Exhibit 10.8
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") executed on the dates
set forth on the last page of this Agreement but effective as of December 1,
2003, between XXXXXX XXXXXXX LTD., a Bermuda company (the "Company"), and XXXXX
X. XXXXXXXXX (the "Executive").
The Executive is currently employed by the Company, and the
Executive and the Company wish to continue their employment relationship, on the
terms and conditions set forth in this Agreement.
Accordingly, the Company and the Executive hereby agree as
follows:
1. Employment, Duties and Acceptance.
1.1 Employment, Duties. The Company hereby agrees to
continue to employ the Executive for the Term (as defined in Section 2.1), to
render exclusive and full-time services to the Company, in the capacity of Vice
President and Corporate Controller of the Company or such other position
reasonably equivalent in terms of title, responsibility, and reporting as he may
be assigned by the Chief Financial Officer or Chief Executive Officer of the
Company, and to perform such other duties consistent with such position(s)
(including service as a director or officer of any affiliate of the Company if
elected) as may be assigned by the Chief Financial Officer or Chief Executive
Officer of the Company; provided, however, that the Executive may participate in
civic, charitable, industry, and professional organizations to the extent that
such participation does not materially interfere with the performance of
Executive's duties hereunder.
1.2 Acceptance. The Executive hereby accepts such
employment and agrees to render the services described above. During the Term,
and consistent with the above, the Executive agrees to serve the Company
faithfully and to the best of the Executive's ability, to devote the Executive's
entire business time, energy and skill to such employment, and to use the
Executive's best efforts, skill and ability to promote the Company's interests.
1.3 Location. The duties to be performed by the Executive
hereunder shall be performed primarily at the Company's offices in Clinton, New
Jersey, subject to reasonable travel requirements consistent with the nature of
the Executive's duties from time to time on behalf of the Company. The Executive
shall keep a residence within reasonable daily commute of the Clinton, New
Jersey area throughout the Term.
2. Term of Employment.
2.1 Term. The term of the Executive's employment under
this Agreement (the "Term") shall commence on December 1, 2003 (the "Effective
Date"), and shall end on November 30, 2006, unless earlier terminated pursuant
to Section 4. The parties agree to meet in September, 2006 to discuss an
extension of the Term.
3. Compensation; Benefits.
3.1 Salary. As compensation for all services to be
rendered pursuant to this Agreement, the Company agrees to pay to the Executive
during the Term a base salary, payable monthly in arrears, at the initial annual
rate of $220,000 (the "Base Salary"). On each anniversary of the Effective Date
or such other appropriate date during each year of the Term when the salaries of
executives at the Executive's level are normally reviewed, the Company shall
review the Base Salary and determine if, and by how much, the Base Salary should
be increased. All payments of Base Salary or other compensation hereunder shall
be less such deductions or withholdings as are required by applicable law and
regulations.
3.2 Bonus. Executive shall be eligible to participate, as
determined by the Compensation Committee of the Board of Directors of the
Company (the "Board"), in the Company's annual incentive program as in effect
from time to time for executives at the Executive's level. Initially, the
Executive's participation shall be in the discretionary bonus program designated
the "Xxxxxx Xxxxxxx Annual Incentive Plan for 2002 and Subsequent Years."
3.3 Stock Options. Executive shall be eligible for annual
stock option grants, as determined by the Compensation Committee of the Board,
under the Company's stock option plan covering executives at the Executive's
level, as in effect from time to time.
3.4 Business Expenses. The Company shall pay or reimburse
the Executive for all reasonable expenses actually incurred or paid by the
Executive during the Term in the performance of the Executive's services under
this Agreement, subject to and in accordance with applicable expense
reimbursement and related policies and procedures as in effect from time to
time.
3.5 Vacation. During the Term, the Executive shall be
entitled to an annual paid vacation period or periods in accordance with the
applicable executive vacation policy as in effect from time to time, which in no
event shall be less than the vacation policy as in effect on the Effective Date.
3.6 Benefits and Perquisites. During the Term, the
Executive shall be entitled to participate in those defined benefit, defined
contribution, group insurance, medical, dental, disability and other benefit
plans and such perquisites of the Company as from time to time in effect and on
a basis no less favorable than any other executive at the Executive's level.
3.7 Change of Control. The Executive shall be covered
under the Company's Change in Control Agreement as in effect from time to time
for executives at the Executive's level. Any amounts and/or benefits payable,
paid or provided to the Executive under such Change in Control Agreement shall
be in lieu of and not in addition to amounts and/or benefits payable or provided
under this Agreement. This Agreement is not intended to preclude benefits
payable under the Change in Control Agreement should the events described
therein occur.
