Exhibit 10.3
EMPLOYMENT AGREEMENT
AGREEMENT by and between NFP Insurance Services, Inc., a Texas corporation
(the "Company"), National Financial Partners Corp. f/k/a National Financial
Services Company, a Delaware corporation ("NFP"), and R. Xxxxx Xxxxxxxx (the
"Executive" and together with NFP and the Company, the "Parties"), dated as of
January 1, 2003.
WHEREAS, on January 1, 1999 the Executive entered into an Employment
Agreement with Partners Holdings, Inc. and NFP (the "Predecessor Employment
Agreement"); and
WHEREAS, the Executive has agreed to terminate the Predecessor Employment
Agreement effective as of the date hereof in consideration of the terms and
conditions set forth in this Employment Agreement; and
WHEREAS, the Compensation Committee of the Board of Directors of NFP (the
"NFP Board") determined that it is in the best interest of NFP and the Company
to employ the Executive as the President of the Company and the Executive
desires to serve the Company and NFP in such capacities; and
WHEREAS, as of the date hereof, the Executive is a member of the NFP Board
and, in such capacity, maintains the title of Vice Chairman of NFP.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Employment Period. (a) The Company shall employ the Executive, and the
Executive shall serve the Company, on the terms and conditions set forth in this
Agreement, for the period beginning on the date hereof (the "Effective Date")
and ending May 1, 2006. The period of time between the Effective Date and the
termination of the Executive's employment with the Company and NFP hereunder
shall be referred to herein as the "Employment Period."
(b) Notice of Non-Continuation. The Company or NFP shall provide the
Executive with at least six months notice prior to the termination of this
Agreement that this Agreement shall not be extended beyond May 1, 2006. If the
Company or NFP does not provide the Executive with such notice, this Agreement
shall be automatically extended for an additional six month period.
2. Position and Duties. During the Employment Period, the Executive shall
serve as Chairman and Chief Executive and shall perform duties and be assigned
responsibilities which are substantially similar to those performed by the
Executive immediately prior to the Effective Date and as may be assigned to him
from time to time. During the Employment Period, the Executive shall report to
the Chief Executive Officer of NFP. During the Employment Period, and excluding
any periods of vacation and sick leave to which the Executive is entitled, the
Executive shall devote full attention and time during normal business hours to
the business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive under this
Agreement, use the Executive's reasonable best efforts to carry out such
responsibilities faithfully and efficiently. The Executive shall not, during the
Employment Period, engage in any other business activities that will interfere
with the Executive's employment pursuant to this Agreement. During the
Employment Period, the Executive's services shall be performed primarily at the
Company's office located in the Austin, Texas metropolitan area. If at any time
during the Employment Period, the Executive is no longer a member of the NFP
Board, he shall be entitled to the following during the remainder of the
Employment Period, subject to the requirements of applicable laws and any rules
or regulations promulgated thereunder and the rules of any stock exchange of
which NFP may become a member: (a) Executive shall retain the title of Vice
Chairman of NFP; (b) subject to the consent of the NFP Board, Executive shall
have the right to attend all meetings of the NFP Board except Non-Management
Director Executive Sessions of the NFP Board, meaning sessions of the NFP Board
that do not include members of NFP's management; and (c) Executive shall be
entitled to a seat on NFP's management's Executive Committee when such committee
is formed, it being understood and agreed that such Executive Committee shall be
formed before or within three months after the date on which the Executive is no
longer a member of the NFP Board.
3. Compensation. (a) Base Salary. During the Employment Period, the Company
shall pay the Executive an annual base salary of $400,000 ("Annual Base
Salary"), payable in equal installments not less frequently than monthly.
(b) Annual Bonus. In addition to the Annual Base Salary, for each full
fiscal year of the Company ending during the Employment Period, commencing with
the 2003 fiscal year, the Executive shall be eligible to receive an annual bonus
(the "Annual Bonus"), which bonus shall be determined in the good faith of the
Compensation Committee of the NFP Board and based on the performance of the
Executive and certain objective standards, including without limitation, the
profitability of the Company..
