PRESIDENT EMPLOYMENT AGREEMENT
Xxxxxx
X.
Xxxxxxxx
00
Xxxxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxx
X0X0X0
September
30, 2007
Dear
Lionel:
This
is
your EMPLOYMENT AGREEMENT (this “Agreement”)
with
Xxxxxx Xxxxxx Partners Group, Inc., a Delaware corporation (“TWPG
Inc.”
and,
together with its subsidiaries and affiliates and its and their respective
predecessors and successors, the “Firm”).
This
Agreement sets forth the terms and conditions of your employment with the
Firm.
1. Employment
TWPG
Inc.
does hereby employ you and you do hereby accept employment under the terms
and
conditions specified herein. You will have the title of President of TWPG
Inc.
and, as such, you shall report solely and directly to the Chief Executive
Officer. During a transition period, which shall begin upon the outset of
your
employment hereunder, and which shall last between 6 and 24 months, the precise
length of which will be determined by the Chairman and Chief Executive Officer
in consultation with you and the Board of Directors (the “Transition
Period”),
you
shall oversee the integration of TWPG and Westwind Partners Inc. and have
responsibility for the Firm’s Canadian and European operations (but not its
Indian operations), as well as other duties, responsibilities and authority
as
may reasonably be assigned to you by the Chairman and Chief Executive Officer.
In no event, however, will the Transition Period last longer than 24 months.
To
the extent the Chief Executive Officer and/or the Board of Directors determine
that the Transition Period shall last longer than 24 months, such determination
shall constitute Good Reason for you to terminate your employment hereunder.
After the Transition Period, you shall have all the duties, responsibilities
and
authority normally attendant to the office of President of the Firm, and
you
shall render services consistent with such positions on the terms set forth
herein and relocate as provided in Section 3. In addition, during and after
the
Transition Period, you shall have such other executive and managerial powers
and
duties with respect to the Firm as may reasonably be assigned to you by the
Chairman and Chief Executive Officer, to the extent consistent with your
position and status as set forth above, including, as of the first day of
your
employment hereunder, being a member of the Firm’s Executive Committee and
Underwritten Offering Committee and having principal responsibility for
corporate development, including mergers and acquisitions and the integration
of
any acquisitions TWPG Inc. may undertake. After the Transition Period, all
employees of the Firm other than the Chairman and Chief Executive Officer
and
employees of the Firm’s asset management group shall report to you, either
directly or through such business unit heads as the Chairman and Chief Executive
Officer or you may designate. If the Firm should create a Compensation Committee
during the Employment Period, you shall immediately become (and remain) a
member.
You
agree
to devote substantially all of your business time, labor, skill and energies
to
the business and affairs of the Firm during the Employment Period, subject
to
periods of vacation and sick leave to which you are entitled. Except as
otherwise provided below, during the Employment Period, you will not render
any
business, commercial or professional services to any individual or any entity
that is not part of the Firm. However, you may serve on corporate, civic
or
charitable boards, manage personal investments, deliver lectures or fulfill
speaking engagements, so long as these activities do not significantly interfere
with your performance of your responsibilities under this Agreement and any
service on a corporate, civic or charitable board is pre-approved by the
Chairman and Chief Executive Officer. The Firm has discussed with you the
activities that you are conducting at the time of this Agreement and agrees
that
these activities, as well as any substitute activities that are similar in
nature and scope, will not significantly interfere with your responsibilities
under this Agreement.
2. Term
of Employment
Subject
to Section 7, the term of your employment shall commence on the Closing Date
(as
such term is defined in the Arrangement Agreement) and end on December 31,
2009
(such period, the “Initial
Employment Period”).
If
the Closing Date (as such term is defined in the Arrangement Agreement) shall
not have occurred by the Termination Date (as such term is defined in the
Arrangement Agreement), then this Agreement shall terminate automatically
and
neither party to this Agreement shall have any obligation, financial or
otherwise, to the other party as a result of this Agreement. After the Initial
Employment Period your term of employment shall be automatically extended
for
successive two-year periods, subject to Section 7 and unless otherwise agreed
in
writing by you and the Firm 90 days prior to the end of such periods (including,
for purposes of clarity, the Initial Employment Period). References in this
Agreement to “your
employment”
are
to
your employment under this Agreement.
