EXHIBIT 10.22
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of
February, 1998, by and between Xxxxxx X. Xxxxxxxxx, an individual ("Executive")
and Gartner Group, Inc., a Delaware corporation (the "Company").
Recitals
A. Executive served as President of the Company from January 21, 1991
through September 1997, and has served as Chief Executive Officer of the Company
since April 1, 1991 and as Chairman of the Board of Directors since April 1994.
B. The Company and Executive desire to provide for Executive's continued
employment with the Company upon and subject to the terms and conditions set
forth in this Agreement.
Agreement
Therefore, in consideration of the mutual covenants contained herein, the
parties hereby agree as follows:
1. Employment. Executive will continue to serve as Chairman and Chief
Executive Officer of the Company for the Employment Term specified in Section 3.
Executive will report to the Board of Directors and will render such services
consistent with the role of Chief Executive Officer of the Company as the Board
of Directors may from time to time direct.
2. Board of Directors. During the Employment Term, the Company shall
include Executive on the Company's slate of nominees to be elected to the Board
of Directors of the Company at each annual meeting of stockholders of the
Company, shall use its best efforts to cause Executive to be elected to the
Board of Directors at such meetings, and if elected shall use its best efforts
to cause Executive to continue to serve on the Board of Directors until
Executive's successor is duly elected and qualified. Upon termination of the
Employment Term for any reason, Executive shall promptly resign as a director of
the Company.
3. Term. The employment of Executive pursuant to this Agreement shall
continue through October 1, 2000 (the "Employment Term"), unless extended or
earlier terminated as provided in this Agreement. Following such initial term,
the Agreement may be extended for additional annual terms by the written consent
of Executive and the Company not less than sixty (60) days prior to the end of
the initial term or any renewal term.
4. Salary. As compensation for the services rendered by Executive under
this Agreement, the Company shall pay to Executive a base salary initially equal
to $33,333.33 per month ("Base Salary") for fiscal 1998, payable to Executive on
a monthly basis in accordance with the Company's payroll practices as in effect
from time to time during the Employment Term. The Base Salary shall be subject
to annual adjustments by the Board of Directors of the Company or the
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Compensation Committee of the Board of Directors, in the sole discretion of the
Board or such Committee.
5. Bonus. In addition to his Base Salary, Executive shall be entitled to
participate in the Company's executive bonus program. The annual target bonus
shall be established by the Board of Directors or its Compensation Committee, in
the discretion of the Board or such Committee, and shall be payable based on
achievement of specified Company and individual objectives. Executive's target
bonus for the fiscal year ending September 30, 1998 has previously been set at a
minimum bonus of $400,000, with a maximum bonus of $800,000.
6. Executive Benefits.
(a) Employee and Executive Benefits. Executive will be entitled to
receive all benefits provided to executives and employees of the Company
generally from time to time, including medical, dental, life insurance and
long-term disability, and the executive split-dollar life insurance and
executive disability plan, as well as Executive's auto benefit program (with the
full cost of operation not to exceed $15,000 per year) so long as and to the
extent the same exist; provided, that in respect to each such plan Executive is
otherwise eligible and insurable in accordance with the terms of such plans.
(b) Vacation, Sick Leave and Holidays. Executive shall be entitled
to vacation, sick leave and vacation in accordance with the policies of Gartner
and its subsidiaries as they exist from time to time. Executive understands that
under the current policy he will receive four (4) weeks vacation per calendar
year. Vacation which is not used during any calendar year will not roll over to
the following year.
7. Severance Benefits.
(a) At Will Employment. Executive's employment shall be "at will."
Either the Company or Executive may terminate this agreement and Executive's
employment at any time, with or without Business Reasons (as defined in Section
8(a) below), in its or his sole discretion, upon sixty (60) days' prior written
notice of termination.