(c) Employee Benefits. In addition to the foregoing, during the Employment
Period, the Executive shall be entitled to participate in the formal employee
benefit plans and programs of the Company as in effect from time to time on the
same basis as all other employees of the Company.
(d) Expenses. During the Employment Period, the Executive shall be entitled
to receive prompt reimbursement for all reasonable business expenses incurred by
the Executive.
4. Termination of Employee. (a) Death or Disability. In the event of the
Executive's death during the Employment Period, the Executive's employment with
the Company shall terminate automatically. NFP or the Company, in its
discretion, shall have the right to terminate the Executive's employment because
of the Executive's Disability during the Employment Period. "Disability" means
that the Executive has been unable, for 180 consecutive days, or for periods
aggregating 180 business days in any period of twelve months, to perform the
Executive's duties under this Agreement, as a result of physical or mental
impairment, illness or injury. A termination of the Executive's employment by
NFP or the Company for Disability shall be communicated to the Executive by
written notice, and shall be effective on the 30th day after receipt of such
notice by the Executive (the "Disability Effective Date"), unless the Executive
returns to full-time performance of the Executive's duties before the Disability
Effective Date.
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(b) By NFP or the Company. In addition to termination for Disability, NFP
or the Company may terminate the Executive's employment during the Employment
Period for Cause or without Cause. "Cause" means:
(i) the Executive's continued failure to attend to his duties as an
executive officer of the Company, or
(ii) illegal conduct or gross misconduct by the Executive in connection
with the Company, NFP or their affiliates, or
(iii) any willful violation of Sections 6, 7 or 8 of this Agreement; or
(iv) the Executive's conviction of, or plea of guilty or nolo contenders
to, a felony; or
(v) any material dishonesty by the Executive in connection with his
employment; or
(vi) any material failure by the Executive to comply with the Company's or
NFP's applicable employment practices, rules or regulations, which is not
remedied within 30 days after receipt by the Executive of written notice from
the Company or NFP describing such claimed breach.
(c) By the Executive without Good Reason or for Good Reason. The Executive
may terminate employment voluntarily without Good Reason or for Good Reason.
"Good Reason" means, without the Executive's written consent:
(i) a material diminution in the Executive's position, duties or
responsibilities from those held, exercised and/or assigned to the Executive in
Section 2 of this Agreement as a result of action by the Company or NFP, other
than an isolated, insubstantial and inadvertent action that is not taken in bad
faith and is remedied by the Company or NFP (as applicable) promptly after
receipt of notice thereof from the Executive; or
(ii) any failure by the Company or NFP to comply with any material
provision of Section 3 of this Agreement, other than an isolated, insubstantial
and inadvertent failure that is not taken in bad faith and is remedied by the
Company or NFP (as applicable) promptly after receipt of notice thereof from the
Executive; or
(iii) any requirement by the Company or NFP that the Executive's services
be rendered primarily at a location or locations more than 50 miles from that
provided for in Section 2 of this Agreement, other than for reasonable travel
obligations in connection with the Executive's duties under this Agreement.
No act or omission shall constitute "Good Reason" hereunder, unless the
Executive provides notice of such act or omission to the Company and NFP within
90 days of the Executive's knowledge of its occurrence.
(d) Notice of Termination. Any termination by NFP or the Company for Cause,
or by the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 10 of
this Agreement. A "Notice of Termination" means a written notice which (i)
indicates the specific termination provision in this Agreement relied upon,
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(ii) to the extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated and (iii) if the Date of Termination
(as defined below) is other than the date of receipt of such notice, specifies
the termination date (which date shall be not more than 30 days, nor less than
15 days, after the giving of such notice). The failure by the Executive, the
Company or NFP to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason or Cause shall not
waive any right of the Executive, the Company or NFP, respectively, hereunder or
preclude the Executive, the Company or NFP, respectively, from asserting such
fact or circumstance in enforcing the Executive's, the Company's or NFP's rights
hereunder.
