Exhibit 10.16
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereafter the "Employment Agreement") made as of
____________, 199__ (the "Closing Date"), by and among Xxxxxx X. Xxxxx & Co.,
Inc. (the "Company"), a Pennsylvania corporation, Xxxxx Asset Management, LLC, a
Delaware limited liability company (the "Employer"), and ____________, a
resident of _________________________ (the "Employee").
W I T N E S S E T H:
WHEREAS, pursuant to the Stock Purchase Agreement dated as of November 9,
1998 (the "Purchase Agreement") by and among Affiliated Managers Group, Inc., a
Delaware corporation ("AMG"), the Company, the Employee and certain other
parties as set forth therein, at the Closing (as defined in the Purchase
Agreement) AMG will purchase all of the outstanding common stock of the Company
and the Company will become a wholly-owned subsidiary of AMG and will continue
as the Managing Member of the Employer.
WHEREAS, immediately following the Closing, the Company will transfer its
assets and liabilities to the Employer, which will continue the investment
advisory businesses of the Company (including acting as an investment adviser to
the clients which were clients of the Company).
WHEREAS, the Employee is a stockholder of the Company and will receive
substantial economic and other benefits if the transactions contemplated by the
Purchase Agreement are consummated.
WHEREAS, on the Closing Date, and as partial consideration for the Employee
entering into this Employment Agreement, the Employee is being admitted as a
member of the Employer. Reference is hereby made to that certain Amended and
Restated Limited Liability Company Agreement dated as of the Closing Date, as
the same may be amended and/or restated from time to time (the "LLC Agreement").
WHEREAS, it is a condition precedent to the obligation of AMG to consummate
the transactions contemplated by the Purchase Agreement that the Employee enter
into and on the Closing Date (as defined in the Purchase Agreement) be bound by
an employment agreement with the Employer in the form hereof, supplanting any
previous employment agreement or arrangement that Employee may have had with the
Employer or the Company.
WHEREAS, it is a condition precedent to the Employee being admitted to the
Employer as a member, that the Employee enter into and on the Closing Date be
bound by an employment agreement with the Employer in the form hereof.
WHEREAS, the Company and the Employer recognize the importance of the
Employee to the Employer and to the Employer's ability to retain the client
relationships transferred to the Employer under the Purchase Agreement and the
Asset Transfer Agreement (as
such term is defined in the Purchase Agreement), and desire that the Employer
employ the Employee for the period of employment and upon and subject to the
terms herein provided.
WHEREAS, the Company and the Employer wish to be assured that the Employee
will not compete with the Employer and its Controlled Affiliates during the
period of employment, and will not for a period thereafter compete with the
Employer or its Controlled Affiliates, or solicit any Past, Present, or
Potential Clients of the Company or the Employer and will not, by such
competition or solicitation, damage the Employer's goodwill among its clients
and the general public.
WHEREAS, the Employee desires to be employed by the Employer and to refrain
from competing with the Employer or soliciting its clients and the clients of
the Company for the periods and upon and subject to the terms herein provided.
WHEREAS, the Employee has been employed by the Company for approximately
____ years, has while so employed contributed to the acquisition and retention
of the Company's clients, and will continue to seek to acquire and retain
clients and to generate goodwill in the future as an officer, employee and agent
of the Employer.
Capitalized terms used herein and not otherwise defined shall have the
meaning set forth in the LLC Agreement when used in this Employment Agreement.
AGREEMENTS
In consideration of the premises, the mutual covenants and the agreements
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto covenant and
agree as follows:
SECTION 1. TERM OF EMPLOYMENT; COMPENSATION. The Employer agrees to employ
the Employee for a period of ___ years beginning on the Closing Date (the
"Term") as an officer of the Employer except as provided herein; and the
Employee hereby accepts such employment. As consideration for the Employee's
performance hereunder, the Employer will pay the Employee for his services
during the Term hereof such amounts (which may be zero (0)) as shall be
determined by the Management Committee or its delegate(s) consistent with the
provisions of Article III of the LLC Agreement (including, by way of example and
not of limitation, the provisions of Section 3.5(c) of the LLC Agreement with
regard to the use of Operating Allocation), subject to such payroll and
withholding deductions as are required by law. Consistent with the provisions of
Section 3.5(c) of the LLC Agreement, the Employee's compensation (including
salary and bonus) will be periodically reviewed and adjusted (with respect to
both increases and/or decreases).
