Exhibit 10.8
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into as of this 10th day of
December 2001, by and between XXXXX INC., an Ohio corporation (the "Company"),
and XXXXXXX XXXXXXXX (the "Executive").
WHEREAS, the Executive and the Company desire to embody in this Agreement
the terms and conditions of the Executive's employment by the Company;
NOW, THEREFORE, in consideration of the premises and mutual promises
contained in this Agreement, including the compensation paid to the Executive,
the parties hereby agree:
ARTICLE 1
Employment, Duties and Responsibilities
1.1 Employment. The Company shall employ the Executive as Managing
Director and Vice President of Finance. The Executive hereby accepts such
employment. The Executive agrees to devote his full business time and best
efforts to promote the interests of the Company, and, if requested by the Board
of Directors of the Company, for any affiliate of the Company.
1.2 Duties and Responsibilities. The Executive shall have such duties and
responsibilities as are consistent with his position and shall perform such
services not inconsistent with his position as shall, from time to time, be
reasonably assigned to him by the Board of Directors of the Company or any other
officer of the Company in a position superior to the Executive. The Company
shall not, without the Executive's consent, relocate the Executive outside of
the New York Metropolitan area.
ARTICLE 2
Term
2.1 Term. The term of the Executive's employment under this Agreement (the
"Term") shall commence on February 2, 2002 and shall continue until February 1,
2005, unless sooner terminated pursuant to Article V hereof.
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ARTICLE 3
Compensation
3.1 Salary, Bonuses and Benefits. As compensation and consideration for
the performance by the Executive of his obligations to the Company under this
Agreement, the Executive shall be entitled to the compensation and benefits
described in the attached Exhibit A (subject, in each case, to the provisions of
Article 5 hereof).
3.2 Expenses. The Company will reimburse the Executive for reasonable
business-related expenses incurred by him in connection with the performance of
his duties hereunder during the Term, subject, however, to the Company's written
policies relating to business-related expenses as in effect, from time to time,
during the Term, a copy of which has previously been provided to the Executive.
ARTICLE 4
4.1 Exclusivity, Etc. The Executive agrees to perform his duties,
responsibilities and obligations hereunder efficiently and to the best of his
ability. The Executive agrees that he will devote his entire working time, care
and attention and best efforts to such duties, responsibilities and obligations
throughout the Term. The Executive also agrees that he will not engage in any
other business activities pursued for gain, profit or other pecuniary advantage
that are competitive with the activities of the Company, except as permitted in
Section 4.2 below. The Executive agrees that all of his activities as an
employee of the Company shall be in conformity with all policies, rules and
regulations and directions of the Company not inconsistent with this Agreement.
4.2 Other Business Ventures; Noncompetition.
(a) The term "Confidential Information," as employed in this Agreement,
means, except to the extent such information is otherwise publicly available and
such public availability was not caused in any manner by the Executive, (i) any
object, material, device, substance, data, report, record, forecast,
interpretation or information, whether written or oral, not in the public domain
and relating to or reflecting any product, design, process, procedure, formula,
research, idea, invention, discovery, improvement, equipment, scientific or
technical information, method of production, business plan, financial
information, listing of names, addresses or telephone numbers, trade secret
and/or know how, and all matters pertaining thereto, of the Company and its
affiliates, whether or not contained in any written document, which are or have
been directly or indirectly communicated to, acquired by, or learned by the
Executive as a result of his relationship (whether as an employee or otherwise)
with the Company or any of its affiliates and (ii) any analysis, compilation,
note, study, sample, drawing, sketch, computer program, computer file or other
document, whether prepared by or under the direction of the Company or any of
its affiliates, the Executive or others, and all copies, facsimiles, replicas,
photographs, and reproductions thereof, which contain, relate to, or reflect any
of the aforementioned items.
(b) The Executive shall not, intentionally, directly or indirectly, either
disclose any
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Confidential Information, except to the extent required in the performance of
his duties as an employee of the Company or use any Confidential Information for
the benefit of himself or any person, firm, corporation, or association other
than the Company or any of its affiliates, during the Term or thereafter.
(c) All samples, drawings, sketches, documents and written information of
any kind reflecting any of the Confidential Information or relating to the
Company's or any of its affiliates' business or products which come into the
possession of the Executive shall remain the sole property of the Company or
such affiliate and shall not be copied, photocopied, reprinted or otherwise
reproduced or disseminated by the Executive, except in the performance of his
duties as an employee of the Company. Upon the earlier of the Company's request
therefor or the termination of the Executive's employment by the Company, the
Executive shall return all such samples, drawings, sketches, documents and
written information, and all copies, facsimiles, replicas, photocopies, and
reproductions of them, to the Company.
