EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") dated as of August
24, 1998 (the "Effective Date"), between Eastern Resorts Corporation, a Delaware
corporation (the "Company"), and R. Xxxxx Xxxxxx, a resident of Newport, Rhode
Island (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company wishes to assure itself of the continued
services of the Executive so that it will have the benefit of his ability,
experience and services, and the Executive is willing to enter into an agreement
to that end, upon the terms and conditions hereinafter set forth; and
WHEREAS, it is hereby acknowledged that the covenants not to
compete, detailed in Section 10(b) of this Agreement, are in partial
consideration for the sale and goodwill of the Company to Equivest Finance, a
Florida corporation ("Equivest").
NOW, THEREFORE, in consideration of good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby covenant and agree
as follows:
1. Employment
The Company hereby agrees to employ the Executive, and the
Executive hereby agrees to remain in the employ of the Company, on and subject
to the terms and conditions of this Agreement.
2. Term
The Period of the Executive's employment under this Agreement
(the "Employment Period") shall commence on the Effective Date and shall expire
on the fifth anniversary of the Effective Date. The Employment Period shall be
automatically extended for an additional year on the first anniversary of the
Effective Date and each succeeding anniversary of the Effective Date, unless
written notice of non-extension is provided by either party to the other party
at least 180 days prior to such anniversaries.
3. Positions, Duties and Responsibilities
(a) The Executive shall serve as, and with the title, office
and authority of, Chief Executive Officer of the Company and the Company shall
use all reasonable efforts to ensure that for the duration of the Employment
Period, the Executive is elected or appointed to the Board of Directors of the
Company (the "Board of the Company") and to the Board of Directors of Equivest
(the "Board of Equivest").
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(b) The Executive shall have effective general and active
day-to-day leadership and management of the business and affairs of the Company
and the subsidiaries of the Company, subject only to the authority of the Chief
Executive Office of Equivest (the "Equivest CEO") and the Board of the Company
and shall have all of the powers, authority, duties and responsibilities usually
incident to the position and office of Chief Executive Officer of the Company.
The Executive shall report directly to the individual who holds the position the
Equivest CEO. The Equivest CEO shall nominate, after consultation with the
Executive and the approval of the Board of Equivest, such other members of the
Board of the Company as the Equivest CEO shall determine from time to time.
(c) The Executive agrees to devote all of his business time,
efforts and skills to the performance of his duties and responsibilities under
this Agreement; provided, however, that nothing in this Agreement shall preclude
the Executive from devoting reasonable periods required for (i) participating in
professional, educational, philanthropic, public interest, charitable, social or
community activities, (ii) serving as a director or member of an advisory
committee of any corporation or other entity that the Executive is serving on as
of the Effective Date or serving, subject to the prior written approval of the
Equivest CEO, on the board of directors of any other corporation or entity that
is not in competition with the Company, or (iii) managing his personal
investments; provided further that any such activities set forth in clauses (i)
through (iii) above do not interfere with the Executive's performance of his
duties and responsibilities hereunder.
(d) The Executive shall perform his duties at the principal
offices of the Company located in Newport, Rhode Island, but from time to time
the Executive will be required to travel to other locations in the proper
conduct of his responsibilities under this Agreement; provided, however, such
travel will not exceed, in the aggregate, three months during any calendar year
during the Employment Period.
4. Compensation and Benefits
In consideration of the services rendered by the Executive
during the Employment Period, the Company shall pay or provide the Executive the
compensation and benefits set forth below.
(a) Salary. The Company shall pay the Executive a base salary
(the "Base Salary") equal to at least $300,000 per annum. On each anniversary of
the Effective Date during the Employment Period, the Base Salary shall be
increased by the percentage increase in the Consumers Price Index for All Urban
Consumers for the twelve calendar months prior to such anniversary. In addition,
the Board may review the Base Salary with a view towards consideration of merit
increases and, once established, the Base Salary shall not be decreased
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during the Employment Period. The Base Salary shall be paid in arrears in
substantially equal installments at monthly or more frequent intervals, in
accordance with the normal payroll practices of the Company.