SECTION 2. OFFICE AND DUTIES (a) During the Term of this Employment
Agreement, the Employee shall hold such positions and perform such duties
relating to the Employer's businesses and operations as may from time to time
be assigned to him in accordance with the provisions of Article III of the
LLC Agreement. During the Term of this Employment Agreement and while
employed by the Employer, the Employee shall devote substantially all of his
working time to his duties hereunder and shall, to the best of his ability,
perform such duties in a manner which will further the business and interests
of the Employer. During the longer of the Term of this Employment Agreement
or while Employee is employed by or acting as a consultant (or in any similar
capacity) to the Employer or any of its Affiliates, the Employee shall not
engage (i) in any Prohibited Competition Activity; (ii) interfere with the
relations of the Employer or any of its Controlled Affiliates with any person
or entity who at any time during such period was a Client (which means Past,
Present, and Potential Clients); or (iii) solicit or induce or attempt to
solicit or induce, directly or indirectly, any employee or agent of or
consultant (or person acting in any similar capacity) to the Employer to
terminate its, his or her relationship therewith. The Employee agrees that he
will travel to whatever extent is reasonably necessary in the conduct of the
Employer's business.
(b) Except as provided in the LLC Agreement, during the Term of this
Agreement and while employed by the Employer, the Employee shall not, directly
or indirectly, solicit the business of any Past, Present, or Potential Clients
except on behalf and for the benefit of the Employer, or pursue any other
business activity, including, without limitation, serving as an officer,
director, employee, agent or adviser to any business entity other than the
Employer, without the Employer's prior written consent.
(c) Notwithstanding the provisions of this Section 2, the Employee may
engage in investing for his personal account (and for the accounts of members of
his Immediate Family, provided that no compensation is received by him
therefore) if each such investment is made in accordance with the Code of Ethics
of the Employer.
SECTION 3. BENEFITS. The Employee shall participate, to the extent he is
eligible and in a manner and to an extent that is fair and appropriate in light
of his position and duties with the Employer at such time, in all bonus,
pension, profit sharing, group insurance, or other fringe benefit plans which
the Employer may hereafter in its sole and absolute discretion make available
generally to its officers pursuant to the provisions of Article III of the LLC
Agreement, but the Employer will not be required to establish any such program
or plan. The Employee shall be entitled to such vacations and to such
reimbursement of expenses as the Employer's policies allow, from time to time,
to officers having comparable responsibilities and duties.
SECTION 4. TERMINATION OF EMPLOYMENT. Notwithstanding any other provision
of this Employment Agreement, Employee's employment with the Employer shall be
terminated only in the following circumstances:
(a) At any time by the Company, or by the Management Committee
(excluding for all purposes the Employee) with the prior written
consent of the Company, if For Cause; or
(b) At any time by the Management Committee (excluding for all
purposes the Employee) with the prior written consent of the Company,
if not For Cause; or
(c) At any time by the Company, or by the Management Committee
(excluding for all purposes the Employee) with the prior written
consent of the Company, upon the Permanent Incapacity of the Employee;
or
(d) Upon the death of the Employee.
SECTION 5. ALL BUSINESS TO BE THE PROPERTY OF THE EMPLOYER; ASSIGNMENT OF
INTELLECTUAL PROPERTY; CONFIDENTIALITY.
(a) The Employee agrees that any and all presently existing investment
advisory businesses of the Employer and its Controlled Affiliates (including its
predecessor, the Company or any predecessor thereto), and all businesses
developed by the Employer and its or such predecessor's Controlled Affiliates,
including by such Employee or any other employee of the Employer (including,
without limitation, employees of its predecessor, the Company or any predecessor
thereto), including, without limitation, all investment methodologies, all
investment advisory contracts, fees and fee schedules, commissions, records,
data, client lists, agreements, trade secrets, and any other incident of any
business developed by the Employer (or its predecessor, the Company or any
predecessor thereto) or their respective Controlled Affiliates or earned or
carried on by the Employee for the Employer or its predecessor, the Company or
any predecessor thereto or their respective Controlled Affiliates, and all trade
names, service marks and logos under which the Employer or its Controlled
Affiliates do business, and any combinations or variations thereof and all
related logos, are and shall be the exclusive property of the Employer or such
Controlled Affiliate, as applicable, for its or their sole use, and (where
applicable) shall be payable directly to the Employer or such Controlled
Affiliate. In addition, the Employee acknowledges and agrees that the investment
performance of the accounts managed by the Employer (and its predecessor, the
Company or any predecessor thereto) was attributable to the efforts of the team
of professionals at the Employer (or its predecessor, the Company or any
predecessor thereto, as applicable) and not to the efforts of any single
individual or subset of such team of professionals, and that therefore, the
performance records of the accounts managed by the Employer (and its
predecessor, the Company and any predecessor thereto) are and shall be the
exclusive property of the Employer.