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4. Termination.
4.1 Termination Events.
4.1.1 Executive's employment and the Term shall
terminate immediately upon the occurrence of any of the following:
(i) the end of the Term;
(ii) the death of the Executive;
(iii) the physical or mental disability of the
Executive, whether totally or partially, such that with or without reasonable
accommodation the Executive is unable to perform the Executive's material
duties, for a period of not less than one hundred and eighty (180) consecutive
days; or
(iv) notice of termination for "Cause". As used
herein, "Cause" means (i) conviction of a felony; (ii) actual or attempted theft
or embezzlement of Company assets; (iii) use of illegal drugs; (iv) material
breach of the Agreement that the Executive has not cured within thirty (30) days
after the Company has provided the Executive notice of the material breach which
shall be given within sixty (60) days of the Company's knowledge of the
occurrence of the material breach; (v) commission of an act of moral turpitude
that in the judgment of the Board can reasonably be expected to have an adverse
effect on the business, reputation or financial situation of the Company and/or
the ability of the Executive to perform the Executive's duties; (vi) gross or
willful misconduct in performance of the Executive's duties; (vii) breach of
fiduciary duty to the Company; or (viii) willful refusal to perform the duties
of Executive's titled position.
4.1.2 The Executive may immediately resign the
Executive's position for Good Reason and, in such event, the Term shall
terminate. As used herein, "Good Reason" means without the Executive's consent
(i) material diminution in the title, duties, responsibilities or authority
described in Section 1.1 above; (ii) reduction of Base Salary and benefits
except for across-the-board changes for executives at the Executive's level;
(iii) exclusion from executive benefit/compensation plans; (iv) material breach
of the Agreement that the Company has not cured within thirty (30) days after
the Executive has provided the Company notice of the material breach which shall
be given within sixty (60) days of the Executive's knowledge of the occurrence
of the material breach; or (v) resignation in compliance with applicable law or
rules of professional conduct.
4.1.3 The Company may terminate the Executive's
employment thirty (30) days following notice of termination without Cause given
by the Company and, in such event, the Term shall terminate. During such thirty
(30) day notice period, the Company may require that the Executive cease
performing some or all of the Executive's duties and/or not be present at the
Company's offices and/or other facilities.
4.1.4 The Executive may voluntarily resign the
Executive's position effective thirty (30) days following notice to the Company
of the Executive's intent to voluntarily resign without Good Reason and, in such
event, the Term shall terminate. During such thirty (30) day notice period, the
Company may require that the Executive cease performing some or all of the
Executive's duties and/or not be present at the Company's offices and/or other
facilities.
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4.1.5 The date upon which Executive's employment and
the Term terminate pursuant to this Section 4.1 shall be the Executive's
"Termination Date" for all purposes of this Agreement.
4.2 Payments Upon a Termination Event.
4.2.1 Following any termination of the Executive's
employment, the Company shall pay or provide to the Executive, or the
Executive's estate or beneficiary, as the case may be, (i) Base Salary earned
through the Termination Date; (ii) the balance of any awarded but as yet unpaid,
annual cash incentive or other incentive awards for any calendar year prior to
the calendar year during which the Executive's Termination Date occurs; (iii) a
payment representing the Executive's accrued but unused vacation; (iv) any
vested, but not forfeited benefits on the Termination Date under the Company's
employee benefit plans in accordance with the terms of such plans; and (v)
benefit continuation and conversion rights to which the Executive is entitled
under the Company's employee benefit plans.
4.2.2 Following a termination by the Company without
Cause or by the Executive for Good Reason, the Company shall pay or provide to
the Executive in addition to the payments in Section 4.2.1 above, (i) Base
Salary at the rate in effect on the Termination Date ("Termination Base Salary
Rate"), payable monthly following the Termination Date and continuing for
twenty-four months thereafter; (ii) two years of continued health and welfare
benefit plan coverage following the Termination Date (excluding any additional
vacation accrual or sick leave) at active employee levels and active employee
cost; (iii) except as prohibited by law, removal of transfer and other
restrictions from all shares of capital stock of the Company registered in the
Executive's name; (iv) full vesting of all stock options to purchase shares of
capital stock of the Company; (v) continued use for up to 12 weeks of any
Company-provided vehicle provided to Executive in accordance with Section 3.6
above, and (vi) executive level career transition assistance services by a firm
selected by the Executive and approved by the Company at a cost not to exceed a
total of $8,000. Notwithstanding any other provision of this Agreement, as
consideration for the pay and benefits that the Company shall provide the
Executive pursuant to this Section 4.2.2, the Executive shall provide the
Company an enforceable waiver and release agreement in a form that the Company
normally requires.
4.3 No Mitigation. Upon termination of the Executive's
employment with the Company, the Executive shall be under no obligation to seek
other employment or otherwise mitigate the obligations of the Company under this
Agreement.
5. Protection of Confidential Information; Non-Competition.
5.1 The Executive acknowledges that the Executive's
services will be unique, that they will involve the development of
Company-subsidized relationships with key customers, suppliers, and service
providers as well as with key Company employees and that the Executive's work
for the Company will give the Executive access to highly confidential
information not available to the public or competitors, including trade secrets
and confidential marketing, sales, product development and other data and
information which it would be impracticable for the Company to effectively
protect and preserve in the absence of this Section 5 and the disclosure or
misappropriation of which could materially adversely affect the Company.
Accordingly, the Executive agrees:
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5.1.1 except in the course of performing the
Executive's duties provided for in Section 1.1, not at any time, whether before,
during or after the Executive's employment with the Company, to divulge to any
other entity or person any confidential information acquired by the Executive
concerning the Company's or its subsidiaries' or affiliates' financial affairs
or business processes or methods or their research, development or marketing
programs or plans, or any other of its or their trade secrets. The foregoing
prohibitions shall include, without limitation, directly or indirectly
publishing (or causing, participating in, assisting or providing any statement,
opinion or information in connection with the publication of) any diary, memoir,
letter, story, photograph, interview, article, essay, account or description
(whether fictionalized or not) concerning any of the foregoing, publication
being deemed to include any presentation or reproduction of any written, verbal
or visual material in any communication medium, including any book, magazine,
newspaper, theatrical production or movie, or television or radio programming or
commercial. In the event that the Executive is requested or required to make
disclosure of information subject to this Section 5.1.1 under any court order,
subpoena or other judicial process, then, except as prohibited by law, the
Executive will promptly notify the Company, take all reasonable steps requested
by the Company to defend against the compulsory disclosure and permit the
Company to control with counsel of its choice any proceeding relating to the
compulsory disclosure. In such event, Executive shall have the right to also
retain counsel of his own choosing, and the Company shall pay all fees and costs
incurred in connection therewith. The Executive acknowledges that all
information, the disclosure of which is prohibited by this section, is of a
confidential and proprietary character and of great value to the Company and its
subsidiaries and affiliates.
5.1.2 to deliver promptly to the Company on
termination of the Executive's employment with the Company, or at any time that
the Company may so request, all confidential memoranda, notes, records, reports,
manuals, drawings, software, electronic/digital media records, blueprints and
other documents (and all copies thereof) relating to the Company's (and its
subsidiaries' and affiliates') business and all property associated therewith,
which the Executive may then possess or have under the Executive's control.
5.2 In consideration of the Company's entering into this
Agreement, the Executive agrees that at all times during the Term and thereafter
for the time period described hereinbelow, the Executive shall not, directly or
indirectly, for Executive or on behalf of or in conjunction with, any other
person, company, partnership, corporation, business, group, or other entity
(each, a "Person"):
5.2.1 until the first anniversary of the Termination
Date, engage in any activity for or on behalf of a Competitor, as director,
employee, shareholder, consultant or otherwise, which is the same as or similar
to activity in which Executive engaged at any time during the last two (2) years
of employment by the Company;
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5.2.2 until the second anniversary of the Termination
Date, (i) call upon any Person who is, at such Termination Date, engaged in
activity on behalf of the Company or any subsidiary or affiliate of the Company
for the purpose or with the intent of enticing such Person to cease such
activity on behalf of the Company or such subsidiary or affiliate; or (ii)
solicit, induce, or attempt to induce any customer of the Company to cease doing
business in whole or in part with or through the Company or a subsidiary or
affiliate, or to do business with any Competitor.
For purposes of this Agreement, "Competitor" means a person or
entity who or which is engaged in a material line of business conducted by the
Company. For purposes of this Agreement, "a material line of business conducted
by the Company" means an activity of the Company generating gross revenues to
the Company of more than twenty-five million dollars ($25,000,000) in the
immediately preceding fiscal year of the Company.
5.3 If the Executive commits a breach or threatens to
breach any of the provisions of Section 5.1 or 5.2 hereof, the Company shall
have the right and remedy to have the provisions of this Agreement specifically
enforced by injunction or otherwise by any court having jurisdiction, it being
acknowledged and agreed that any such breach will cause irreparable injury to
the Company in addition to money damage and that money damages alone will not
provide a complete or adequate remedy to the Company, it being further agreed
that such right and remedy shall be in addition to, and not in lieu of, any
other rights and remedies available to the Company under law or in equity.
5.4 If any of the covenants contained in Sections 5.1, 5.2
or 5.3, or any part thereof, hereafter are construed to be invalid or
unenforceable, the same shall not affect the remainder of the covenant or
covenants, which shall be given full effect, without regard to the invalid
portions.
5.5 The period during which the prohibitions of Section
5.2 are in effect shall be extended by any period or periods during which the
Executive is in violation of Section 5.2.
5.6 If any of the covenants contained in Sections 5.1 or
5.2, or any part thereof, are held to be unenforceable, the parties agree that
the court making such determination shall have the power to revise or modify
such provision to make it enforceable to the maximum extent permitted by
applicable law and, in its revised or modified form, said provision shall then
be enforceable.
5.7 The parties hereto intend to and hereby confer
jurisdiction to enforce the covenants contained in Sections 5.1, 5.2 and 5.3
upon the courts of any state within the geographical scope of such covenants. In
the event that the courts of any one or more of such states shall hold such
covenants wholly unenforceable by reason of the breadth of such covenants or
otherwise, it is the intention of the parties' hereto that such determination
not bar or in any way affect the Company's right to the relief provided above in
the courts of any other states within the geographical scope of such covenants
as to breaches of such covenants in such other respective jurisdictions, the
above covenants as they relate to each state being for this purpose severable
into diverse and independent covenants.
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6. Intellectual Property.
Notwithstanding and without limiting the provisions of Section
5, the Company shall be the sole owner of all the products and proceeds of the
Executive's services hereunder, including, but not limited to, all materials,
ideas, concepts, formats, suggestions, developments, arrangements, packages,
programs and other intellectual properties that the Executive may acquire,
obtain, develop or create in connection with or during the Term, free and clear
of any claims by the Executive (or anyone claiming under the Executive) of any
kind or character whatsoever (other than the Executive's right to receive
payments hereunder), the Executive shall, at the request of the Company, execute
such assignments, certificates or other instruments as the Company may from time
to time deem necessary or desirable to evidence, establish, maintain, perfect,
protect, enforce or defend its right, title or interest in or to any such
properties.
7. Indemnification.
In addition to any rights to indemnification to which the
Executive is entitled under the Company's charter and by-laws, to the extent
permitted by applicable law, the Company will indemnify, from the assets of the
Company supplemented by insurance in an amount determined by the Company, the
Executive at all times, during and after the Term, and, to the maximum extent
permitted by applicable law, shall pay the Executive's expenses (including
reasonable attorneys' fees and expenses, which shall be paid in advance by the
Company as incurred, subject to recoupment in accordance with applicable law) in
connection with any threatened or actual action, suit or proceeding to which the
Executive may be made a party, brought by any shareholder of the Company
directly or derivatively or by any third party by reason of any act or omission
or alleged act or omission in relation to any affairs of the Company or any
subsidiary or affiliate of the Company of the Executive as an officer, director
or employee of the Company or of any subsidiary or affiliate of the Company. The
Company shall use its best efforts to maintain during the Term and thereafter
insurance coverage sufficient in the determination of the Company to satisfy any
indemnification obligation of the Company arising under this Section 7.
8. Notices.
All notices, requests, consents and other communications
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given if delivered personally, one day after sent by
overnight courier or three days after mailed first class, postage prepaid, by
registered or certified mail, as follows (or to such other address as either
party shall designate by notice in writing to the other in accordance herewith):
If to the Company, to:
Xxxxxx Xxxxxxx, Inc.
Xxxxxxxxxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Attention: General Counsel
If to the Executive, to the Executive's principal residence as
reflected in the records of the Company.
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9. General.
9.1 This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New Jersey applicable to
agreements made between residents thereof and to be performed entirely in New
Jersey.
9.2 The section headings contained herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
9.3 This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter hereof, and
supersedes all prior agreements, arrangements and understandings, written or
oral, relating to the subject matter hereof. No representation, promise or
inducement has been made by either party that is not embodied in this Agreement,
and neither party shall be bound by or liable for any alleged representation,
promise or inducement not so set forth. Notwithstanding the foregoing, the
Company and the Executive understand and agree that this Agreement does not
supersede the KERP Letter Agreement between the Company and Executive, dated as
of December 1, 2003.
