Exhibit 10.8
W.P.XXXXX & CO. LLC
W.P.XXXXX INTERNATIONAL LLC
AMENDED EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of the 21st day of March, 2003 between W. P. Xxxxx
International LLC (the "Company"), W. P. Xxxxx & Co. LLC ("WPC LLC" and together
with the Company, the "Companies"), both Delaware Limited Liability Companies at
00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, XX 00000, and Xxxxxx X. XxXxxx (the "Partner").
This agreement shall be considered in full effect as of January 1st, 2003 (the
"Effective Date").
WITNESSETH:
WHEREAS, Partner has previously provided or is currently providing services
to the Companies;
WHEREAS, Partner is currently under obligation to be employed by WPC LLC
under Partner's employment agreement dated June 28th, 2000 (the "LLC Agreement",
attached as Exhibit F);
WHEREAS, the terms of the LLC Agreement shall remain in full effect, except
as expressly provided and/or modified herein; and
WHEREAS, the Companies wish to assure themselves of the continued
availability of Partner's services, and Partner is willing to give such
assurance in return for the benefits described herein;
NOW, THEREFORE, incorporating the foregoing and intending to be legally
bound hereby, the Companies hereby agree to employ Partner, and Partner hereby
agrees to be employed by the Companies upon the following additional and / or
modified terms and conditions:
1. LLC AGREEMENT. Except as expressly provided and/or modified herein, the
terms of the LLC Agreement shall remain in full force and effect.
2. OFFICE AND DUTIES.
(a) Partner shall serve the Company as Managing Director and Chief
Acquisitions Officer. It is the intention of the Company that Partner will one
day succeed the current Chairman and Chief Executive Officer of the Company. In
the event that Partner does not succeed the current Chairman and Chief Executive
Officer for any reason other than by determination by a majority of the then
members of the WPCI Board of Directors, as hereinafter defined, that Partner has
displayed willful gross negligence, dishonesty, or gross incompetence while
carrying out his duties for the Company, then Partner will be entitled to an
award of $1,000,000. Such an award will also be payable should (prior to any
determination by the WPCI Board of Directors pursuant to the preceding sentence)
any individual, with the exception of Xxxxxxx Xxxx Xxxxx or Xxxxxxx X. Xxxxx, be
allowed to hold a position senior to Partner, or should operations of the
Company be materially different than as described in the Terms of Relationship
(as attached as Exhibit B).
(b) Except to the extent that Partner shall otherwise be performing
services for one or more entities that are affiliated with the Company
("Affiliates"), Partner will require consent of the WPCI Board of Directors
before serving on the board of directors of any business corporation.
3. TERM. The Service Period shall be extended to end on December 31st,
2008, unless sooner terminated as provided hereinafter and in the LLC Agreement.
4. COMPENSATION. During the Service Period, Partner shall receive cash
compensation in the form of an annual Base Salary at the rate of $200,000, with
any additional compensation to be
deemed Incentive Compensation (Base Salary and Incentive Compensation, together,
constitute "Total Annual Compensation"). During the Service Period, Partner will
receive a draw in the amount of $250,000, which shall offset any Incentive
Compensation payable to the Partner, payable in accordance with the Company's
normal payroll practices. At any time, the WPCI Board of Directors may review
Partner's Total Annual Compensation and may adjust such compensation upward or
downward by an amount it determines to be appropriate. It is acknowledged that
Partner will continue to serve the interests of the Companies consistent with
the terms described in the Terms of Relationship memo relating to Partner's
employment, and that the opportunity to earn Incentive Compensation from WPC LLC
will continue until December 31, 2003 in a manner consistent with Partners
previous Incentive Compensation opportunities from WPC LLC.
5. GRANT OF COMMON INTERESTS. The Company shall grant Partner 1,000,000
interests which shall entitle Partner to share in both the capital and profits
in the Company on the same basis as the existing members (the "Common
Interests", of which there currently exists 10,000,000 outstanding), and which
shall be governed by the terms for Equity Grant as established and defined in
the existing LLC Agreement and related equity award agreement, with the
following exceptions:
(a) The value of these interests is deemed to be $0.25 per Common Interest.
(b) While Partner will enjoy all the benefits of ownership and rights
associated with the Common Interests granted, such Common Interests shall vest
in five (5) equal annual installments, with the first such installment
considered vested as of December 31st, 2003, and the remaining four installments
vesting on each December 31st occurring thereafter, subject to treatment as
provided in the existing LLC Agreement and related equity award agreement for
Equity Grants.