3. Location
In
connection with your employment by the Firm, during the Transition Period,
you
shall be based at the Toronto office of the Firm, except for travel reasonably
required for the Firm’s business. Thereafter, you shall be based at that office
which the Chairman and Chief Executive Officer determines is most appropriate
for the effective operation of the office of President of the Firm, which
is
currently expected to be the headquarters of TWPG Inc. in San Francisco,
California, except for travel reasonably required for the Firm’s business.
Provided,
however,
that
you shall not be required to relocate outside of Toronto until after the
Transition Period. The Firm will provide you with assistance regarding
immigration matters, including your obtaining visas or other working permits
that are necessary to your carrying out you duties and responsibilities as
provided herein, and shall do so in a way which results in your wife receiving
the appropriate working permit(s).
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4. Compensation
(a)
Base
Salary.
During
the Employment Period, subject to your continued employment hereunder, you
shall
be paid an annualized base salary (the “Base
Salary”)
of
U.S. $200,000, payable in semi-monthly installments. Your base salary shall
be
reviewed annually by the Firm, and may be increased (but not decreased) at
each
such annual review.
(b)
Annual
Bonus.
During
the Employment Period, subject to your continued employment hereunder, you
will
be awarded an annual bonus (the “Bonus”)
pursuant to the Xxxxxx Xxxxxx Partners Group, Inc. Bonus Plan. That bonus
will
be paid in a form consistent with the other members of the Executive Committee,
including the mix of cash and equity participation, in accordance with the
schedule currently in use by TWPG Inc. as of the date of this Agreement.
Any
Bonus that you receive in consideration of your employment during the Transition
Period will be at least $200,000 per month of Transition Period in the relevant
year, which amount shall be supplemented at the discretion of the Board of
Directors of the Firm based on their evaluation of your performance of your
Transition Period responsibilities, taking into consideration your historical
compensation.
(c)
Equity
Compensation.
During
the Employment Period, subject to your continued employment hereunder, you
shall
be eligible to participate in all equity incentive plans for senior executives
of the Firm as may be in effect from time to time, including without limitation
the Xxxxxx Xxxxxx Partners Group, Inc. Equity Incentive Plan in accordance
with
the terms of any such plan.
(d)
Reimbursement
of Fees.
Upon
presentation by you of invoices reflecting same, the Firm will reimburse
you for
attorneys’ fees and consultant fees incurred in connection with the drafting and
negotiation of this Agreement up to a maximum reimbursement of $25,000.
5. Employee
Benefit Plans
During
the Employment Period, subject to your continued employment hereunder, you
shall
be eligible to participate in each employee retirement and welfare benefit
plan
and program of the type made available to the Firm’s employees generally, and
senior executives specifically, in accordance with their terms and as such
plans
and programs may be in effect, which may include from time to time, without
limitation, savings, profit-sharing and other retirement plans or programs,
401(k), medical, dental, flexible spending account, hospitalization, short-term
and long-term disability and life insurance plans (waiving any eligibility
conditions or pre-existing condition exclusions). If you are a Canadian tax
resident, you will be entitled to participate in any employee benefit plans,
programs and policies available to Canadian employees generally. The Firm
agrees
to provide you with service credit and participation (including pension
accruals) under your current Canadian pension plans or comparable U.S. plans
established by the Firm.
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6. Other
Employee Benefits
(a)
Vacation.
You
will be entitled to paid annual vacation during the Employment Period consistent
with the Firm’s vacation policy for Officers of the Firm.
(b)
Reimbursement
of Business Expenses.
You
will be reimbursed for all reasonable travel, entertainment and other business
expenses incurred by you at a level comparable to that which is reimbursable
to
other senior executives of the Firm, subject to the Firm’s normal policies and
practices for senior executives (including appropriate documentation
requirements). You will also be reimbursed for expenses actually incurred
by you
in connection with any relocation you experience in connection with your
employment hereunder, at a level comparable to that provided to similarly
situated senior executives of comparable employers.
(c)
Facilities.
During
the Employment Period, you will be provided with office space, facilities,
electronic equipment, secretarial support and other business and personal
services consistent with your position.
(d)
Accommodations.
During
the Employment Period, you will be provided with accommodations satisfactory
to
you in the San Francisco area, where you may maintain certain personal items
and
equipment for your use during business travel to San Francisco.
7. Early
Termination of Your Employment
(a)
No
Reason Required.
You or
TWPG Inc. may terminate your employment at any time for any reason, or for
no
reason, subject to compliance with Section 7(e).
