EMPLOYMENT AGREEMENT
Exhibit 10.4
This Employment Agreement (this “Agreement”) is entered into as of March 30, 2009 (the
“Effective Date”), by and between Xxxxxxxxxxx International Ltd., a corporation incorporated under
the laws of Switzerland (the “Company”), and Xxxxxxx X. Xxxxxxxx (the “Executive”).
W I T N E S S E T H:
WHEREAS, the Board has previously determined that it is in the best interests of the Company
and its shareholders to retain the Executive and to induce the employment of the Executive for the
long-term benefit of the Company;
WHEREAS, the Company desires to employ the Executive on the terms set forth below to provide
services to the Company and its affiliated companies, and the Executive is willing to accept such
employment and provide such services on the terms set forth in this Agreement; and
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the parties hereto do hereby agree as follows:
1. Certain Definitions.
(a) “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated under Section 12 of
the Exchange Act.
(b) “Beneficial Owner” shall have the meaning set forth in Rule 13d-3 under the Exchange Act
(c) “Board” shall mean the Board of Directors of the Company.
(d) “Cause” shall mean:
(i) the willful and continued failure of the Executive to substantially perform the
Executive’s duties with the Company (other than any such failure resulting from incapacity due to
physical or mental illness or anticipated failure after the issuance of a Notice of Termination for
Good Reason by the Executive pursuant to Section 4(c)), after a written demand for substantial
performance is delivered to the Executive by the Board which specifically identifies the manner in
which the Executive has not substantially performed the Executive’s duties,
(ii) the willful engaging by the Executive in illegal conduct or gross misconduct which is
materially and demonstrably injurious to the Company, or
(iii) the Executive’s refusal to resign from the Company on the first anniversary of the
Effective Date following the Board’s good faith written determination (provided to the Executive no
later than thirty (30) days before such anniversary) that Executive is unable to devote sufficient
time to the Company due to his remaining a partner of Fulbright & Xxxxxxxx L.L.P. (“Fulbright”).
No act, or failure to act, on the part of the Executive shall be considered “willful” unless
it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that
the Executive’s action or omission was in the best interests of the Company. Any act, or failure
to act, based upon authority given pursuant to a resolution duly adopted by the Board or upon the
instructions of the Chief Executive Officer or of a more senior officer of the Company or based
upon the advice of counsel for the
Company (which may be the General Counsel or other counsel employed by the Company or its
subsidiaries) shall be conclusively presumed to be done, or omitted to be done, by the Executive in
good faith and in the best interests of the Company. The cessation of employment of the Executive
shall not be deemed to be for Cause unless and until there shall have been delivered to the
Executive a copy of a resolution duly adopted by the affirmative vote of not less than
three-quarters of the entire membership of the Board at a meeting of the Board called and held for
such purpose (after reasonable notice is provided to the Executive, and the Executive is given an
opportunity, together with counsel, to be heard before the Board), finding that, in the good faith
opinion of the Board, the Executive is guilty of the conduct described in subparagraph (i) or (ii)
above, or that subparagraph (iii) applies, and specifying the particulars thereof in detail.
