Exhibit 10(J)
WINFIELD CAPITAL CORP.
000 XXXXXXXXXX XXXXXX
XXXXX XXXXXX, XXX XXXX 00000
(000) 000-0000
November 1, 2000
Mr. Xxxxx Xxxxxxxxx
c/x Xxxxxxxx Capital Corp.
000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Dear Xx. Xxxxxxxxx:
This letter (the "Agreement") sets forth the agreement between you and
Winfield Capital Corp. (the "Company"), pursuant to which you are to be employed
as a Managing Director of the Company.
1. TERM. The term of this Agreement shall commence on the date hereof (the
"Effective Date") and shall continue until the close of business on the day
immediately preceding the two (2) year anniversary of the Effective Date unless
it is sooner terminated as provided herein.
2. NATURE OF ENGAGEMENT. You shall serve as part of the executive
management team of the Company and as a Managing Director of the Company, and in
that connection you shall perform such functions and duties commensurate with
the office of a Managing Director which the Board of Directors may reasonably
assign to you from time to time, including, but not limited to, soliciting,
reviewing and recommending investment opportunities for the Company.
3. SCOPE OF EMPLOYMENT. You will devote substantially all of your time and
efforts during normal business hours (other than vacation periods) to the
business of the Company; it being understood by the Company that you may be on a
regular basis engaging in other non-competitive business activities; provided,
however, that you may not make investments and/or loans that qualify as the type
of transaction that the Company, as a small business investment company, may
conclude, except as otherwise permitted pursuant to formal or informal policies
of the Company; and further provided, that you may not own, as an investment,
publicly traded securities of any corporation or other entity which competes
with the business of the Company if such securities, in the aggregate,
constitute more than 5% of any class of outstanding securities of such
corporation or other entity.
4. COMPENSATION.
(a) GENERAL. In consideration of your obligations hereunder, the Company
shall pay you a salary (the "Salary") at the rate of Two Hundred Forty-Nine
Thousand Four Hundred and Eighty Dollars ($249,480) for the first twelve-month
period hereunder, and at the rate of Two Hundred Sixty-One Thousand Nine Hundred
Fifty-four Dollars ($261,954) for the second twelve-month period hereunder, and
in such case plus other benefits as are set forth in Paragraph 6 of this
Agreement.
(b) PAYMENT. Your Salary shall be payable at the annual rate during the
term hereof in equal installments not less frequently than monthly and shall be
subject to withholding for federal income taxes, social security and where
applicable, state and city income, unemployment compensation and all other
applicable taxes.
(c) DISABILITY. Disability is defined as a physical or mental illness,
incapacity or infirmity as the result of which you are unable to perform your
duties hereunder for a continuing period of at least six (6) months, which
physical or mental illness, incapacity or infirmity shall be determined by a
reputable licensed physician selected by you and approved by the Company and who
is Board-certified in the specialty most closely related to the nature of the
mental and/or physical disability alleged to exist.
5. AUTOMOBILE. Either on a purchase or lease basis (subject to a maximum
lease price of $750 a month plus excess lease mileage charges), the Company will
provide and maintain for your use during the term of this Agreement one new
automobile. The Company shall pay for automobile insurance, gasoline, repair,
garaging and upkeep expenses.
6. OTHER BENEFITS.
(a) BENEFIT PLAN. You shall be entitled to participate in all pension,
insurance, medical, disability, 401(k) and other employee benefit plans and
programs generally provided by the Company to its executive officers from time
to time. The Company shall pay the premiums on all major medical insurance
policies covering you and the members of your immediate family while you are
employed hereunder and will provide you with accident, health and life insurance
comparable to that maintained by the Company for its executive officers. In the
absence of any such plan, the Company will reimburse you for your costs in
obtaining medical, health and disability benefits. The Company will at all times
maintain for the benefit of your designated beneficiaries term life insurance on
your life in an amount equal to no less than $1,000,000, or, in lieu thereof, at
your option, pay an amount equal to the annual premium due on such term life
insurance to an insurance company of your choice with respect to any policy on
your life as you may designate.
(b) VACATION. You shall be entitled to six (6) weeks paid vacation in each
twelve-month period during the term hereof at such time as shall be convenient
for the Company and you. You shall be entitled to the benefits of the Company's
policies involving sick leave and holidays.
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(c) EXPENSES. The Company shall pay or reimburse you for all reasonable
expenses paid by you during the term of this Agreement in the performance of
your duties hereunder (including, but not limited to, legal fees incurred by you
in connection with the execution of this Agreement and any fees incurred, legal
or otherwise, relating to enforcement of this Agreement), upon presentation of
expense statements or vouchers or such other supporting information as the
Company may reasonably require from time to time.
(d) SUPPORT STAFF. You will be entitled to receive secretarial, clerical
and other support services from the Company, including, but not limited to, a
private office.
(e) BONUS PLANS AND STOCK OPTION PLANS. If the Company adopts any bonus
plans and/or stock option plans that includes executive officers of the Company,
you will be eligible to participate in such plans on an equitable basis.
