Exhibit 10.2
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement"), entered into this 25th day of
April, 1997, between May & Xxxx, Inc., a Delaware corporation (the "Company")
and Xxxxx X. Xxxxx ("Executive").
WITNESSETH:
A. The Company desires to obtain the benefits of Executive's knowledge,
skill, and experience by employing Executive upon the terms and subject to the
conditions of this Agreement.
B. Executive desires to be employed by the Company upon the terms and
subject to the conditions of this Agreement.
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth below, and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and Executive hereby
covenant and agree as follows:
1. Definitions. For purposes of this Agreement, the following
capitalized terms shall have the following meanings, and all other capitalized
terms used in this Agreement but not defined in this paragraph 1 shall have the
meanings assigned elsewhere in this Agreement:
"Base Amount" means $400,000.
"Cause" has the meaning assigned in paragraph 5(a).
"Change in Control" has the meaning assigned in paragraph 6(f).
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor thereto.
"Compensation Committee" means the applicable compensation committee of the
Board of Directors of the Company.
"Disabled" or "Disability" has the meaning assigned in paragraph 5(c).
"Employment Period" has the meaning assigned in paragraph 2.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
any successor thereto.
"Executive Plan" means the Amended and Restated 1994 Executive Stock Option
Plan of May & Xxxx, Inc.
"Good Reason" has the meaning assigned in paragraph 6(e).
"Initial Consulting Period" has the meaning assigned in paragraph 3(a).
"Notice of Termination" means a written notice of either the Company or
Executive, as applicable, setting forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination.
"Option Agreements" has the meaning assigned to it in paragraph 16.
"Termination Date" has the meaning assigned in the initial paragraph of
paragraph 5.
2. Employment Period. The Company shall employ Executive, and Executive
shall be employed by the Company and shall provide services to the Company for
the period beginning on the date hereof, and continuing for a period of five
years from the date that he becomes President and Chief Operating Officer
pursuant to paragraph 3(b) (whereby each year is comprised of 12 complete,
consecutive months) (the "Employment Period") or such earlier date on which
Executive's employment is terminated in accordance with paragraph 5 below;
provided, however, that after expiration of the initial Employment Period, the
Employment Period shall automatically be extended or re-extended for successive
one year periods unless the Company or Executive delivers a notice specifying
such party's intent not to extend or re-extend the Employment Period at least
ninety (90) days prior to an extension or re-extension date.
3. Performance of Duties.
(a) From the date hereof until the later of (i) May 19, 1997 and (ii)
that date that Executive's employment shall not conflict with his existing
obligations (the "Initial Consulting Period"), Executive shall serve as a
consultant to the Company, providing such services that he can provide as
are consistent with his existing obligations.
(b) Commencing on the day after termination of the Initial Consulting
Period through and including September 30, 1997, Executive's title shall be
President and Chief Operating Officer of the Company, and he shall possess
such powers and perform such duties as are normally incident to such
positions, as provided in the By-laws of the Company and in accordance with
the General Corporation Law of the State of Delaware. During this period,
(i) Executive shall report only to the Chief Executive Officer of the
Company and the Board of Directors of the Company, (ii) the Chief Financial
Officer of the Company shall report jointly to the Chief Executive Officer
and the President and Chief Operating Officer, and (iii) all other
employees of the Company shall report to the President and Chief Operating
Officer.
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(c) Commencing October 1, 1997 without further action by the Company,
Executive shall become President and Chief Executive Officer of the
Company, and he shall possess such powers and perform such duties as are
normally incident to such positions, as provided in the By-laws of the
Company and in accordance with the General Corporation Law of the State of
Delaware. During this period, Executive agrees that he shall perform his
duties faithfully and efficiently subject to the direction of the Board of
Directors of the Company, and the Company agrees that Executive shall be
required to report only to the Board of Directors.
(d) Executive agrees that during the Employment Period he shall devote
substantially his full business time to the business affairs of the
Company, provided, however, that notwithstanding any other provision
hereof, the parties acknowledge that Executive may engage in other business
activities, including but not limited to attending to his personal
investment activities and serving as a member of the board of directors of
public, private, and not-for-profit companies, to the extent that such
activities do not interfere with the performance of his duties hereunder,
and that Executive shall be entitled to retain all compensation (whether in
the form of cash, equity securities or perquisites) paid or delivered to
Executive in connection with such activities. Executive agrees that
Executive shall not, without the prior consent of the Board of Directors of
the Company (which consent shall not be unreasonably withheld), agree to
serve on any boards of directors other than the boards of directors upon
which Executive presently serves.