(e) Date of Termination. "Date of Termination" means (i) if the Executive's
employment is terminated by the Company or NFP for Cause, or by the Executive
for Good Reason, the date of receipt of the Notice of Termination or any later
date specified therein (within 30 days of such receipt), as the case may be,
(ii) if the Executive's employment is terminated by the Company or NFP other
than for Cause or the Executive terminates employment without Good Reason, the
Date of Termination shall be the date on which the Company or NFP or the
Executive, as the case may be, notifies such other party of such termination and
(iii) if the Executive's employment is terminated by reason of death or
Disability, the Date of Termination shall be the date of death of the Executive
or the Disability Effective Date, as the case may be.
5. Obligations upon Termination. (a) By NFP or the Company Other than for
Cause, Death or Disability or By the Executive for Good Reason: If, during the
Employment Period, NFP or the Company terminates the Executive's employment,
other than for Cause, death or Disability, or the Executive terminates
employment for Good Reason (in either case, hereafter referred to as a "Section
5(a) Termination"), the Company shall, for the period equal to the remainder of
the then-current Employment Period (as in effect immediately before the Date of
Termination (the "Continuation Period")), continue to pay the Executive the
Annual Base Salary, as and when such amounts would be paid in accordance with
Section 3 above. In the event a Section 5(a) Termination of or by the Executive
occurs after an "NFP Change of Control," the Company shall also pay the
Executive an additional amount equal to his Annual Bonus for the immediately
preceding full fiscal year pro rated as of the Date of Termination. In addition,
all stock options to purchase shares of NFP common stock granted to the
Executive shall become fully vested. NFP or the Company shall also continue to
provide for the Continuation Period the formal employee benefit plans and
programs to the Executive and/or the Executive's eligible dependents, as
favorable as those that would have been provided to them under Section 3(c) of
this Agreement if the Executive's employment had continued until the end of the
then current Employment Period; provided, that the Executive and/or the
Executive's eligible dependents continues to pay the cost payable for such
benefits, and, provided further, that during any period when the Executive is
eligible to receive such benefits under another employer-provided plan, the
benefits provided by the Company under this Section 5(a) may be made secondary
to those provided under such other plan. The payments and benefits provided
pursuant to this Section 5(a) are intended as liquidated damages for a
termination of the Executive's employment by NFP or the Company other than for
Cause, death or Disability or for a termination of the Executive's employment by
the Executive for Good Reason and shall be the sole and exclusive remedy
therefor. Notwithstanding anything in this Agreement to the contrary, the
Executive shall not be entitled to any severance payments or benefits under this
Section 5(a) until the effectiveness of a release executed by the Executive and
delivered to NFP and the Company, substantially in the form of Exhibit A hereto
(the "Release"), and the Company's and NFP's obligation to continue to provide
the payments and benefits described in this Section 5(a) shall cease upon any
violation by the Executive of the restrictive covenants set forth in Sections 6,
7
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and 8 hereof, which cessation shall not limit the Company's or NFP's right to
injunctive relief or any other applicable remedy at law or equity. Upon the
effectiveness of the Executive's Release, a representative of each of the
Company and NFP shall execute and deliver to the Executive a release
substantially in the form of Exhibit B hereto. The Executive's obligation to
comply with the restrictive covenants set forth in Sections 6, 7 and 8 hereof
shall cease upon a default by the Company or NFP of its obligations under this
Section 5(a), other than an isolated, insubstantial and inadvertent failure that
is remedied by the Company or NFP (as applicable) promptly after receipt of
notice thereof from the Executive. For purposes of this Section 5(a), an NFP
Change of Control shall mean (i) an event or series of events in which any
persons who are not stockholders or affiliates of NFP immediately prior to such
event or events become the beneficial owners of shares of NFP which represent
more than fifty percent (50%) of all classes of stock of NFP, except pursuant to
a public offering of securities of NFP, (ii) a sale or other disposition of all
or substantially all of the assets of NFP, other than to an affiliated entity,
or (iii) a merger, consolidation or other reorganization of NFP with a person
which is not an affiliate of NFP immediately prior to such merger, consolidation
or other reorganization and in which NFP is not the surviving entity.
