EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the 18th day
of July, 2001, by and among Equity Securities Investments, Inc., a Minnesota
corporation (the "Company"), Realco, Inc., a New Mexico corporation (the
"Guarantor"), and Xxxx X. Xxxxxxx (the "Employee").
RECITALS
A. The Company is primarily engaged in the business of financial and
investment services and banking.
B. The Company desires to employ the Employee in the capacity of
President of the Company's to-be-formed wholly-owned affiliate entity, Equity
Investment Advisors, Inc. ("EIA").
C. The Employee desires to be employed by the Company upon the terms
and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. Employment; Term.
(a) The Company hereby agrees to employ the Employee, and the
Employee hereby agrees to serve the Company, on the terms and conditions set
forth herein.
(b) Subject to the termination and change of control
provisions set forth in Sections 5 and 6 hereof, the term of the Employee's
employment with the Company pursuant to this Agreement shall commence on the
date hereof and shall continue until June 30, 2003 (the "Expiration Date").
2. Nature of Employment.
(a) Position and Duties. The Employee shall serve the Company
as President of EIA, accountable to the Chairman and President of the Company,
respectively, or their designees. The Employee shall have such duties and
responsibilities related to the activities of EIA as directed from time to time
by the Chairman and President of the Company, respectively, or such persons
designated by each of them. In particular, the Employee shall seek to develop
undervalued investment ideas and will endeavor, in cooperation with and with the
assistance of other Company executives and personnel, to: (1) create and manage
a private equity fund; (2) create and manage various advisory accounts/funds;
and (3) work on other mutually acceptable projects that are identified by the
Employee and the Company. In performing his duties, the Employee shall travel to
such places and at such times as shall be necessary for the performance of his
duties hereunder.
(b) Commitment. During the term of this Agreement, the
Employee shall be employed by the Company full-time and shall devote his entire
working time to the business and affairs of the Company. The Employee agrees
that he will not, directly or indirectly, engage or participate in any
activities at any time during the term of this Agreement that are in conflict
with the best interests of the Company; provided, however, that the Company
acknowledges that the Employee is a director of Cone Xxxxx, Inc. and that
performance of his duties as director will require some time during business
hours from time to time and provided, further, that the Company acknowledges
that Employee is being hired in a management capacity and not in the capacity of
a registered representative to engage in the retail brokerage business and that
nevertheless the Company agrees that during business hours the Employee may
provide investment brokerage services for retail and institutional clients.
3. Compensation and Assistance and Equipment. The Company agrees to
compensate Employee pursuant to the terms of Employment Term Sheet attached
hereto (the "Employment Term Sheet") and executed by Employee, the Company and
the Guarantor. The Guarantor agrees to be responsible for payment and
performance of any obligations of the Company pursuant to this Agreement related
to compensation of the Employee in the event that the Company is incapable of
performing such obligations. The Company also agrees to provide the Employee
with the assistance and equipment outlined in the Employment Term Sheet.
4. Other Offices. The Employee agrees to serve without additional
compensation, if elected or appointed thereto, in one or more offices or as a
director of the Company or of any subsidiaries from time to time established by
the Company or its affiliates.
5. Early Termination.
(a) Death. The Employee's employment hereunder shall terminate
upon his death.
(b) Termination by the Company for Cause. The Company may
terminate the Employee's employment hereunder for Cause at any time. For the
purposes of this Agreement, the Company shall have "Cause" to terminate the
Employee's employment hereunder upon a determination by the Company that the
Employee has (i) failed to repeatedly and consistently perform his duties
hereunder, or (ii) engaged in criminal acts, acts involving fraud or dishonesty,
or an act of serious misconduct that is injurious to the Company or its
reputation, or (iii) violated any of the provisions of this Agreement.
(c) Termination by the Company in the Event of Disability. The
Company may terminate the Employee's employment hereunder if, as a result of the
Employee's incapacity due to physical or mental illness, the Employee shall have
been absent from his duties hereunder or unable to perform his duties on a
full-time basis for ninety (90) days in any six (6) month period.
(d) Notice of Termination. Any termination by the Company
shall be communicated by written notice to the Employee.
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6. Change of Control. In the event that either Xxxxxx X. Xxxxx or
Xxxxxxxx X. Xxxxxx leave the Company, voluntarily or involuntarily, or are no
longer employed by the Company in any capacity or the Company is sold to another
party or another entity (other than Guarantor) acquires a majority stake in the
Company (defined as a "Change of Control"), Employee shall have the option to
either continue his employment, or to resign, in which event he shall be
entitled to receive those payments due and owing to him consistent with Section
7 hereof.
