Employment Agreement
This Employment Agreement
("Agreement") is made as of the 4th day of April, 2008 (the “Effective Date”),
by and between Xxxxxx Xxxxxx,
Inc., a New York corporation, with its principal office at 000 Xx. Xxxx
Xxxx, Xxxxxxx Xxxxx, Xxx Xxxxxx 00000 (the "Company") and Xxx X. Xxxxx
("Executive").
RECITALS
WHEREAS, the Company desires to embody
in this Agreement the terms and conditions of Executive’s employment with the
Company.
NOW, THEREFORE, in consideration of the
mutual promises and agreements contained in this Agreement, including the
compensation to be paid to Executive, the parties hereby agree as
follows:
1. Employment; Term; Duties and
Responsibilities; Board Membership.
1.1. Appointment as President and Chief
Executive Officer. The Company hereby employs
Executive as its President and Chief Executive Officer, and Executive hereby
accepts such employment, subject to the terms and conditions of this
Agreement. Executive represents and warrants to the Company that he
is not a party to any agreement that would restrict or prohibit him from being
employed by the Company. The Company and Executive acknowledge that
Executive has been serving as the Company’s interim President and Chief
Executive Officer since February 5, 2008.
1.2. Employment
Period. The initial term of Executive’s employment under this
Agreement shall have commenced on the Effective Date and shall continue until
the second anniversary of the Effective Date or the termination of Executive’s
employment as provided in Section 3 of this Agreement, whichever shall occur
first. This Agreement will automatically renew for a one-year term
upon its initial expiration unless the employment of Executive has been
terminated prior to the second anniversary of the Effective Date. The
“Term” of this Agreement shall refer to the period commencing on the Effective
Date and ending on the earlier to occur of: (i) the expiration of the Agreement;
(ii) or the termination of Executive’s employment with the Company.
1.3. Location of
Employment. Executive shall be based at the Company’s
headquarters in Basking Ridge, New Jersey.
1.4. Duties and
Responsibilities. In his capacity as President and Chief
Executive Officer of the Company, Executive shall report directly to the Board
of Directors of the Company (the “Board”). Executive shall have such
duties and responsibilities, and the power and authority, normally associated
with the position of President and Chief Executive Officer, as well as any
additional duties and responsibilities of an executive character as
shall, from time to time, be delegated or assigned to him by the
Board. As President and Chief Executive Officer, Executive shall keep
the Board fully informed of any and all matters of a material nature, from an
operational or financial perspective, and seek Board approval of appropriate
matters, in accordance with his fiduciary duties to the Company and its
shareholders.
1.5. Devotion of
Time. During the Term, Executive shall expend all of his
working time, care and attention to his duties, responsibilities and obligations
to the Company. Executive may serve on the board of (i) civic and
charitable entities, and (ii) with the prior written consent of the
Board, other corporate entities; provided, however, that such activities do not,
either individually or in the aggregate, interfere with Executive’s duties and
responsibilities as President and Chief Executive Officer of the
Company.
1.6. Board
Membership. The Company and Executive acknowledge that
Executive currently serves as a member of the Board. During the Term,
the Company shall cause Executive to be re-nominated to serve on the Board if
and when the term of his Board membership is set to expire, and use reasonable
efforts to cause Executive to be re-elected to the Board. If elected
or appointed to serve as a director or officer of the Company and/or any of its
subsidiaries, Executive shall serve in such capacities in each case without any
additional compensation for such services.
2. Compensation;
Benefits.
As compensation and consideration for
the services to be rendered by Executive as President and Chief Executive
Officer of the Company in accordance with the terms and conditions of this
Agreement, Executive shall be entitled to the compensation and benefits set
forth in this Section 2 (subject, in each case, to the provisions of Section 3
of this Agreement).
2.1. Base
Salary. Executive shall receive an annual base salary (“Base
Salary”) of Five Hundred Thousand Dollars ($500,000) per year, payable on a
pro rated basis in
accordance with the Company’s standard payroll dates, provided such payments
shall not be made less frequently than twice in each calendar
month. The Base Salary shall be reviewed at least annually by the
Compensation Committee (the “Committee”) of the Board and may be adjusted by the
Committee, in its sole discretion, based on the Committee’s consideration of the
Company’s performance, financial and otherwise. If the Base Salary is
adjusted, the adjusted amount will thereafter be the Base Salary for all
purposes of this Agreement. However, the Based Salary shall never be
lower than $500,000 per year.