(b) Death or Disability; Cause; By the Executive Other Than for Good
Reason. If, during the Employment Period, the Executive's employment is
terminated by reason of the Executive's death or Disability or by the Company
for Cause or the Executive terminates his employment other than for Good Reason,
the Company shall make, within 30 days after the Date of Termination or the
Disability Effective Date, a lump-sum cash payment to the Executive or his
estate or legal representative, as the case may be, equal to the Executive's
Annual Base Salary through the Date of Termination or Disability Effective Date,
and the Company shall have no further obligation under this Agreement.
6. Noncompetition Covenant. During the Employment Period and thereafter
during the Restricted Period (as defined below), the Executive will not engage
in or become employed in any capacity by, or become an officer, employee,
director, agent, consultant, contractor, shareholder or partner of, or otherwise
hold an interest in, any partnership, corporation or other entity that competes
with or engages in, anywhere in the United States, any business in which NFP
Insurance Services, Inc. is engaged or any similar business, except for the
ownership of less than 5% of the stock or other equity interests of a publicly
traded firm or corporation. For all purposes of this Agreement, the "Restricted
Period" shall mean: (a) the period commencing on the termination of the
Executive's employment with NFP, the Company or any subsidiary of NFP and ending
on the first anniversary of the Executive's termination of employment if the
date of the termination of the Executive's employment is on or after April 1,
2005; or (b) the expiration of the Continuation Period if the date of the
termination of the Executive's employment is before May 1, 2005. The Executive
agrees that this covenant is reasonable with respect to its duration, geographic
area and scope. If, at the time of enforcement of this Section 6, a court holds
that the restrictions stated herein are unreasonable under the circumstances
then existing, the parties hereto agree that the maximum period, scope or
geographic area legally permissible under such circumstances will be substituted
for the period, scope or area stated herein. Notwithstanding anything to the
contrary in the foregoing, the Executive shall not be subject to the
Noncompetition Covenant in this Section 6. if there is either a final
adjudication or the parties hereto agree that either the Executive was
terminated by NFP or the Company other than for Cause or the Executive
terminated his employment for Good Reason.
7. Nonsolicitation Covenants. (a) No Hiring of NFP Employees. The Executive
additionally agrees that, during the Employment Period and through the second
anniversary of the
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expiration of the Employment Period (the "Non-Solicitation Period"), the
Executive shall not directly or indirectly, on his own behalf or on behalf of
any other person or entity, solicit, or attempt to solicit or hire, any
employee, agent or contractor of NFP, its subsidiaries or affiliates or any
member (a "Member") of any insurance marketing platform affiliated with NFP
(collectively and individually referred to as the "NFP Affiliated Group") to
leave the employ of or cease doing business or being associated with the NFP
Affiliated Group for any reason whatsoever.
(b) No Solicitation of Customers. The Executive additionally agrees that,
during the Non-Solicitation Period, the Executive shall not, directly or
indirectly, on his own behalf or on behalf of any other person or entity (i)
engage in any business transaction or relationship with a Client or a Member of
the NFP Affiliated Group or perform any services for a Client or a Member of the
NFP Affiliated Group, (ii) solicit the business of any person or entity that is
a Client or a Member of the NFP Affiliated Group or (iii) interfere with or
induce any Client or a Member to discontinue any business relationship with the
NFP Affiliated Group from entering into a business relationship or transaction
with the NFP Affiliated Group. For purposes hereof, the following term shall
have the meaning set forth herein: (i) "Client" shall mean any person or entity
that is a client of the NFP Affiliated Group during the 12-month period prior to
the Date of Termination or during the Non-Solicitation Period.
(c) Reasonableness; Extraordinary Remedies. The Executive agrees that the
covenants in this Section 7 are reasonable with respect to their duration and
scope. If, at the time of enforcement of this Section 7, a court holds that the
restrictions stated herein are unreasonable under the circumstances then
existing, the parties hereto agree that the maximum period or scope legally
permissible under such circumstances will be substituted for the period or scope
stated herein. In the event of a breach of the Executive's covenants in this
Section 7, it is understood and agreed that NFP shall be entitled to injunctive
relief as well as other applicable remedies at law or in equity available to NFP
against the Executive or others.