(b) The Employee acknowledges that, in the course of performing services
hereunder and otherwise (including, without limitation, for the Employer's
predecessor, the Company or any predecessor thereto), the Employee has had, and
will from time to time have, access to information of a confidential or
proprietary nature, including without limitation, all confidential or
proprietary investment methodologies, trade secrets, proprietary or confidential
plans, client identities and information, client lists, service providers,
business operations or techniques, records and data ("Intellectual Property")
owned or used in the course of business by the Employer or its Controlled
Affiliates. The Employee agrees always to keep secret and not ever publish,
divulge, furnish, use or make accessible to anyone (otherwise than in the
regular business of the Employer and its Controlled Affiliates or as required by
court order or by law (on the written advice of outside counsel)) any
Intellectual Property of the Employer or any
Controlled Affiliate thereof unless such information can be shown to be in the
public domain through no fault of such Employee. At the termination of the
Employee's services to the Employer, all data, memoranda, client lists, notes,
programs and other papers, items and tangible media, and reproductions thereof
relating to the foregoing matters in the Employee's possession or control, shall
be returned to the Employer and remain in its possession.
(c) The Employee acknowledges that, in the course of entering into this
Employment Agreement, the Employee has had and, in the course of the operation
of the Employer, the Employee will from time to time have, access to
Intellectual Property owned by or used in the course of business by AMG. The
Employee agrees, for the benefit of the Employer and its Members, and for the
benefit of the Manager Member and AMG, always to keep secret and not ever
publish, divulge, furnish, use or make accessible to anyone (otherwise than at
the Manager Member's request or by court order or by law (on the written advice
of outside counsel)) any knowledge or information regarding Intellectual
Property (including, by way of example and not of limitation, the transaction
structures utilized by AMG) of AMG unless such information can be shown to be in
the public domain through no fault of such Employee. At the termination of the
Employee's service to the Employer, all data, memoranda, documents, notes and
other papers, items and tangible media, and reproductions thereof relating to
the foregoing matters in the Employee's possession or control shall be returned
to AMG and remain in its possession.
(d) The provisions of this Section 5 shall not be deemed to limit any of
the rights of the Employer or the Members under the LLC Agreement or under
applicable law, but shall be in addition to the rights set forth in the LLC
Agreement and those which arise under applicable law.
SECTION 6. NON-COMPETITION COVENANT.
(a) Until the later of (i) two (2) years following the termination of the
Employee's employment with the Employer or any of its Affiliates or (ii) __
years from the date hereof, the Employee shall not, directly or indirectly,
engage in any Prohibited Competition Activity. [Blank to be two years after
stated term of Employment Agreement.]
(b) In addition to, and not in limitation of, the provisions of Section
6(a), the Employee agrees, for the benefit of the Employer and the Company, that
from and after the termination of the Employee's employment with the Employer
and its Affiliates and until the later of (i) two (2) years following the
termination of the Employee's employment with the Employer or any of its
Affiliates or (ii) __ years from the date hereof, the Employee shall not,
directly or indirectly, whether as owner, part owner, shareholder, partner,
member, director, officer, trustee, employee, agent or consultant, or in any
other capacity, on behalf of himself or any Person other than the Employer and
its Controlled Affiliates: [Blank to be two years after stated term of
Employment Agreement.]