(e) “Change of Control” shall be deemed to have occurred if any event set forth in any one of
the following paragraphs shall have occurred:
(i) any Person is or becomes the Beneficial Owner, directly or indirectly, of twenty percent
(20%) or more of either (A) the then outstanding common shares of the Company (the “Outstanding
Company Common Shares”) or (B) the combined voting power of the then outstanding voting securities
of the Company entitled to vote generally in the election of directors (the “Outstanding Company
Voting Securities”), excluding any Person who becomes such a Beneficial Owner in connection with a
transaction that complies with clauses (A), (B) and (C) of paragraph (iii) below;
(ii) individuals, who, as of the date hereof, constitute the Board (the “Incumbent Board”)
cease for any reason to constitute at least two-thirds (2/3) of the Board; provided, however, that
any individual becoming a director subsequent to the date hereof whose election, or nomination for
election by the Company’s shareholders, was approved by a vote of at least two-thirds (2/3) of the
Incumbent Board shall be considered as though such individual was a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election or removal of
directors or any other actual or threatened solicitation of proxies or consents by or on behalf of
a Person other than the Board; or
(iii) the consummation of a reorganization, merger, amalgamation, consolidation, scheme of
arrangement, exchange offer or similar transaction of the Company or any of its subsidiaries or the
sale, transfer or other disposition of all or substantially all of the Company’s Assets (any of
which a “Corporate Transaction”), unless, following such Corporate Transaction or series of related
Corporate Transactions, as the case may be, (A) all of the individuals and entities (which, for
purposes of this Agreement, shall include, without limitation, any corporation, partnership,
association, joint-stock company, limited liability company, trust, unincorporated organization or
other business entity) who were the beneficial owners, respectively, of the Outstanding Company
Common Shares and Outstanding Company Voting Securities immediately prior to such Corporate
Transaction beneficially own, directly or indirectly, more than sixty-six and two-thirds percent
(66-2/3%) of, respectively, the then outstanding common shares and the combined voting power of the
then outstanding voting securities entitled to vote generally in the election of directors (or
other governing body), as the case may be, of the entity resulting from such Corporate Transaction
(including, without limitation, an entity which as a result of such transaction owns the Company or
all or substantially all of the Company’s Assets either directly or through one (1) or more
subsidiaries or entities) in substantially the same proportions as their ownership, immediately
prior to such Corporate Transaction, of the Outstanding Company Common Shares and the Outstanding
Company Voting Securities, as the case may be, (B) no Person (excluding any entity resulting from
such Corporate Transaction or any employee benefit plan (or related trust) of the Company or such
entity resulting from such Corporate Transaction) beneficially owns, directly or indirectly, twenty
percent (20%) or more of, respectively, the then outstanding shares of common stock of the entity
resulting from such Corporate Transaction or the combined voting power of the then outstanding
voting
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securities of such entity except to the extent that such ownership existed prior to the
Corporate Transaction and (C) at least two-thirds (2/3) of the members of the board of directors
(or other governing body) of the entity resulting from such Corporate Transaction were members of
the Incumbent Board at the time of the approval of such Corporate Transaction; or
(iv) Approval or adoption by the Board of Directors or the shareholders of the Company of a
plan or proposal which could result directly or indirectly in the liquidation, transfer, sale or
other disposal of all or substantially all of the Company’s Assets or the dissolution of the
Company.
(f) “Company” shall mean Xxxxxxxxxxx International Ltd. or any successor to Xxxxxxxxxxx
International Ltd., including but not limited to any Entity into which Xxxxxxxxxxx International
Ltd. is merged, consolidated or amalgamated, or any Entity otherwise resulting from a Corporate
Transaction.
(g) “Company’s Assets” shall mean the assets (of any kind) owned by the Company, including,
without limitation, the securities of the Company’s Subsidiaries and any of the assets owned by the
Company’s Subsidiaries.
(h) “Disability” shall mean the absence of the Executive from performance of the Executive’s
duties with the Company on a substantial basis for one hundred twenty (120) calendar days as a
result of incapacity due to mental or physical illness.
(i) “Employment Period” shall mean the period commencing on the Effective Date and ending on
the third anniversary of the Effective Date; provided, however, that commencing on the date one
year after the Effective Date, and on each annual anniversary of such date (such date and each
annual anniversary thereof shall be hereinafter referred to as the “Renewal Date”), unless
previously terminated, the Employment Period shall be automatically extended so as to terminate
three (3) years after such Renewal Date, unless at least sixty (60) days prior to the Renewal Date
the Company shall give notice to the Executive that the Employment Period shall not be so extended.
(j) “Entity” shall mean means any corporation, partnership, association, joint-stock company,
limited liability company, trust, unincorporated organization or other business entity.
(k) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to
time.
