Exhibit 10(mm)
EMPLOYMENT AGREEMENT
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THIS AGREEMENT is effective as of December 18, 2000, the effective date of
the Plan of Reorganization of Xxxxxx Group International, Inc. ("Effective
Date"), by and among Xxxxxx Group Holdings, Inc. and Xxxxxx Group International,
Inc., each a Delaware corporation (collectively, the "Corporation"), and Xxxxxx
X. Xxxxxxxx, presently a resident of Virginia (the "Executive").
WHEREAS, as of the Effective Date, the Executive will become Executive Vice
President and Chief Financial Officer of Xxxxxx Group Holdings, Inc.;
WHEREAS, the Executive will also be an officer of Xxxxxx Group
International, Inc. and will continue to be carried on the payroll of that
entity; and
WHEREAS, the Corporation and the Executive wish to document the terms of
their employment relationship;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
made herein, and intending to be legally bound hereby, the Corporation and the
Executive agree as follows:
1. Employment; Duties.
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(a) Employment; Employment Period. The Corporation shall employ the
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Executive to serve as Executive Vice President, Chief Financial Officer,
Secretary and Assistant Treasurer of Xxxxxx Group Holdings, Inc. until March 31,
2001, or such later date as is mutually agreed between the Corporation and the
Executive prior to the end of February 2001 (the "Employment Period").
(b) Reporting. The Executive shall report to the Chief Executive
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Officer of the Corporation.
(c) Authorities and Responsibilities. The Executive shall have
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authorities and responsibilities normally attendant to the positions she holds
and as appropriate for the Corporation's evolving post-bankruptcy status.
2. Compensation and Fringe Benefits.
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(a) Base Compensation. The Corporation shall pay the Executive a base
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salary at the rate of $225,000 per annum during the Employment Period in
substantially equal regular installments (but no less frequently than monthly)
in accordance with the Corporation's regular practice for compensating executive
personnel.
(b) Retention Bonus. The Executive will be paid a retention bonus in
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the amount of $25,000 if the Executive remains employed by the Corporation
through the date when the
Corporation's Annual Report on Form 10-K for year ended December 31, 2000 is
filed with the Securities and Exchange Commission.
(c) Fringe Benefits. The Executive shall be entitled to such fringe
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benefits as are generally made available by the Corporation to executive
personnel and those customarily made available to individuals holding the
positions held by the Executive. The Executive also will be reimbursed for
reasonable expenses incurred in connection with travel and entertainment related
to the Corporation's business and affairs and will be paid by the Corporation in
a manner consistent with past practice and as amended by any subsequent changes
of corporate policy.
(d) Severance. The Executive shall not be entitled to any severance
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upon conclusion of the Employment Period other than the retention bonus referred
to in Section 2(b) above.
3. Trade Secrets. Except as is required in her employment hereunder, the
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Executive shall not use or disclose any of the Corporation's trade secrets or
other confidential information. The term "trade secrets or other confidential
information" includes, by way of example, matters of a technical nature, such as
scientific, trade and engineering secrets, "know-how," formulae, secret
processes or machines, inventions, computer programs (including documentation of
such programs) and research projects, and matters of a business nature, such as
proprietary information about costs, profits, markets, sales, lists of
customers, and other information of a similar nature to the extent not available
to the public, and plans for future development. After termination of this
Agreement, the Executive shall not use or disclose trade secrets or other
confidential information unless such information becomes a part of the public
domain other than through a breach of this Agreement or is disclosed to the
Executive by a third party who is entitled to receive and disclose such
information. The terms "trade secrets" and "confidential information" exclude
(a) information known by the Executive prior to the Executive's employment by
the Corporation or any of its affiliates; (b) information which is publicly
available or which is generally known in the industry through no breach of duty
of confidentiality by the Executive; and (c) information which the Executive
receives from a third party without any breach of duty of confidentiality by
such third party.
4. Return of Documents and Property. (a) Upon the effective date of
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notice of the Executive's or the Corporation's election to terminate this
Agreement, or (b) at any time upon the request of the Corporation, the Executive
(or her heirs or personal representative) shall deliver to the Corporation (i)
all documents and materials containing trade secrets or other confidential
information relating to the Corporation's business and affairs, and (ii) all
documents, materials and other property (other than the Executive's personal
laptop computer, which she may retain) belonging to the Corporation, which in
either case are in the possession or under the control of the Executive (or her
heirs or personal representative).
5. Discoveries and Works. All discoveries and works made or conceived by
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the Executive during her employment by the Corporation, jointly or with others,
that relate to the Corporation's activities shall be owned by the Corporation.
The term "discoveries and works" includes, by way of example, inventions,
computer programs (including documentation of such programs), technical
improvements, processes, drawings and works of authorship. The Executive
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shall (a) promptly notify, make full disclosure to, and execute and deliver any
documents requested by, the Corporation to evidence or better assure title to
such discoveries and works in the Corporation, (b) provide reasonable
assistance, at no cost to the Executive, to the Corporation in obtaining or
maintaining for itself at its own expense United States and foreign patents,
copyrights, trade secret protection or other protection of any and all such
discoveries and works, and (c) promptly execute, whether during her employment
by the Corporation or thereafter, all applications or other endorsements
necessary or appropriate to maintain patents and other rights for the
Corporation and to protect its title thereto. Any discoveries and works which,
within six months after the termination of the Executive's employment by the
Corporation, are made, disclosed, reduced to a tangible or written form or
description, or are reduced to practice by the Executive and which directly
relate to the Corporation's activities at the time of such termination shall, as
between the Executive and the Corporation, be presumed to have been made during
the Executive's employment by the Corporation. Set forth on Schedule 5 attached
hereto is a list of inventions, patented or unpatented, including a brief
description thereof, which are owned by the Executive, which the Executive
conceived or made prior to her employment by the Corporation and which are
excluded from this Agreement.