(d) The Executive hereby covenants and agrees to refrain during the Term
hereof and any extension (including month-to-month extensions) or renewal
thereof and for a period of two (2) years after the date of termination of the
Executive's employment during the Term (i) if such termination during the Term
was for Cause (as hereinafter defined) or (ii) if the Executive terminates
employment during the Term on his own volition, from, directly or indirectly,
(a) engaging on his own behalf in the Company's business or (b) owning any
interest in or engaging in or performing any service for any person, firm,
corporation or other entity, either as a partner, owner, employee, consultant,
agent officer, director or shareholder that (A) derives a meaningful portion of
its revenues from the Company's business or (B) is a meaningful competitor in
the Company's business. Notwithstanding the foregoing, for purposes of this
Section 4.2(d), the term "Term" shall not include any month-to-month extensions
of this Agreement. The Executive will not at any time during the period of the
Executive's employment by the Company and for a period of two (2) years
thereafter induce or assist others to induce or attempt to induce, in any
manner, directly or indirectly, any employee, agent, representative, customer or
any other person or concern dealing with or in any way associated with the
Company or any of its affiliates to terminate or to modify in any other fashion
to the detriment of the Company or any of its affiliates such association with
the Company or any of its affiliates. Notwithstanding any provision of this
Section 4.2(d), it shall not be a violation of this Section 4.2(d) for the
Executive to own two percent (2%) or less of a public company, provided that the
Executive does not exert or have the power to exert any management or other
control over such public company.
(e) The parties hereto agree that the Executive's agreements contained in
paragraph (b) through (d) of this Article relate to matters of unique character
and peculiar value impossible of replacement, that breach of such agreements by
the Executive will cause the Company great and irreparable injury therefor, that
the remedy at law for any breach of the agreements contained in (b) through (d)
will be inadequate and that the Company, in addition to any other relief
available to it, shall be entitled to temporary restraining orders and temporary
and permanent injunctive relief or other equitable relief without the necessity
of proving actual damage or of providing any bond so as to prevent a breach of
any of the agreements contained
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in (b) through (d) of this Article and to secure the enforcement thereof.
ARTICLE 5
Termination
5.1 Termination by the Company. The Company shall have the right to
terminate the Executive's employment at any time, with or without "Cause." For
purposes of this Agreement, "Cause" shall mean the non-appealable conviction of
Executive of a felony.
5.2 Death. In the event the Executive dies during the Term, this Agreement
shall automatically terminate, such termination to be effective on the date of
the Executive's death.
5.3 Disability. In the event that the Executive shall suffer a disability
which shall have prevented him from performing satisfactorily his obligations
hereunder for a period of at least ninety (90) consecutive days or one hundred
eighty (180) non-consecutive days within any three hundred sixty-five (365) day
period, the Company shall have the right to terminate the Executive's
employment, such termination to be effective upon the giving of notice thereof
to the Executive in accordance with Section 6.3 hereof.
5.4 Effect of Termination. (a) In the event of termination of the
Executive's employment for any reason, the Company shall pay to the Executive
(or his beneficiary, heirs or estate in the event of his death) any base salary
or other compensation in accordance with the normal pay practices of the Company
upon a termination of employees for similar reasons.
(b) In the event of termination of the Executive's employment (i) by the
Company for Cause, (ii) by the Executive for any reason, (iii) because of the
Executive's death, or (iv) pursuant to Section 5.3, because of the Executive's
disability, neither the Executive nor any beneficiary, heir or estate of the
Executive shall be entitled to any further compensation other than the amounts
described in Section 5.4(a) hereof.
(c) In the event of termination of the Executive's employment by the
Company other than for Cause, the Company shall pay the Executive, in addition
to the amounts described in Section 5.4(a) hereof, the greater of (i) an amount
equal to the value of the continued payment of the Executive's base salary for
the remainder of the Term (excluding any renewal periods), or (ii) an amount
equal to Executive's then current base salary for six (6) months. Such amount
shall be payable, at the discretion of the Company, either (A) in a lump sum or
(B) in equal monthly installments.
(d) In the event that the Company fails to offer Executive to renew the
terms of this Agreement for at least one (1) year following the end of the Term
at a salary level at least equal to Executive's then current base salary, the
Company shall pay Executive an amount equal to Executive's then current base
salary for six (6) months.
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ARTICLE 6
Miscellaneous
6.1 Benefit of Agreement; Assignment; Beneficiary. (a) This Agreement
shall inure to the benefit of and be binding upon the Company and their
successors and assigns (but only to the extent the Agreement relates to such
entity), including, without limitation, any corporation or person which may
acquire all or substantially all of the Company's assets or business or with or
into which the Company may be consolidated or merged. This Agreement shall also
inure to the benefit of, and be enforceable by, the Executive and his personal
or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any
amount would still be payable to the Executive hereunder if he had continued to
live, all such amounts shall be paid in accordance with the terms of this
Agreement to the Executive's beneficiary, devisee, legatee or other designee, or
if there is no such designee, to the Executive's estate.
(b) The Company shall require any successor (whether director or indirect,
by operation of law, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place.