8. Disclosure of Confidential Information. (a) Except to the extent (i)
authorized by the express prior consent of the NFP Board, (ii) required by law
or any legal process or (iii) desirable in performing his duties under this
Agreement, the Executive will not, directly or indirectly, at any time during
the Employment Period, or at any time subsequent to the termination of the
Employment Period, disseminate, disclose or divulge, to any person, firm,
corporation, association or other business entity, Confidential Information of
NFP. In the event of a breach or threatened breach by the Executive of this
Section 8, NFP shall be entitled to injunctive relief as well as other
applicable remedies at law or in equity available to NFP against the Executive
or others. For purposes hereof, "Confidential Information of NFP" shall mean any
and all information about NFP or any other members of the NFP Affiliated Group
(including, without limitation, the Company) or relating to the trade secrets of
NFP or any other members of the NFP Affiliated Group (including, without
limitation, the Company), in each case disclosed to the Executive or known by
the Executive as a consequence of or through his relationship with the Company
or NFP, if such information is not publicly available (other than through a
breach by the Executive of this Section 8).
(b) All computer software, business cards, telephone lists, client lists,
prospective client lists, price lists, contract forms, catalogs, books, records,
files and know how acquired while the Executive is employed by or otherwise
affiliated with the Company are acknowledged to be the property of the Company
and shall not be duplicated, removed from the Company's possession or premises
or made use of other than in pursuit of the business of the Company or as may
otherwise
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be required by law or any legal process, or as is necessary in connection with
any adversarial proceeding against the Company and, upon termination of the
Employment Period for any reason, the Executive shall deliver to the Company,
without further demands, all copies thereof which are then in his possession or
under his control. It is hereby acknowledged that the Executive's
responsibilities may include the making of technical, product and managerial
contri- butions of value to the Company and NFP. The Executive hereby assigns to
NFP all rights, title and interest in such contributions and inventions made or
conceived by the Executive, alone or jointly with others, during the Employment
Period and relating to the business of NFP or of the Company or the operations
of thereof. The Executive shall promptly and fully disclose all such
contributions and inventions to NFP and shall assist NFP in obtaining and
protecting the rights therein.
9. Resolution of Disputes. Any dispute or controversy between the parties
relating to or arising out of this Agreement or any amendment or modification
hereof shall be determined by arbitration in New York, New York by and pursuant
to the rules then prevailing of the American Arbitration Association, other than
claims for injunctive relief under Sections 6, 7 or 8. The arbitration award
shall be final and binding upon the parties and judgment may be entered thereon
by any court of competent jurisdiction. The service of any notice, process,
motion or other document in connection with any arbitration under this Agreement
or the enforcement of any arbitration award hereunder may be effectuated either
by personal service upon a party or by certified mail duly addressed to him or
to his executors, administrators, personal representatives, next of kin,
successors or assigns, at the last known address or addresses of such party or
parties.
10. Notice. Any notice, request, reply, instruction, or other communication
provided or permitted in this Agreement must be given in writing and may be
served by depositing same in the United States mail in certified or registered
form, postage prepaid, addressed to the party or parties to be notified with
return receipt requested, or by delivering the notice in person to such party or
parties. Unless actual receipt is required by any provision of this Agreement,
notice deposited in the United States mail in the manner herein prescribed shall
be effective on dispatch. For purposes of notice, the address of the Executive,
his spouse, any purported donee or transferee or any administrator, executor or
legal representative of the Executive or his estate, as the case may be, shall
be as follows:
To the Executive:
Xxxxxx X. Xxxxxx
NFP Insurance Services, Inc.
1250 Capitol of Xxxxx Xxxxxxx Xxxxx Xxxxxxxx 0, Xxxxx 000
Xxxxxx, Xxxxx 00000
Copy to:
Xxxxxx X. Xxxxxx
Xxxx & Xxxxxx, P.C.