(i) provide Investment Management Services to any Person
that is a Past, Present or Potential Client of the Employer; PROVIDED,
HOWEVER, that this clause (i) shall not be applicable to clients of the
Employer (including Potential Clients) who are also members of the
Immediate Family of the Employee;
(ii) solicit or induce, whether directly or indirectly, any
Person for the purpose (which need not be the sole or primary purpose)
of (A) causing any funds with respect to which the Employer or any of
its Controlled Affiliates provides Investment Management Services to be
withdrawn from such management, or (B) causing any Client of the
Employer (including any Potential Client) not to engage the Employer or
any of its Controlled Affiliates to provide Investment Management
Services for any or additional funds;
(iii) contact or communicate with, in either case in
connection with Investment Management Services, whether directly or
indirectly, any Past, Present or Potential Clients of the Employer;
PROVIDED, HOWEVER, that this clause (iii) shall not be applicable to
clients of the Employer (including Potential Clients) who are also
members of the Immediate Family of the Employee; or
(iv) solicit or induce, or attempt to solicit or induce,
directly or indirectly, any employee or agent of, or consultant to, the
Employer or any of its Controlled Affiliates to terminate its, his or
her relationship therewith, hire any such employee, agent or
consultant, or former employee, agent or consultant, or work in any
enterprise involving investment advisory services with any employee,
agent or consultant or former employee, agent or consultant, of the
Employer or its Controlled Affiliates who was employed by or acted as
an agent or consultant to the Employer (or its predecessor, the Company
or any predecessor thereto) or its Affiliates at any time during the
two (2) year period preceding the termination of the Employee's
employment (excluding for all purposes of this sentence, secretaries
and persons holding other similar positions).
For purposes of this Section 6(b), (x) the term "Past Client" shall be
limited to those past clients who were recipients of Investment Management
Services, directly or indirectly, from the Employer (including its predecessor,
the Company or any predecessor thereto) and/or their respective Controlled
Affiliates at the date of termination of the Employee's employment or at any
time during the two (2) years immediately preceding the date of such
termination; and (y) the term "Potential Client" shall be limited to those
Persons to whom an offer was made (or other requisite action was taken) within
two (2) years prior to the date of termination of the Employee's employment.
Notwithstanding the provisions of Sections 6(a) and 6(b), the Employee may
make passive investments in an enterprise which is competitive with AMG or the
Employer the shares or other equity interests of which are publicly traded;
PROVIDED, his holding therein together with any holdings of his Affiliates and
members of his Immediate Family, are, at the time such investments are made,
less than five percent (5%) of the outstanding shares or comparable interests in
such entity.
(c) The Employee, the Employer and the Company agree that the
periods of time and the unlimited geographic area applicable to the covenants of
this Section 6 and of Section 2 are reasonable, in view of the Employee's status
as a significant stockholder of the Company, which will be acquired by AMG and
which will contribute its investment advisory business to the Employer, the
Employee's receipt of a member interest in the Employer, the
Employee's receipt of the payments specified in Section 1 above, the geographic
scope and nature of the business in which the Employer is engaged, the
Employee's knowledge of the Employer's (and its predecessor, the Company's and
any predecessor thereto's) businesses and the Employee's relationships with the
Employer's and the Company's investment advisory clients. However, if such
period or such area should be adjudged unreasonable in any judicial proceeding,
then the period of time shall be reduced by such number of months or such area
shall be reduced by elimination of such portion of such area, or both, as are
deemed unreasonable, so that this covenant may be enforced in such maximum area
and during such maximum period of time as are adjudged to be reasonable.
SECTION 7. NOTICES. All notices hereunder shall be in writing and shall be
delivered, sent by recognized overnight courier or mailed by registered or
certified mail, postage and fees prepaid, to the party to be notified at the
party's address shown below. Notices which are hand delivered or delivered by
recognized overnight courier shall be effective on delivery. Notices which are
mailed shall be effective on the third day after mailing.
(i) If to the Employer:
Xxxxxx X. Xxxxx & Co., Inc.
c/x Xxxxx Asset Management
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention:
Facsimile No.:
with a copy to:
Affiliated Managers Group, Inc.
Xxx Xxxxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxx, Senior Vice President
Facsimile No.: (000) 000-0000
(ii) if to the Employee:
with a copy to:
(iii) if to the Company:
c/o Affiliated Managers Group, Inc.
Xxx Xxxxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxx, Senior Vice President
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
unless and until notice of another or different address shall be given as
provided herein.