(c) Upon a reorganization, merger or consolidation of Xxxxx Inc. with one
or more corporations as a result of which Xxxxx Inc. shall not be the surviving
corporation (whether or not Kroll Inc. shall be dissolved or liquidated) or upon
the execution of an agreement for the sale or transfer of all or substantially
all of the assets of Kroll Inc. ("Change-in-Control Event"), at the option of
the Executive, the Term shall be modified to the lesser of (i) eighteen (18)
months from the Change-in-Control Event or (ii) the remaining Term.
6.2 Notices. Any notice required or permitted hereunder shall be in
writing and shall be sufficiently given if personally delivered or if sent by
registered or certified mail, postage prepaid, with return receipt requested,
addressed: (a) in the case of the Company to the Chief Executive Officer of the
Company, and (b) in the case of the Executive, to the Executive's last known
address as reflected in the Company's records, or to such other address as the
Executive shall designate by written notice to the Company. Any notice given
hereunder shall be deemed to have been given at the time of receipt thereof by
the person to whom such notice is given if personally delivered or at the time
of mailing if sent by registered or certified mail.
6.3 Entire Agreement; Amendment. This Agreement contains the entire
agreement of the parties hereto with respect to the terms and conditions of the
Executive's employment during the Term and supersedes any and all prior
agreements and understandings, whether written or oral, between the parties
hereto with respect to compensation due for services rendered hereunder. This
Agreement may not be changed or modified except by an instrument in writing
signed by both of the parties hereto.
6.4 Waiver. The waiver of either party of a breach of any provision of
this Agreement
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shall not operate or be construed as a continuing waiver or as a consent to or
waiver of any subsequent breach hereof.
6.5 Headings. The Article and Section headings herein are for convenience
of reference only, do not constitute a part of this Agreement and shall not be
deemed to limit or affect any of the provisions hereof.
6.6 Governing Law. This Agreement shall be governed by, and construed and
interpreted in accordance with, the internal laws of the State of New York
without reference to the principles of conflict of laws.
6.7 Agreement to Take Actions. Each party hereto shall execute and deliver
such documents, certificates, agreements and other instruments and shall take
such other actions, as may be reasonably necessary or desirable in order to
perform his or its obligations under this Agreement or to effectuate the
purposes hereof.
6.8 Venue and Jurisdiction. Any action or proceeding seeking to enforce
any provision of, or based on any right arising out of, this Agreement may be
brought against any of the parties hereto in the courts of the State of New
York, County of New York or in the United States District Court for the Southern
District of New York, and each of the parties hereto consents to the
jurisdiction of such courts (and the appropriate appellate courts) in any such
action or proceeding and waives any objections to venue laid therein.
6.9 Survivorship. The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement to the extent
necessary effectuate to the intended preservation of such rights and
obligations.
6.10 Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision or provisions of this Agreement, which shall remain in full
force and effect. If any provision of this Agreement is held to be invalid, void
or unenforceable, any court so holding shall substitute a valid, enforceable
provision that preserves, to the maximum lawful extent, the terms and intent of
this Agreement.
6.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement effective as of the date first written above.
XXXXX INC.
By: /s/
------------------------------
Name: ___________________________
Title: __________________________
EXECUTIVE:
/s/
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XXXXXXX XXXXXXXX
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EXHIBIT A TO EMPLOYMENT AGREEMENT
The Executive shall receive as compensation for his performance under the
attached Employment Agreement the following:
(a) Salary. The Company shall pay the Executive a base salary during the
Term, payable in accordance with the normal payment procedures of the Company,
subject to such withholdings and other normal employee deductions as may be
required by law, at the annual rate of not less than $190,000. The Board of
Directors of the Company shall review such compensation not less frequently than
annually during the Term, but any adjustment in Executive's salary may only be
upward.
(b) Annual Bonus. In addition to base salary, the Executive shall earn
incentive compensation ("incentive compensation") and the Company shall pay each
fiscal year, or any fractional period thereof during the term, incentive
compensation in accordance with the plan approved by the Compensation Committee
and/or the Board of Directors of the Company each fiscal year.
(c) Benefits. The Executive shall participate during the Term in such
pension, life insurance, health, death, disability and major medical insurance
plans, and in such other employee benefit plans and programs, for the benefit of
the employees of the Company, as may be maintained, from time to time, during
the Term, in the Company's discretion, in each case to the extent and in the
manner available to other officers of the Company and subject to the terms and
provisions of such plans or programs. Nothing herein shall limit the Company's
ability to change, modify, cancel or amend any such pension, life insurance,
health, death, disability or major medical insurance plans in accordance with
applicable law.
(d) Vacation. The Executive shall be entitled to paid vacation in
accordance with Company policy (but not necessarily consecutive vacation weeks)
during the Term.
(f) Stock Options. The Executive shall be eligible for annual awards of
Company stock options consistent with such awards made to other executives and
officers of the Company. Such options shall vest in accordance with the Kroll
Stock Option plan.
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