7. Effect of Termination or Change of Control; Severance.
(a) Termination Without Cause.
(i) If the Company shall terminate the Employee's
employment without Cause or a Change of Control shall occur, then the
Employee shall be entitled to receive continued payment of Employee's
salary then in effect pursuant to the Employment Term Sheet for a
period of time ending twelve (12) months after the date of delivery of
the notice of termination or for the remaining term of this Agreement,
whichever period is less (the "Severance Period"). Such payments shall
be payable in installments (less applicable federal, state or social
security withholding taxes) at the same time and in the same amounts as
the Employee's salary was customarily paid by the Company.
(ii) The Company may, in its sole discretion,
terminate the Employee's duties and responsibilities at the Company at
any time following delivery of the notice of termination; provided,
however, that such termination shall not affect the Employee's right to
receive continued payments of salary during the Severance Period.
(b) Termination Upon Death or Disability or For Cause. If the
Company shall terminate the Employee's employment hereunder as a result
of the Employee's death or disability, or for Cause, the Employee's
right to receive payments of salary or any other compensation or
benefits pursuant to the Employment Term Sheet shall cease immediately
upon the effective date of such termination.
8. Unauthorized Disclosure and Use.
(a) Definition of Confidential Information. As used herein,
the term "Confidential Information" shall mean ideas, information, knowledge and
discoveries, whether or not patentable, that are not generally known in the
trade or industry and about which the Employee has knowledge as a result of his
employment by the Company, including but not limited to, the Company's trade
secrets, product specifications, methods, equipment, technology, patents,
know-how, inventions, improvements, designs, business plans, marketing plans,
cost and pricing information, internal memoranda, development programs, sale
methods, customer lists, customer usages and requirements, computer programs and
other confidential technical or business information and data. Confidential
Information shall not include any information (i) that is in the public domain
by means other than disclosure by the Employee or (ii) any information
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rightfully obtained by the Employee from a third party without restriction and
without breach of this Agreement or any other confidentiality agreement under
which such third party is bound.
(b) Fiduciary Duty. The Employee acknowledges that, as an
employee of the Company, the Employee has a fiduciary obligation to act in the
Company's best interests, and that, as and when the Employee's employment with
the Company ends, he will continue to have a fiduciary duty to not engage in
unfair conduct which would damage the Company by wrongfully interfering with its
business.
(c) Unauthorized Disclosure. The Employee shall not, without
the written consent of the Chairman and President, respectively, of the Company,
use for his own benefit or account or disclose to any person, other than an
employee of the Company or a person to whom disclosure is reasonably necessary
or appropriate in connection with the performance by the Employee of his duties
as a key manager of the Company, any Confidential Information obtained by him
while in the employ of the Company, except as may be required in connection with
any judicial or administrative proceeding or inquiry. The Employee acknowledges
and agrees that all Confidential Information obtained by the Employee in the
course of performing the Employee's obligations hereunder shall be deemed to
have been received by the Employee as a fiduciary of the Company.
(d) Return of Information. Immediately upon termination, the
Employee shall deliver to the Company the original and all copies of all
documents, records and property of any nature whatsoever that are in the
Employee's possession or control and that are the property of the Company or
that relate to the business activities, facilities or customers of the Company,
including any records, documents or property created by the Employee.
9. Non-Competition.
(a) Covenant Not To Compete. During the period of his
employment hereunder or during such period when Employee is being paid by the
Company pursuant to Section 7(a) hereof, the Employee shall not, without the
written consent of the Chairman and President of the Company, respectively, or a
person authorized thereby, directly or indirectly:
(i) Participate in or assist in, the ownership,
management, operation or control, nor have any beneficial interest in
more than five percent (5%) of the equity, of any corporation,
partnership, association or other person or entity that directly
competes or is planning to directly compete with the Company within the
United States;
(ii) Undertake any business with or solicit business
from (whether for the Employee's own account or for the account of
another person or entity) any person or business that is or was an
account, customer or client of the Company with whom the Employee or
his subordinates has dealt in the twelve (12) months immediately prior
to the termination of his employment;
(iii) Offer employment to or employ or offer or
conclude any contract for services with any employee of the Company who
all have been employed at any time
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during the twelve (12) months immediately prior to the termination of
the Employee's employment and who has been employed to sell the
products or services of the Company to its customers;
(iv) Solicit, induce or attempt to influence any
employee of the Company to terminate his or her employment with the
Company (whether such departure would be in breach of the employee's
contract of employment or not); or
(v) Engage in any practice the purpose of which is to
evade the provisions of this covenant not to compete or to commit any
act that adversely affects the Company's business.
(b) Acknowledgements. Recognizing the specialized nature of
the Company's business, the confidential information and trade secrets learned
by the Employee through his employment with Employer and the competition that
the Company faces in its business, Employer hereby acknowledges that the terms
of this covenant not to compete are reasonable.
10. Notice. For the purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when delivered or mailed, return receipt requested, postage
prepaid, addressed as follows:
If to the Employee:
Xxxx X. Xxxxxxx
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to the Employee's attorney:
Xxxxxx X. Xxxxx
Xxxxxx Xxxxxxx Xxxxxx & Brand, L.L.P.
3300 Xxxxx Fargo Center
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
If to the Company:
Xxxxxx X. Xxxxx
Equity Securities Investments, Inc.
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
Facsimile: (000) 000-0000
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or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
11. Miscellaneous.
(a) Amendment. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in a writing signed by the Employee, the Company and the Guarantor.
(b) No Waiver. No waiver by any party hereto at any time of
any breach by the any party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by any such party shall be deemed a
waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time.
(c) Merger Clause. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by any party that are not set forth expressly in this Agreement. This
Agreement supersedes any prior agreements with respect to the subject matter
hereof.
(d) Governing Law. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the State of
Minnesota.
(e) Severability. In the event that any portion of this
Agreement is held to be invalid or unenforceable for any reason, the parties
agree that said invalidity or unenforceability shall not affect the other
provisions of this Agreement, and that the remaining covenants, terms and
conditions or portions thereof shall remain in full force and effect, and any
court of competent jurisdiction may so modify or amend the objectionable
provision so as to make it valid, reasonable and enforceable.
(f) Successors; Binding Agreement. This Agreement and all
rights of the Employee hereunder shall inure to the benefit of and be
enforceable by the Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
(g) Counterparts/Facsimiles. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Facsimile
signatures shall be deemed original.
(h) Recitals. The Company, the Guarantor, and the Employee
acknowledge and agree that the recitals set forth at the beginning of this
Agreement are true and correct and constitute a part of this Agreement.
(i) Remedies. The Company, the Guarantor, and the Employee
agree that the provisions and restrictions contained in this Agreement are
necessary to protect the legitimate continuing interests of the Company, and
that any violation or breach of those provisions will
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result in irreparable injury to the Company for which a remedy at law would be
inadequate and that, in addition to any relief at law that may be available to
the Company for such violation or breach and regardless of any other provision
contained in this Agreement, the Company shall be entitled to injunctive and
other equitable relief as a court may grant after considering the intent of this
Agreement.
(j) Headings. The headings contained herein are for reference
only and shall not affect the meaning or interpretation of this Agreement.
(k) Assignment of Agreement. This Agreement may not be
assigned by either party hereto without the prior written consent of the other
party; provided, however, that the Company may assign this Agreement to an
affiliate.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the date and year first above written.
EQUITY SECURITIES INVESTMENTS, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Title: Vice President
----------------------------
REALCO, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Title: Chairman
----------------------------
XXXX X. XXXXXXX
/s/ Xxxx X. Xxxxxxx
-----------------------------------
AMENDMENT TO
EMPLOYMENT AGREEMENT
This is an AMENDMENT TO THE EMPLOYMENT AGREEMENT made as of the 18th day of
July, 2001, by and among Equity Securities Investments, Inc., a Minnesota
corporation (the "Company"), Realco, Inc., a New Mexico corporation (the
"Guarantor"), and Xxxx X. Xxxxxxx (the "Employee") (the "Employment
Agreement"--a copy of which is attached hereto) and is entered into as of
December 10, 2001 by and among the Parties.
RECITALS
A. The Company desires to continue to employ the Employee in an
executive capacity at Equity Investment Advisors, Inc. ("EIA").
B. The Employee desires to continue to be employed by the Company upon
the terms and conditions set forth in the Employment Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
Extension of Employment; Term.
-----------------------------
(l) Consistent with the provisions of the Employment
Agreement, the Company hereby agrees to extend the employment term of the
Employee, and the Employee hereby agrees to such extension, under the same terms
and conditions as set forth in the Employment Agreement.
(m) Subject to the termination and change of control
provisions set forth in Sections 5 and 6 of the Employment Agreement, the term
of the Employee's employment with the Company pursuant to the Employment
Agreement shall continue until December 31, 2004.
IN WITNESS WHEREOF, the parties have executed this Amendment to the Employment
Agreement on the date and year first above written.
EQUITY SECURITIES INVESTMENTS, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Title: Vice President
----------------------------
REALCO, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Title: Chairman
----------------------------
XXXX X. XXXXXXX
/s/ Xxxx X. Xxxxxxx
-----------------------------------
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