2.2. Annual
Bonus. Executive shall be eligible to participate in such
annual bonus or incentive compensation plans and programs as may be in effect
from time to time in accordance with the Company’s compensation practices and
the terms and provisions of any such plans or programs. Executive’s
annual target bonus opportunity under the Company’s 2008 Executive Pay for
Performance Plan will be equal to 50% of his Base Salary, with the opportunity
to earn a maximum bonus equal to 100% of his Base Salary. The actual
bonus amount, and the performance measures and other factors bearing on such
amount, under that plan were approved by the Committee at its meeting held on
March 3, 2008. Except as otherwise provided by the terms of this
Agreement, any annual bonus earned shall be paid at the same time and in the
same manner as corresponding awards to other senior executives of the Company
generally.
2.3. Long-Term and Equity
Compensation. Executive shall be eligible to participate in
any long-term incentive compensation plan (including any equity-compensation
plan) that may be adopted by the Company from time to time during the
Term. The specific awards under any such plan will be made by the
Committee in its sole discretion, commensurate with Executive’s position as
President and Chief Executive Officer.
2.4. Initial Equity-Based
Award. The parties acknowledge that they have memorialized in
an option agreement the Committee’s action, on April 4, 2008, to grant Executive
an option to acquire 100,000 shares of the Company’s common stock under the
terms of the Company’s 2002 Stock Option Plan at an exercise price equal to the
closing price of the Company’s common stock on the American Stock Exchange on
that date.
2.5. Health Care Allowance; Participation
in Other Benefit Plans. While Executive is employed with the
Company:
(a) The
Company shall provide him with a monthly health care allowance paid each month
during the Term equal in amount to the monthly cost the Company would bear if
Executive were insured under the Company’s group health insurance plan, it being
understood that such allowance is in lieu of Xx. Xxxxx’ participation in such
plan and that Executive shall be responsible for any taxes that may be due on
such allowance; and
(b) Other
than the Company’s group health insurance plan, Executive shall be eligible to
participate in all retirement and other benefit plans and programs of the
Company generally available from time to time to employees of the Company and
for which Executive qualifies under the terms thereof. Nothing in
this Agreement shall limit the Company’s ability to change, modify, cancel,
amend or discontinue any of such plans.
2.6. Reimbursement of
Expenses. The Company shall pay directly or reimburse
Executive for reasonable business-related expenses and disbursements incurred by
him for and on behalf of the Company in connection with the performance of his
duties as the President and Chief Executive Officer of the Company, subject,
however, to the Company’s written policies relating to business-related expenses
as in effect from time to time. Executive shall submit to the
Company, no later than the month after the month during which he incurred any
such business-related expenses and disbursements, a report of such expenses and
disbursements in the form normally used by the Company and receipts with respect
thereto, and the Company’s obligations under this Section 2.6 shall be subject
to compliance therewith. Reimbursement of any business-related
expenses and disbursements shall be made in accordance with the Company’s
written policies relating to business-related expenses as in effect from time to
time. In no event will reimbursement of any business-related expenses
and disbursements be made later than the last day of the calendar year following
the calendar year in which any such expense or disbursement was
incurred.
2.7. Vacation. Executive
shall be entitled to paid vacation in accordance with the Company’s policy in
effect from time to time.
2.8. Car
Allowance. While Executive is employed with the Company, the
Company shall provide him with an automobile allowance paid each month during
the Term in the amount of Seven Hundred Dollars ($700) per
month. Executive shall be responsible for taxes that may be due, if
any, as a result of this allowance.
2.9 Executive Change-in-Control
Agreement. Executive acknowledges that in connection with
Executive’s entering into this Agreement, Executive has entered into an
Executive Change-in-Control Agreement with the Company (the “CIC
Agreement”).
2.10. Indemnification;
Insurance.
(a) Executive
shall be entitled to indemnification in accordance with the Company’s bylaws as
in effect on the date of this Agreement and the terms of the Company’s form
indemnity agreement for officers and directors (a copy of which is attached to
this Agreement as Exhibit A), in each case subject to applicable
law.