SECTION 8. THIRD-PARTY BENEFICIARY; ASSIGNABILITY. AMG is an intended
third-party beneficiary of the provisions of this Employment Agreement. This
Employment Agreement shall be binding upon and inure to the benefit of the
Employer and the Company, and to any person or firm who may succeed to
substantially all of the assets of the Employer or the Company. This Employment
Agreement shall not be assignable by the Employee.
SECTION 9. ENTIRE AGREEMENT. Except as set forth below, this Employment
Agreement contains the entire agreement between the Employer and the Employee
with respect to the subject matter hereof, and supersedes all prior oral and
written agreements between the Employer and the Employee with respect to the
subject matter hereof, including without limitation any oral agreements relating
to compensation. In the event of any conflict between the provisions hereof and
of the LLC Agreement, the provisions hereof shall control.
SECTION 10. REMEDIES UPON BREACH.
(a) In the event that the Employee breaches any of the non-competition or
non-solicitation provisions of this Employment Agreement (in each case,
including, without limitation, following the termination of his or her
employment with the LLC), then (A) the Employee shall forfeit its right to
receive any payment for its LLC Interests under Section 3.11 of the LLC
Agreement, although he or she shall cease to be a Non-Manager Member in
accordance with the provisions of Section 3.11(e) of the LLC Agreement and (B)
AMG (or its assignees) shall have no further obligations under any promissory
note theretofore issued to the Employee pursuant to Section 3.11(f) of the LLC
Agreement and (C) the Employer shall be entitled to withhold any other payments
to which the Employee otherwise would be entitled to offset damages resulting
from such breach; provided, however, that, absent a determination by an
arbitrator or a court of competent jurisdiction that the Employee has so
breached this Employment Agreement, such right of setoff shall not extend to any
payments to the Employee to the extent paid out of the Operating Allocation of
the LLC.
(b) The Employee recognizes and agrees that the Employer or the Company's
remedy at law for any breach of the provisions of this Employment Agreement
would be inadequate and that for any breach of such provisions by the Employee,
the Employer or the Company shall, in addition to such other remedies as may be
available to it at law or in equity or
as provided in this Employment Agreement, be entitled to injunctive relief and
to enforce their respective rights by an action for specific performance to the
extent permitted by law, and to the right of setoff against any amounts due to
the Employee by the Employer or the Company. Should the Employee engage in any
activities prohibited by this Employment Agreement, he agrees to pay over to the
Employer all compensation received in connection with such activities. Such
payment shall not impair any other rights or remedies of the Employer or the
Company or affect the obligations or liabilities of the Employee under this
Employment Agreement or applicable law.
SECTION 11. ARBITRATION OF DISPUTES. Any controversy or claim arising out
of or relating to this Employment Agreement or the breach hereof or otherwise
arising out of the Employee's employment or the termination of that employment
(including, without limitation, any claims of unlawful employment discrimination
whether based on age or otherwise) shall, to the fullest extent permitted by
law, be settled by arbitration in any forum and form agreed upon by the parties
or, in the absence of such an agreement, under the auspices of the American
Arbitration Association ("AAA") in Boston, Massachusetts in accordance with the
Employment Dispute Resolution Rules of the AAA, including, but not limited to,
the rules and procedures applicable to the selection of arbitrators, except that
the arbitrator shall apply the law as established by decisions of the U.S.
Supreme Court, the Court of Appeals for the First Circuit and the U.S. District
Court for the District of Massachusetts in deciding the merits of claims and
defenses under federal law or any state or federal antidiscrimination law, and
any awards to the Employee for violation of any antidiscrimination law shall not
exceed the maximum award to which the Employee would be entitled under the
applicable (or most analogous) federal antidiscrimination or civil rights laws.
In the event that any person or entity other than the Employee, the Employer or
the Company may be a party with regard to any such controversy or claim, such
controversy or claim shall be submitted to arbitration subject to such other
person or entity's agreement. Judgment upon the award rendered by the arbitrator
may be entered in any court having jurisdiction thereof. The parties covenant
that they will participate in the arbitration in good faith. Each party to such
arbitration shall bear its own costs and expenses in connection therewith. This
Section 11 shall be specifically enforceable. Notwithstanding the foregoing,
this Section 11 shall not preclude any party hereto from pursuing a court action
for the sole purpose of obtaining a temporary restraining order or a preliminary
injunction in circumstances in which such relief is appropriate; PROVIDED, that
any other relief shall be pursued through an arbitration proceeding pursuant to
this Section 11.