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
The Company:
NFP Insurance Services, Inc.
1250 Capitol of Xxxxx Xxxxxxx Xxxxx Xxxxxxxx 0, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxx
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NFP:
National Financial Partners Corp.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Each of NFP and the Company shall have the right from time to time and at any
time to change its address and shall have the right to specify as its address
any other address by giving at least ten (10) days' written notice to the
Executive. The Executive shall have the right from time to time and at any time
to change his address and shall have the right to specify as his address any
other address by giving at least ten (10) days' written notice to NFP and the
Company.
11. Controlling, Law. The execution, validity, interpretation and
performance of this Agreement shall be determined and governed by the laws of
the State of New York, without reference to principles of conflict of laws.
12. Entire Agreement. The Executive, the Company and NFP acknowledge that
this Agreement contains the entire agreement of the parties with respect to the
subject matter hereof and supersedes any other agreement, whether written or
oral, between them concerning the subject matter hereof, including, but not
limited to, the Summary of Terms of Employment Agreement and the Predecessor
Employment Agreement. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect.
13. Severability. If any provision of the Agreement is rendered or declared
illegal or unenforceable by reason of any existing or subsequently enacted
legislation or by decree of a court of competent jurisdiction, the parties shall
promptly meet and negotiate substitute provisions for those rendered or declared
illegal or unenforceable, but all remaining provisions of this Agreement shall
remain in full force and effect.
14. Survival. The provisions of Sections 6, 7, 8, 9, 10, 11, 12, 13, 14 and
15 shall survive the termination of the Employment Period and the termination of
this Agreement to the extent applicable.
15. Effect of Agreement, Assignment, Required Assumption. This Agreement
shall be binding upon the Executive and his heirs, executors, administrators,
legal representatives, successors and assigns, the Company and NFP and their
successors and assigns. The Executive may not assign any rights or obligations
hereunder without the prior written consent of NFP and, except with respect to a
successor entity (as described below), NFP may not assign any rights or
obligations hereunder without the prior written consent of the Executive. NFP
shall require any person who is the successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or a substantial portion of
the business or assets of NFP to expressly assume the obligations of NFP
hereunder. The terms "NFP" and the "Company" as used in this Agreement shall
expressly include any such successors.
16. Amendments, Waivers. This Agreement cannot be changed, modified or
amended, and no provision or requirement hereof may be waived, without the
consent in writing of the Executive, the Company and NFP. The failure of a party
at any time or times to require
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performance of any provision hereof shall in no manner affect the right of such
party at a later time to enforce the same. No waiver by a party of the breach of
any term or covenant contained in this Agreement, whether by conduct or
otherwise, in any one or more instances, shall be deemed to be, or construed as,
a further or continuing waiver of any such breach, or a waiver of the breach of
any other term or covenant contained in this Agreement.
17. Withholding. Notwithstanding any other provision of this Agreement, the
Company may withhold from amounts payable under this Agreement all federal,
state, local and foreign taxes that are required to be withheld by applicable
laws or regulations.
18. Beneficiaries. Whenever this Agreement provides for any payment to the
Executive's estate, such payment may be made instead to such beneficiary or
beneficiaries as the Executive may have designated in a writing filed with the
Company. The Executive shall have the right to revoke any such designation and
to redesignate a beneficiary or beneficiaries by written notice to the Company
to such effect.
19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original. It shall not be
necessary when making proof of this Agreement to account for more than one
counterpart.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and each
of the Company and NFP have caused this Agreement to be executed in its name on
its behalf, all as of the day and year first above written.
/s/ R. Xxxxx Xxxxxxxx
---------------------------------
R. XXXXX XXXXXXXX
NFP INSURANCE SERVICES, INC.
/s/ Xxxxxx Xxxxxx
---------------------------------
By: Xxxxxx Xxxxxx
Title: President
NATIONAL FINANCIAL PARTNERS CORP.