(b) Involuntary Termination. If during the term of this Agreement
the Company terminates the employment of Executive involuntarily and without
Business Reasons or a Constructive Termination occurs, whether or not in
connection with a Change of Control, then Executive shall be entitled to receive
the following: (A) salary and vacation accrued through the Termination Date plus
continued salary for a period of three (3) years following the Termination Date,
payable in accordance with the Company's regular payroll schedule as in effect
from time to time, (B) at the Termination Date, 100% of Executive's target bonus
for the fiscal year in which the Termination Date occurs (plus any unpaid bonus
from the prior fiscal year), (C) following the end of the fiscal year in which
the Termination Date occurs and management bonuses have been determined, a pro
rata share (based on the proportion of the fiscal year during which Executive
remained an employee of the Company) of the bonus that would have been payable
to Executive under the bonus plan in excess of 100% of Executive's target bonus
for the fiscal year, (D) following the end of the first fiscal year following
the fiscal year in which the Termination Date occurs, 100%
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of Executive's target bonus for such following fiscal year (or, if the target
bonus for such year was not previously set, then 100% of Executive's target
bonus for the fiscal year in which the Termination Date occurred), (E)
acceleration in full of vesting of all outstanding stock options held by
Executive (and in this regard, all options held by Executive shall remain
exercisable for ninety (90) days following the Termination Date (or such longer
period as may be provided in the applicable option plan or agreement), (F)
continuation of group health benefits pursuant to the Company's standard
programs as in effect from time to time (or continuation by the Company of
substantially similar group health benefits as in effect at the Termination
Date, through a third party carrier, at the Company's election), for Executive,
his spouse and any children for so long as they are under the age of 19 (25, if
a full time student) and until such time as Executive reaches the age of 55, (G)
continuation of Executive's auto benefits for one year following the Termination
Date, (H) in the event of an involuntary termination without Business Reason or
a Constructive Termination, which in either such case occurs within twelve (12)
months following a Change in Control, forgiveness by the Company of all
outstanding principal and interest due to the Company under indebtedness
incurred by Executive to purchase shares of capital stock of the Company, and
(I) no other compensation, severance or other benefits. Notwithstanding the
foregoing, however, the Company shall not be required to continue to pay the
salary or bonus specified in clauses (A), (B), (C) or (D) hereof for any period
following the Termination Date if Executive violates the noncompetition
agreement set forth in Section 12 during the three (3) year period following the
Termination Date.
(c) Voluntary Termination Following Change in Control. If during the
term of this Agreement a "Change in Control" occurs and Executive voluntarily
resigns within the first six (6) months following such Change in Control, then
Executive shall be entitled to receive the following: (A) salary and vacation
accrued through the Termination Date plus continued salary for a period of three
(3) years following the Termination Date, payable in accordance with the
Company's regular payroll schedule as in effect from time to time, (B) at the
Termination Date, 100% of Executive's target bonus for the fiscal year in which
the Termination Date occurs (plus any unpaid bonus from the prior fiscal year),
(C) following the end of the fiscal year in which the Termination Date occurs
and management bonuses have been determined, a pro rata share (based on the
proportion of the fiscal year during which Executive remained an employee of the
Company) of the bonus that would have been payable to Executive under the bonus
plan in excess of 100% of Executive's target bonus for the fiscal year, (D)
following the end of the first fiscal year following the fiscal year in which
the Termination Date occurs, 100% of Executive's target bonus for such following
fiscal year (or, if the target bonus for such year was not previously set, then
100% of Executive's target bonus for the fiscal year in which the Termination
Date occurred), (E) acceleration in full of vesting of all outstanding stock
options held by Executive (and in this regard, all options held by Executive
shall remain exercisable for ninety (90) days following the Termination Date (or
such longer period as may be provided in the applicable option plan or
agreement)), (F) continuation of group health benefits pursuant to the Company's
standard programs as in effect from time to time (or continuation by the Company
of substantially similar group health benefits as in effect at the Termination
Date, through a third party carrier, at the Company's election), for Executive,
his spouse and any children for so long as they are under the age of 19 (25, if
a full time student) and until such time as Executive reaches the age of 55, (G)
continuation of Executive's auto benefits for one year following the Termination
Date, (H) forgiveness by the Company of all outstanding principal and interest
due to the Company under indebtedness incurred by Executive to purchase shares
of capital stock of the Company, and (I) no other compensation, severance or
other benefits. Notwithstanding
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the foregoing, however, if Executive violates the non-competition agreement set
forth in Section 12 during the three (3) year period following the Termination
Date, the Company shall not be required to continue to pay the salary or bonus
specified in clauses (A), (B), (C) or (D) hereof for any period following the
Termination Date, and Executive shall be obligated to repay to the Company any
amounts previously received pursuant to clauses (A) and (B) hereof, to the
extent the same relate to any period following the Termination Date, and to
repay the Company any amounts previously received pursuant to clauses (C) and
(D) hereof. Upon a Change in Control, or any voluntary resignation by Executive
within the first six (6) months following such Change in Control, as provided in
this paragraph (c), Executive may elect, in his sole discretion, (i) not to
receive all or any portion of any cash payment, (ii) not to have all or any
portion of indebtedness forgiven and/or (iii) not to have all or any portion of
vesting restrictions lapse, in each such case in order to avoid any "parachute
payment" under Section 280G(b)(2) of the Internal Revenue Code of 1986, as
amended.
