operate as a waiver of any other or
subsequent breach by such other party. No waiver shall be valid unless in
writing and duly signed by the party waiving the provision.
12. Validity.
The Employee has been encouraged to review this Agreement with
an attorney prior to executing it. If any portion of this Agreement is
determined to be invalid or unenforceable, such determination will not affect
the validity or enforceability of the remaining portions, covenants or Sections
of this Agreement as a whole, and this Agreement will then be interpreted as if
the invalid or unenforceable portions had not been inserted.
13. Understanding.
This Agreement contains the entire understandings of the
parties with respect to the subject matter of the Agreement, and supersedes all
prior agreements, whether oral or written. This Agreement may not be changed
orally but only by a written agreement, signed by the party against whom
enforcement of any waiver, change, modification, extension or discharge is
sought.
14. Governing Law.
This Agreement shall be governed by and construed under the
laws of the State of New York without regard to the conflicts of laws rules
thereof that would defer to the procedural and substantive laws of another
jurisdiction as to all matters, including but not limited to matters of
validity, construction, effect, performance and remedies.
7
8
15. Arbitration.
Any dispute arising hereunder, except as provided in the last
sentence below, shall be settled by arbitration in New York City in accordance
with the Arbitration provision outlined in the Company's Handbook for Employees
under the auspices of the American Arbitration Association ("AAA"). One
Arbitrator will be chosen by the parties who shall be an attorney experienced in
employment law. If the parties cannot agree on the identity of the Arbitrator,
the head of the AAA in New York City will appoint him. The Employee and the
Company each submits to the jurisdiction of the AAA in New York City to resolve
any such disputes. The Company reserves the right to enforce Sections 6 or
Section 7 of this Agreement in any jurisdiction where such enforcement is
necessary or desirable, through a court or arbitration proceeding, or both, as
the Company may elect.
16. Binding Effect.
The Employee acknowledges that the services to be rendered by
him are unique and personal. Accordingly, the Employee may not assign any of his
rights or delegate any of his duties or obligations under this Agreement. This
Agreement shall be binding upon and inure to the benefit of the parties to this
Agreement and their respective heirs, personal representatives, successors and
assigns as applicable.
17. Drafting.
The parties agree that this Agreement shall be construed
without regard to the drafter of the same and shall be construed as though each
party to this Agreement participated equally in the preparation and drafting of
this Agreement.
18. Notices.
All notices and other communications hereunder shall be deemed
given upon (a) the sender's confirmation of receipt of a facsimile transmission
to the recipient's facsimile number set forth below, (b) confirmed delivery by a
standard overnight carrier to the recipient's address set forth below, (c)
delivery by hand to the recipient's address set forth below or (d) the
expiration of five (5) business days after the day mailed in the United States
by certified or registered mail, postage prepaid, return receipt requested,
addressed to the recipient's address set forth below (or, in each case, to or at
such other facsimile number or address for a party as such party may specify by
notice given in accordance with this Section 18):
If to the Company, to: Tremont Advisers, Inc.
000 Xxxxxxxx Xxxxx Xxxxxx
Xxx Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
With a copy to: Xxxxx-Xxxx Xxxxx, Esq.
XX Xxx 000
Xxxxxxxxx, XX 00000
8
9
Facsimile (000) 000-0000
If to the Employee, to: Xxxxxxx X. Xxxxxxx
00 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
With a copy to: Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
It shall be noted that the terms "he," "him," or "his" shall be applied to the
parties without regard to gender and any headings in this Agreement have been
inserted for convenience only and have no legal effect.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first written above.
ON BEHALF OF THE COMPANY ON BEHALF OF THE EMPLOYEE
------------------------------------ ---------------------------------------
Signature: /s/Xxxxxx Xxxxxxxx Signature: /s/Xxxxxxx X. Xxxxxxx
------------------------------------ ---------------------------------------
Date: 3/5/01 Date: 4/6/01
------------------------------------ ---------------------------------------
Title: President
------------------------------------ ---------------------------------------
9