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------
By: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President
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EXHIBIT A
GENERAL RELEASE
THIS GENERAL RELEASE is entered into between NFP Insurance Services, Inc.,
a Texas corporation (the "Company"), National Financial Partners Corp., a
Delaware corporation ("NFP"), and R. Xxxxx Xxxxxxxx (the "Employee")
as of the day of .
-- ----------------
The Company, NFP and the Employee agree as follows:
1 . Employment Status. The Employee's employment with NFP and the Company
shall terminate effective as of , .
-------------- ------
2. Payment and Benefits. Upon acceptance of the terms set forth herein, the
Company shall provide the Employee with the payments and benefits set forth in
Section 5(a) of the Employment Agreement between NFP, the Company and the
Employee, dated as of December [_], 2002 (the "Employment Agreement").
3 . Confidentiality of Release. The parties agree that the existence and
terms of this Release are and shall remain confidential. The parties shall not
disclose the fact of this Release or any of its terms or provisions to any
person without the prior, written consent of the other parties hereto; provided,
however, that nothing in this Paragraph 3 shall prohibit disclosure of such
information to the extent required by law; nor prohibit disclosure of such
information by the Employee to any legal or financial consultant, all of whom
shall first agree to be bound by the confidentiality provisions of this
Paragraph 3 to the extent reasonably possible; nor prohibit disclosure of such
information by or within NFP or the Company in the ordinary course of their
business to those persons or entities with a need to know, as reasonably
determined by NFP or the Company.
4. No Liability. This Release does not constitute an admission by NFP, the
Company, or any of their subsidiaries, affiliates, divisions, trustees,
officers, directors, partners, agents, or employees, of any unlawful acts or of
any violation of federal, state or local laws.
5. Release. In consideration of the payments and benefits set forth in
Section 5(a) of the Employment Agreement, the Employee for himself, his heirs,
administrators, representatives, executors, successors and assigns
(collectively, "Employee Releasors") does hereby irrevocably and unconditionally
release, acquit and forever discharge NFP, the Company and their subsidiaries,
affiliates, divisions, successors, assigns, trustees, officers, directors,
partners, agents, and former and current employees, including without limitation
all persons acting by, through, under or in concert with any of them
(collectively, "NFP Releasees"), and each of them from any and all charges,
complaints, claims, liabilities, obligations, promises, agreements,
controversies, damages, remedies, actions, causes of action, suits, rights,
demands, costs, losses, debts and expenses (including attorneys' fees and costs)
of any nature whatsoever, known or unknown, whether in law or equity and whether
arising under federal, state or local law and in particular including any claim
for discrimination based upon race, color, ethnicity, sex, age (including the
Age Discrimination in Employment Act of 1967), national origin, religion,
disability, or any other unlawful criterion or circumstance, which Employee
Releasors had, now have, or may have or claim to have in the future against each
or any of the NFP Releasees from the beginning of the world until the date of
the execution of this Release relating to the Employee's employment with NFP,
the Company and their subsidiaries and affiliates; provided, however, that,
except as provided in Paragraph 7 hereof,
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nothing herein shall release NFP or the Company from the obligation to make the
payments described in Section 5(a) of the Employment Agreement prior to the
satisfaction of such payments in full.
6. Bar. The Employee acknowledges and agrees that if he should hereafter
make any claim or demand or commence or threaten to commence any action, claim
or proceeding against the NFP Releasees with respect to any cause, matter or
thing which is the subject of Paragraph 5 of this Release, this Release may be
raised as a complete bar to any such action, claim or proceeding, and the
applicable NFP Releasee may recover from the Employee all costs incurred in
connection with such action, claim or proceeding, including attorneys' fees.
7. Restrictive Covenants. The Employee acknowledges that the provisions of
Sections 6, 7 and 8 of the Employment Agreement shall continue to apply pursuant
to their terms and that the Company and NFP shall be released from any
obligations under Paragraph 2 of this Release or Section 5(a) of the Employment
Agreement upon any violation by the Executive of such restrictive covenants.
8. Governing Law. This Release shall be governed by and construed in
accordance with the laws of the State of New York.