(b) Target Annual Bonus. The Company shall provide the
Executive with the opportunity to earn an annual target bonus (the "Target
Annual Bonus") for each fiscal year of the Company ending during the Employment
Period, however, in no circumstances shall the Target Annual Bonus be paid where
performance does not equal the Pre-Tax Profit Target (as defined below). The
Target Annual Bonus will be payable to the Executive as follows: (i) in the
event that the pre-tax profits of the Company equals 100% of the Pre-Tax Profit
Target but less than 125% of the Pre-Tax Profit Target for a given fiscal year
of the Company ending during the Employment Period, the Target Annual Bonus for
such fiscal year will be equal to 40% of the latest Base Salary in effect at or
prior to the end of such fiscal year; and (ii) in lieu of the Target Annual
Bonus described in clause (i) of this sentence, in the event that the pre-tax
profits of the Company equals or exceeds 125% of the Pre-Tax Profit Target for a
fiscal year of the Company ending during the Employment Period, the Target
Annual Bonus for such fiscal year will be equal to 60% of the latest Base Salary
in effect at or prior to the end of such fiscal year. The Pre-Tax Profit Target
will be as follows: $5.1 million for the 1998 fiscal year; $7.1 million for the
1999 fiscal year; $9.6 million for the 2000 fiscal year; $12.5 million for the
2001 fiscal year; and $16.2 million for the 2002 fiscal year. Pre-tax profits
for a fiscal year means the Company's income before taxes as determined in
accordance with generally accepted accounting principles. The determination of
the actual amount of pre-tax profit shall be made for each fiscal year by the
Board of Equivest and, absent any manifest error, such determination shall be
final and binding on all interested persons. Payment of the Target Annual Bonus
will be made on a date which shall be as soon as practicable after all
determinations as to Company pre-tax profits are made for a fiscal year (the
"Bonus Determination Date"). Notwithstanding the foregoing, in the event that
there is a material change in the Company's operations for any fiscal year
during the Employment Period, including, without limitation, a material
acquisition or disposition, the Pre-Tax Profit Targets for such year and any
subsequent year during the Employment Period will be adjusted in a manner
mutually agreed to by the Executive and the Equivest CEO.
(c) Employee Benefits. The Executive shall be entitled to
participate in all employee benefit plans, programs, practices or arrangements
of the Company in which other senior executives of the Company are eligible to
participate from time to time, including, without limitations any qualified or
non-qualified pension, profit sharing and savings plans, any death benefit and
disability benefit plans, any medical, dental, health and welfare plans and any
stock purchase programs that are approved by the Board of the Company on terms
and conditions at least as favorable as provided to other senior executives of
the Company or Equivest. In addition, the Executive will be provided with six
weeks' paid vacation for each full fiscal year of the Company during the
Employment Period which shall be earned ratably over the course of the year but
which shall not be carried over from year to year during the Employment Period.
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(d) Fringe Benefits and Perquisites. The Executive shall be
entitled to an fringe benefits and perquisites that are generally made available
to senior executives of applicable committee thereof. In addition, the Company
shall pay the monthly automobile lease payment of the lease between the
Predecessor Company and Mercedes Benz as in effect on the Effective Date until
the expiration of such automobile lease.
5. Equity Incentives
(a) Annual Option Grant. As soon as practicable after the end
of each fiscal year ending during the Employment Period, as long as the
Executive is employed by the Company on that date, the Executive shall receive a
grant of stock options from Equivest covering shares of the common stock of
Equivest (the "Common Stock") based upon achievement of the Pre-Tax Profit
Targets for such fiscal year as follows: (i) if the Company reaches at least
100%, but less than 125%, of the Pre-Tax Profit Target for a fiscal year, the
Executive shall receive for such fiscal year an option covering 30,000 shares of
the Common Stock; and (ii) in lieu of the grant of options described in clause
(i) of this sentence, if the Company equals or exceeds 125% of the Pre-Tax
Profit Target for a fiscal year, the Executive shall receive for such fiscal
year an option covering 60,000 shares of the Common Stock. Options covering
shares of Common Stock shall vest and become exercisable at a rate of 20% per
year for a five-year period and options covering shares of Common Stock shall
expire ten years from their dates of grant. The exercise purchase price of an
option shall be the fair market value of a share of the Common Stock on the date
of grant of the option. All such options shall be subject to a stock option
agreement entered into between the parties hereto on terms consistent with the
foregoing; provided, however, that the options shall be effective as of the date
of grant in accordance with the terms and conditions contained herein,
irrespective of whether a stock option agreement has been executed by the
parties. Except as expressly provided in Section 7(a)(iv) of this Agreement, all
unvested options shall immediately expire upon the date of the Executive's
termination of employment. No options shall be granted to the Executive after
the date of his termination of employment.
(b) Additional Equity Incentives. The Executive shall be
considered, from time to time, for the grant of additional stock options or
other equity incentives, but no such grant shall be required.
6. Termination of Employment
The Employment Period will be terminated upon the happening
of any of the following events:
(a) Resignation other than for Good Reason. The Executive
may, on 90 days' written notice to the Company, voluntarily terminate his
employment hereunder for any reason at any time including any reason that does
not constitute Good Reason.
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(b) Termination for Cause. The Company may terminate the
Executive's employment hereunder for Cause. For purposes of this Agreement, the
Executive shall be considered to be terminated for "Cause" only upon (i) the
conviction of the Executive of an act or acts that constitutes a misdemeanor
involving moral turpitude, or a felony, whether or not appeal is taken, (ii) the
conviction of the Executive for a violation of al law involving the Company and
its business, or (iii) the willful fraud or material dishonesty of the Executive
in connection with his performance of duties to the Company; (iv) the willful,
material and continued failure by the Executive to perform his duties under this
Agreement; (v) a material breach by the Executive of the provisions his duties
under this Agreement the Executive of the provisions detailed in Section 10 of
this Agreement; (vi) any material breach by any provision of this Agreement; or
(vii) gross insubordination or malfeasance in connection with the duties
contemplated by Section 3 hereof. However, in no event shall the Executive's
employment be considered to have been terminated for "Cause" unless and until
the Executive receives a copy of a resolution adopted by the Board finding that,
in the good faith opinion of the Board of Equivest, the Executive is guilty of
acts or omissions constituting Cause, which resolution has been duly adopted by
an affirmative vote of a majority of the Board, excluding the Executive and any
individual alleged to have participated in the acts constituting "Cause." The
Executive shall have the opportunity to cure any such acts or omissions (other
than item (i) or (ii) above) within 15 days of the Executive's receipt of such
resolution.
(c) Resignation for Good Reason. The Executive may
voluntarily terminate his employment hereunder for Good Reason. For purposes of
this Agreement, "Good Reason" shall mean:
(i) a material and continuing diminution in the position,
title, authority, duties or responsibilities of the Executive as
contemplated by Section 3 hereof as a result of any action by the
Company or Equivest; provided, however that it is expressly understood
and agreed that the Board of Equivest and the Equivest CEO shall be
entitled to give direction to the Executive consistent with the
position, title, authority, duties and responsibilities of the
Executive, and to approve or disapprove actions of the Company,
without any such direction, approval or disapproval being deemed to be
Good Reason, and that no decision of the Board of Equivest or the
Equivest CEO relating to the strategic direction of the Company,
Company investments or the deployment of the Company resources shall
constitute Good Reason;
(ii) failure of the Executive to be a member of the Board of
Equivest other than in the event that the Executive voluntarily
resigns from the Board of Equivest; provided, however, that this
clause (ii) shall no longer be a basis for Good Reason resignation
after the date the Executive is no longer entitled to be a member of
the Board of Equivest under Article VI of the Shareholders' Agreement;
(iii) failure of the Executive to report principally and
directly to the individual who holds the position of Equivest CEO;
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(iv) the relocation of the Company's principal executive
offices to a location more than 40 miles from its current location in
Newport, Rhode Island or the location of the Executive's own office to
other than the Company's principal executive offices without the
Executive's prior written consent;
(v) any material breach by the Company or Equivest of
Agreement; or
(vi) any failure by the Company to obtain an assumption of
this Agreement by a successor corporation as required under Section
11(a) hereof.
However, in no event shall the Executive be considered to
have terminated his employment for "Good Reason" unless and until the Company
receives written notice from the Executive, within 45 days of the date the
Executive knows of the events constituting Good Reason, identifying in
reasonable detail the acts or omissions constituting "Good Reason" and the
provision of this Agreement relied upon, and such acts or omissions are not
cured by the Company to the reasonable satisfaction of the Executive within 30
days of the Company's receipt of such notice.
(d) Termination without Cause. The Company shall have the
right to terminate the Executive's employment hereunder other than for Cause at
any time, subject to the consequences of such termination as set forth in
Section 7 of this Agreement.
(e) Disability. The Executive's employment hereunder shall
terminate upon his Disability. For purposes of this Agreement, "Disability"
shall mean the inability of the Executive to perform his duties to the Company
on account of physical or mental illness or incapacity for a period of six
consecutive months as a result of a condition that is treated as a total and
permanent disability under the long-term disability insurance policy of the
Company that covers the Executive. The Executive's employment hereunder shall be
deemed terminated by reason of Disability fifteen days following the date of
written notice from the Board of Equivest indicating the intent of the Board of
Equivest to terminate the Executive for Disability unless the Executive return
to full-time employment prior to the expiration of such fifteen-day period.
7. Compensation Upon Termination of Employment
In the event the Executive's employment by the Company is
terminated during the Employment Period, the Executive shall be entitled to the
severance payments and benefits specified below:
(a) Resignation for Good Reason, Termination without Cause.
In the event the Executive voluntarily terminates his employment hereunder for
Good Reason or is terminated by the Company other than for Cause, death or
Disability, the Company shall pay the Executive and provide him with the
following:
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(i) Accrued Rights. The Company shall pay the Executive the
sum of (A) his earned but unpaid Base Salary through the date of
termination, (B) any earned but unpaid Target Annual Bonus for any
completed fiscal year that ended prior to the date of termination, (C)
any unreimbursed business expenses or other amounts due to the
Executive from the Company as of the date of termination (the "Accrued
Rights"). The Accrued Rights shall be made in a lump sum cash payment,
net of any required tax withholding, no later than the fifteenth
business day following the Executives date of termination (or the
expiration of any applicable cure period, if later). In additional,
the Company shall provide to the Executive all payments, rights and
benefits due as of the date of termination under the terms of the
Company's employee and fringe benefit plans and programs in which the
Executive participated during the Employment Period in accordance with
the terms of such plans and programs.
(ii) Pro-Rata Bonus. In the event that the Executive is
terminated pursuant to Section 6(c) or 6(d) of this Agreement after
June 30th of a fiscal year in which it is subsequently determined that
the applicable Pre-Tax Profit Target had been achieved, Executive will
receive, as soon as practicable after the Bonus Determination Date,
payment of a pro-rata Target Annual Bonus the amount of which shall be
equal to the Target Annual Bonus determined according to the
provisions of Section 4(b) of this Agreement (determined as if the
Executive's employment had not terminated) multiplied by a fraction,
the numerator of which shall be the number of days in the fiscal year
prior to the date of the Executive's termination of employment and the
denominator of which shall be 365.
(iii) Severance Payment. Subject to Section 10(c) of this
Agreement, the Company shall continue to pay the Executive his Base
Salary in regular payroll installment, at a rate in effect at the time
of termination of the Executive's employment, from such date of
termination of employment until the end of the Employment Period as
then in effect.
(iv) Equity. All stock options and other equity-based rights
held by the Executive at the date of termination shall become
immediately and fully vested and exercisable, and the Executive shall
retain the right to exercise all outstanding stock options for one
year from the date of such termination.
(v) Continued Benefits. The Company shall continue to provide
the Executive and his eligible dependents with the benefits detailed
in Section 4(d) of this Agreement, on the same terms and with the same
level of contributions by the Executive, that were provided to the
Executive immediately prior to termination of employment until the
earlier of (i) the expiration of the remaining Employment Period and
(ii) the Executive becoming eligible for coverage under comparable
plans of a subsequent employer.
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(b) Resignation without Good Reason; Termination for Cause.
In the event hereunder other than for Good Cause, the Company shall pay the
Executive and provide him with any earned but unpaid Base Salary through the
date of termination, any earned but unpaid Target Annual Bonus for any completed
fiscal year that ended prior to the date of termination and any unreimbursed
business expenses due to the Executive from the Company as of the date of
termination. Upon such termination, (i) the Executive shall not be entitled to
receive, and the Company shall have no obligation to provide, any severance
payments under this Agreement, (ii) the Executive and his dependents shall not
be entitled to receive, the Company shall have no obligation to provide to the
Executive or his dependents, any benefits detailed in Section 4(d) of this
Agreement except as required by COBRA or other applicable law or under the terms
of the applicable plans, and (iii) options covering shares of Common stock under
this Agreement, whether vested or otherwise shall terminate immediately and
shall be of no further force or effect.
Notwithstanding the foregoing, the Company shall have the
right to terminate the Executive's employment in the event that the pre-tax
profits of the Company falls below 75% of the Pre-Tax Profit Target for the 2000
fiscal year or 75% of the Pre-Tax Profit Target for the 2001 fiscal year (as
such targets are adjusted from time to time pursuant to Section 4(b) of this
Agreement in the event of a material change in the operations of the Company).
In such circumstances the Executive shall be entitled to such benefits,
discussed above, as would be provided to the Executive had he terminated his
employment other than for Good Reason or the Company had terminated his
employment for Cause.
(c) Disability; Death. In the event the Executive's
employment hereunder is terminated by reason of the Executive's Disability or
death, the Company shall pay and provide the Executive (or his legal
representative) with any earned but unpaid Base Salary through the date to
termination including all disability or life insurance benefits (as applicable),
any earned but unpaid Target Annual Bonus for any completed fiscal year that
ended prior to the date of termination and any unreimbursed business expenses
due to the Executive from the Company as of the date of the Executives
Disability or death. Any options vested as of the date of the Executive's
termination of employment by reason of Disability or death shall remain
exercisable for 90 days following such date of termination.
(d) Release. If prior to the expiration of the Employment
Period, the Executive's employment is terminated for any reason, the Executive
shall execute a release in substantially the form attached hereto in Exhibit A.
Any payments due and owing to the Executive under this Agreement shall be
expressly conditional on (i) the signing and delivery of such release by the
Executive to the Company and (ii) the expiration of the seven day revocation
condition period, as detailed in the release.
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8. No Mitigation or Offset
The Executive shall not be required to seek other employment
or to reduce any severance benefit payable to him under Section 7 hereof and no
such severance benefit shall be reduced on account of any compensation received
by the Executive from other employment. The Company's obligation to pay benefits
under this Agreement shall not be reduced by any amount owed by the Executive to
the Company.
9. Tax Withholding; Method of Payment
All compensation payable pursuant to this Agreement shall be
subject to reduction by all applicable withholding, social security and other
federal, state and local taxes and deductions.
10. Restrictive Covenants
(a) Covenant Not to Disclose Confidential Information. The
Executive acknowledges that during the course of his affiliation with the
Company he has or will have access to and knowledge of certain information and
data related to the Company and it affiliates which the Company considers
confidential and the release of such information or data to unauthorized persons
would be extremely detrimental to the Company or any of its affiliates. As a
consequence, the Executive hereby agrees and acknowledges that he owes a duty to
the Company and its affiliates not to disclose, and agrees that without the
prior written consent of the Company, at any time, either during or after his
employment with the Company, he will not communicate, publish or disclose, to
any person anywhere or use, any Confidential Information (as hereinafter
defined), except as may be necessary or appropriate to conduct his duties
hereunder, provided the Executive is acting in good faith and in the best
interest of the Company and its affiliates, or as may be required by law or
judicial process. The Executive will use his best efforts at all times to hold
in confidence and to safeguard any Confidential Information from falling into
the hands of any unauthorized person and, in particular, will not permit any
Confidential Information to be read, duplicated or copied. The Executive will
return to the Company all Confidential Information in the Executive's possession
or under the Executive's control whenever the Company shall so request, and in
any event will promptly return all such Confidential Information if the
Executive's relationship with the Company is terminated for any or no reason and
will not retain any copies thereof. For purposes hereof the term "Confidential
Information" shall mean any information or data used by or belonging or relating
to the Company or affiliates that is not known generally to the industry in
which the Company is or may be engaged and which the Company or any of its
affiliates maintains on a confidential basis, including, without limitation, any
and all trade secrets, proprietary data and information relating to the business
and products, price list, customer lists, processes, procedures or standards,
know-how, manuals, business strategies, records, drawings, specifications,
designed, financial information, whether or not reduced to writing, or
information or data of the Company or any of its affiliates.
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(b) Covenant Not to Compete. The Executive acknowledges that
he has established and will continue to establish favorable relations with the
customers, clients and accounts of the Company or any of its subsidiaries and
will have access to trade secrets of the Company or any of its subsidiaries.
Therefore, in consideration of such relations and in partial consideration for
the sale and goodwill of the Company to Equivest, and to further protect trade
secrets, directly or indirectly, of the Company or any of its subsidiaries, the
Executive, and his wife Xxxxx Xxxxxx, will not, directly or indirectly, without
the express written consent of the Equivest CEO with the approval of the Board
of Equivest:
(i) own or have any interest in or act as an officer,
director, partner, principal, employee, agent, representative,
consultant or independent contractor of, or in any way assist in, any
business which is engaged, directly or indirectly, in the timeshare
resorts or resort development business or a timeshare resorts or
resort development division of a hotel, hospitality or other business
(a) within the eastern seaboard of the United States of America north
of the northern border of South Carolina inland to 300 miles and
seaward to 300 miles from the coastal boundaries of such eastern
seaboard during the Employment Period and for a period of seven years
following the Executive's termination or resignation of employment for
any reason, and, in addition, (b) everywhere else within the United
States of America during the Employment Period and for a period of one
year following the Executive's termination or resignation of
employment for any reason;
(ii) solicit clients, customers or accounts of the Company or
any of its subsidiaries during the Employment Period and for a period
of seven years following the Executive's termination or resignation of
employment for any reason; or
(iii) solicit or in any manner influence or encourage any
person who is or shall be in the employ or service of the Company or
any of its subsidiaries to leave such employ or service for any other
employment opportunity during the Employment Period and for a period
of seven years following the Executive's termination or resignation of
employment for any reason.
Any breach of the provisions of this Section 10(b) by Xxxxx Xxxxxx, the wife of
the Executive, shall be treated for all purposes of this Agreement as a breach
by the Executive.
(c) Equitable Relief. Recognizing the irreparable damage will
result to the Company in the event of the breach or threatened breach of any of
the foregoing covenants and assurances by the Executive contained in paragraph
(a) or (b) hereof, and that the Company's remedies at law for any such breach or
threatened breach will be inadequate, the Company and its successors and
assigns, in addition to such other remedies which may be available to them,
shall be entitled to an injunction, including a mandatory injunction, to be
issued by any court of competent jurisdiction ordering compliance with this
Agreement or enjoining and restraining the Executive, and each and every person,
firm or Company acting in concert or participation with him, from the
continuation of such breach and, in addition thereto, he shall pay to the
Company
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all ascertainable damages, including costs and reasonable attorneys' fees by the
Company by reason of the breach or threatened breach of said covenants and
assurances. in the event of a breach of the said covenants and assurances,
options covering shares of Common Stock under this Agreement whether vested or
otherwise, shall terminate immediately and shall be of no further force or
effect and any rights to future severance payments, discussed in Section 7 of
this Agreement, shall be immediately forfeited. The obligations of the Executive
and the rights of the Company, its successors and assigns under Section 10 of
this Agreement shall survive the termination of this Agreement. The covenants
and obligations of the Executive set forth in Section 10 hereof are in addition
to and not in lieu of or exclusive of any other obligations and duties of the
Executive to the Company, whether express or implied in fact or in law. In the
event that there is a judicial determination that there has been no breach of
the covenants and assurances contained in paragraphs (a) and (b) hereof, any
severance payments or options forfeited pursuant to this Section 10(c) shall be
immediately reimbursed or reinstated to the Executive.
11. Successors
(a) This Agreement shall be binding upon and shall inure to
the benefit of the Company, its successors and assigns and any person, firm,
corporation or other entity which succeeds to all or substantially all of the
business, assets or property of the Company. The Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business, assets or property 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, As used in this Agreement, the "Company"
shall mean the Company as hereinbefore defined and any successor to its
business, assets or property as aforesaid which executes and delivers an
agreement provided for in this Section 11 or which otherwise becomes bound by
all the terms and provisions of this Agreement by operation of law.
(b) This Agreement and all rights of the Executive hereunder
shall inure to the benefit of and be enforceable by the Executives personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any
amounts are due and payable to him hereunder, all such amounts, unless otherwise
provided herein shall be paid to the Executive's designated beneficiary or, if
there be no such designated beneficiary, to the legal representatives of the
Executive's estate.
12. No Assignment
Except as to withholding of any tax under the laws of the
United States or any other country, state or locality, neither this Agreement
nor any right or interest hereunder nor any amount payable at any time hereunder
shall be subject in any manner to alienation, sale, transfer, assignment,
pledge, attachment, or other legal process, or encumbrance of any kind by the
Executive or the beneficiaries of the Executive or by his legal representatives
without the
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Company's prior written consent, nor shall than be any right of set-off or
counterclaim in respect of any debts or liabilities of the Executive, his
beneficiaries or legal representatives, provided, however, that nothing in this
Section 12 shall preclude the Executive from designating a beneficiary to
receive any benefit payable on his death, or the legal representatives of the
Executive from assigning any rights hereunder to the person or persons entitled
thereto under his will or, in case of intestacy, to the person or persons
entitled thereto under the laws of intestacy applicable to his estate.
13. Entire Agreement
This Agreement contains the entire understanding of the
parties with respect to the subject matter hereof and, except as specifically
provided herein, cancels and supersedes any and all other agreements between the
parties with respect to the subject matter hereof. Any amendment or modification
of this Agreement shall not be binding unless it is approved in writing by the
Equivest CEO and is in writing and signed by the Company and the Executive.
14. Severability
If a final judicial determination is made that any provision
of this Agreement is an unenforceable restriction against the Executive, the
provision hereof shall be rendered void on the extent that such judicial
determination finds such provisions unenforceable, and such unenforceable
provisions shall automatically be reconstructed and become a part of this
Agreement, effective as of the date first written above, to the maximum extent
in favor of the Company that is lawfully enforceable and such provision shall
then be enforceable and shall be enforced. A judicial determination that any
provision of this Agreement is unenforceable shall in no instance render the
entire Agreement unenforceable, but rather the Agreement will continue in full
force and effect absent any unenforceable provision to the maximum extent
permitted by law.
15. Notices
All notices which may be necessary or proper for either the
Company or the Executive to give to the other shall be in writing and shall be
delivered by hand or sent by registered or certified mail, return receipt
requested, or by air courier, to the following addresses:
if to the Executive: R. Xxxxx Xxxxxx
Eastern Resorts Company
000 Xxxx Xxxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxx Xxxxxx 00000
Facsimile No.: (000) 000-0000
12
with a copy to: Xxxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxx, Xxxxx & Xxxxxxx, LLP
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
if to the Company:Chief Executive Officer
Equivest Finance, Inc.
Xxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
with a copy to: Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000/80/81/82
Notices shall be deemed given when sent, provided that any notice required under
Section 6 hereof or notice given pursuant to Section 2 hereof shall be deemed
given only when received. Any party may by like notice to the other party change
the address at which he or they are to receive notices hereunder.
16. Governing Law
The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of New York applicable
to contracts entered into and performed in such state.