(b) Executive
shall be covered by directors’ and officers’ liability insurance during the Term
and for any applicable statute of limitations period thereafter, to the same
extent as other officers of the Company.
2.11. Deductions;
Withholdings. All compensation payable to Executive under the
terms of this Agreement shall be subject to any applicable income, payroll or
other tax withholding requirements and such other deductions or amounts, if any,
as may be authorized by Executive.
3. Termination.
3.1. Termination by the
Company. The Company shall have the right, subject to the
terms of this Agreement, to terminate Executive’s employment at any time, with
or without “Cause.” The Company shall give Executive written notice
of a termination for Cause (the “Cause Notice”) in accordance with Section 7.2
of this Agreement. The Cause Notice shall state the particular
action(s) or inaction(s) giving rise to the termination for Cause. No
action(s) or inaction(s) will constitute Cause unless:
(a) a
resolution finding that Cause exists has been approved by a majority of all of
the members of the Board (excluding Executive), at a meeting at which Executive
is allowed to appear with his legal counsel; and
(b) where
remedial action is feasible, Executive fails to remedy the action(s) or
inaction(s) within ten (10) days after receiving the Cause Notice.
If
Executive effects a cure to the satisfaction of the Board within the 10-day
period following his receipt of the Cause Notice, the Cause Notice shall be
deemed rescinded and of no force or effect.
For
purposes of this Agreement, “Cause” shall mean:
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participation
by Executive in fraudulent conduct against the Company, or a material
misrepresentation or omission by Executive that, in the Board’s reasonable
judgment, has resulted or will likely result in injury to the business,
operations or financial condition of the
Company;
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conviction
of or a plea of guilty or nolo contendere with
respect to a felony involving theft or moral
turpitude;
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Executive’s
violation of any statutory or common law duty of loyalty, good faith or
care to the Company or any of its
subsidiaries.
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Executive’s
continued violation of a material policy of the Company for a period of
thirty (30) days after Executive’s receipt of a written notice specifying
the nature of such violation from the
Company;
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any
refusal by Executive to follow the lawful directives of the Board that are
consistent with the scope and nature of Executive’s duties and
responsibilities as set forth in this
Agreement;
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any
misconduct by Executive in connection with performance of his duties
hereunder for a period of thirty (30) days after having received a written
notice specifying the nature of such misconduct from the Company;
or
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any
breach by Executive of any one or more of the covenants contained in
Sections 4 and 5.
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3.2 Termination by
Executive. Executive shall have the right, subject to the
terms of this Agreement, to terminate his employment at any time with or without
“Good Reason.”
For purposes of this Agreement, “Good
Reason” shall mean the occurrence of any of the following during the Term
without Executive’s prior written consent:
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a
material diminution in Executive’s authorities, duties and/or
responsibilities as contemplated by this
Agreement;
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a
material diminution in Executive’s Base Salary, or unless the diminution
is a result of a Company-wide diminution in the annual bonus opportunity,
target incentive awards and/or benefits of all similarly situated
employees as Executive, a material diminution in the amount of Executive’s
annual bonus opportunity, target incentive award and/or benefits,
including health, retirement and
fringe;
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a
material failure by the Company to comply with the provisions of Section 2
of this Agreement (provided that an isolated, insubstantial or inadvertent
action or omission that is not in bad faith and is remedied by the Company
promptly after receipt of notice thereof given by Executive shall not
constitute Good Reason);
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a
change in Executive’s principal place of employment, such that the
Executive’s commuting distance as of the date of this Agreement increases
by more than 50 miles;
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in
the event of the occurrence of a Change in Control (as defined in
the Executive Change-in-Control Agreement, dated as of April 4,
2008, between the Company and Executive (the “Executive Change-in-Control
Agreement)), the failure of a successor to the Company to explicitly
assume and agree to be bound by the terms of such agreement, in accordance
with Section 5(a) of such agreement;
or
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a
material breach by the Company of any of the terms and conditions of the
Executive Change-in-Control
Agreement.