(d) Termination for Disability. If during the term of this Agreement
Executive shall become unable to perform his duties as an employee as a result
of incapacity, which gives rise to termination of employment for Disability,
then Executive shall be entitled to receive the following: (A) salary and
vacation accrued through the Termination Date plus continued salary for a period
of three (3) years following the Termination Date, payable in accordance with
the Company's regular payroll schedule as in effect from time to time, (B) at
the Termination Date, 100% of Executive's target bonus for the fiscal year in
which the Termination Date occurs (plus any unpaid bonus from the prior fiscal
year), (C) following the end of the fiscal year in which the Termination Date
occurs and management bonuses have been determined, any bonus that would have
been payable to Executive under the bonus plan in excess of Executive's target
bonus, (D) acceleration in full of vesting of all outstanding stock options held
by Executive (and in this regard, all options held by Executive shall remain
exercisable for ninety (90) days following the Termination Date (or such longer
period as may be provided in the applicable option plan or agreement)), (E)
continuation of group health benefits pursuant to the Company's standard
programs as in effect from time to time (or continuation by the Company of
substantially similar group health benefits as in effect at the Termination
Date, through a third party carrier, at the Company's election), for Executive,
his spouse and any children for so long as they are under the age of 19 (25, if
a full time student) and until such time as Executive reaches the age of 55, (F)
all other employee benefits specified in Section 6 until three years following
the Termination Date, (G) forgiveness by the Company of all outstanding
principal and interest due to the Company under indebtedness incurred by
Executive to purchase shares of capital stock of the Company, and (H) no other
compensation, severance or other benefits. Notwithstanding the foregoing,
however, the Company may deduct from the salary specified in clause (A) hereof
the amount of any payments then received by Executive under any disability
benefit program maintained by the Company.
(e) Voluntary Termination or Involuntary Termination for Business
Reasons. If (i) Executive voluntarily terminates his employment, or (ii)
Executive is terminated involuntarily for Business Reasons, then in any such
event Executive or his representatives shall be entitled to receive the
following: (A) salary and accrued vacation through the Termination Date only,
(B) the right to exercise all stock options held by Executive for thirty (30)
days following the Termination Date (or such longer period as may be provided in
the applicable stock option plan or agreement), but only to the extent vested as
of the Termination Date, (C) to the extent COBRA shall be applicable to the
Company, continuation of group health plan benefits for a period of 18 months
(or such longer
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period as may be applicable under the Company's policies then in effect)
following the Termination Date if Executive makes the appropriate conversion and
payments, and (D) no further severance, benefits or other compensation.