(l) “Good Reason” shall mean the occurrence of any of the following:
(i) the assignment to the Executive of any position, authority, duties or responsibilities
that are not materially consistent with the Executive’s position (including status, offices and
titles), authority, duties or responsibilities as contemplated by Section 3(a) of this Agreement,
or any other action by the Company or any Subsidiary which results in a diminution in such
position, authority, duties or responsibilities, excluding for this purpose any action not taken in
bad faith and which is remedied by the Company after receipt of notice thereof given by the
Executive;
(ii) any failure by the Company or any Subsidiary to comply with any of the provisions of this
Agreement (including, without limitation, its obligations under Section 3(a)) (including, for
example and without limitation, assignment of the Executive to a Chief Compliance Officer position
not reporting directly to the Chief Executive Officer and Board of Directors of the ultimate
publicly-traded parent company as it may in the future exist) or any other agreements between the
Executive and the Company or any Subsidiary, other than any failure not occurring in bad faith and
which is remedied by the Company, or a Subsidiary, as appropriate, after receipt of notice thereof
given by the Executive;
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(iii) any failure by the Company or any Subsidiary to continue to provide the Executive with
benefits enjoyed by the Executive at any time prior to such failure under any of the Company’s or
any Subsidiary’s compensation, bonus, retirement, pension, savings, life insurance, medical, health
and accident, or disability plans, or the taking of any other action by the Company which would
directly or indirectly reduce any of such benefits or deprive the Executive of any fringe benefits
or perquisites enjoyed by the Executive at any time prior to such action;
(iv) the Company’s or any Subsidiary’s requiring the Executive to be based at any office or
location other than as provided in Section 3(a)(i) hereof, unless otherwise agreed, or the
Company’s or any Subsidiary’s requiring the Executive to travel on business more than 50% of the
working days in any given quarter;
(v) any purported termination by the Company or any Subsidiary of the Executive’s employment
(including, without limitation, any secondment of the Executive without the Executive’s prior
express agreement in writing);
(vi) any failure by the Company to comply with and satisfy Section 9(b) of this Agreement;
(vii) failure of the Company (including any successor) to agree, execute and enter into a new
employment agreement with the Executive prior to the termination or expiration of this Agreement,
with such employment agreement having the same terms and conditions as existed in agreements
between the Company and its officers prior to December 30, 2008, and incorporating such terms and
conditions that are more favorable to the Executive from all agreements existing after January 1,
2009; or
(viii) in connection with, as a result of, or following a Change of Control, the giving of
notice to the Executive that the Employment Period shall not be extended.
In the event of a Change of Control or other Corporate Transaction in which the Company’s
common shares may cease to be publicly traded, following the Change of Control or the consummation
of such other Corporate Transaction, “Good Reason” shall be deemed to exist upon the occurrence of
any of the events listed in clauses (i) through (vii) above and also in the event Executive is
assigned to any position (including status, offices, titles and reporting requirements), authority,
duties or responsibilities that are (A) not at or with the publicly-traded ultimate parent company
of the successor to the Company or the corporation or other Entity surviving or resulting from such
Corporate Transaction or (B) inconsistent with the Executive’s position (including status, offices,
titles and reporting requirements), authority, duties or responsibilities as contemplated by
Section 3(a).
For purposes of this Agreement, any good faith determination of “Good Reason” made by the
Executive shall be conclusive.
(m) “Person” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified
and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) the
Company or any of its subsidiaries, (ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its Affiliates, (iii) an underwriter temporarily
holding securities pursuant to an offering by the Company of such securities, or (iv) a corporation
or other entity owned, directly or indirectly, by the shareholders of the Company in the same
proportions as their ownership of common shares of the Company.
(n) “Section 409A” means Section 409A of the Internal Revenue Code of 1986, as amended and the
final Department of Treasury regulations issued thereunder.
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(o) “Section 409A Amounts” means those amounts that are deferred compensation subject to
Section 409A.
(p) “Separation From Service” shall have the meaning ascribed to such term in Section 409A.
2. Employment Period. The Company hereby agrees that the Company will continue the Executive in
its employ, and the Executive hereby agrees to remain in the employ of the Company subject to the
terms and conditions of this Agreement during the Employment Period. During the Employment Period,
the Executive may be seconded to the employment of Xxxxxxxxxxx U.S., L.P. (or such other affiliated
entity) (the “Seconded Affiliate Company”), but without prejudice to the Company’s obligations or
the Executive’s rights under this Agreement. The Executive shall carry out his/her duties as if
they were duties to be performed on behalf of the Company. Each Seconded Affiliate Company shall
be subject to all of the obligations and agreements of the Company under this Agreement and the
Company shall be responsible for actions and inactions of the Seconded Affiliate Company. Any
breach or failure to abide by the terms and conditions of this Agreement by a Seconded Affiliate
Company shall be deemed to constitute a breach or failure to abide by the Company.
3. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period, (A) the Executive’s position (including status, offices,
titles, authority, duties and responsibilities) shall be Chief Compliance Officer of the Company,
(B) the Executive’s services shall be performed principally in Washington D.C. or such other
location as the Executive and the Company shall mutually agree, (C) the Executive shall report
directly to the Chief Executive Officer of the Company and (D) the Executive shall deliver
quarterly compliance reports to the Company’s Audit Committee.
(ii) During the Employment Period, and excluding any periods of vacation and sick leave to
which the Executive is entitled, the Executive agrees to devote reasonable attention and time
during normal business hours to the business and affairs of the Company and, to the extent
necessary to discharge the responsibilities assigned to the Executive hereunder, to use the
Executive’s reasonable best efforts to perform faithfully and efficiently such responsibilities.
During the Employment Period it shall not be a violation of this Agreement for the Executive to (A)
remain as a partner of Fulbright, (B) serve on corporate, civic or charitable boards or committees,
(C) deliver lectures, fulfill speaking engagements or teach at educational institutions and (D)
manage personal investments, so long as such activities in clause (A), (B), (C) and (D) together do
not significantly interfere with the performance of the Executive’s responsibilities as an employee
of the Company in accordance with this Agreement. It is expressly understood and agreed that to
the extent that such activities have been conducted by the Executive prior to the date hereof, the
continued conduct of such activities (or the conduct of activities similar in nature and scope
thereto) subsequent to the date hereof shall not thereafter be deemed to interfere with the
performance of the Executive’s responsibilities to the Company.
(b) Compensation.
(i) Base Salary. During the Employment Period, the Executive shall receive an annual base
salary no less than the amount specified in the offer letter dated February 16, 2009 (“Annual Base
Salary”), which shall be paid at a monthly rate. During the Employment Period, the Annual Base
Salary shall be reviewed no more than twelve (12) months after the last salary increase awarded to
the Executive prior to the date hereof and thereafter at least annually; provided, however, that a
salary increase shall not necessarily be awarded as a result of such review. Any increase in
Annual Base Salary
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may not serve to limit or reduce any other obligation to the Executive under this Agreement.
Annual Base Salary shall not be reduced after any such increase. The term Annual Base Salary as
utilized in this Agreement shall refer to Annual Base Salary as so increased.
(ii) Annual Bonus. The Executive shall be eligible for an annual bonus for each fiscal year
ending during the Employment Period on the same basis as other officers under the Company’s annual
incentive program. Each such Annual Bonus shall be paid no later than 2-1/2 months after the
fiscal year for which the Annual Bonus is awarded. For the first three years of this Agreement,
with respect to any fiscal year in which the Executive is no longer a partner of Fulbright, the
Annual Bonus shall equal at least 50% of the Executive’s Annual Base Salary (prorated for any
fiscal year in which the Executive ceases to be a partner of Fulbright, with the numerator equal to
the number of days in such fiscal year after the Executive ceases to be a partner of Fulbright, and
the denominator of which is 365).
(iii) Incentive, Savings and Retirement Plans. During the Employment Period, the Executive
shall be entitled to participate in all incentive, savings and retirement plans, practices,
policies and programs applicable generally to all officers of the Company and its affiliated
companies, but in no event shall such plans, practices, policies and programs provide the Executive
with incentive opportunities (measured with respect to both regular and special incentive
opportunities, to the extent, if any, that such distinction is applicable), savings opportunities
and retirement benefit opportunities, in each case, less favorable, in the aggregate, than the most
favorable of those provided by the Company and its affiliated companies for the Executive under
such plans, practices, policies and programs as in effect on the date hereof. As used in this
Agreement, the term “affiliated companies” shall include any company controlled by, controlling or
under common control with the Company.
(iv) Welfare Benefit Plans. During the Employment Period, the Executive and/or the
Executive’s family, as the case may be, shall be eligible to participate in and shall receive all
benefits under welfare benefit and retirement plans, practices, policies and programs provided by
the Company and its affiliated companies (including, without limitation, medical, prescription,
dental, disability, salary continuance, employee life, group life, accidental death and travel
accident insurance plans and programs) to the extent applicable generally to all officers of the
Company and its affiliated companies, but in no event shall such plans, practices, policies and
programs provide the Executive with benefits which are less favorable, in the aggregate, than the
most favorable of those provided by the Company and its affiliated companies for the Executive
under than such plans, practices, policies and programs of the Company and its affiliated companies
in effect for the Executive on the date hereof.
(v) Expenses. During the Employment Period, the Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Executive in accordance with the most
favorable policies, practices and procedures of the Company and its affiliated companies in effect
for the Executive on the date hereof. No amounts shall be payable under this Section 3(b)(vi) to
the extent that such amounts are Section 409A Amounts.
(vi) Vacation. During the Employment Period, the Executive shall be entitled to at least four
(4) weeks paid vacation or such greater amount of paid vacation as may be applicable to the
officers of the Company and its affiliated companies.
(vii) Deferred Compensation Plan. During the Employment Period, the Executive shall be
entitled to continue to participate in any deferred compensation or similar plans in which officers
of the Company and its affiliated companies participate.
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4. Termination of Employment.
(a) Death or Disability. The Executive’s employment shall terminate automatically upon the
Executive’s death during the Employment Period. If the Company determines in good faith that the
Disability of the Executive has occurred during the Employment Period, it may provide the Executive
with written notice in accordance with Section 10(b) of this Agreement of its intention to
terminate the Executive’s employment. In such event, the Executive’s employment with the Company
shall terminate effective thirty (30) days after receipt of such notice by the Executive (the
“Disability Effective Date”), provided that within the thirty (30)-day period after such receipt,
the Executive shall not have returned to full-time performance of the Executive’s duties. In
addition, if a physician selected by the Executive determines that the Disability of the Executive
has occurred, the Executive (or his representative) may provide the Company with written notice in
accordance with Section 10(b) of this Agreement of the Executive’s intention to terminate his
employment. In such event, the Disability Effective Date shall be thirty (30) days after receipt
of such notice by the Company.
(b) Cause. The Company may terminate the Executive’s employment during the Employment Period
for Cause.
(c) Good Reason. The Executive’s employment may be terminated by the Executive at any time
during the Employment Period for Good Reason.
(d) Notice of Termination. Any termination during the Employment Period by the Company for
Cause, or by the Executive for Good Reason, shall be communicated by Notice of Termination to the
other party hereto given in accordance with Section 10(b) of the Agreement. For purposes of this
Agreement, a “Notice of Termination” means a written notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for termination of the
Executive’s employment under the provision so indicated and (iii) if the Date of Termination (as
defined below) is other than the date of receipt of such notice, specifies the termination date
(which date, in the case of a notice by the Company, shall be not more than 30 days after the
giving of such notice). The failure by the Executive or the Company to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing of Good Reason or Cause shall
not waive any right of the Executive or the Company, respectively, from asserting such fact or
circumstance in enforcing the Executive’s or the Company’s rights hereunder.
(e) Date of Termination. “Date of Termination” shall mean:
(i) if the Executive’s employment is terminated by the Company for Cause, or by the Executive
for Good Reason, the date of receipt of the Notice of Termination or any later date specified
therein, as the case may be;
(ii) if the Executive’s employment is terminated by the Company other than for Cause, the Date
of Termination shall be the date on which the Executive receives notice of such termination; and
(iii) if the Executive’s employment is terminated by reason of death or Disability, the Date
of Termination shall be the date of death of the Executive or the Disability Effective Date, as the
case may be.
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5. Obligations of the Company Upon Termination.
(a) Benefit Obligation and Accrued Obligation Defined. For purposes of this Agreement,
Benefit Obligation shall mean all benefits to which the Executive (or his designated beneficiary or
legal representative, as applicable) is entitled or vested (or becomes entitled or vested as a
result of termination) under the terms of all employee benefit and compensation plans, agreements
and arrangements (collectively, “Benefit Plans”) in which the Executive is a participant as of the
Date of Termination. Accrued Obligation means the sum of (1) the Executive’s Annual Base Salary
through the Date of Termination for periods through but not following his Separation From Service
and (2) any accrued vacation pay earned by the Executive, in each case, to the extent not
theretofore paid.
(b) Death, Disability, Good Reason or Other than For Cause. If, during the Employment Period,
the Executive’s employment is terminated by reason of the Executive’s death or Disability, by the
Company for any reason other than for Cause or by the Executive for Good Reason:
(i) The Company shall pay to the Executive (or Executive’s heirs, beneficiaries or
representatives as applicable) in a lump sum in cash within thirty (30) days after the Date of
Termination the Accrued Obligation; and
(ii) The Company shall pay or cause the Executive to be paid the Benefit Obligation at the
times specified in and in accordance with the terms of the applicable Benefit Plans.
(c) Cause. If the Executive’s employment is terminated for Cause during the Employment
Period, this Agreement shall terminate without further obligations to the Executive, other than the
obligation to pay to the Executive (x) the Accrued Obligation and (y) the Benefit Obligation in
accordance with the terms of the applicable Benefit Plans.
(d) Termination by Executive Other Than for Good Reason. If the Executive voluntarily
terminates his employment during the Employment Period for any reason other than for Good Reason,
the Executive’s employment shall terminate without further obligations to the Executive, other than
for payment of the Accrued Obligation and the Benefit Obligation and the rights provided in Section
6. In such case, the Accrued Obligation shall be paid to the Executive in a lump sum in cash
within thirty (30) days after the Date of Termination and the Benefit Obligation shall be paid in
accordance with the terms of the applicable Benefit Plans.
6. Other Rights.
(a) Except as provided herein, nothing in this Agreement shall prevent or limit the
Executive’s continuing or future participation in any plan, program, policy or practice provided by
the Company or any of its affiliated companies and for which the Executive may qualify, nor shall
anything herein limit or otherwise affect such rights as the Executive may have under any contract
or agreement with the Company or any of its affiliated companies. Except as otherwise provided
herein, amounts which are vested benefits, which vest according to the terms of this Agreement or
which the Executive is otherwise entitled to receive under any of the Benefit Plans or any other
plan, policy, practice or program of or any contract or agreement with the Company or any of its
affiliated companies at or subsequent to the Date of Termination shall be payable in accordance
with such plan, policy, practice or program or contract or agreement.
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7. Full Settlement.
(a) No Rights of Offset. The Company’s obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action which the Company may have
against the Executive or others.
(b) No Mitigation Required. The Company agrees that, if the Executive’s employment with the
Company terminates, the Executive is not required to seek other employment or to attempt in any way
to reduce any amounts payable to the Executive by the Company pursuant to this Agreement. Further,
the amount of any payment or benefit provided for in this Agreement shall not be reduced by any
compensation earned by the Executive as the result of employment by another employer, by retirement
benefits, by offset against any amount claimed to be owed by the Executive to the Company, or
otherwise.
8. Confidential Information. The Executive shall hold in a fiduciary capacity for the benefit of
the Company all secret or confidential information, knowledge or data relating to the Company or
any of its affiliated companies, and their respective businesses, which shall have been obtained by
the Executive during the Executive’s employment by the Company or any of its affiliated companies,
provided that it shall not apply to information which is or shall become public knowledge (other
than by acts by the Executive or representatives of the Executive in violation of this Agreement),
information that is developed by the Executive independently of such information, or knowledge or
data or information that is disclosed to the Executive by a third party under no obligation of
confidentiality to the Company. After termination of the Executive’s employment with the Company,
the Executive shall not, without the prior written consent of the Company or as may otherwise be
required by law or legal process, communicate or divulge any such information, knowledge or data to
anyone other than the Company and those designated by it. In no event shall an asserted violation
of the provision of this Section 8 constitute a basis for deferring or withholding any amounts
otherwise payable to the Executive under this Agreement. Further, notwithstanding the foregoing
provisions of this Section, Executive shall be entitled to and shall disclose and discuss any
secret or confidential information, knowledge or data acquired by Executive to and with outside
counsel for the Company or its Affiliates (including, without limitation, other partners or
attorneys associated with Fulbright while Fulbright is serving as outside counsel for the Company
or its Affiliates) in any instance when Executive determines, in the good faith judgment of
Executive, that such disclosure or discussion is necessary or appropriate.
9. Successors.
(a) This Agreement is personal to the Executive and shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement 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.
(b) In addition to any obligations imposed by law upon any successor to the Company, the
Company will require any successor (whether direct or indirect, by purchase, merger, consolidation,
amalgamation, scheme of arrangement, exchange offer, operation of law or otherwise (including any
purchase, merger, amalgamation, Corporate Transaction or other transaction involving the Company or
any subsidiary or Affiliate of the Company), to all or substantially all of the Company’s business
and/or Company’s Assets 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. Failure of the Company to obtain such assumption and agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and shall entitle the
Executive to compensation from the
Company in the same amount and on the same terms as the Executive would be entitled to
hereunder if the Executive were to terminate the Executive’s employment for Good Reason after a
Change of Control, except that, for purposes of implementing the foregoing, the date on which any
such succession becomes effective shall be deemed the Date of Termination. As used in this
Agreement, “Company” shall mean the Company as hereinbefore defined and any successor to its
business and/or assets as provided above.
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10. Miscellaneous.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF TEXAS, WITHOUT REFERENCE TO PRINCIPLES OF CONFLICT OF LAWS. The captions of this Agreement are
not part of the provisions hereof and shall have no force or effect. This Agreement may not be
amended or modified otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing and shall be given by
hand delivery to the other party or by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
| If to the Executive: | Xxxxxxx X. Xxxxxxxx | |||
| 0000 Xxxxxxxxxx Xxxxx, XX | ||||
| Xxxxxxxxxx, XX 00000 | ||||
| If to the Company: | Xxxxxxxxxxx International Ltd. | |||
| Xxxxxxxxxxxx 00 | ||||
| 0000 Xxx | ||||
| Xxxxxxxxxxx | ||||
| Attn: Secretary |
or to such other address as either party shall have furnished to the other in writing in accordance
herewith. Notices and communications shall be effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement.
(d) The Company may withhold from any amounts payable under this Agreement such Federal,
state, local or foreign taxes as shall be required to be withheld pursuant to any applicable law or
regulation.
(e) The Executive’s or the Company’s failure to insist upon strict compliance with any
provision of this Agreement or the failure to assert any right to the Executive or the Company may
have hereunder, including without limitation, the right of the Executive to terminate employment
for Good Reason shall not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement.
(f) This Agreement, the Agreement entered into on or about the same date between Executive and
Xxxxxxxxxxx International, Inc., the offer letter dated February 16, 2009 as amended on March 18,
2009, and the Indemnification Agreements between Executive and Xxxxxxxxxxx International, Inc. and
Xxxxxxxxxxx International Ltd. constitute the entire agreement and understanding between the
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parties relating to the subject matter hereof and supersedes all prior agreements between the
parties relating to the subject matter hereof, including, without limitation, the Prior Agreements.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and, pursuant to the
authorization from its Board of Directors, the Company has caused these presents to be executed in
its name and on its behalf, all as of the day and year first above written.
| /s/ XXXXXXX X. XXXXXXXX | ||||
| Xxxxxxx X. Xxxxxxxx | ||||
| XXXXXXXXXXX INTERNATIONAL LTD. | ||||
| By: | /s/ XXXXXXX X. DUROC-XXXXXX | |||
| Xxxxxxx J. Duroc-Xxxxxx | ||||
| Chairman, President & Chief Executive Officer | ||||
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