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Executive
must give the Company written notice, in accordance with Section 7.2 of this
Agreement, of any Good Reason termination of employment. Such notice
must be given within 60 days following Executive’s knowledge of the first
occurrence (as determined without regard to any prior occurrence that was
subsequently remedied by the Company) of a Good Reason circumstance and must
specify which of the Good Reason circumstances Executive is relying on, the
particular action(s) or inaction(s) giving rise to such circumstance, and the
date that Executive intends to separate from service, as defined under Section
409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), which
shall be no earlier than thirty (30) days following the date of the Company’s
receipt of the notice. Executive’s termination shall not be deemed a
Good Reason termination of employment if (i) within 30 days of the Company’s
receipt of such notice, the Company remedies the circumstance(s) giving rise to
the notice, or (ii) Executive’s termination of his employment does not occur
within 60 days after the end of the 30-day period provided to the Company to
remedy the circumstances giving rise to the notice.
3.3 Death. If
Executive dies during the Term, Executive’s employment shall automatically
terminate, such termination to be effective on the date of Executive’s
death.
3.4 Disability. If
Executive shall suffer a Disability, the Company shall have the right to
terminate Executive’s employment, such termination to be effective upon the
giving of notice to Executive in accordance with Section 7.2 of this
Agreement. For purposes of this Agreement, a Disability shall mean
any physical or mental incapacity as a result of which Executive is unable to
perform substantially all of his essential duties for an aggregate of four (4)
months, whether or not consecutive, during any calendar year, and which cannot
be reasonably accommodated by the Company without undue
hardship. Executive cannot be terminated for Disability unless the
Company has delivered a written demand for substantial performance to Executive,
specifically identifying the manner in which Executive has not substantially
performed his duties, and Executive does not cure such failure within thirty
(30) days of such demand.
3.5 Effect of
Termination.
(a) In
General. Subject to the terms of Section 3.5(c), in the event
of the termination of Executive’s employment for any reason during the Term, the
Term shall end as of the date of termination and the Company shall pay to
Executive (or his beneficiary, heirs or estate, in the event of his death), as
provided in Section 3.6 of this Agreement: (i) any Base Salary, to the extent
not previously paid, to the date of termination; and (ii) any reimbursable
business expenses that have not yet been reimbursed (collectively, the “Accrued
Obligations”). The Accrued Obligations shall be paid within 30 days
after the date of termination.
(b) Termination Resulting from
Executive’s Death or Disability. In the event of termination
of Executive’s employment as a result of Executive’s death or Disability,
Executive (or, in the case of death, his beneficiary, heir or estate) shall be
entitled to the compensation payable in accordance with Sections 3.5(a)(i) and
(ii). In addition, any unvested stock rights, stock options and other
unvested incentives or awards previously granted to Executive by the Company
shall be subject to the terms of the applicable plan(s) under which such rights,
options, incentives or awards were granted pertaining to the consequences of a
plan participant’s death or disability.
(c) Termination by the Company
for Cause and by Executive other than for Good Reason. In the
event of termination of Executive’s employment by the Company for Cause, or by
Executive other than for Good Reason, neither Executive nor any beneficiary,
heir or estate of Executive shall be entitled to any compensation other than the
payments made or provided in accordance with Sections 3.5(a)(i) and
(ii). Executive shall immediately forfeit any right to or incentive
compensation not yet paid or payable as of the date of termination, and all
unvested stock rights, stock options and other such unvested incentives or
awards previously granted to him by the Company. Nothing in this
Agreement shall be construed to limit the rights and remedies which may be
available to the Company in the event of a termination of Executive’s employment
by the Company for Cause.
(d) Termination by the Company
without Cause; by Executive for Good Reason. In the event of a
termination of Executive’s employment by the Company without Cause, or by
Executive for Good Reason, Executive shall receive the payments provided for in
Sections 3.5(a)(i) and (ii). In addition:
(i)
Executive shall receive a lump-sum payment equal to the amount of Base Salary
(at the rate in effect immediately prior to his termination) that would have
been payable to him if he had continued in employment through the longer of (A)
the balance of the initial term of Executive’s employment under this Agreement,
or (B) the one-year period following the date of termination. Such lump-sum
payment shall be made within fifteen (15) days after Executive’s termination
date; provided, however, that if at the time of Executive’s termination for Good
Reason, the Employee is a “specified employee” as defined in Section 409A of the
Code, then the Company will defer the payment until the first day of the seventh
(7th) month
following the date of termination or, if earlier, Executive’s death or such
earliest other date as is permitted under Section 409A. In the event
a lump sum payment would be subject to a delay under Section 409A, Executive may
elect to receive payments on the Company’s regularly scheduled pay dates, and
the Company shall make such payments to the extent permitted by Section 409A and
any other applicable law or regulation.