(f) Termination Upon Death. If Executive's employment is terminated
because of death, then Executive's representatives shall be entitled to receive
the following: (A) salary and vacation accrued through the Termination Date, (B)
a pro rata share of Executive's target bonus for the year in which death occurs,
based on the proportion of the fiscal year during which Executive remained an
Employee of the Company (plus any unpaid bonus from the prior fiscal year), (C)
acceleration in full of vesting of all outstanding stock options held by
Executive (and in this regard, all options held by Executive shall remain
exercisable for ninety (90) days following the Termination Date (or such longer
period as may be provided in the applicable option plan or agreement)), (D)
continuation of group health benefits pursuant to the Company's standard
programs as in effect from time to time (or continuation by the Company of
substantially similar group health benefits as in effect at the Termination
Date, through a third party carrier, at the Company's election), for Executive's
spouse and any children for so long as they are under the age of 19 (25, if a
full time student), (E) any benefits payable to Executive or his representatives
upon death under insurance or other programs maintained by the Company for the
benefit of the Executive, (F) forgiveness by the Company of all outstanding
principal and interest due to the Company under indebtedness incurred by
Executive to purchase shares of capital stock of the Company, and (G) no further
benefits or other compensation.
(g) Exclusivity. The provisions of this Section 7 are intended to be
and are exclusive and in lieu of any other rights or remedies to which Executive
or the Company may otherwise be entitled, either at law, tort or contract, in
equity, or under this Agreement, in the event of any termination of Executive's
employment. Executive shall be entitled to no benefits, compensation or other
payments or rights upon termination of employment other than those benefits
expressly set forth in paragraph (b), (c), (d), (e) or (f) of this Section 7,
whichever shall be applicable.
8. Definition of Terms. The following terms referred to in this Agreement
shall have the following meanings:
(a) Business Reasons. "Business Reasons" means (i) gross negligence,
willful misconduct or other willful malfeasance by Executive in the performance
of his duties, (ii) Executive's commission of a felony or other offense
involving moral turpitude, (iii) Executive's material breach of this Agreement,
including without limitation any repeated breach of Sections 9 through 12
hereof.
(b) Disability. "Disability" shall mean that Executive has been
unable to perform his duties as an employee as the result of his incapacity due
to physical or mental illness, and such inability, at least 26 weeks after its
commencement, is determined to be total and permanent by a physician selected by
the Company or its insurers and acceptable to Executive or Executive's legal
representative (such Agreement as to acceptability not to be unreasonably
withheld). Termination resulting from Disability may only be effected after at
least sixty (60) days written notice by the Company of its intention to
terminate Executive's employment. In the event that Executive resumes
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the performance of substantially all of his duties hereunder before the
termination of his employment becomes effective, the notice of intent to
terminate shall automatically be deemed to have been revoked.
(c) Termination Date. "Termination Date" shall mean (i) if this
Agreement is terminated on account of death, the date of death; (ii) if this
Agreement is terminated for Disability, the date specified in Section 8(b);
(iii) if this Agreement is terminated by the Company, the date on which a notice
of termination is given to Executive; (iv) if the Agreement is terminated by
Executive, the date on which Executive delivers the notice of termination to the
Company; or (v) if this Agreement expires by its terms, then the last day of the
term of this Agreement.
(d) Constructive Termination. A "Constructive Termination" shall be
deemed to occur if (A)(1) Executive's position changes as a result of an action
by the Company such that Executive is no longer President and Chief Executive
Officer of the Company or no longer reports directly to the Company's Board of
Directors, (2) Executive is required to relocate his place of employment, other
than a relocation within 50 miles of Executive's current Connecticut home or a
relocation to the San Francisco Bay Area or South Florida, or (3) there is a
reduction of more than 20% of Executive's base salary or target bonus (other
than any such reduction consistent with a general reduction of pay across the
executive staff as a group, as an economic or strategic measure due to poor
financial performance by the Company) and (B) within the thirty day period
immediately following such material adverse change or reduction Executive elects
to terminate his employment voluntarily.
(e) Change in Control. A "Change in Control" shall be deemed to have
occurred if:
(i) any "Person," as such term is used for purposes of Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (other than (A) the Company, (B) Cognizant Corporation, a Delaware
corporation, or any wholly-owned subsidiary of Cognizant Corporation
(collectively, "Cognizant"), until Cognizant shall cease to be the "Beneficial
Owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing at least 15% of the
combined voting power of the Company's then-outstanding securities, (C) any
trustee or other fiduciary holding securities under an employee benefit plan of
the Company or Cognizant, or (D) any company owned, directly or indirectly, by
the stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company), becomes the "Beneficial Owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Company representing 20% or more of the combined voting power of the
Company's then-outstanding securities;
(ii) during any period of twenty-four months (not including any
period prior to the execution of this Agreement), individuals who at the
beginning of such period constitute the Board, and any new director (other than
(A) a director nominated by a Person who has entered into an agreement with the
Company to effect a transaction described in Section (8)(e)(i), (iii) or (iv)
hereof, (B) a director nominated by any Person (including the Company) who
publicly announces an intention to take or to consider taking actions
(including, but not limited to, an actual or threatened proxy contest) which if
consummated would constitute a Change in Control or (C) a director nominated by
any Person who is the Beneficial Owner, directly or indirectly, of securities of
the
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Company representing 10% or more of the combined voting power of the
Company's securities) whose election by the Board or nomination for election by
the Company's stockholders was approved in advance by a vote of at least
two-thirds (2/3) of the directors then still in office who either were directors
at the beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute at lease a majority
thereof;
(iii) the stockholders of the Company approve any transaction or
series of transactions under which the Company is merged or consolidated with
any other company, other than a merger or consolidation (A) which would result
in the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) more than 66 2/3% of the
combined voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation and (B) after
which no Person holds 20% or more of the combined voting power of the
then-outstanding securities of the Company or such surviving entity;
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets; or
(v) the Board adopts a resolution to the effect that, for
purposes of this Agreement, a Potential Change in Control has occurred.
A transfer of shares of stock of the Company from Cognizant Corporation to an
affiliated company, subsidiary or spin-off entity of Cognizant Corporation, or
the reduction in ownership of capital stock of the Company by Cognizant
Corporation or any affiliated subsidiary or spin-off of Cognizant Corporation by
means of sales of shares to the public, shall not alone be deemed to meet the
requirements of clause (8)(e)(i) hereof.
9. Confidential Information.
(a) Executive acknowledges that the Confidential Information (as
defined below) relating to the business of the Company and its subsidiaries
which Executive has obtained or will obtain during the course of his association
with the Company and subsidiaries and his performance under this Agreement are
the property of the Company and its subsidiaries. Executive agrees that he will
not disclose or use at any time, either during or after the Employment period,
any Confidential Information without the written consent of the Board of
Directors of the Company. Executive agrees to deliver to the Company at the end
of the Employment period, or at any other time that the Company may request, all
memoranda, notes, plans, records, documentation and other materials (and copies
thereof) containing Confidential Information relating to the business of the
Company and its subsidiaries, no matter where such material is located and no
matter what form the material may be in, which Executive may then possess or
have under his control. If requested by the Company, Executive shall provide to
the Company written confirmation that all such materials have been delivered to
the Company or have been destroyed. Executive shall take all appropriate steps
to safeguard Confidential Information and to protect it against disclosure,
misuse, espionage, loss and theft.
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(b) "Confidential Information" shall mean information which is not
generally known to the public and which is used, developed, or obtained by the
Company or its subsidiaries relating to the businesses of any of the Company and
its subsidiaries or the business of any customer thereof including, but not
limited to: products or services; fees, costs and pricing structure; designs;
analyses; formulae; drawings; photographs; reports; computer software, including
operating systems, applications, program listings, flow charts, manuals and
documentation; databases; accounting and business methods; inventions and new
developments and methods, whether patentable or unpatentable and whether or not
reduced to practice; all copyrightable works; the customers of any of the
Company and its subsidiaries and the Confidential Information of any customer
thereof; and all similar and related information in whatever form. Confidential
Information shall not include any information which (i) was rightfully known by
Executive prior to the Employment Period; (ii) is publicly disclosed by law or
in response to an order of a court or governmental agency; (iii) becomes
publicly available through no fault of Executive or (iv) has been published in a
form generally available to the public prior to the date upon which Executive
proposes to disclose such information. Information shall not be deemed to have
been published merely because individual portions of the information have been
separately published, but only if all the material features comprising such
information have been published in combination.
10. Inventions and Patents. In the event that Executive, as a part of
Executive's activities on behalf of the Company, generates, authors or
contributes to any invention, new development or method, whether or not
patentable and whether or not reduced to practice, any copyrightable work, any
trade secret, any other Confidential Information, or any information that gives
any of the Company and its subsidiaries an advantage over any competitor, or
similar or related developments or information related to the present or future
business of any of the Company and its subsidiaries (collectively "Developments
and Information"), Executive acknowledges that all Developments and Information
are the exclusive property of the Company. Executive hereby assigns to the
Company, its nominees, successors or assigns, all rights, title and interest to
Developments and Information. Executive shall cooperate with the Company's Board
of Directors to protect the interests of the Company and its subsidiaries in
Developments and Information. Executive shall execute and file any document
related to any Developments and Information requested by the Company's Board of
Directors including applications, powers of attorney, assignments or other
instruments which the Company's Board of Directors deems necessary to apply for
any patent, copyright or other proprietary right in any and all countries or to
convey any right, title or interest therein to any of the Company's nominees,
successors or assigns.
11. No Conflicts.
(a) Executive agrees that in his individual capacity he will not
enter into any agreement, arrangement or understanding, whether written or oral,
with any supplier, contractor, distributor, wholesaler, sales representative,
representative group or customer, relating to the business of the Company or any
of its subsidiaries, without the express written consent of the Board of
Directors of the Company.
(b) As long as Executive is employed by the Company or any of its
subsidiaries, Executive agrees that he will not, except with the express written
consent of the Board of Directors
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of the Company, become engaged in, render services for, or permit his name to be
used in connection with, any business other than the business of the Company,
any of its subsidiaries or any corporation or partnership in which the Company
or any of its subsidiaries have an equity interest.
12. Non-Competition Agreement.
(a) Executive acknowledges that his services are of a special,
unique and extraordinary value to the Company and that he has access to the
Company's trade secrets, Confidential Information and strategic plans of the
most valuable nature. Accordingly, Executive agrees that for the period of three
(3) years following the Termination Date, Executive shall not directly or
indirectly own, manage, control, participate in, consult with, render services
for, or in any manner engage in any business competing with the businesses of
the Company or any of its subsidiaries as such businesses exist or are in
process of development on the Termination Date, including without limitation the
publication of periodic research and analysis of the information technology
industries. Nothing herein shall prohibit Executive from being a passive owner
of not more than 1% of the outstanding stock of any class of a corporation which
is publicly traded, so long as Executive has no active participation in the
business of such corporation.
(b) In addition, for a period of three (3) years commencing on the
Termination Date, Executive shall not (i) induce or attempt to induce any
employee of the Company or any subsidiary to leave the employ of the Company or
such subsidiary, or in any way interfere with the relationship between the
Company or any subsidiary and any employee thereof, (ii) hire directly or
through another entity any person who was an employee of the Company or any
subsidiary at any time during the Employment Period, or (iii) induce or attempt
to induce any customer, supplier, licensee or other business relation of the
Company or any subsidiary to cease doing business with the Company or such
subsidiary, or in any way interfere with the relationship between any such
customer, supplier, licensee or business relation and the Company or any
subsidiary.
(c) Executive agrees that these restrictions on competition and
solicitation shall be deemed to be a series of separate covenants not-to-compete
and a series of separate non-solicitation covenants for each month within the
specified periods, separate covenants not-to-compete and non-solicitation
covenants for each state within the United States and each country in the world,
and separate covenants not-to-compete for each area of competition. If any court
of competent jurisdiction shall determine any of the foregoing covenants to be
unenforceable with respect to the term thereof or the scope of the subject
matter or geography covered thereby, such remaining covenants shall nonetheless
be enforceable by such court against such other party or parties or upon such
shorter term or within such lesser scope as may be determined by the court to be
enforceable.
(d) Because Executive's services are unique and because Executive
has access to Confidential Information and strategic plans of the Company of the
most valuable nature, the parties agree that the covenants contained in this
Section 12 are necessary to protect the value of the business of the Company and
that a breach of any such covenant would result in irreparable and continuing
damage for which there would be no adequate remedy at law. The parties agree
therefore that in the event of a breach or threatened breach of this Agreement,
the Company or its successors or assigns may, in addition to other rights and
remedies existing in their favor, apply to any court of
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competent jurisdiction for specific performance and/or injunctive or other
relief in order to enforce, or prevent any violations of, the provisions hereof.
13. Miscellaneous Provisions.
(a) Notice. Notices and all other communications contemplated by
this Agreement shall be in writing, shall be effective when given, and in any
event shall be deemed to have been duly given (i) when delivered, if personally
delivered, (ii) three (3) business days after deposit in the U.S. mail, if
mailed by U.S. registered or certified mail, return receipt requested, or (iii)
one (1) business day after the business day of deposit with Federal Express or
similar overnight courier, if so delivered, freight prepaid. In the case of
Executive, notices shall be addressed to him at the home address which he most
recently communicated to the Company in writing. In the case of the Company,
notices shall be addressed to its corporate headquarters, and all notices shall
be directed to the attention of its Corporate Secretary.
(b) Notice of Termination. Any termination by the Company or
Executive shall be communicated by a notice of termination to the other party
hereto given in accordance with paragraph (a) hereof. Such notice shall indicate
the specific termination provision in this Agreement relied upon.
(c) Successors.
(i) Company's Successors. Any successor to the Company (whether
direct or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company's business
and/or assets shall be entitled to assume the rights and shall be obligated to
assume the obligations of the Company under this Agreement and shall agree to
perform the Company's obligations under this Agreement in the same manner and to
the same extent as the Company would be required to perform such obligations in
the absence of a succession. For all purposes under this Agreement, the term
"Company" shall include any successor to the Company's business and/or assets
which executes and delivers the assumption agreement described in this
subsection (i) or which becomes bound by the terms of this Agreement by
operation of law.
(ii) Executive's Successors. The terms of this Agreement and all
rights of Executive hereunder shall inure to the benefit of, and be enforceable
by, Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
(iii) No Other Assignment of Benefits. Except as provided in this
Section 13(c), the rights of any person to payments or benefits under this
Agreement shall not be made subject to option or assignment, either by voluntary
or involuntary assignment or by operation of law, including (without limitation)
bankruptcy, garnishment, attachment or other creditor's process, and any action
in violation of this subsection (iii) shall be void.
(d) Waiver. No provision of this Agreement shall be modified, waived
or discharged unless the modification, waiver or discharge is agreed to in
writing and signed by Executive and by an authorized officer of the Company
(other than Executive). No waiver by either
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party of any breach of, or of compliance with, any condition or provision of
this Agreement by the other party shall be considered a waiver of any other
condition or provision or of the same condition or provision at another time.
(e) Entire Agreement. This Agreement shall supersede any and all
prior agreements, representations or understandings (whether oral or written and
whether express or implied) between the parties with respect to the subject
matter hereof, including with all limitation the respective Executive Stock and
Employment Agreements effective as of January 21, 1991, July 28, 1994 and April
1, 1997.
(f) Severability. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.
(g) Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Stamford, Connecticut, in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrator's award in
any court having jurisdiction. No party shall be entitled to seek or be awarded
punitive damages. All attorneys' fees and costs shall be allocated or
apportioned by the parties, and in the absence of any agreement or allocation or
apportionment shall be awarded to the prevailing party. This Agreement shall be
construed in accordance with and governed by the laws of the State of New York.
(h) Employment Taxes. All payments made pursuant to this Agreement
will be subject to withholding of applicable taxes.
(i) Indemnification. In the event Executive is made, or threatened
to be made, a party to any legal action or proceeding, whether civil or
criminal, by reason of the fact that Executive is or was a director or officer
of the Company or serves or served any other corporation fifty percent (50%) or
more owned or controlled by the Company in any capacity at Company's request,
Executive shall be indemnified by the Company, and the Company shall pay
Executive's related expenses when and as incurred, all to the full extent
permitted by law, pursuant to Executive's existing indemnification agreement
with the Company in the form made available to all Executive and all other
officers and directors.
(j) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
(Signatures on the following page)
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by its duly authorized officer, as of the day and year
first above written.
COMPANY
GARTNER GROUP, INC.
By:-----------------------------------------------
Xxxxxxx Xxxxx
EXECUTIVE
Xxxxxx X. Xxxxxxxxx
--------------------------------------------------
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