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(b)
Termination
by TWPG Inc. for Cause.
(1)
TWPG
Inc. may terminate your employment under any of the following circumstances,
and
such termination shall be considered “for Cause”:
(A)
Your
continued and willful failure to perform substantially your responsibilities to
the Firm under this Agreement. “Cause”
does
not, however, include any such failure after TWPG Inc. gives you a Termination
Notice without Cause, or you give the Firm a Termination Notice for Good
Reason,
in each case in accordance with Section 7(e).
(B)
Your
willful engagement in illegal conduct, fraud, embezzlement or gross misconduct,
in each case, that causes financial or reputational harm to the
Firm.
(C)
Your
commission or conviction of, or plea of guilty or nolo
contendere
to, a
felony.
(D)
Your
willful and material breach or violation of (i) this Agreement, the Arrangement
Agreement, the Equity Agreement, the Pledge Agreement, or (ii) the code of
conduct and ethics of TWPG Inc. or any other Firm policy in respect of xxxxxxx
xxxxxxx, hedging or confidential information.
(E)
Your
willful attempt to obstruct or willful failure to cooperate with any
investigation authorized by the Board or any governmental or self-regulatory
entity.
(F)
Your
disqualification or bar by any governmental or self-regulatory authority
from
serving in the capacity contemplated by this Agreement or your loss of any
governmental or self-regulatory license that is reasonably necessary for
you to
perform your responsibilities to the Firm under this Agreement, if (i) the
disqualification, bar or loss continues for more than 90 days and (ii) during
that period the Firm uses its good faith efforts to cause the disqualification
or bar to be lifted or the license replaced. While any disqualification,
bar or
loss continues during your employment, you will serve in the capacity
contemplated by this Agreement to whatever extent legally permissible and,
if
your employment is not permissible, you will be placed on leave (which will
be
paid to the extent legally permissible).
For
this
definition of Cause, (i) no act or omission by you will be “willful” unless it
is made by you in bad faith or without a reasonable belief that your act
or
omission was in the best interests of the Firm and (ii) any act or omission
by
you based on authority given pursuant to a resolution duly adopted by the
Board
or on the advice of counsel for the Firm will be deemed made in good faith
and
in the best interests of the Firm.
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(2)
To
terminate your employment “for Cause”, the Board must determine in good faith
that Cause has occurred and TWPG Inc. must comply with Section
7(e).
(3)
TWPG
Inc. may place you on paid leave for up to 30 consecutive days while it
determines whether there is a basis to terminate your employment for Cause.
This
leave will not constitute Good Reason.
(4)
If
termination is “for Cause” as set forth under Subsection A, D, E, or F above in
this Section 7(b), the Firm must provide you with written notice of the event
constituting Cause, and at least a thirty (30) day period to cure (if
curable).
(c)
Termination
by You for Good. Reason.
(1)
You
may terminate your employment under the following circumstances and such
termination shall be considered “for Good Reason”:
(A)
Any
material and adverse change in your title, position or duties with the Firm
(including by reason of removal or failure to be appointed or reappointed
as a
member of the Firm’s Executive Committee and Underwritten Offering
Committee).
(B)
Any
failure by TWPG Inc. to provide you with the authority, responsibilities
and
reporting relationship as provided in Section 1 or any material and adverse
reduction in your authority, responsibilities or reporting relationship,
in each
case other than any isolated, insubstantial and inadvertent failure by TWPG
Inc.
that is not in bad faith and is cured promptly on your giving notice to TWPG
Inc.
(C)
During the Transition Period, the Firm closing its offices in Toronto, Canada
or, thereafter, the Firm closing or relocating outside of its associated
metropolitan area that office which the Chairman and Chief Executive Officer
determined was most appropriate for the effective operation of the office
of
President of the Firm and to which you relocated after the Transition Period
as
provided in Section 3.
(D)
A
material breach by the Firm of any of its obligations to you under this
Agreement.
(E)
Any
purported termination by TWPG Inc. of your employment that is in breach of
this
Agreement.
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(F)
Any
failure by TWPG Inc. to maintain and make payments to you pursuant to a bonus
plan and/or equity incentive plan (and/or equivalent corporate compensation
policies) which when taken together are substantially comparable to the plans
described in Sections 4(b) and (c)
above; provided that any reasonable period during which such a plan or policy
is
not maintained and during which TWPG Inc. is in good faith seeking board
of
directors or stockholder approval of the renewal or replacement of any such
plan
or policy shall, during such reasonable period, not be deemed a failure by
TWPG
Inc. to maintain such a plan or policy.
(G)
Any
failure of a Surviving Company (as defined in Section 10(c) of this Agreement)
to assume ownership of and responsibility for this Agreement.
(2)
To
terminate your employment “for Good Reason”, Good Reason must have occurred and
you must comply with Section 7(e). However, (A)
if
you do not give a Termination Notice within 90 days after you have knowledge
that an event constituting Good Reason has occurred, the event will no longer
constitute Good Reason and (B) you must give the Firm a 30-day period to
cure
after notice of the first event constituting Good Reason under Section 7(c).
(d)
Termination
on Disability or Death.
(1)
TWPG
Inc. may terminate your employment upon your Disability. For purposes of
this
Agreement, “Disability”
means
your absence from your responsibilities with TWPG Inc. on a full-time basis
for
180 days in any consecutive 12 months as a result of incapacity due to mental
or
physical illness or injury. If TWPG Inc. determines in good faith that your
Disability has occurred, it may give you Termination Notice. If within 30
days
of the Termination Notice you do not return to full-time performance of your
responsibilities, your employment will terminate. If you do return to full-time
performance in that 30-day period, the Termination Notice will be cancelled
for
all purposes of this Agreement. Except as provided in this Section 7(d),
any of
your incapacity due to mental or physical illness or injury will not affect
TWPG
Inc.’s obligations under this Agreement.
(2)
Your
employment will terminate automatically on your death.
(e)
Advance
Notice Generally Required.
(1)
To
terminate your employment before the end of the Employment Period, either
you or
TWPG Inc. must provide a Termination Notice to the other. A “Termination
Notice”
is
a
written notice that states the specific provision of this Agreement on which
termination is based, including, if
applicable, the specific clause of the definition of Cause or Good Reason
and a
reasonably detailed description of the facts that permit termination under
that
clause. The failure to include any fact in a Termination Notice that contributes
to a showing of Cause or Good Reason does not preclude either party from
asserting that fact in enforcing its rights under this Agreement.
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(2)
You
and TWPG Inc. agree to provide 90 days’ advance Termination Notice of any
termination prior to the end of the Employment Period or prior to any
non-extension of the Employment Period in accordance with Section 2, unless
your
employment is terminated by TWPG Inc. for Cause (in which case TWPG Inc.
shall
be required to provide you with thirty (30) days’ notice of such termination, if
curable) or because of your death. Accordingly, the effective date of early
termination of your employment will be 90 days after Termination Notice is
given
except that (A) the effective date will be thirty (30) days following the
date
of TWPG Inc.’s Termination Notice if your employment is terminated by TWPG Inc.
for Cause if the reason(s) set forth on the Termination Notice are curable
(as
per Section 7(b)(4) of this Agreement), and if not curable, the date of TWPG
Inc.’s Termination Notice, although TWPG Inc. may provide a later effective date
in the Termination Notice, (B) the effective date will be 30 days after
Termination Notice is given if your employment is terminated because of your
Disability, and (C) the effective date will be the time of your death if
your
employment is terminated because of your death. TWPG Inc. may elect to place
you
on paid leave for all or part of the advance notice period. Notwithstanding
this
Section 7(e)(2), if you die or have experienced a Disability during your
employment but after you provide a valid Termination Notice with Good Reason
or
TWPG Inc. provides Termination Notice without Cause, your termination will
be
treated as a termination with Good Reason, effective as of the date of your
death or Disability. The effective date of termination of your employment
is
referred to as the “Date
of Termination”
in
this
Agreement; provided that for the purposes of the date and timing of any form
of
payment or any delay period under Section 409A of the Internal Revenue Code
of
1986, as amended (the “Code”), Date of Termination shall mean the date you have
experienced a separation from service within the meaning of Section
409A.
8. TWPG
Inc.’s Obligations in Connection with Your Termination
(a)
General
Effect.
On
termination in accordance with Section 7, your employment will end and the
Firm
will have no further obligations to you hereunder except as provided in this
Section 8 (other than pursuant to the employee benefit plans and programs
established by the Firm pursuant to which you have accrued amounts and
benefits).
-8-
(b)
For
Good Reason or Without Cause.
If,
during the Employment Period, TWPG Inc. terminates your employment without
Cause
or you terminate your employment for Good Reason:
(1)
TWPG
Inc. will pay you, in a lump sum, the following as of the end of your
employment: (A) two years’ Base Salary, (B) your unpaid Base Salary for periods
prior to your termination, and pay with respect to any of your accrued but
unused vacation, (C) any accrued expense reimbursements and other cash
entitlements, (D) any unpaid but vested Bonus and (E) any unpaid compensation
deferred by you (together with any interest and/or earnings through the end
of
your employment) other than pursuant to a tax-qualified plan (the amounts
set
forth in Clauses (B), (C), (D) and (E) of this Section 8(b)(1), your
“Accrued
Compensation”).
In
addition, TWPG Inc. will timely pay you any amounts and provide you any benefits
that are required, or to which you are entitled, under any plan, contract
or
arrangement of the Firm (together, the “Other
Benefits”).
(2)
TWPG
Inc. will pay you, in a lump sum, an amount equal to the product of (A) the
average of the Bonuses paid or payable to you for the two fiscal years ending
before Termination Notice is given (your “Historic
Bonus”)
and
(B) a multiplier equal to (i) if the Termination Notice occurs on or prior
to
December 31, 2009, 2 (two), and (ii) if the Termination Notice occurs on
or
after January 1, 2010, a fraction: (x) the numerator of which shall be the
number of days remaining under the current employment Term, but in no event
less
than 365; and (y) the denominator of which shall be 365. Any lump sum paid
to
you pursuant to this paragraph will reduce the obligation, if any, of TWPG
Inc.
to make payments to you under Section 3.02 of the Shareholders’ Equity
Agreement. In calculating your Historic Bonus:
(A)
your
Bonus for each of the 2006 and 2007 fiscal years will deemed to be $1,500,000
and $3,000,000, respectively; and
(B)
compensation will be deemed paid or payable even if it was deferred and any
Bonus for a fiscal year for which you were employed for less than the full
fiscal year will be annualized.
(3)
All
stock options issued by TWPG Inc. to you will vest and become immediately
exercisable and will remain exercisable for a period of 12 months after the
Date
of Termination (or, if earlier, the date they would have expired but for
your
termination). All restricted stock, restricted stock units and other
equity-based compensation awarded by TWPG Inc. to you will vest and become
immediately payable on the Date of Termination. The benefits in this Section
8(b)(3) are referred to as “Accelerated
Vesting”.
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(3)
At
the Firm’s expense, for 24 months following the Date of Termination, you, your
spouse and your dependents will continue to be entitled to participate in
each
of the Firm’s employee benefit and welfare plans providing for medical, dental,
hospitalization, life or disability insurance on a basis that is at least
as
favorable as in effect immediately before Termination Notice was given (the
“Welfare
Benefits”).
However, if the Firm’s plans do not permit you, your spouse or your dependents
to participate on this basis, TWPG Inc. will provide Welfare Benefits (with
the
same after-tax effect for you) outside of the plans. If you become employed
during such 24-month period and are eligible for coverage from your new
employer, the Welfare Benefits will be secondary to your new coverage (if
the
Firm reimburses you for any increased cost and provides any additional benefits
that are necessary to provide you with the full Welfare Benefits).
(c)
For
Cause or Without Good Reason.
If TWPG
Inc. terminates your employment for Cause or you terminate your employment
without Good Reason, TWPG Inc. will pay your Accrued Compensation and Other
Benefits.
(d)
For
Your Disability or Death.
If,
during the Employment Period, your employment terminates as a result of your
death or Disability, TWPG Inc. will pay your Accrued Compensation and Other
Benefits.
(e)
Condition.
TWPG
Inc. will not be required to make the payments and provide the benefits stated
in this Section 8 unless and until you execute and deliver to TWPG Inc. a
release of claims releasing the Firm, its affiliates, and each member of
the
Firm and any of their respective past or present officers, directors, employees
or agents from any and all liabilities to you. This agreement will be in
a form
reasonably and mutually satisfactory to you and TWPG Inc.; provided that,
in the
event of your termination under any of the circumstances described in Section
8(b) through 8(d), no such release shall be required prior to the payment
of any
Accrued Compensation of the type described in any of clauses (B), (C) or
(E) of
the definition thereof.
(f)
Timing.
(1)
Notwithstanding anything to the contrary in this agreement, if at the time
of
your termination of employment with the Firm, you are a “specified employee” as
defined in Section 409A of the Internal Revenue Code of 1986, as amended
(the
“Code”),
as
determined by the Firm in accordance with Section 409A of the Code, and the
deferral of the commencement of any payments or benefits otherwise payable
hereunder as a result of such termination of employment is necessary in order
to
prevent any accelerated or additional tax under Section 409A of the Code,
then
the Firm will defer the commencement of the payment of any such payments
or
benefits hereunder (without any reduction in the payments or benefits ultimately
paid or provided to you) until the date that is at least six (6) months
following your Date of Termination (i.e.,“separation
from service”) with the Firm (or the earliest date permitted under Section 409A
of the Code), whereupon the Firm will pay you a lump-sum amount equal to
the
cumulative amounts that would have otherwise been previously paid to you
under
this agreement during the period in which such payments or benefits were
deferred.
Thereafter, any other payments, if any, will resume in accordance with this
Agreement.
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(2)
Additionally, in the event that following the date hereof the Firm or you
reasonably determines that any compensation or benefits payable under this
agreement may be subject to Section 409A of the Code, the Firm and you shall
work together to adopt such amendments to this agreement or adopt other policies
or procedures (including amendments, policies and procedures with retroactive
effect), or take any other commercially reasonable actions necessary or
appropriate to (x) exempt the compensation and benefits payable under this
agreement from Section 409A of the Code and/or preserve the intended tax
treatment of the compensation and benefits provided with respect to this
Agreement or (y) comply with the requirements of Section 409A of the Code
and
related Department of Treasury guidance.
9. Certain
Covenants
(a)
Covenants
in Equity Agreement.
You
agree and acknowledge that you shall comply with each of the covenants contained
in Article III of the Equity Agreement, including, without limitation, the
Shareholder covenants relating to confidential information, noncompetition
and
non-solicitation in each case in accordance with the terms thereof.
(b)
Intellectual
Property Rights.
As
between you and the Firm, all right, title and interest, whether known or
unknown, in any intellectual property that is discovered, invented or developed
directly or indirectly by, or disclosed to you, in the course of rendering
services under this Agreement or in the course of rendering services to any
predecessors to the Firm, will be the sole and exclusive property of the
Firm.
You agree to do anything reasonably requested by the Firm in furtherance
of
perfecting the Firm’s possession of, and title to, any of such intellectual
property.
(c)
Return
of Property.
All
documents, data, recordings, or other property, whether tangible or intangible,
including all information stored in electronic form, obtained or prepared
by or
for you and utilized by you in the course of your employment with the Firm
shall
remain the exclusive property of the Firm. In the event of the termination
of
your employment for any reason, and subject to any other provisions hereof,
the
Firm reserves the right, to the extent permitted by law and in addition to
any
other remedy the Firm may have, to deduct from any monies otherwise payable
to
you the following: (i) the full amount of any specifically determined debt
you
owe to the Firm at the time of or subsequent to the termination of your
employment with the Firm, and (ii) the value of the Firm’s property which you
retain in your possession after the termination of your employment with the
Firm
following the Firm’s written request for such items’ return and your failure to
return such items within 30 days of receiving such notice. In the event that
the
law of any state or other jurisdiction requires the consent of an employee
for
such deductions, this Agreement shall serve as such consent.
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10. Successors
(a)
Payments
on Your Death.
If you
die and any amounts become payable under this Agreement, the Firm will pay
those
amounts to your estate.
(b)
Assignment
by You.
As this
Agreement provides for the personal services to be performed by you, you
may not
assign this Agreement. In addition, except as required by law, your right
to
receive payments or benefits under this Agreement may not be subject to
execution, attachment, levy or similar process. Any attempt to effect any
of the
preceding in violation of this Section 10(b), whether voluntary or involuntary,
shall be void.
(c)
Assumption
by any Surviving Company.
Before
the effectiveness of any merger, consolidation, statutory share exchange
or
similar transaction (including an exchange offer combined with a merger or
consolidation) involving TWPG Inc. (a “Reorganization”)
or any
sale, lease or other disposition (including by way of a series of transactions
or by way of merger, consolidation, stock sale or similar transaction involving
one or more subsidiaries) of all or substantially all of the Firm’s consolidated
assets (a “Sale”),
TWPG
Inc. will cause (1) the Surviving Company to unconditionally assume this
Agreement in writing and (2) a copy of the assumption to be provided to you.
After the Reorganization or Sale, the Surviving Company will be treated for
all
purposes as TWPG Inc. under this Agreement. The “Surviving
Company”
means
(i) in a Reorganization, the entity resulting from the Reorganization or
(ii) in
a Sale, the entity that has acquired all or substantially all of the assets
of
the Firm.
11. Certain
Definitions
As
used
in this Agreement, the following terms have the following meanings:
“Arrangement
Agreement”
means
the Arrangement Agreement, dated as of September 30, 2007,
among
TWPG Inc., Canadian Sub, Westwind Partners Inc. and you, as Shareholders’
Representative, as in effect from time to time.
“Board”
means
the Board of Directors of TWPG Inc.
“Compensation
Committee”
means
the Compensation Committee of the Board, or any successor to such committee.
“Employment
Period”
means
the period commencing on the date of this Agreement and ending on the Date
of
Termination, and includes the Initial Employment Period and any subsequent
extension periods after the expiration of the Initial Employment
Period.
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“Equity
Agreement”
means
the Shareholders’ Equity Agreement, dated as of September 30, 2007, among TWPG
Inc. and the individuals listed on the signature page thereto, as in effect
from
time to time.
“Pledge
Agreement”
means
the Pledge Agreement, dated as of September 30, 2007, between you and TWPG
Inc.,
as in effect from time to time.
“Underwritten
Offering Committee”
is
defined in the Shareholder Equity Agreement.
12. Dispute
Resolution
Any
dispute, controversy or claim between you and the Firm, arising out of or
relating to or concerning the provisions of this Agreement, your employment
with
the Firm or otherwise concerning any rights, obligations or other aspects
of
your employment relationship in respect of the Firm, shall be finally resolved
in accordance with the provisions of Section 3.09 of the Equity Agreement.
Without limiting the foregoing, you acknowledge that a violation on your
part of
this Agreement would cause irreparable damage to the Firm. Accordingly, subject
to the terms of the Equity Agreement, you agree that the Firm will be entitled
to injunctive relief for any actual or threatened violation of this Agreement
in
addition to any other remedies it may have.
13. Governing
Law
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF CALIFORNIA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
14. Miscellaneous
This
Agreement shall not supersede any other agreement, written or oral, pertaining
to the matters covered herein, except to the extent of any inconsistency
between
this Agreement and any prior agreement, in which case this Agreement shall
prevail. Notices hereunder shall be delivered to the Firm at its principal
executive office directed to the attention of TWPG Inc.’s General Counsel, and
to you at your last address appearing in the Firm’s employment records.
This
Agreement shall be binding upon you and the Firm’s permitted successors and
assigns. This Agreement shall inure to the benefit of and be binding upon
the
Firm and its assigns. This Agreement may not be amended or modified other
than
by a written agreement executed by you and TWPG Inc. or its successors, nor
may
any provision hereof be waived other than by a writing executed by you or
TWPG
Inc. or its successors; provided,
that
any waiver, amendment or modification of any of the provisions of this Agreement
shall not be effective against you or the Firm without the written consent
of
you and TWPG Inc. or its designee.
-13-
If
any
provision of this Agreement is finally held to be invalid, illegal or
unenforceable (whether in whole or in part), such provision shall be deemed
modified to the extent, but only to the extent, of such invalidity, illegality
or unenforceability and the remaining provisions shall not be affected thereby.
Except as expressly provided herein, this Agreement shall not confer on any
person other than you and the Firm any rights or remedies hereunder. The
captions in this Agreement are for convenience of reference only and shall
not
define or limit the provisions hereof.
[Remainder
of page intentionally left blank.]
-14-
If
the
foregoing is in accordance with your understanding, please kindly confirm
your
acceptance and agreement by signing and returning this Agreement which will
thereupon constitute an agreement between you and TWPG Inc., on this behalf
and
on behalf of its subsidiaries and affiliates.
|
Very
truly yours,
|
|
|
XXXXXX
XXXXXX PARTNERS GROUP, INC.
|
|
|
(on
its behalf, and on behalf of its subsidiaries and
|
|
|
affiliates)
|
|
|
By:
|
 |
|
Name: Xxxx
Xxxxxx
|
|
|
Title: General
Counsel
|
|
|
Agreed
to and accepted as of
|
|
the
date of this Agreement:
|
 |
|
Name:
Xxxxxx X. Xxxxxxxx
|
-15-