7. TERMINATION.
(a) BY THE COMPANY "FOR CAUSE". If the Company terminates your employment
"for cause" you will be entitled to receive: (i) your accrued Salary for the
period ending on the effective date of the termination of your employment, which
amount shall be payable in the manner described in Paragraph 4(b); and (ii) any
other compensation or benefit under any plan maintained by the Company for its
executive officers, and in which you were participating at the time your
employment was terminated, but only in accordance with the terms of such plans.
(b) DEATH. If you die during the term of your employment hereunder, the
Company will pay your personal representatives, legatee, appointee or
distributee, as the case may be: (i) a $5,000 lump sum death benefit payable
within 30 days of the date of your death; (ii) your accrued Salary for the
period ending on the last day of the month in which your death occurs which
amount shall be payable in the manner described in Paragraph 4(b); and (iii) any
other compensation or benefit under any plan maintained by the Company for its
executive officers and in which you were participating at the time of your
death, but only in accordance with the terms of such plans.
(c) DISABILITY. Either you or the Company may terminate your employment
hereunder as a result of a Disability. If your employment is terminated pursuant
to this Paragraph 7(c), you will be entitled to receive: (i) your accrued Salary
paid in accordance with the provisions of Paragraph 4(b) for the period ending
on the effective date of the termination of your employment; and (ii) any other
compensation or benefit under any plan maintained by the Company for its
executive officers and in which you are participating, but only in accordance
with the terms of such plans.
(d) BY YOU. If you voluntarily terminate your employment with the Company
for any reason other than (i) as a result of your Disability pursuant to
Paragraph 7(c) or (ii) pursuant to Paragraph 8(a), you shall be entitled to
receive: (x) your accrued Salary for the period ending on the effective date of
the termination of your employment which amount shall
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be payable in the manner described in Paragraph 4(b); and (y) any other
compensation or benefit under any plan maintained by the Company for its
executive officers, and in which you are participating, but only in accordance
with the terms of such plans.
(e) BY THE COMPANY FOR ANY REASON OTHER THAN DEATH, DISABILITY OR "FOR
CAUSE" OR BY YOU PURSUANT TO PARAGRAPH 8(A). If the Company terminates your
employment for any reason other than Death, "for cause," or for Disability
pursuant to Paragraph 7(c), or if you terminate your employment with the Company
pursuant to Paragraph 8(a), you shall be entitled to receive: (i) your accrued
Salary for the period ending on the effective date of the termination of your
employment which amount shall be payable in the manner described in Paragraph
4(b); (ii) an amount equal to the balance of your Salary as provided under
Paragraph 4 for the remaining term of the Agreement commencing on the effective
date of the termination of your employment and ending on the Expiration Date;
and (iii) any other compensation or benefits under any plan maintained by the
Company for its executive officers, and in which you were participating at the
time your employment was terminated, but only in accordance with the terms of
such plans and programs. The amounts to which you shall be entitled under this
subparagraph (e) shall be paid to you in a lump sum within 10 days after the
termination of your employment; such amounts shall be deemed damages and not a
penalty.
(f) "FOR CAUSE". As used in this Agreement, the following actions or events
shall be the exclusive grounds for termination of your employment "for cause":
(i) your failure or refusal to perform your duties hereunder (other than a
failure or refusal resulting from your incapacity due to physical and/or mental
illness), which continues for a period of more than twenty days after written
notice by the Company to you of the acts constituting such failure or refusal
and provided that you are given an opportunity to present such matter to the
Board, (ii) your conviction of a felony directly and materially affecting the
Company, (iii) your inability to perform your duties hereunder as a result of
chronic alcoholism or drug addiction, (iv) your conviction or any crime of
dishonesty or theft involving the Company, or (v) your gross negligence or
willful misconduct.
8. ADDITIONAL PROVISIONS APPLICABLE TO TERMINATION.
(a) CERTAIN EVENTS CONSTITUTING TERMINATION WITHOUT CAUSE. For purposes of
Paragraph 7(e) hereof, you will be entitled to elect that the Company shall have
terminated your employment without cause upon the happening of any of the
following events: (i) a substantial diminution in your duties from those
currently performed by you, (ii) a substantial reduction in your authority from
that then currently exercised by you, (iii) a change in control of the Company,
whether it is caused by the acquisition of a majority of the outstanding shares
of Common Stock of the Company or a change in a majority of the directors of the
Company, to which you object, or (iv) any material failure (other than a failure
to make payments) by the Company to comply with any of the provisions of this
Agreement, which change or failure, as the case may be, continues unremedied for
thirty (30) days after you have given the Board written notice of such change or
failure which notice specifies in detail the change or failure, as the case may
be. You shall evidence such election by notice in writing to the Company within
30 days after you receive notification of any of such events; conversely, if
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you have concluded in good faith that any of the events referred to in clauses
(i) through (iv) hereof shall have occurred, you shall be entitled to serve
notice upon the Company and termination will be deemed to have occurred under
this subparagraph (a) if cure shall not have been effected within 30 days after
such notice.