SECTION 12. ACCELERATED PUT RIGHTS.
(a) Notwithstanding any provisions contained in the LLC Agreement to the
contrary (including Article III and Article VII thereof), upon any exercise by
the Company of any of its rights under Section 3.2(b)(v) (a "Put Acceleration
Event"), AMG or its successors or assigns shall, upon the request of the
Employee, purchase all of the LLC Points in the LLC then held by the Employee
(or by its related Non-Manager Member, if the Employee is not itself the
Non-Manager Member) and its Permitted Transferees pursuant to the terms and
conditions of this Section 12 (an "Accelerated Put"). [In the event of such a
request by the Employee pursuant to the provisions of the preceding sentence,
the LLC shall, immediately prior to such purchase by AMG or its successors or
assigns, issue to the Employee all Program LLC Points then remaining in the
Purchase Reserve, and such Program LLC Points shall be included in the LLC
Points
purchased by AMG or its successors or assigns under this Section 12.] [Bracketed
sentence to be included only in Xx. Xxxxx'x Employment Agreement.]
(b) If the Employee desires to exercise his or her rights under Section
12(a), he or she shall give the Company and AMG irrevocable written notice (an
"Accelerated Put Notice") within ninety (90) days after the Put Acceleration
Event, stating that he or she is electing to sell all (but not less than all) of
the LLC Points then owned by the Employee (or by its related Non-Manager Member,
if the Employee is not itself the Non-Manager Member) and by its Permitted
Transferees.
(c) The purchase price upon exercise of an Accelerated Put (the
"Accelerated Put Price") shall be an amount equal to (i) fourteen (14.0)
multiplied by the positive difference, if any, of (x) the sum of (I) fifty
percent (50%) of the LLC's Maintenance Fees for the twenty-four (24) months
ending on the last day of the calendar quarter in which the Put Acceleration
Event occurred and (II) thirty-three and thirty-three one-hundredths percent
(33.33%) of the LLC's Earned Performance Fees for the thirty-six (36) calendar
months ending on the last day of the calendar year prior to the calendar year in
which the Accelerated Put Event occurred, minus (y) the amount by which the
actual expenses of the LLC (determined on an accrual basis in accordance with
generally accepted accounting principles consistently applied) exceeded the
Operating Allocation of the LLC (including previously reserved Operating
Allocation) during the twelve (12) months ending on the last day of the calendar
quarter in which the Put Acceleration Event occurred, multiplied by (ii) a
fraction, the numerator of which is the number of Vested LLC Points to be
purchased from such Employee (or its related Non-Manager Member) and its
Permitted Transferees on the Accelerated Purchase Date (as defined below) and
the denominator of which is the number of LLC Points outstanding on the
Accelerated Purchase Date (before giving effect to any Puts or Accelerated Puts
or any issuances, redemptions or vesting of LLC Points on such date).
(d) In the case of any Accelerated Put, the Accelerated Put Price shall be
paid by AMG (or its successors or assigns) on a date (the "Accelerated Purchase
Date") determined by AMG (but no later than sixty (60) days following delivery
of the Accelerated Put Notice) by wire transfer or certified check(s) issued to
the Employee (or its related Non-Manager Member) and its Permitted Transferees.
SECTION 13. CONSENT TO JURISDICTION. To the extent that any court action is
permitted consistent with or to enforce Section 11 of this Employment Agreement,
the parties hereby consent to the jurisdiction of the Superior Court of the
Commonwealth of Massachusetts and the United States District Court for the
District of Massachusetts. Accordingly, with respect to any such court action,
the Employee (a) submits to the personal jurisdiction of such courts; (b)
consents to service of process at the address determined pursuant to the
provisions of Section 7 hereof; and (c) waives any other requirement (whether
imposed by statute, rule of court, or otherwise) with respect to personal
jurisdiction or service of process.
SECTION 14. THIRD-PARTY AGREEMENTS AND RIGHTS. The Employee hereby confirms
that the Employee is not bound by the terms of any agreement with any previous
employer or other party which restricts in any way the Employee's use or
disclosure of information or the Employee's engagement in any business. The
Employee represents to the
Employer that the Employee's execution of this Employment Agreement, the
Employee's employment with the Employer and the performance of the Employee's
proposed duties for the Employer will not violate any obligations the Employee
may have to any such previous employer or other party. In the Employee's work
for the Employer, the Employee will not disclose or make use of any information
in violation of any agreements with or rights of any such previous employer or
other party, and the Employee will not bring to the premises of the Employer any
copies or other tangible embodiments of non-public information belonging to or
obtained from any such previous employment or other party.