9. Acknowledgment. The parties hereto have read this Release, understand
it, and voluntarily accept its terms, and the Employee acknowledges that he has
been advised by NFP and the Company to seek the advice of legal counsel before
entering into this Release, and has been provided with a period of forty-five
(45) days in which to consider entering into this Release.
10. Revocation. The Employee has a period of ten (10) days following the
execution of this Release during which the Employee may revoke this Release, and
this Release shall not become effective or enforceable until such revocation
period has expired.
11. Counterparts. This Release may be executed by the parties hereto in
counterparts, which taken together shall be deemed one original.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and each
of the Company and NFP have caused this Agreement to be executed in its name on
its behalf, all as of the day and year first above written.
---------------------------------
R. XXXXX XXXXXXXX
NFP INSURANCE SERVICES, INC.
---------------------------------
By:
Title:
11
NATIONAL FINANCIAL PARNTERS CORP.
---------------------------------
By:
Title:
12
EXHIBIT B
GENERAL RELEASE
THIS GENERAL RELEASE is executed and delivered by NFP Insurance Services,
Inc., a Texas corporation (the "Company") and National Financial Partners Corp.,
a Delaware corporation ("NFP") to R. Xxxxx Xxxxxxxx (the "Employee").
1. Release. Each of the Company and NFP agrees to and does hereby
irrevocably and unconditionally release, acquit and forever discharge the
Employee, and his heirs, executors, and administrators (hereinafter collectively
referred to as the "Employee Releasees"), with respect to and from any and all
charges, complaints, claims, liabilities, obligations, promises, agreements,
controversies, damages, remedies, actions, causes of action, suits, rights,
demands, costs, losses, debts and expenses of any kind whatsoever, known or
unknown, whether in law or equity and whether arising under federal, state or
local law in law, for, upon, or by reason of, any matter, course or thing
whatsoever from the beginning of the world until the date of execution of this
Release relating to the Employee's employment with NFP, the Company and their
subsidiaries; provided, however, that nothing herein shall release the Employee
from the obligations or restrictions arising under or referred to or described
in Sections 6, 7, and 8 of the Employment Agreement between the Company, NFP and
the Employee, dated as of January 1, 2003 (the "Employment Agreement"), or
impair the right or ability of the Company or NFP to enforce such provisions in
accordance with the terms of the Employment Agreement. All claims released by
the undersigned pursuant to this Release shall collectively be referred to
herein as the "Released Company Claims." Notwithstanding the foregoing, in no
event shall the Released Company Claims include any claims involving fraud,
malfeasance or willful misconduct on the part of the Employee or any claims for
liability against the Employee in his capacity as an officer, director or
employee of the Company, NFP or any of their affiliates which, if brought
against the Employee in his capacity as a director of the Company or NFP, could
not be eliminated under Section 102(b)(7) of the General Corporation Law of the
State of Delaware, as in effect on the date of this Release.
2. Bar. Each of the Company and NFP acknowledges and agrees that if it
should hereafter make any claim or demand or commence or threaten to commence
any action, claim or proceeding against the Employee Releasees with respect to
any cause, matter or thing which is the subject of Paragraph 1of this Release,
this Release may be raised as a complete bar to any such action, claim or
proceeding, and the applicable Employee Releasee may recover from the Company or
NFP, as the case may be, all costs incurred in connection with such action,
claim or proceeding, including attorneys' fees.
3. Governing Law. This Release shall be governed by and construed in
accordance with the laws of the State of New York.
4. Successors. This Release shall be binding upon the Company and NFP and
their successors and assigns.
5. Counterparts. This Release may be executed by the parties hereto in
counterparts, which taken together shall be deemed one original.
13
IN WITNESS WHEREOF, this RELEASE has been executed on behalf of each of NFP
and the Company on this th day of , .
-- --------------- ----------------
---------------------------------
R. XXXXX XXXXXXXX
NFP INSURANCE SERVICES, INC.
---------------------------------
By:
Title:
NATIONAL FINANCIAL PARNTERS CORP.
---------------------------------
By:
Title:
14