9.4 This Agreement, and the Executive's rights and
obligations hereunder, may not be assigned by the Executive, nor may the
Executive pledge, encumber or anticipate any payments or benefits due hereunder,
by operation of law or otherwise. The Company may assign its rights, together
with its obligations, hereunder (i) to any affiliate or (ii) to a third party in
connection with any sale, transfer or other disposition of all or substantially
all of any business to which the Executive's services are then principally
devoted, provided that no assignment pursuant to clause (ii) shall relieve the
Company from its obligations hereunder to the extent the same are not timely
discharged by such assignee.
9.5 The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement or the Term to the
extent necessary to the intended preservation of such rights and obligations.
9.6 This Agreement may be amended, modified, superseded,
canceled, renewed or extended and the terms or covenants hereof may be waived,
only by a written instrument executed by both of the parties hereto, or in the
case of a waiver, by the party waiving compliance. The failure of either party
at any time or times to require performance of any provision hereof shall in no
manner affect the right at a later time to enforce the same. No waiver by either
party of the breach of any term or covenant contained in this Agreement, whether
by conduct or otherwise, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such breach, or a waiver of
the breach of any other term or covenant contained in this Agreement.
9.7 This Agreement may be executed in two or more
counterparts, each of which shall he deemed to be an original but all of which
together will constitute one and the same instrument.
9.8 The parties acknowledge that this Agreement is the
result of arm's-length negotiations between sophisticated parties each afforded
the opportunity to utilize representation by legal counsel. Each and every
provision of this Agreement shall be construed as though both parties
participated equally in the drafting of same, and any rule of construction that
a document shall be construed against the drafting party shall not be applicable
to this Agreement.
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10. Dispute Resolution.
Subject to the rights of the Company pursuant to Section 5.3
above, any controversy, claim or dispute arising out of or relating to this
Agreement, the breach thereof, or the Executive's employment by the Company
shall be settled by arbitration with three arbitrators. The arbitration will be
administered by the American Arbitration Association in accordance with its
National Rules for Resolution of Employment Disputes. The arbitration proceeding
shall be confidential, and judgment on the award rendered by the arbitrator may
be entered in any court having jurisdiction. Any such arbitration shall take
place in the Clinton, New Jersey area, or in any other mutually agreeable
location. In the event any judicial action is necessary to enforce the
arbitration provisions of this Agreement, sole jurisdiction shall be in the
federal and state courts, as applicable, located in New Jersey. Any request for
interim injunctive relief or other provisional remedies or opposition thereto
shall not be deemed to be a waiver or the right or obligation to arbitrate
hereunder. The arbitrator shall have the discretion to award reasonable
attorneys' fees, costs and expenses to the prevailing party. To the extent a
party prevails in any dispute arising out of this Agreement or any of its terms
and provisions, all reasonable costs, fees and expenses relating to such
dispute, including the parties' reasonable legal fees, shall be borne by the
party not prevailing in the resolution of such dispute, but only to the extent
that the arbitrator or court, as the case may be, deems reasonable and
appropriate given the merits of the claims and defenses asserted.
11. Free to Contract.
The Executive represents and warrants to the Company that
Executive is able freely to accept engagement and employment by the Company as
described in this Agreement and that there are no existing agreements,
arrangements or understandings, written or oral, that would prevent Executive
from entering into this Agreement, would prevent Executive or restrict Executive
in any way from rendering services to the Company as provided herein during the
Term or would be breached by the future performance by the Executive of
Executive's duties hereunder. The Executive also represents and warrants that no
fee, charge or expense of any sort is due from the Company to any third person
engaged by the Executive in connection with Executive's employment by the
Company hereunder, except as disclosed in this Agreement.
12. Subsidiaries and Affiliates.
As used herein, the term "subsidiary" shall mean any
corporation or other business entity controlled directly or indirectly by the
Company or other business entity in question, and the term "affiliate" shall
mean and include any corporation or other business entity directly or indirectly
controlling, controlled by or under common control with the Company or other
business entity in question.
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IN WITNESS WHEREOF, the parties have executed this Agreement
on the dates set forth below but effective as of December 1, 2003.
XXXXXX XXXXXXX LTD.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Chairman, President and
Chief Executive Officer
Dated: April 27, 2004
/s/Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
Dated: April 27, 2004