SECTION 15. LITIGATION AND REGULATORY COOPERATION. During and after the
Employee's employment, the Employee shall cooperate fully with the Employer in
the defense or prosecution of any claims or actions now in existence or which
may be brought in the future against or on behalf of the Employer or the Company
or their Affiliates which relate to events or occurrences that transpired while
the Employee was employed by the Employer (including, without limitation, its
predecessor, the Company, or any predecessor thereto). The Employee's full
cooperation in connection with such claims or actions shall include, but not be
limited to, being available to meet with counsel to prepare for discovery or
trial and to act as a witness on behalf of the Employer or the Company or their
Affiliates at mutually convenient times. During and after the Employee's
employment, the Employee also shall cooperate fully with the Employer, the
Company and their Affiliates in connection with any investigation or review of
any federal, state or local regulatory, quasi-regulatory or self-governing
authority (including, without limitation, the Securities and Exchange
Commission) as any such investigation or review relates to events or occurrences
that transpired while the Employee was employed by the Employer (including,
without limitation, its predecessor, the Company, and any predecessor thereto).
The Employer shall reimburse the Employee for any reasonable out-of-pocket
expenses incurred in connection with the Employee's performance of obligations
pursuant to this Section 15.
SECTION 16. WAIVERS AND FURTHER AGREEMENTS. Neither this Employment
Agreement nor any term or condition hereof, including without limitation the
terms and conditions of this Section 16, may be waived or modified in whole or
in part as against the Company, the Employer or the Employee, except by written
instrument executed by or on behalf of each of the parties hereto other than the
party seeking such waiver or modification, expressly stating that it is intended
to operate as a waiver or modification of this Employment Agreement or the
applicable term or condition hereof, it being understood that any action under
this Section 16 on behalf of the Employer may be taken only with the approval of
the Company as the Manager Member of the Employer. Each of the parties hereto
agrees to execute all such further instruments and documents and to take all
such further action as the other party may reasonably require in order to
effectuate the terms and purposes of this Employment Agreement.
SECTION 17. AMENDMENTS; EMPLOYER'S CONSENTS. This Employment Agreement may
not be amended, nor shall any change, modification, consent, or discharge be
effected except by written instrument executed by or on behalf of the party
against whom enforcement of any change, modification, consent or discharge is
sought, it being understood that any action under this Section 17 on behalf of
the Employer may be taken only with the prior written approval of the Company as
the Manager Member of the Employer.
Whenever under this Agreement the consent of the Employer is required, that
consent shall only be effective if given with the prior written consent of the
Company as the Manager Member of the Employer.
SECTION 18. SEVERABILITY. If any provision of this Employment Agreement
shall be held or deemed to be invalid, inoperative or unenforceable in any
jurisdiction or jurisdictions, because of conflicts with any constitution,
statute, rule or public policy or for any other reason, such circumstance shall
not have the effect of rendering the provision in question unenforceable in any
other jurisdiction or in any other case or circumstance or of rendering any
other provisions herein contained unenforceable to the extent that such other
provisions are not themselves actually in conflict with such constitution,
statute or rule of public policy, but this Employment Agreement shall be
reformed and construed in any such jurisdiction or case as if such invalid,
inoperative, or unenforceable provision had never been contained herein and such
provision reformed so that it would be enforceable to the maximum extent
permitted in such jurisdiction or in such case.
SECTION 19. GOVERNING LAW. This Employment Agreement shall be governed by
and construed and enforced in accordance with the laws of the Commonwealth of
Pennsylvania which apply to contracts executed and performed solely in the
Commonwealth of Pennsylvania.
SECTION 20. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Employment
Agreement as a sealed instrument as of the date first above written.
EMPLOYEE: XXXXX ASSET MANAGEMENT, LLC
By: Xxxxxx X. Xxxxx & Co., Inc.,
its Manager Member
By:
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[Name] Name:
Title:
XXXXXX X. XXXXX & CO., INC.
BY:
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Name:
Title:
