EXHIBIT 3
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").
(b) 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 Officer 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
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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
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(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
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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
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Salary") equal to at least $300,000 per annum. On each anniversary of the
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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 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
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opportunity to earn an annual target bonus (the "Target Annual Bonus") for each
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fiscal year of the Company ending during the Employment Period, however, in no
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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
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Date"). Notwithstanding the foregoing, in the event that there is a material
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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
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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 limitation, 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.
(d) Fringe Benefits and Perquisites. The Executive shall be entitled
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to all fringe benefits and perquisites that are generally made available to
senior executives of the Company from time to time that are approved by the
Board of the Company or 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.
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5. EQUITY INCENTIVES
(a) Annual Option Grant. As soon as practicable after the end of each
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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
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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
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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'
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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.
(b) Termination for Cause. The Company may terminate the Executive's
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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 criminal 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
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his duties under this Agreement; (v) a material breach by the Executive of the
provisions detailed in Section 10 of this Agreement; (vi) any material breach by
the Executive of 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 items (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
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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
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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
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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;
(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;
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(v) any material breach by the Company or Equivest of this 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
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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
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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
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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:
(i) Accrued Rights. The Company shall pay the Executive the sum of (A)
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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
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payment, net of any required tax withholding, no later than the fifteenth
business day following the Executive's date of termination (or the
expiration of any applicable cure period, if later). In addition, 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
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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
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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
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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
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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.
(b) Resignation without Good Reason; Termination for Cause. In the event the
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Executive voluntarily terminates his employment hereunder other than for Good
Reason or is terminated by the Company for 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
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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
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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 Executive's 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
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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.
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.
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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
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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.
(b) Covenant Not to Compete. The Executive acknowledges that he has
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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:
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(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
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the Company in the event of the breach or threatened breach of any of the
foregoing covenants and assurances by the Executive contained in paragraphs (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 all ascertainable damages, including costs and reasonable attorneys'
fees sustained 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
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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 Executive's 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
Company's prior written consent, nor shall there 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
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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
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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.
18. LEGAL FEES
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In the event of any controvercy 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 Stock 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 August 24, 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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