4. Compensation. For services rendered by Executive after the Initial
Consulting Period, and upon the condition that Executive fully and faithfully
perform all of his duties and obligations set forth herein, Executive shall be
compensated for his services as follows:
(a) Subject to the following sentence, Executive shall receive an annual
salary, payable in monthly or more frequent installments, in an amount
equal to the Base Amount, less income tax withholdings and other
normal employee deductions. Executive agrees that for the period
commencing on the day after termination of the Initial Consulting
Period and ending on September 30, 1997, his compensation shall be
paid at the rate of $350,000 per annum. The Base Amount shall be
reviewed annually as of the end of each fiscal year commencing
September 30, 1997 by the Compensation Committee, and may, at the sole
discretion of the Compensation Committee, be increased by an amount
that it deems appropriate. If the Base Amount is increased by the
Compensation Committee, it shall not be decreased thereafter during
the Employment Period.
(b) Executive shall receive bonus payments in accordance with any
arrangements or bonus plans established by the Company for its senior
executive officers, in such amounts and upon such terms as are
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determined by the Compensation Committee pursuant to such plans.
Notwithstanding the foregoing, the Company agrees that Executive will
be eligible for a potential bonus for the fiscal year ending September
30, 1997 of $125,000, such bonus to be determined by the Compensation
Committee in its discretion.
(c) Executive shall be a participant, to the extent he meets all
eligibility requirements of general application, in any and all plans,
programs and arrangements maintained by the Company to provide
benefits for its employees, including, but not limited to, medical and
hospitalization, group term life insurance, disability, profit
sharing, employee stock ownership and retirement plans. The Company
shall not make any changes in such plans, programs and arrangements
which would adversely affect Executive's rights or benefits
thereunder, unless such change occurs pursuant to a plan, program or
arrangement applicable to all senior executive employees of the
Company and does not result in a proportionately greater reduction in
the rights of or benefits to Executive as compared with any other
senior executive employee of the Company.
(d) Without limiting the generality of paragraph 4(c), upon presentation
of appropriate premium notices, the Company shall pay, or reimburse
Executive for, the premiums of one or more term life insurance
policies on Executive's life in an aggregate amount not to exceed
$2,000,000, provided that the maximum premium(s) payable by the
Company under this paragraph 4(d) shall not exceed $5,000. Executive
shall be the owner of such policy or policies and shall have the sole
right to designate the beneficiaries of such policy or policies.
Executive agrees to comply with reasonable requests of the Company in
connection with the Company's attempts to obtain, maintain, replace or
renew one or more insurance policies on the life of Executive, of
which the Company would be the owner and have the right to designate
the beneficiaries of such policies; provided that the Company's
attempts to obtain, maintain replace or renew such policies do not
interfere with Executive's attempts to obtain, maintain, replace or
renew the policies referred to above.
(e) Without limiting the generality of paragraph 4(c), the Company will
reimburse Executive for the annual premiums for Executive's existing
long-term disability insurance policies (which policies provide an
aggregate benefit of $14,501 per month) or any comparable replacement
policy obtained by Executive.
(f) Executive shall be entitled to reasonable vacations.
(g) Executive shall be entitled to be reimbursed for the dues, assessments
and expenses attendant to (i) his membership in the Young Presidents
Organization, and (ii) his membership in the Chicago Club.
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(h) Executive shall be entitled to a dedicated secretary selected by
Executive and retained as an employee of the Company (at Company
expense).
(i) Executive shall be entitled to such perquisites as may be customarily
granted by the Company to its senior executives.
(j) The Company shall reimburse Executive for the reasonable and necessary
business expenses incurred by him in connection with the performance
of his duties and obligations as set forth herein. Reimbursement
shall be made upon the presentation by Executive to the Company of
reasonably detailed statements of such expenses.
Payment of the Base Amount shall not in any way limit or reduce any other
obligation of the Company pursuant to this Agreement, and no other compensation,
benefit, or payment hereunder shall in any way limit or reduce the obligation of
the Company to pay Executive's Base Amount, except that, for the period
commencing on the date Executive becomes Disabled and ending on the Termination
Date, the Base Amount shall be reduced by any amounts that are payable to
Executive prior to or during such period under any disability benefit plan of
the Company in which Executive participates.
5. Termination. Executive's employment hereunder shall terminate at the
end of the Employment Period. In addition, the Employment Period may be
terminated at any time as provided in this paragraph 5, and, subject to the last
paragraph of this paragraph 5, the applicable effective date of termination as
expressed herein shall be referred to as the "Termination Date."