6. EQUITY OPTION GRANT. Partner has been granted an option to purchase
1,000,000 Common Interests in the Company (the "Options"), and which shall be
governed by the terms for Equity Option Grant as established in the existing LLC
Agreement and related option agreement, with the following modification:
(a) While Partner will enjoy all the benefits and rights associated with
the Equity Options granted, such Equity Options shall vest in five (5) equal
annual installments, with the first such installment considered vested as of
December 31st, 2003, and the remaining four installments vesting on each
December 31st thereafter; subject to treatment as provided in the existing LLC
Agreement and related option agreement for Equity Options Grants. Such Equity
Options shall remain exercisable for a period of 10 years following the date of
their first vesting, and have a strike price of $1.00.
7. LIQUIDITY. Given that liquidity for the Partners Common Interests and
Equity Option Grants in the Company are no longer available as originally
contemplated due to the Parent / Subsidiary Transaction (as a result of the
resolutions of the WPC LLC Board of Directors approved on March 19th, 2003),
Partner shall be able to achieve liquidity in accordance with the following
liquidity provision:
(a) Partner maintains the right to put his total vested Common Interests
and exercised Equity Option Grants to WPC LLC upon the earlier of an event in
which Equity Acceleration is payable or on or after December 31st, 2012.
(i) The price for the Common Interests mentioned above (including
Common Interests acquired through exercised Equity Option Grants) will
be determined by an independent appraiser, with both such appraiser
and valuation method to be mutually acceptable to the Companies and
Partner, and without discount for minority interest. If the Companies
and Partner cannot agree on an appraiser and valuation method within
thirty (30) days from Partner's notice of desire to exercise the
liquidity provision, then each party shall choose an appraiser and
their respective appraisers shall select a third appraiser to perform
the valuation using a valuation method (without discount for minority
interest) that the third appraiser deems appropriate (this section
7(a)(i) in its entirety shall hereinafter be referred to as the
"Valuation".)
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(ii) The value of the Common Interests and Equity Option Grants shall
be paid in shares of WPC LLC, which WPC LLC shares shall be valued by
reference to the average between the reported high and low trading
prices of such shares for the 30 day period immediately preceding
payment to the Partner, or if said shares are unavailable, in another
form of payment mutually acceptable to the Companies and Partner;
provided, however, if remuneration is provided for in shares of WPC
LLC, such shares cannot be sold for a period of one (1) year after
receipt by Partner.
8. TERMINATION OF SERVICE. The terms of the LLC Agreement with respect to
Termination of Services, including the process, procedure and persons
responsible for determining the basis for and deciding disputes relating to
termination, shall remain in effect, with the modification being that a material
change in the operations of the Company from that which is described in the
Terms of Relationship memo shall constitute the right for Partner to Terminate
with Good Reason.
(a) In the event of Termination with Good Reason, in addition to the
actions and effects as agreed to in the LLC Agreement, Partner shall have the
right to put all interests in the Company back to WPC LLC in return for shares
of WPC LLC, or if shares are unavailable, for a method of payment acceptable to
the Companies and Partner. The value of Partners interests shall be calculated
per the Valuation method as set forth in Section 7(a)(i) above, provided,
however, that such appraisers shall assume for purposes of the Valuation that
the event giving rise to the Termination for Good Reason had not occurred. If
Partner receives shares in WPC LLC in exchange for his interests in connection
with an event of Termination for Good Reason, such shares may not be sold for a
period of one (1) year after receipt by Partner.
9. DEFINITIONS. For purposes of this document capitalized terms shall have
the meanings as defined in the LLC agreement, with the exception or addition of
those described below:
"CHANGE OF CONTROL" shall mean "Change of Control" as then defined in the
W.P. Xxxxx & Co. LLC 1997 Share Incentive Plan, and/or any sale by WPC LLC
of shares representing in the aggregate more than 50% of the equity of the
Company.
"TERMS OF RELATIONSHIP" shall mean the document as attached as Exhibit B.
"WPCI BOARD OF DIRECTORS" shall mean the Board of the Company, which is
initially comprised of Wm. Xxxx Xxxxx, Xxxxxxx X. Xxxxx, Xxxxxx X. XxXxx,
Xxxxxxxx X. Xxxxx, Xxxxxx X. XxXxxx, and Xxxxxxxx Xxxxxxxxxx.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered on the date first above written.
ON BEHALF OF W.P. XXXXX & CO. LLC
/s/ Xxxxxx X. XxXxxx /s/ Xxxxxxx X. Xxxxx
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Partner Xxxxxxx X. Xxxxx
ON BEHALF OF W. P. XXXXX INTERNATIONAL
LLC
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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