6. Termination.
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(a) Upon 30 days' prior written notice the Corporation may terminate
the Executive's employment, with or without "cause," as defined in Section 6(f)
below. Upon 30 days' prior written notice the Executive may terminate her
employment, with or without "good reason," as defined in Section 6(e) below.
Upon any termination of the Executive's employment for any reason, the
Corporation shall:
(i) pay to the Executive any unpaid salary through the date of
termination; and
(ii) provide to or for the benefit of the Executive the benefits,
if any, otherwise expressly provided under this Section.
Any payments under this Section 6 that are to be made in connection with the
termination of Executive's employment will be paid in cash (with deduction of
such amount as may be required to be withheld under applicable law and
regulations) within ten business days of Executive's termination of employment.
All other compensation and employment benefit arrangements provided for in this
Agreement shall cease upon such termination of employment except to the extent
required by law or otherwise expressly provided by such arrangement.
(b) In the event the Corporation terminates the Executive's employment
without "cause" or the Executive terminates her employment for "good reason,"
then, in addition to the benefits provided for under Sections 6(a)(i) and
6(a)(ii), the Corporation shall pay to the Executive a severance payment equal
to the retention bonus referred to in Section 2(b).
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(c) In the event the Corporation terminates the Executive's employment
for "cause," then the Executive shall not be entitled to any additional benefits
other than those provided for under Section 6(a)(i) and 6(a)(ii).
(d) In the event the Executive terminates her employment without "good
reason," then the Executive shall not be entitled to any additional benefits
other than those provided for under Section 6(a)(i) and 6(a)(ii).
(e) For purposes of this Agreement, the Executive shall be considered
to have "good reason" to terminate her employment if without her express written
consent (i) the responsibilities of the Executive are substantially reduced
(except in connection with the termination of her employment voluntarily by the
Executive or by the Corporation for "cause,"), (ii) the Executive's base salary
is reduced, or (iii) the Executive's offices are relocated anywhere other than
within a fifty (50) mile radius of her office in Fairfax, Virginia.
(f) For purposes of this Agreement, the Corporation shall have "cause"
to terminate the Executive's employment hereunder upon (i) the continued,
willful and deliberate failure of the Executive to perform her duties, in a
manner substantially consistent with the manner prescribed by the Board or the
Chief Executive Officer of the Corporation (other than any such failure
resulting from her incapacity due to physical or mental illness), (ii) the
engaging by the Executive in misconduct materially and demonstrably injurious to
the Corporation, or (iii) the conviction of the Executive of commission of a
felony, whether or not such felony was committed in connection with the
Corporation's business.
7. Enforcement. The Executive agrees that the Corporation's remedies at
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law for any breach or threat of breach by her of the provisions of Sections 3, 4
and 5 hereof will be inadequate, and that the Corporation shall be entitled to
an injunction or injunctions to prevent breaches of the provisions of Sections
3, 4 and 5 hereof and to enforce specifically the terms and provisions thereof,
in addition to any other remedy to which the Corporation may be entitled at law
or equity. The Executive shall be entitled to reimbursement by the Corporation
for any reasonable costs or attorneys fees incurred in collecting payments due
to the Executive pursuant to this Agreement.
8. Severability. Should any provision of this Agreement be determined to
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be unenforceable or prohibited by any applicable law, such provision shall be
ineffective to the extent, and only to the extent, of such unenforceability or
prohibition without invalidating the balance of such provision or any other
provision of this Agreement, and any such unenforceability or prohibition in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9. Assignment. The Executive's rights and obligations under this
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Agreement shall not be assignable by the Executive. The Corporation's rights
and obligations under this Agreement shall not be assignable by the Corporation
without the Executive's prior written consent. In the event of any such
assignment by the Corporation, all rights of the Corporation hereunder shall
inure to the benefit of the assignee.
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10. Notices. Any notice required or permitted under this Agreement shall
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be deemed to have been effectively made or given if in writing and personally
delivered or mailed properly addressed in a sealed envelope, postage prepaid by
certified or registered mail. Unless otherwise changed by notice, notice shall
be properly addressed to Executive if addressed to:
Xxxxxx X. Xxxxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
and properly addressed to the Corporation if addressed to:
Xxxxxx Group Holdings, Inc.
0000 Xxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Chief Executive Officer
11. Miscellaneous. This Agreement constitutes the entire agreement, and
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supersedes all prior agreements, of the parties hereto relating to the subject
matter hereof, and there are no written or oral terms or representations made by
either party other than those contained herein. The validity, interpretation,
performance and enforcement of this Agreement shall be governed by the laws of
the Commonwealth of Virginia. The headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the Effective Date.
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, Executive
XXXXXX GROUP HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Chairman of the Board
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SCHEDULE 5
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Inventions Owned by the Executive
NONE
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