17. Guarantee
By execution of this Agreement, Equivest hereby agrees to
guarantee the performance by the Company of all of its obligations under this
Agreement. The Executive may not seek payment from Equivest under this Section
17 unless (i) the Company fails to pay the Executive an amount which the
Executive is owed under this Agreement by the date on which it is due; (ii) the
Executive makes a written demand for a payment under this Agreement to the
Company following the due date of such payment; and (iii) the amount of such
payment is not paid to the Executive within 45 days of the date such written
demand is delivered to the Company.
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18. Legal Fees
In the event of any controversy or claim arising out of, or
relating to this Agreement, or the breach thereof, the losing party shall bear
the cost of all reasonable attorney fees and expenses of both parties.
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IN WITNESS WHEREOF, the Company and the Executive have
executed this Agreement as of the date first above written.
EXECUTIVE
___________________________
R. XXXXX XXXXXX
ERC ACQUISITION CORP.
_______________________________
By:
Title:
EQUIVEST FINANCE, INC. (solely in it's capacity
for purposes of granting options covering
shares of Common Stork of Equivest Finance,
Inc. and in it's capacity outlined in Section
17 of this Agreement)
_______________________________
By:
Title:
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EXHIBIT A
RELEASE
In exchange for the payments and other benefits described in
the attached Employment Agreement dated _________, 1998 (the "Agreement"), and
on the expiration of the seven day revocation period, during which I may, at any
time, revoke this release, I hereby release Eastern Resorts Corporation (the
"Company"), Equivest Finance, Inc. and any of their respective divisions,
affiliates, subsidiaries, parents, predecessors, successors, assigns, officers,
directors, trustees, employees, agents, stockholders, administrators,
representatives, attorneys, insurers and fiduciaries, past, present and future,
and Xxxxxxx X. Xxxxxxx or any subsequent Chief Executive Officer of Equivest
Finance, Inc. (collectively, the "Released Parties"), from any and all claims of
any kind which I now have or may have against the Released Parties, whether
known or unknown to me, by reason of facts which have occurred on or prior to
the date that I have signed this Release (except a claim for the payments,
options and benefits described in the Agreement or any claims for
indemnification under the By-Laws of the Company as a result of my services as
an officer and director of the Company). Such released claims include, without
limitation, any and all claims and federal, state or local laws pertaining to
employment, including the Age Discrimination in Employment Act, Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000c et seq., the Fair
Labor Standards Act, as amended, 29 U.S.C. Section 201 et seq., the Americans
with Disabilities Act, as amended, 42 U.S.C. Section 1201 et seq., the
Reconstruction Era Civil Rights Act, as amended, 42 U.S.C. Section 1981 et seq.,
the Rehabilitation Act of 1973, as amended, 29 U.S.C. Section 701 et seq., the
Family and Medical Leave Act of 1992, 29 U.S.C. Section 2601 et seq., the New
York State Human Rights Law, N.Y. Exec. Law, Section 296 et seq., and any and
all state or local laws regarding employment discrimination and/or federal,
state or local laws of any type or description regarding employment, including,
but not limited to, any claims arising from or derivative of my employment with
the Company, as well as any and all claims under state contract or tort law.
I have read this release carefully, acknowledge that I have
been given at least 21 days to consider all of its terms, and have been advised
to consult with an attorney and any other advisors of my choice prior to
executing this Release, and I fully understand that by signing below I am
voluntarily giving up any right which I may have to xxx or bring any other
claims against the Released Parties, including any rights and claims under the
Age Discrimination in Employment Act. I also understand that I have a period of
7 days after signing this Release within which to revoke my agreement, and that
neither the Company nor any other person is obligated to make any payments or
provide any other benefits to me pursuant to the attached Agreement until 8 days
have passed since my signing of this Release without my signature having been
revoked. Finally, I have not been forced or pressured in any manner whatsoever
to sign this Release, and I agree to all of its terms voluntarily.
This Release, and the attached Agreement, are final and
binding and may not be changed or modified except in a writing signed by both
parties.
[date] [signature]
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