(a) Cause. The Employment Period may be terminated at the option of
the Company for "Cause" (as such term is hereinafter defined), effective
upon the date stated in the Notice of Termination to Executive. As used
herein, the term "Cause" shall mean and be limited to:
(i) Executive's conviction of (or plea of no contest or similar
plea to) a felony; or
(ii) Executive's intentional continuing refusal to substantially
perform his obligations under this Agreement (except by reason of
incapacity due to illness or accident) if he (a) shall have failed to
remedy the alleged breach caused by such conduct within 30 days from
the date written notice is given by the Secretary of the Company
demanding that he remedy the alleged breach caused by such conduct, or
(b) shall have failed to take reasonable steps in good faith to that
end during such 30-day period, provided that, with respect to this
paragraph 5(a)(ii), after the end of such 30-day period there shall
have been delivered to Executive a certified copy of a resolution of
the Board of Directors of the Company, adopted by the affirmative vote
of not less than two-thirds of the members of the Board of Directors,
taken at a meeting of the Board of Directors at
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which Executive, together with his counsel, is given the opportunity
to be heard (hereafter, a "Supermajority Vote"), finding that
Executive was guilty of conduct set forth in this paragraph 5(a)(ii)
and specifying the details thereof, and that Executive has failed to
take reasonable steps in good faith to remedy the alleged breach
caused by such conduct, or
(iii) upon a finding by a Supermajority Vote that Executive
engaged in willful fraud or defalcation, either of which involved
funds or other assets of the Company.
(b) Death. The Employment Period shall terminate automatically
effective upon the death of Executive.
(c) Disability. In the event Executive becomes Disabled (as such term
is hereinafter defined) during the Employment Period, and the Company is
unable to make a reasonable accommodation which would enable Executive to
continue to perform the essential functions of his employment position with
the Company, the Employment Period may be terminated at the option of
Executive or the Company effective 30 days after a Notice of Termination is
given (provided that Executive shall not have returned to the performance
of his duties on a full-time basis during such 30-day period). "Disabled"
or "Disability" means a determination, made at the request of Executive or
upon the reasonable request of the Company set forth in a notice to
Executive, by an independent competent medical authority that Executive is
unable to perform his duties as specified in this Agreement and in all
reasonable medical likelihood such inability will continue for a period in
excess of 180 days. Unless otherwise agreed by Executive and the Board of
Directors, the independent medical authority shall be selected by Executive
and the Company each selecting a board certified licensed physician and the
two physicians selected shall designate an independent medical authority,
whose determination that Executive is Disabled shall be binding upon the
Company and Executive.
(d) Voluntary Resignation. Executive may resign his employment at any
time, effective upon Notice of Termination (which shall state whether such
resignation is with Good Reason) given by Executive to the Company.
(e) Termination without Cause by the Company. The Company may
terminate Executive's employment at any time, effective upon Notice of
Termination (which shall state that such termination is without Cause)
given by the Company to Executive.
If, within 30 days after any Notice of Termination for Cause is given by the
Company, Executive notifies the Company that a dispute exists concerning the
termination, then the Termination Date shall be the date (the "Final
Determination") as determined either by mutual written agreement of the parties,
by a binding and final arbitration award or by a final judgment, order or decree
of a court of competent jurisdiction (the time for appeal therefrom having
expired and no appeal having been perfected).
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Notwithstanding the foregoing, the Company shall not be prohibited from removing
Executive from his position with the Company pending the Final Determination
provided that such removal is without prejudice to Executive's rights to receive
all benefits from the Company to which he may be entitled upon the Final
Determination.
6. Separation Benefits. Executive shall be entitled to receive
separation benefits upon such events and in such amounts as are set forth in
this paragraph 6.
(a) Termination Without Cause or for Good Reason. In the event that
Executive's employment with the Company is terminated at any time during
the Employment Period by the Company without Cause, or by Executive for
"Good Reason" (as such term is hereafter defined in paragraph 6(e) below),
then Executive (or if he shall have died after termination but prior to
payment, his surviving spouse, or if he leaves no spouse, his personal
representative, as successor in interest) shall be paid by the Company an
amount equal to the product of Executive's Base Amount in effect as of the
Date of Termination, multiplied by three, payable in cash in a lump sum on
or before the fifteenth day following the Date of Termination.
(b) Termination Upon Death. If the Employment Period is terminated by
Executive's death, the Company shall pay Executive's surviving spouse, or
if he leaves no spouse, his personal representative, as successor in
interest, (i) an amount equal to the then current Base Amount (paid in one
lump sum payment on or before the fifteenth day following the date of
Executive's death, and (ii) any death benefit payable under any employee
benefit plans, programs and arrangements of the Company in which Executive
is a participant on the date of his death.
(c) Termination Upon Disability. If the Employment Period is
terminated in accordance with the terms of paragraph 5(c) because of
Executive's Disability, the Company shall pay to Executive (or in the event
of Executive's death after a finding of Disability, his surviving spouse,
or if he leaves no spouse, his personal representative, as successor in
interest) all compensation and benefits specified under paragraph 4 herein,
for a period of one year from the Date of Termination, payable in the same
manner as if the Employment Period had not been terminated.
(d) Additional Separation Benefit. For a period of three years
following (i) the full completion of the Employment Period or (ii)
following the Date of Termination of the Employment Period for any reason
other than termination by the Company for Cause or termination by Executive
for other than Good Reason, the Company shall permit, at the Company's
expense, Executive, his spouse and dependents, as applicable (the "Benefit
Participants"), to participate in all group medical and health insurance
plans and employee benefit plans, programs and arrangements now or
hereafter made available to the senior executive employees of the Company
(the "Plans") (including but not limited to such Plans in which Executive
was entitled to participate immediately prior to the Date of
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Termination), in the same manner provided to its other senior executive
employees; provided, however, that this paragraph 6(d) shall not apply in
the event that (i) the Company shall hereafter terminate the applicable
Plan, or (ii) the participation of the Benefit Participants in such Plan is
prohibited by law or, if applicable, would disqualify such Plan as a tax
qualified plan pursuant to the Code, or (iii) the participation of the
Benefit Participants violates the general terms and provisions of such
applicable Plan. In the event that any of the Benefit Participants'
participation in such Plans is prohibited by law or, if applicable, would
disqualify the Plan as a tax qualified plan, or the participation of the
Benefit Participants violates the general terms and provisions of such
applicable Plan, the Company shall permit the Benefit Participants to
acquire substantially comparable coverage or benefits, at the Company's
expense, from a source of Executive's or his spouse's choosing, provided,
however, that if provision of such coverage or benefit would result in a
cost in excess of 130% of the cost to the Company if provided under a
Company Plan, the Company may satisfy its obligations under this paragraph
6(d) by contributing to the Benefit Participants 130% of the cost to the
Company under the Company Plans. Notwithstanding the foregoing, in no
event will the Benefit Participants receive from the Company the coverage
and benefits contemplated by this paragraph 6(d) if the Benefit
Participants receive such coverage and benefits from any other source.
(e) Good Reason Defined. For purposes of this Agreement, "Good
Reason" means:
(i) a Change in Control of the Company (as defined in paragraph
6(f) below);
(ii) a decrease in the total amount of Executive's Base Amount
below the amount in effect on the date hereof;
(iii) a reduction in Executive's title, a material reduction in
his duties or job responsibilities, or a material adverse change in his
working conditions (including the relocation of Executive's office more
than 40 miles from the Company's present executive offices), without
Executive's consent, as determined by Executive in his reasonable judgment;
(iv) a failure by the Company to comply with any material
provision of this Agreement or the Option Agreements if the Company shall
have failed to remedy the alleged breach within 30 days from the date
written notice is given by Executive demanding that the Company remedy the
alleged breach;
(v) any purported termination of Executive's employment which is
not effected pursuant to a proper Notice of Termination (and for purposes
of this Agreement no such purported termination shall be effective);
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(vi) Executive ceases to be a director of the Company for any
reason other than Executive's resignation from the Board of Directors or
Executive's refusal to stand for election as a director; or
(vii) modification without Executive's consent of the vesting
schedule, exercise period or number of shares subject to the options issued
to Executive pursuant to the Option Agreements.
(f) Change in Control Defined. For purposes of this Agreement, a
"Change in Control" shall be deemed to occur in the following situations:
(i) in the event any "person" (as such term is used in paragraphs
13(d) and 14(d) of the Exchange Act) or more than one such person acting as
a group, other than a trustee or other fiduciary holding securities under
an employee benefit plan of the Company, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of the securities of the Company, in a transaction or a series
of transactions, representing thirty percent (30%) or more of the combined
voting power of the Company's then outstanding securities ordinarily having
the right to vote for the election of directors of the Company;
(ii) during any period of two consecutive years during the
Employment Period, individuals who at the beginning of the Employment
Period constitute the Board of Directors of the Company cease for any
reason to constitute at least a majority thereof, unless the election, or
the nomination for election by the Company's stockholders, of each director
who was not a director at the beginning of the Employment Period has been
approved in advance by directors representing at least two-thirds of the
directors then in office who were (A) directors at the beginning of the
Employment Period, or (B) previously approved in accordance with this
subparagraph (ii);
(iii) the Company sells or otherwise disposes of all or
substantially all of its assets; and
(iv) the Company participates in a merger or consolidation and,
immediately following the consummation of such merger or consolidation, the
Company's stockholders prior to such merger or consolidation do not own 50%
or more of the voting shares of stock of the surviving or successor
corporation.
(g) Excise Tax Gross-Up. If Executive becomes entitled to one or more
payments (with a "payment" including, but not limited to, the vesting of an
option or other non-cash benefit or property), whether pursuant to the
terms of this Agreement or any other plan, arrangement, or agreement with
the Company or any affiliated company (the "Total Payments"), which are or
become subject to the tax imposed by Section 4999 of the Code (or any
similar tax that may hereafter be imposed) (the "Excise Tax"), the Company
shall pay to Executive at the time specified below an additional amount
(the "Gross-Up Payment") (which
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shall include, but not be limited to, reimbursement for any penalties and
interest that may accrue in respect of such Excise Tax) such that the net
amount retained by Executive, after reduction for any Excise Tax (including
any penalties or interest thereon) on the Total Payments and any federal,
state and local income or employment tax and Excise Tax on the Gross-Up
Payment provided for by this subparagraph (g), but before reduction for any
federal, state, or local income or employment tax on the Total Payments,
shall be equal to the sum of (a) the Total Payments, and (b) an amount
equal to the product of any deductions disallowed to Executive for federal,
state, or local income tax purposes because of the inclusion of the Gross-
Up Payment in Executive's adjusted gross income multiplied by the highest
applicable marginal rate of federal, state, or local income taxation,
respectively, for the calendar year in which the Gross-Up Payment is to be
made.
For purposes of determining whether any of the Total Payments
will be subject to the Excise Tax and the amount of such Excise Tax:
(i) The Total Payments shall be treated as "parachute payments"
within the meaning of Section 280G(b)(2) of the Code, and all "excess
parachute payments" within the meaning of Section 280G(b)(1) of the Code
shall be treated as subject to the Excise Tax, unless, and except to the
extent that, in the written opinion of independent compensation consultants
or auditors of nationally recognized standing ("Independent Advisors")
selected by the Company and reasonably acceptable to Executive, the Total
Payments (in whole or in part) do not constitute parachute payments, or
such excess parachute payments (in whole or in part) represent reasonable
compensation for services actually rendered within the meaning of Section
280G(b)(4) of the Code in excess of the base amount within the meaning of
Section 280G(b)(3) of the Code or are otherwise not subject to the Excise
Tax;
(ii) The amount of the Total Payments which shall be treated as
subject to the Excise Tax shall be equal to the lesser of (A) the total
amount of the Total Payments or (B) the total amount of excess parachute
payments within the meaning of Section 280G(b)(1) of the Code (after
applying clause (i) above); and
(iii) The value of any non-cash benefits or any deferred payment
or benefit shall be determined by the Independent Advisors in accordance
with the principles of Sections 280G(d)(3) and (4) of the Code.
For purposes of determining the amount of the Gross-Up Payment,
Executive shall be deemed (A) to pay federal income taxes at the highest
marginal rate of federal income taxation for the calendar year in which the
Gross-Up Payment is to be made; (B) to pay any applicable state and local
income taxes at the highest marginal rate of taxation for the calendar year
in which the Gross-Up Payment is to be made, net of the maximum reduction
in federal income taxes which could be obtained from deduction of such
state and
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local taxes if paid in such year (determined without regard to limitations
on deductions based upon the amount of Executive's adjusted gross income);
and (C) to have otherwise allowable deductions for federal, state, and
local income tax purposes at least equal to those disallowed because of the
inclusion of the Gross-Up Payment in Executive's adjusted gross income. In
the event that the Excise Tax is subsequently determined to be less than
the amount taken into account hereunder at the time the Gross-Up Payment is
made, Executive shall repay to the Company at the time that the amount of
such reduction in Excise Tax is finally determined (but, if previously paid
to the taxing authorities, not prior to the time the amount of such
reduction is refunded to Executive or otherwise realized as a benefit of
Executive) the portion of the Gross-Up Payment that would not have been
paid if such Excise Tax had been applied in initially calculating the
Gross-Up Payment, plus interest on the amount of such repayment at the rate
provided in Section 1274(b)(2)(B) of the Code. In the event that the
Excise Tax is determined to exceed the amount taken into account hereunder
at the time the Gross-Up Payment is made (including by reason of any
payment the existence or amount of which cannot be determined at the time
of the Gross-Up Payment), the Company shall make an additional Gross-Up
Payment in respect of such excess (plus any interest and penalties payable
with respect to such excess) at the time that the amount of such excess is
finally determined.
The Gross-Up Payment provided for above shall be paid on the 30th
day (or such earlier date as the Excise Tax becomes due and payable to the
taxing authorities) after it has been determined that the Total Payments
(or any portion thereof) are subject to the Excise Tax; provided, however,
that if the amount of such Gross-Up Payment or portion thereof cannot be
finally determined on or before such day, the Company shall pay to
Executive on such day an estimate, as determined by the Independent
Advisors, of the minimum amount of such payments and shall pay the
remainder of such payments (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code), as soon as the amount thereof can be
determined. In the event that the amount of the estimated payments exceeds
the amount subsequently determined to have been due, such excess shall
constitute a loan by the Company to Executive, payable on the fifth day
after demand by the Company (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code). If more than one Gross-Up Payment is
made, the amount of each Gross-Up Payment shall be computed so as not to
duplicate any prior Gross-Up Payment. The Company shall have the right to
control all proceedings with the Internal Revenue Service that may arise in
connection with the determination and assessment of any Excise Tax and, at
its sole option, the Company may pursue or forego any and all
administrative appeals, proceedings, hearings, and conferences with any
taxing authority in respect of such Excise Tax (including any interest or
penalties thereon); provided, however, that the Company's control over any
such proceedings shall be limited to issues with respect to which a Gross-
Up Payment would be payable hereunder, and Executive shall be entitled to
settle or contest any other issue raised by the Internal Revenue Service or
any other taxing authority. Executive
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shall cooperate with the Company in any proceedings relating to the
determination and assessment of any Excise Tax and shall not take any
position or action that would materially increase the amount of any Gross-
Up Payment hereunder.
7. Noncompetition. During the Employment Period and continuing until the
later of (or if the Employment Period is terminated by the Company for Cause or
by Executive for other than Good Reason, the first anniversary of the later of),
(i) the expiration of the Employment Period, (ii) the Termination Date, and
(iii) the date upon which the last of Executive's separation benefits hereunder
(if any), ceases in accordance with its terms, Executive shall not, without the
prior written authorization of the Board of Directors of the Company, (i)
directly or indirectly render services of a business, professional or commercial
nature (whether for compensation or otherwise) to any person or entity
competitive or adverse to the Company's business welfare, (ii) engage in any
activity, whether alone, as a partner, or as an officer, director, employee,
consultant, independent contractor, or stockholder in any other corporation,
person, or entity which is competitive with or adverse to the Company's business
welfare, or (iii) hire or solicit for hire any of the Company's employees. This
Section 7 shall not, however, prevent Executive from investing in securities
issued by any such competitive or adverse corporation provided the holdings
thereof by Executive do not constitute more than three percent of any one class
of such securities.
8. Confidentiality.
(a) Disclosure and Use. Executive shall not disclose or use at any
time, either during or subsequent to the Employment Period, any trade
secrets or other confidential information of the Company of which Executive
is or become informed or aware of prior to or during the Employment Period,
except (i) as may be required for Executive to perform his duties and
obligations under this Agreement, (ii) to the extent such information has
been disclosed to Executive by a third party who is not affiliated with the
Company or which otherwise becomes generally available to the public, (iii)
information which must be disclosed as a result of a subpoena or other
legal process, or (iv) unless Executive shall first secure the Company's
prior written authorization. This paragraph shall survive the termination
of this Employment Period, whether by lapse of time or otherwise, and shall
remain in effect and be enforceable against Executive for as long as any
such Company trade secrets or confidential information retains commercial
value. Executive shall execute additional agreements and confirmations of
his obligations to the Company concerning such non-disclosure of Company
trade secrets and other confidential information as the Company may require
from time to time, provided that the execution of such additional
agreements and confirmations are (i) reasonable and (ii) are required of
all other senior executive employees of the Company under similar
circumstances.
(b) Return of Materials. Upon termination of his employment for any
reason, Executive (or in the event of termination due to Executive's death,
his
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surviving spouse or personal representative, as applicable) shall promptly
deliver to the Company all materials of a secret or confidential nature
relating to the Company's business, which are in the possession or under
the control of Executive.
9. Ideas and Improvements. Executive hereby assigns to the Company all
of his rights, title, and interest in and to all inventions, discoveries,
processes, designs, and other intellectual property (hereinafter referred to
collectively as the "Inventions"), and all improvements on existing Inventions
made or discovered by Executive during the term of his employment by the
Company. Promptly upon the development or making of any such Invention or
improvement thereon, Executive shall disclose the same to the Company and shall
execute and deliver to it such reasonable documents as it may request to confirm
the assignment of Executive's rights therein and, if requested, shall assist the
Company in applying for and prosecuting any patents which may be available in
respect thereof. The Company acknowledges and hereby notifies Executive that
this paragraph 9 does not apply to an Invention for which no equipment,
supplies, facility or trade secret information of the Company was used and which
was developed entirely on Executive's own time, unless (a) the Invention relates
to (i) the business of the Company, or (ii) the Company's actual or demonstrably
anticipated research or development, or (b) the Invention results from any work
performed by Executive for the Company.
10. Remedies. If, at any time, Executive violates to any material extend
any of the covenants or agreements set forth in paragraphs 7, 8 and 9, the
Company shall have the right to terminate all of its obligations to make further
payments under this Agreement. Executive acknowledges that the Company would be
irreparably injured by a violation of paragraph 7, 8 or 9 and agrees that the
Company shall be entitled to an injunction restraining Executive from any actual
or threatened breach of paragraph 7, 8 or 9 or to any other appropriate
equitable remedy without any bond or other security being required.
11. Resolution of Disputes. (a) In the event of any controversy among
the parties hereto arising out of, or relating to, this Agreement which cannot
be settled amicably by the parties (other than a controversy contemplated by
paragraphs 6 (separation benefits) and 12 (legal fees and expenses) herein),
within 60 days of the date the dispute arose, such controversy shall be finally
settled by arbitration conducted expeditiously in accordance with the American
Arbitration Association Commercial Arbitration Rules by a board of three
independent arbitrators. Either the Company or Executive may institute such
arbitration proceeding by giving written notice to the other party and by
designating one independent arbitrator. Within 10 days thereafter, the other
party shall designate a second independent arbitrator, and such two arbitrators
shall thereafter select the third independent arbitrator. A hearing shall be
held by the three arbitrators in the City of Chicago, Illinois, and a decision
of the matter submitted to them shall be rendered promptly in accordance with
the rules of the American Arbitration Association. The decision of a majority
of the arbitrators shall be final and binding upon all parties hereto. Judgment
upon the award rendered may be entered in any court having jurisdiction thereof.
If the responding party shall fail to
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appoint an independent arbitrator within the 10-day period provided above, the
American Arbitration Association may be called upon by the other party to
appoint such independent arbitrator and such two arbitrators shall thereupon
select a third independent arbitrator and the three arbitrators thus chosen
shall constitute the board of arbitration. The cost of arbitration (other than
as provided in paragraph 12) shall be borne by the Company. The arbitrators are
not empowered to award damages in excess of compensatory damages and each party
hereby irrevocably waives any damages in excess of compensatory damages.
(b) Notwithstanding the foregoing, Executive acknowledges and agrees that
the Company may seek in a court of competent jurisdiction an injunction
prohibiting Executive's breach or alleged breach of paragraphs 7, 8 and 9.
12. Legal Fees and Expenses. (a) Subject to subparagraph (b) below and
any arbitration award of fees and expenses, each party shall bear its own costs
and expenses, including attorneys fees, incurred in connection with the
enforcement of this Agreement.
(b) The Company shall pay, or reimburse Executive for, up to $_____________
in legal fees and expenses incurred by Executive in connection with the
preparation, negotiation, execution and delivery of this Agreement and the
transactions contemplated herein.
13. Amendment and Termination. This Agreement may be amended or canceled
by mutual agreement of the parties without the consent of any other person and,
so long as Executive lives, no person, other than the parties hereto, shall have
any rights under or interest in this Agreement or the subject matter hereof.
14. Notice. Any notice required or permitted to be given under this
Agreement shall be sufficient if given in writing and personally delivered or
sent by registered or certified mail, return receipt requested, or by facsimile,
telegram or telex followed by a confirmation letter sent by registered or
certified mail, return receipt requested, addressed as follows:
If to the Company: May & Xxxx, Inc.
0000 Xxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
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If to Executive: Xxxxx X. Xxxxx
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
15. Non-assignment. The interests of Executive under this Agreement are
not subject to the claims of his creditors and may not be voluntarily or
involuntarily assigned, alienated or encumbered.
16. Stock Options. (a) On the date hereof, the Company shall execute and
deliver to Executive an Option Agreement in the form attached hereto as Exhibit
A-1 (the "Fiscal 1997 Option Agreement"), pursuant to which the Company shall
grant to Executive options to purchase 600,000 shares of the Company's Common
Stock pursuant to the Executive Plan.
(b) On October 1, 1997, the Company shall execute and deliver to Executive
an Option Agreement in the form attached hereto as Exhibit A-2 (the "Fiscal 1998
Option Agreement;" collectively with the Fiscal 1997 Option Agreement, the
"Option Agreements"), pursuant to which the Company shall grant to Executive
options to purchase 295,000 shares of the Company's Common Stock pursuant to the
Executive Plan.
(c) The Company represents and warrants to Executive that it has reserved,
and covenants that it will continue to reserve, for issuance to Executive,
895,000 of the authorized but unissued shares of Common Stock of the Company
reserved for issuance under the Executive Plan.
17. Board of Directors. (a) In the event that at any time, or from time
to time, during the Employment Period the Board of Directors of the Company
establishes an executive or similar committee of the Board of Directors of the
Company, the Company covenants Executive will be a member of such committee.
(b) In the event that at any time, or from time to time, during the
Employment Period the Board of Directors of the Company establishes a nominating
or similar committee of the Board of Directors of the Company, the Company
covenants that Executive will be a member of such committee.
(c) The Company covenants and agrees that Xx. Xxxxx Xxxxxx will,
effective upon his agreement to serve as a director of the Company, be elected a
Class I Director of the Company with a term that will expire on March 1, 2000.
(d) The Company covenants and agrees that as soon as reasonably
practicable after the date hereof the Company will elect a director proposed by
Executive and reasonably acceptable to a majority of the members of the Board of
Directors of the Company, such director to be elected a Class III Director of
the Company with a term that will expire on March 1, 1999.
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18. Severability. If any provision of this Agreement is held invalid or
unenforceable, either in its entirety or by virtue of its scope or application
to given circumstances, such provision shall thereupon be deemed modified only
to the extent necessary to render such provision valid, or not applicable to
given circumstances, or excised from this Agreement, as the situation may
require, and this Agreement shall be construed and enforced as if such provision
had been included herein as so modified in scope or application, or had not been
included herein, as the case may be. Should this Agreement, or any one or more
of the provisions hereof, be held to be invalid, illegal or unenforceable within
any governmental jurisdiction or subdivision thereof, the Agreement or any such
provision or provisions shall not as a consequence thereof be deemed to be
invalid, illegal or unenforceable in any other governmental jurisdiction or
subdivision thereof.
19. Successors. This Agreement shall be binding upon, and inure to the
benefit of, the Company and Executive, and, in the case of the Company, its
successors and assigns and any Person acquiring, whether by merger,
consolidation, purchase of assets or otherwise, all or substantially all of the
Company's assets and business, and in the case of Executive, his heirs,
executors, administrators, legal representatives, successors and assigns.
20. Disclosure of Agreement. The Company and Executive agree that the
Company will issue a press release (and cause to be made all appropriate
filings) disclosing the Agreement and the general terms of the Agreement. The
timing and terms of the press release and the timing of any filings and the
nature of the disclosures included therein shall be in form and substance
acceptable to Executive.
21. Prior Agreements. This Agreement cancels any employment agreement,
whether written or oral, entered into between the Company and Executive prior to
the day and year first above written.
22. Counterparts. The Agreement may be executed in two or more
counterparts, any one of which shall be deemed an original and all of which
taken together shall constitute a single instrument.
23. Governing Law. This Agreement, and all matters or disputes relating
to the validity, construction, performance or enforcement hereof, shall be
governed, construed and controlled by and under the laws of the State of
Illinois without regard to principles of conflicts of law.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the day and year first above written.
/s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx
MAY & XXXX, INC.
By: /s/ Xxxxxxxx X. Xxxx
-------------------------------------
Xxxxxxxx X. Xxxx,
President and Chief Executive Officer
By: /s/ Xxxx Xxxxxxxxxxx
-------------------------------------
Xxxx Xxxxxxxxxxx
Executive Vice President, Chief
Financial Officer
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