(b) NOTICE. Except in the case of termination "for cause" which shall be
effective immediately upon written notice thereof which notification shall state
the reasons for such termination, the party desiring to terminate your
employment hereunder shall notify the other party hereto in writing at least 60
days before the effective date of the termination of your employment hereunder
which notification shall state the reasons for such termination and the
effective date of the termination of your employment.
9. CONFIDENTIALITY.
(a) Except as required by subpoena or judicial edict, during your
employment hereunder and thereafter for one year, you will not disclose,
communicate or divulge to any person (other than to officers or employees of the
Company whose duties require such knowledge or to officers or employees of other
entities if the purpose of such disclosure is to further the Company's business
with such entities and is reasonably required therefor) or use for your personal
benefit or the benefit of anyone other than the Company, any confidential
information employed in or proposed to be employed in the Company's business
which comes to or came to your knowledge in the course of or by reason of your
prior employment by the Company and which is not otherwise in the public domain.
(b) Upon the termination of your employment hereunder, you promptly will
deliver to the Company all memoranda records, reports and other documents (and
all copies thereof) relating to the Company's business, which you may then
possess or have under your control.
10. ADDITIONAL PROVISIONS.
(a) NON-ASSIGNABILITY. Neither you nor the Company may assign this
Agreement without the consent of the other party hereto.
(b) INTEREST. If the Company fails to pay you the compensation provided in
Paragraph 7 when due, all unpaid amounts owed by the Company to you under such
paragraph of this agreement shall bear interest at the lower of (i) the rate of
2% over the rate publicly announced, from time to time, by The Chase Manhattan
Bank, N.A. in New York, New York as its "prime rate" or (ii) the highest rate
permitted by law, from the date due until paid.
(c) NOTICES. All notices or statements required or permitted to be given
hereunder shall be in writing and shall be given either personally, or by
mailing the same in a sealed envelope, first-class mail, postage prepaid and
either certified or registered, return receipt requested, addressed to the
Company at its principal offices and to you at your address set forth on page 1
hereof or at such other address as either party shall designate by notice to the
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other in the manner provided herein for giving notice. All notices and
statements shall be deemed to have been given (i) on the date of delivery, if
delivered personally; (ii) one business day after delivery to a nationally
recognized courier service if marked for next business day delivery; or (iii)
five business days after the date of mailing, if mailed.
(d) INJUNCTION. You agree that violations of Paragraph 9 may cause
irreparable injury to the Company for which the remedy at law is not adequate,
and the Company shall be entitled to preliminary, permanent and other injunctive
relief against any breach of the provisions of Paragraph 9.
(e) ARBITRATION. Except as provided in subparagraph (d) hereof, any dispute
or controversy arising out of or relating to this Agreement, or any breach of
this Agreement, shall be settled by arbitration to be held in the City of New
York in accordance with the rules then in effect of the American Arbitration
Association or any successor thereto. The arbitrator may grant injunctive or
other relief in such dispute or controversy. The decision of the arbitrator
shall be final, conclusive, and binding on the parties to the arbitration.
Judgment may be entered on the arbitrator's decision in any court having
jurisdiction, and the parties irrevocably consent to the jurisdiction of the New
York State courts for this purpose. In any such arbitration, the parties waive
personal service of any process or other papers and agree that service thereof
may be made in accordance with Paragraph 10(c).
(f) AMENDMENTS. This Agreement may not be changed, amended, terminated or
superseded orally, but only by an agreement in writing, nor may any of the
provisions hereof be waived orally, but only by an instrument in writing, in any
such case signed by the party against whom enforcement of any change, amendment,
termination, waiver, modification, extension or discharge is sought.
(g) HEADINGS. All descriptive headings of the several paragraphs or
subclauses of this Agreement are inserted for convenience only and shall be
given no effect in the construction of this Agreement.
(h) 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 instrument.
(i) SEVERABILITY. If any provision of this Agreement, or part thereof, is
held to be unenforceable, the remainder of this Agreement and provision, as the
case may be, shall nevertheless remain in full force and effect.
(j) ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the Company and you with respect to the subject matter
hereof.
(k) GOVERNING LAW. This Agreement and all of the provisions hereof will be
governed by and construed and enforced in accordance with the laws of the State
of New York as an agreement made and to be performed entirely within such State.
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(l) INDEMNIFICATION. For so long as you are an officer of the Company, the
Company shall not amend its bylaws or Certificate of Incorporation so as to
amend its existing policies as to indemnification of officers and directors of
the Company without your prior written consent; provided that you shall be
deemed to have given such consent with respect to any such amendment as may be
required by law, rule or regulation applicable to the Company.
If the foregoing is acceptable to you, kindly execute a copy of this letter
and return it to the Company, whereupon it shall become binding upon you and the
Company.
Very truly yours,
WINFIELD CAPITAL CORP.
By:_______________________________________
Xxxx X. Xxxxxx, Chief Executive Officer
ACKNOWLEDGED AND
AGREED TO THIS 4TH DAY
OF APRIL, 2001, EFFECTIVE
AS OF THE EFFECTIVE DATE
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Xxxxx Xxxxxxxxx
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