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EXHIBIT 10.30
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EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), is made and entered into
as of this ___ day of _______, 1998, to be effective as of September 1, 1998
(the "Effective Date"), by and between Xxxxx/Xxxxxx, Inc., a Delaware
corporation ("the Company"), and Xxxxxx X. Xxxxxx, a resident of Minnesota (the
"Employee").
W I T N E S S E T H:
WHEREAS, the Company is a corporation engaged in business in the State
of Texas and throughout the United States; and
WHEREAS, the Company desires to employ the Employee in the capacity of
Executive Vice President of the Company and President and Chief Executive
Officer of the Bank Compensation Consulting Division of the Company located in
Minneapolis, Minnesota, upon the terms and conditions hereinafter set forth; and
WHEREAS, the Employee is willing to enter into this Agreement with
respect to his employment and services upon the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations contained herein, the Company hereby employs the Employee and the
Employee hereby accepts such employment upon the terms and conditions
hereinafter set forth:
1. Term of Employment. The term of employment under this Agreement
shall be for a period of three (3) years, commencing on the Effective Date and
terminating on June 30, 2001. Unless the Employee's employment is terminated or
notice of termination is given by one of the parties hereto prior to the
expiration of this Agreement, the Employee's employment shall automatically
continue for a period of ninety (90) days after the expiration of the term of
this Agreement and during such time the parties will attempt to negotiate the
terms and conditions for the Employee's continued employment and determine the
desirability of executing a new employment agreement.
2. Duties of the Employee. The Employee agrees that during the term of
this Agreement, he will devote his full professional and business-related time,
skills and best efforts to the business of the Company in the capacity of
Executive Vice President of the Company and President and Chief Executive
Officer of the Bank Compensation Consulting Division of the Company, or such
other capacity as the Company and the Employee may agree upon. If there are
major significant changes in the duties or responsibilities of the Employee
inconsistent with Employee's status and responsibilities that are not mutually
agreed upon, the Employee may terminate his employment within sixty (60) days of
any such change. In addition, the Employee shall devote all necessary time and
his best efforts in the performance of any other duties as may be assigned to
him from time to time by the Board of Directors of the Company including, but
not limited to, serving in similar capacities with parents, subsidiaries and
affiliates of the Company and serving on the Board of Directors of the Company
or any parent, subsidiary or affiliate of the Company if elected. The Company
may elect to cause any parent, subsidiary or
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affiliate to provide any of the compensation and benefits required to be
provided to Employee hereunder. The Employee shall devote his full professional
and business skills to the Company as his primary responsibility. The Employee
may engage in personal, passive investment activities provided such activities
do not interfere with the performance of his duties hereunder and violate the
noncompetition and nondisclosure provisions set forth herein.
3. Compensation.
(a) Base Salary. The Company shall pay the Employee an annual base
salary of Two Hundred Fifty Thousand Dollars ($250,000) per annum (or
fraction for portions of a year). Such base salary will be adjusted from
time to time in accordance with then current standard salary
administration guidelines of the Company. The Employee's salary shall be
subject to all appropriate federal and state withholding taxes and shall
be payable in accordance with the normal payroll procedures of the
Company.
(b) Annual Bonus. In addition to the salary set forth in Section
3(a) hereof, the Employee shall receive a bonus each year during the term
of this Agreement in an amount as determined in accordance with the Bonus
Plan attached as Schedule 3(b).
(c) Stock Options. Employee shall be granted stock options for
shares of common stock of Employer (or the parent of the Company) pursuant
to the terms of a Stock Option Agreement granted under the Xxxxx/Xxxxxx,
Inc. 1998 Stock Option Plan, as amended, a copy of which has been provided
to Employee. The number of shares of common stock, exercise price and date
of grant for the stock options is set forth on Schedule 3(c) attached
hereto.
4. Fringe Benefits. The terms of this Agreement shall not foreclose the
Employee from participating with other employees of the Company in such fringe
benefits or incentive compensation plans as may be authorized and adopted from
time to time by the Company; provided, however, that the Employee must meet any
and all eligibility provisions required under said fringe benefits or incentive
compensation plans. The Employee may be granted such other fringe benefits or
perquisites as the Employee and the Company may from time to time agree upon.
5. Vacations. The Employee shall be entitled to the number of paid
vacation days in each calendar year as shall be determined by the Board of
Directors of the Company from time to time. In no event, however, shall the
Employee be entitled to less than four (4) weeks paid vacation during each
calendar year.
6. Reimbursement of Expenses. The Company recognizes that the Employee
will incur legitimate business expenses in the course of rendering services to
the Company hereunder. Accordingly, the Company shall reimburse the Employee,
upon presentation of receipts or other adequate documentation, for all necessary
and reasonable business expenses incurred by the Employee in the course of
rendering services to the Company under this Agreement.
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7. Working Facilities. The Employee shall be furnished an office,
administrative assistance and such other facilities and services suitable to his
position and adequate for the performance of his duties, which shall be
consistent with the policies of the Company.
8. Termination. The employment relationship between the Employee and
the Company created hereunder shall terminate before the expiration of the
stated term of this Agreement upon the occurrence of any one of the following
events:
(a) Death or Permanent Disability. The death or permanent disability
of the Employee. For the purpose of this Agreement, the "permanent
disability" of the Employee shall mean the Employee's inability, because
of his injury, illness, or other incapacity (physical or mental), to
perform the essential functions of the position contemplated herein, with
or without reasonable accommodation to the Employee with respect to such
injury, illness or other incapacity, for a continuous period of 150 days
or for 180 days out of a continuous period of 360 days. Such permanent
disability shall be deemed to have occurred on the 150th consecutive day
or on the 180th day within the specified period, whichever is applicable.
(b) Termination for Cause. The following events, which for purposes
of this Agreement shall constitute "cause" for termination:
(1) The willful breach by the Employee of any provision of
Sections 2, 11, 12, or 13 hereof (including but not limited to a
refusal to follow lawful directives of the Board of Directors of the
Company) after notice to the Employee of the particular details
thereof and a period of ten (10) days thereafter within which to
cure such breach and the failure of the Employee to cure such breach
within such ten (10) day period;
(2) Any act of fraud, misappropriation or embezzlement by the
Employee with respect to any aspect of the Company's business;
(3) The use of illegal drugs by the Employee during the term
of this Agreement that, in the determination of the Board of
Directors of the Company, substantially interferes with the
Employee's performance of his duties hereunder;
(4) Substantial failure of performance by the Employee that is
repeated or continued after thirty (30) days written notice to the
Employee of such failure and that is reasonably determined by the
Board of Directors of the Company to be materially injurious to the
business or interests of the Company and which failure is not cured
by the Employee within such thirty (30) day period; or
(5) Conviction of the Employee by a court of competent
jurisdiction of a felony or of a crime involving moral turpitude.
Any notice of discharge shall describe with reasonable specificity the
cause or causes for the termination of the Employee's employment, as well as the
effective date of the termination
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(which effective date may be the date of such notice). If the Company terminates
the Employee's employment for any of the reasons set forth above, the Company
shall have no further obligations hereunder from and after the effective date of
termination (other than as set forth below) and shall have all other rights and
remedies available under this Agreement or any other agreement and at law or in
equity.
(c) Termination by the Employee with Notice. The Employee may terminate
this Agreement without liability to the Company arising from the
resignation of the Employee upon ninety (90) days prior written notice to
the Company. The Company retains the right after proper notice of the
Employee's voluntary termination to require the Employee to cease his
employment immediately; provided, however, in such event, the Company
shall remain obligated to pay the Employee his salary during the ninety
(90) day notice period or the remaining term of this Agreement, whichever
is less. During such ninety (90) day notice period, which in no event
shall exceed the remaining term of this Agreement, the Employee shall
provide such consulting services to the Company as the Company may
reasonably request and shall assist the Company in training his successor
and generally preparing for an orderly transition.
(d) Termination by the Company with Notice. The Company may terminate
this Agreement at any time upon ninety (90) days prior written notice to
the Employee; provided, however, upon such notice the Employee shall not
be required to perform any services for the Company other than during the
ninety (90) day notice period immediately following the receipt of such
notice of termination. During such time period, the Employee shall assist
the Company in training his successor and generally preparing for an
orderly transition. If at the time the Company provides the Employee with
notice, as required by this Section 8(d), the remaining term of this
Agreement is less than ninety (90) days, the term of this Agreement shall
automatically be extended without further action by any party to the
extent necessary to give full effect to the ninety (90) day notice period
required herein.
9. Compensation Upon Termination.
(a) General. Unless otherwise provided for herein, upon the termination
of the Employee's employment under this Agreement before the expiration of
the stated term hereof for any reason, the Employee shall be entitled to
(i) the salary earned by him before the effective date of termination, as
provided in Section 3(a) hereof, prorated on the basis of the number of
full days of service rendered by the Employee during the year to the
effective date of termination, (ii) any accrued, but unpaid, vacation or
sick leave benefits, (iii) any authorized but unreimbursed business
expenses, and (iv) any accrued, but unpaid annual bonus which will be paid
in the year following the Employee's termination in accordance with the
Company's customary practices.
(b) Termination For Other Than Cause. If such termination is the result
of the discharge of the Employee by the Company for any reason other than
(i) his death or permanent disability, (ii) by the Company or the Employee
with notice pursuant to
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Section 8(d) or 8(c), respectively, or (iii) for cause (as defined in
Section 8(b) hereof), then the Employee shall be entitled to receive as
severance compensation an amount equal to the salary (excluding bonuses)
that the Employee would have received for the greater of 90 days or the
remainder of the term of this Agreement, in either case, in accordance
with the regular payroll periods of the Company. The severance payment
provided for in this Section 9(b) shall be made to the Employee on the
effective date of the termination. If the Employee's employment hereunder
terminates because of the death of the Employee, all amounts that may be
due to him under the terms of this Agreement shall be paid to his
administrators, personal representatives, heirs and legatees, as may be
appropriate.
(c) Termination For Cause. If the employment relationship hereunder
is terminated by the Company for cause (as defined in Section 8(b)
hereof), the Employee shall not be entitled to any severance payment, but
shall be entitled to receive the compensation and other benefits provided
for in Section 9(a)(i), (ii) and (iii) above.
(d) Termination by the Company with Notice. If the employment
relationship is terminated by the Company pursuant to Section 8(d) hereof
(and not for cause or the permanent disability of the Employee), then the
Employee shall be entitled to receive his salary during the ninety (90)
day notice period together with a severance payment in an amount equal to
the salary that the Employee would have received for a period of one (1)
year after the effective date of the termination in accordance with the
regular payroll periods of the Company. This severance payment shall be
paid to the Employee on the effective date of his termination and shall be
in addition to the compensation and other benefits to be paid to the
Employee pursuant to Section 9(a) above.
(e) Termination by the Employee with Notice. If the employment
relationship is terminated by the Employee pursuant to the provisions of
Section 8(c) hereof, the Employee shall be entitled to receive his salary
during the ninety (90) day notice period (such notice period not to exceed
the remaining term of this Agreement) but he shall not receive or
otherwise be entitled to any severance compensation nor shall the Employee
be entitled to receive any accrued but unpaid bonus. The Employee shall,
however, be entitled to the compensation and other benefits provided for
in Section 9(a)(i),(ii) and (iii).
(f) Survival. The provisions of Sections 9, 11, 12, and 13 hereof shall
survive the termination of the employment relationship hereunder and this
Agreement to the extent necessary or reasonably appropriate to effect the
intent of the parties hereto as expressed in such provisions.
10. Other Agreements. This Agreement shall be separate and apart from, and
shall be deemed to alter the terms of, any executive compensation agreements,
deferred compensation agreements, bonus agreements, general employment benefit
plans, stock option plans and any other plans or agreements entered into between
the Employee and the Company pursuant to which the Employee has been granted
specific rights, benefits or options.
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11. Noncompetition. The Employee agrees that, during his employment with
the Company and for a period of two (2) years from the date of termination of
his employment with the Company, he will not directly or indirectly engage in or
have any financial interest in any business which is in competition with the
business of the Company, its parent, any subsidiary or affiliate ("Prohibited
Activities"), including but not limited to, the businesses listed on Exhibit A
hereto, anywhere within the United States of America (the "Restricted Area").
For purposes of this Section 11, the Employee recognizes and agrees that the
Company conducts and will conduct business in the entire Restricted Area and
that the Employee will perform his duties for the Company within the entire
Restricted Area. The Employee shall be deemed to be engaged in and carrying on
the Prohibited Activities if he engages in the Prohibited Activities in any
capacity whatsoever, including, but not limited to, by or through a partnership
of which he is a general or limited partner or an employee engaged in such
activities, or by or through a corporation or association of which he owns five
percent (5%) or more of the stock or of which he is an officer, director,
employee, member, representative, joint venturer, independent contractor,
consultant or agent who is engaged in such activities. The Employee agrees that
during the two (2) year period described above, he will notify the Company of
the name and address of each company with whom he has accepted employment during
such period. Such notification shall be made in writing within five (5) days
after the Employee accepts any employment or new employment by certified mail,
return receipt requested.
12. Confidential Information. The Employee further agrees that, during his
employment with the Company and thereafter, he will keep confidential and not
divulge to anyone, disseminate or appropriate for his own benefit or the benefit
of another any confidential, operational, financial and proprietary information
known or obtained by the Employee, whether before or after the date hereof,
relating to the Company including, by way of example and not limitation, any and
all notes, analyses, compilations, studies, plans, records, reports, strategies,
forecasts, client lists, trade secrets, intellectual property agreements,
pricing policies, contracts, sales techniques, marketing brochures, budgets,
memoranda, financial statements, catalogues, books, manuals or other documents
which reflect such information (collectively, the "Confidential Information").
The Employee hereby acknowledges and agrees that this prohibition against
disclosure of Confidential Information is in addition to, and not in lieu of,
any rights or remedies that the Company may have available pursuant to the laws
of any jurisdiction or at common law or pursuant to any other agreement that the
Employee may have with the Company to prevent the disclosure of trade secrets or
intellectual property, and the enforcement by the Company of its rights and
remedies pursuant to this Agreement shall not be construed as a waiver of any
other rights or available remedies that it may possess in law or equity absent
this Agreement.
13. Nonsolicitation of Employees. The Employee covenants that, during his
employment with the Company and for a period of one (1) year from the date of
termination of his employment with the Company, he will not (i) directly or
indirectly induce or attempt to induce any employee of the Company to terminate
his or her employment, or (ii) without prior written consent of the Company,
offer employment either on behalf of himself or on behalf of any other
individual or entity to any employee of the Company or to any terminated
employee of the Company.
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14. Property of the Company. The Employee acknowledges that from time to
time in the course of providing services pursuant to this Agreement he shall
have the opportunity to inspect and use certain property, both tangible and
intangible, of the Company and the Employee hereby agrees that such property
shall remain the exclusive property of the Company, and the Employee shall have
no right or proprietary interest in such property, whether tangible or
intangible, including, without limitation, the Employee's customer and supplier
lists, contract forms, books of account, computer programs and similar property.
15. Equitable Relief. The Employee acknowledges that the services to be
rendered by him are of a special, unique, unusual, extraordinary, and
intellectual character, which gives them a peculiar value, and the loss of which
cannot reasonably or adequately be compensated in damages in an action at law,
and that a breach by him of any of the provisions contained in this Agreement
will cause the Company irreparable injury and damage. The Employee further
acknowledges that he possesses unique skills, knowledge and ability and that
competition by him in violation of this Agreement or any other breach of the
provisions of this Agreement would be extremely detrimental to the Company. By
reason thereof, the Employee agrees that the Company shall be entitled, in
addition to any other remedies it may have under this Agreement or otherwise, to
injunctive and other equitable relief to prevent or curtail any breach of this
Agreement by him.
16. Successors Bound. This Agreement shall be binding upon the Company and
the Employee, their respective heirs, executors, administrators or successors in
interest, including without limitation, any corporation, partnership or other
entity acquiring control of the Company.
17. Severability and Reformation. The parties hereto intend all provisions
of this Agreement to be enforced to the fullest extent permitted by law. If,
however, any provision of this Agreement is held to be illegal, invalid, or
unenforceable under present or future law, such provision shall be fully
severable, and this Agreement shall be construed and enforced as if such
illegal, invalid, or unenforceable provision were never a part hereof, and the
remaining provisions shall remain in full force and effect and shall not be
affected by the illegal, invalid, or unenforceable provision or by its
severance.
18. Integrated Agreement. This Agreement constitutes the entire Agreement
between the parties hereto with regard to the subject matter hereof, and there
are no agreements, understandings, specific restrictions, warranties or
representations relating to said subject matter between the parties other than
those set forth herein or herein provided for.
19. Attorneys' Fees. If any action at law or in equity, including any
action for declaratory or injunctive relief, is brought to enforce or interpret
the provisions of this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees from the nonprevailing party, which fees may
be set by the court in the trial of such action, or may be enforced in a
separate action brought for that purpose, and which fees shall be in addition to
any other relief which may be awarded.
20. Notices. All notices and other communications required or permitted to
be given hereunder shall be in writing and shall be deemed to have been duly
given if delivered
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personally, mailed by certified mail (return receipt requested) or sent by
overnight delivery service, cable, telegram, facsimile transmission or telex to
the parties at the following addresses or at such other addresses as shall be
specified by the parties by like notice:
(a) If to the Company: Xxxxx/Xxxxxx, Inc.
0000 Xxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxxx Xxxxxx
Facsimile No.: (000) 000-0000
(b) If to Employee: Xxxxxx X. Xxxxxx
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Notice so given shall, in the case of notice so given by mail, be deemed
to be given and received on the fourth calendar day after posting, in the case
of notice so given by overnight delivery service, on the date of actual delivery
and, in the case of notice so given by cable, telegram, facsimile transmission,
telex or personal delivery, on the date of actual transmission or, as the case
may be, personal delivery.
21. Further Actions. Whether or not specifically required under the terms
of this Agreement, each party hereto shall execute and deliver such documents
and take such further actions as shall be necessary in order for such party to
perform all of his or its obligations specified herein or reasonably implied
from the terms hereof.
22. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAW, AND NOT THE LAW OF CONFLICTS, OF THE STATE OF
TEXAS.
23. Assignment. This Agreement is personal to the Employee and may not be
assigned in any way by the Employee without the prior written consent of the
Company. This Agreement shall not be assignable or delegable by the Company,
other than to an affiliate of the Company, except if there is a change of
control of the Company, the Company may assign its rights and obligations
hereunder to the person, corporation, partnership or other entity that has
gained such control.
24. Counterparts. This Agreement may be executed in counterparts, each of
which will take effect as an original and all of which shall evidence one and
the same Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Effective Date.
COMPANY:
Xxxxx/Xxxxxx, Inc.
By:
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Name:
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Title:
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EMPLOYEE:
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Xxxxxx X. Xxxxxx
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EXHIBIT A
PROHIBITED ACTIVITIES
Competitors of the Company include, but are not limited to, the following
companies and their affiliates:
Compensation Resource Group
Mullur Consulting
TBG Financial
The Benefits Group
Management Compensation Group
The Xxxx Organization
AYCO
The Newport Group
Harris, Long, Xxxxx, Xxxxxx & Xxxxxx
M Financial
The Partners Group
The Hemisphere Group
Aon
J&H Xxxxx XxXxxxxxx
XxxXxxx
Xxxx Koppis
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SCHEDULE 3(b)
ANNUAL BONUS
Xxxxxx X. Xxxxxx
Maximum Bonus: 100% of Base Salary
Minimum Bonus for first 12 months of employment: $75,000 paid in monthly
installments with regular payroll practices of Company.
Calculation of Bonus:
a. Up to 50% of base salary based on pre-determined goals determined by
Board.
b. Up to 10% of pre-tax operating income for the Bank Compensation
Consulting Division of the Company.
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SCHEDULE 3(c)
STOCK OPTIONS
Name of Optionee: Xxxxxx X. Xxxxxx
Number of Shares: 25,000 shares
Date of Grant: Later of IPO date or Effective Date of employment
Option Exercise Price: IPO price if Effective Date precedes IPO; Market
Price (as defined in Stock Option Plan) if
Effective Date follows IPO
Vesting: 1/3 per year commencing on Date of Grant.
Additional Provisions: Accelerated vesting and other terms as provided in
Stock Option Agreement.
Term: February 28, 2007 unless earlier termination
pursuant to Stock Option Agreement.