(ii) All
rights to exercise any outstanding award of stock options or stock appreciation
rights with respect to the Company’s common stock, or shares of restricted
stock, held by Executive at the date of termination shall be governed by the
terms of the applicable plan under which such award was granted.
(iii) For
the longer of (A) the balance of the initial term of Executive’s employment
under this Agreement, or (B) the one-year period following the date of
termination, Executive shall have the right to continue his participation in the
benefit plans and programs in which Executive was participating at the time of
the termination of his employment, to the extent permitted by the applicable
plan or program and subject to any subsequent modifications or amendments to any
such plan or program.
(iv) For
the longer of (A) the balance of the initial term of Executive’s employment
under this Agreement, or (B) the one-year period following the date of
termination, Executive shall also receive the monthly health care and car
allowances provided for in this Agreement.
To the
extent the payments under subsections (iii) or (iv) are not exempt from Section
409A, any payments that cannot be paid during the 6-month period after the date
of termination described in Section 7.10(a) will be postponed until the time for
payment permitted under Section 7.10.
3.6 Conditions of
Payment. Any payments or benefits made or provided in
connection with the termination of Executive’s employment with the Company in
accordance with Section 3.5 (other than payments made or provided in accordance
with Section 3.5(a)(i) and (ii) or due to a termination of Executive’s
employment due to his death) are subject to Executive’s:
(a) compliance
with the provisions of Sections 3.8, 4 and 5 of this Agreement; and
(b) delivery
to the Company of a resignation from all offices, directorships and fiduciary
positions with the Company, its affiliates and employee benefit plans prior to
the scheduled date for which the applicable payment or benefit is be made or
provided.
Payment
of the amounts specified in Sections 3.5(d)(i) and (iv) will be conditioned upon
delivery by Executive of an executed General Release, substantially in the form
attached to this Agreement as Exhibit B, with such changes or additions as
needed under then applicable law to give effect to its intent and
purpose.
3.7 Mitigation. Executive
shall be under no obligation to seek other employment following a termination of
his employment with the Company or any subsidiary for any reason. In
addition, there shall be no offset against amounts due Executive under this
Section 3 or otherwise on account of any compensation attributable to any
subsequent employment.
3.8 Cooperation;
Assistance. Executive agrees to cooperate fully, subject to
reimbursement by the Company of reasonable out-of-pocket costs and expenses,
with the Company or any subsidiary and its or their counsel with respect to any
matter (including any litigation, investigation or governmental proceeding)
which relates to matters with which Executive was involved or about which he had
knowledge during his employment with the Company or any
subsidiary. Such cooperation shall include appearing from time to
time at the offices of the Company or any subsidiary or its or their counsel for
conferences and interviews and, in general, providing the officers of the
Company or any subsidiary and its or their counsel with the full benefit of
Executive’s knowledge with respect to any such matter. Executive
further agrees, upon termination of his employment for any reason and if the
Board requests, to assist his successor in the transition of his duties and
responsibilities to such successor. Executive agrees to render such
cooperation in a timely fashion and at such times as may be mutually agreeable
to the parties. The Company shall compensate Executive for time spent
providing assistance to the Company, based on the number of hours spent by
Executive in providing such assistance. The hourly rate of
compensation shall be $250.
3.9 Effect of the Occurrence of a Change
in Control under the CIC Agreement. Upon the occurrence of a
Change in Control (as defined in the CIC Agreement), the terms of this Section 3
(other than this Section 3.9) shall cease to have any further force or effect,
except under the following circumstances: (i) a Change in Control occurs, (ii)
no Triggering Event (as defined in the CIC Agreement) occurs within the 12-month
period following the Change in Control (defined in the CIC Agreement as the
“Employment Period”), and (iii) subsequent to the end of such Employment Period,
either the Company terminates Executive’s employment without Cause or Executive
terminates his employment for Good Reason. Under such circumstances
(and assuming this Agreement is in effect at the time of such termination),
Section 3 shall continue to apply to such termination.
4. Confidentiality.
4.1 Executive
acknowledges and agrees that:
(a) by
reason of his employment with the Company and his service as a member of the
Board, Executive will have knowledge of all aspects of the Company’s operations
and will be entrusted with and have access to confidential and secret
proprietary business information and trade secrets of the Company, including but
not limited to:
(i) information
regarding the Company’s business priorities and strategic plans;
(ii) information
regarding the Company’s personnel;
(iii) financial
and marketing information (including but not limited to information about costs,
prices, profitability and sales information not available outside the
Company);
(iv) secret
and confidential plans for and information about new or existing services, and
initiatives to address the Company’s competition;
(v) information
regarding customer relationships; and
(vi) proprietary
or confidential information of customers or clients for which the Company may
owe an obligation not to disclose such information.
(all such
information shall be collectively referred to as “confidential
information”);
(b) the
Company and its subsidiaries, affiliates and divisions will suffer substantial
and irreparable damage that will not be compensable through money damages if
Executive should divulge or make use of confidential information acquired by
Executive in the course of his employment with the Company and service on the
Board other than as may be required or appropriate in connection with
Executive’s work as an employee of the Company; and
(c) the
provisions of this Agreement are reasonable and necessary for the protection of
confidential information, the business of the Company and its subsidiaries,
affiliates and divisions, and the stability of their workforces.
4.2 Executive shall
keep confidential all confidential information he learns of during his
employment with the Company regarding the Company, its business, operations,
systems, employees, customers, clients and prospective clients. In
addition, Executive agrees that he will not disclose confidential information
obtained from the Company or its officers, directors or management during his
employment, including, but not limited to, information regarding, or statements
by, the Company or its officers, directors or management, to anyone other than
as required by law or in response to a lawful court order or
subpoena.
4.3 Nothing
in this Section 4 shall prohibit Executive from participating as a witness at
the request of the Company or a third party in any investigation by the SEC or
any other governmental agency charged with the investigation of any matters
related to Executive’s employment with the Company, nor shall Executive be
prohibited from testifying in response to a subpoena, court order or notice of
deposition. Executive agrees to notify the Company’s General Counsel,
in writing, at least ten (10) days prior to the response deadline or appearance
date (whichever is earlier) for any such subpoena, court order or notice of
deposition issued by a court or investigating agency which seeks disclosure of
any confidential information. Executive further agrees to take any
actions reasonably requested by the Company to allow the Company to protect the
release of information regarding Executive’s employment from the Company in such
court or agency proceeding.
4.4 Executive
agrees that:
(a) he
will not, at any time, remove from the Company’s premises any notebooks,
software, data or other confidential information relating to the Company, except
to the extent necessary to perform his duties and responsibilities under the
terms of this Agreement;
(b) upon
the expiration or termination of the Term for any reason whatsoever, he shall
promptly deliver to the Company any and all notebooks, software, data and
documents and material, including all copies thereof, in his possession or under
his control relating to any confidential information, or which is otherwise the
property of the Company; and
(c) he
will not use any confidential information for his own benefit or for the benefit
of any new employer or any third person.
4.5 For
purposes of this Section 4, the term “Company” shall mean and include the
Company and any and all subsidiaries and affiliated entities of the Company in
existence from time to time.
5. Non-Competition and
Non-Solicitation.
5.1 Executive
acknowledges that the Company is, as of the Effective Date, engaged principally
in the business of providing health information risk assessment services to
insurance companies and health and wellness providers, performing lab testing
services, providing underwriting services in connection with the processing of
life insurance applications, and arranging for independent medical examinations,
peer reviews and related services – throughout the United States. By
virtue of Executive’s position with the Company, Executive will be exposed to
and acquire significant confidential information about the Company and its
existing and future plans and strategies. As a result, Executive
acknowledges that the Company has a legitimate business interest supporting the
restrictive covenants set forth in this Section 5.
5.2 During
Executive’s employment with the Company and until the first anniversary of the
date of termination of Executive’s employment with the Company, Executive shall
not in any manner, directly or indirectly, within the United States (without the
prior written consent of a duly authorized officer of the Company):
(a) act
as a Competitive Enterprise or accept any engagement in any capacity that
involves Executive performing management, consultation, advisory or other
services of any kind with a Competitive Enterprise (as defined in Section 5.3
below);
(b) Solicit
(as defined in Section 5.3 below) any Customer (as defined in Section 5.3 below)
to transact business with a Competitive Enterprise or to reduce or refrain from
doing any business with the Company or any of its subsidiaries;
(c) transact
business with any Customer that would cause Executive to be a Competitive
Enterprise;
(d) interfere
with or damage any relationship between the Company or any its subsidiaries with
a Customer; or
(e) Solicit
anyone who is then an employee of the Company or any of its subsidiaries (or who
was an employee of the Company or any of its subsidiaries within the prior 12
months) to resign from the Company or any of its subsidiaries or to apply for or
accept employment with any other business or enterprise.
5.3 For
purposes of this Agreement:
“Competitive Enterprise” means
any business enterprise that either (A) engages in a business that competes
anywhere in the United States with any business in which the Company or any of
its subsidiaries is then engaged in, or (B) holds a 5% or greater equity, voting
or profit participation interest in any enterprise that competes anywhere in the
United States with any activity that the Company or any of its subsidiaries is
then engaged in; provided, however, that if (i)
the Company, including any subsidiary, ceases to do, and exits, a particular
type of business activity, then following such exit the Company and its
subsidiaries will be deemed not to be “then engaged” in such business; or (ii)
the Company, including any of its subsidiaries, was not engaged in a particular
type of business activity (and was not contemplating such business activity),
while Executive was employed by the Company, then for the purposes of this
Agreement, the Company and its subsidiaries will be deemed not to be “then
engaged” in such business.
“Customer” means any customer
or prospective customer of the Company or any of its subsidiaries whose identity
became known to Executive in connection with Executive’s relationship with or
employment by the Company or any of its subsidiaries.
“Solicit” means any direct or
indirect communication of any kind, regardless of who initiates it, that in any
way invites, advises, encourages or requests any person to take or refrain from
taking any action.
6. Injunctive
Relief. If Executive
commits a breach, or threatens to commit a breach, of any of the provisions of
Section 4 or 5 of this Agreement, the Company shall have the right and remedy
(which shall be in addition to, and not in lieu of, any other rights and
remedies available to the Company at law or in equity) to have the provisions of
this Agreement specifically enforced by any court having equity jurisdiction, it
being acknowledged by Executive that any such breach or threatened breach will
or may cause irreparable injury to the Company and that money damages will or
may not provide an adequate remedy to the Company.
7. Miscellaneous.
7.1 Benefit of Agreement, Assignment;
Beneficiary. This Agreement shall inure to the benefit of and
be binding upon the Company and its successors and assigns. This
Agreement shall also inure to the benefit of, and be enforceable by, Executive
and his personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Executive
should die while any amount would still be payable to Executive under this
Agreement if he had continued to live, all such amounts shall be paid in
accordance with the terms of this Agreement to Executive’s beneficiary, devisee,
legatee or other designee, or if there is no such designee, to Executive’s
estate.
7.2 Notices. Any
notice required or permitted under this Agreement shall be in writing and shall
be sufficiently given if personally delivered or if sent by certified mail,
postage prepaid, with return receipt requested or by reputable overnight
courier, addressed: (a) in the case of the Company, to the General Counsel of
the Company at the Company’s then-current corporate headquarters, and (b) in the
case of Executive, to Executive’s last known address as reflected in the
Company’s records, or to such other address as either party shall designate by
written notice to the other party. Any notice given hereunder shall
be deemed to have been given at the time of receipt thereof by the person to
whom such notice is given if personally delivered or at the time of mailing if
sent by certified mail or by courier.
7.3. Entire Agreement;
Amendment. Except as specifically provided in this Agreement,
this Agreement contains the entire agreement of the parties to this Agreement
with respect to the terms and conditions of Executive’s employment during the
Term, and supersedes all prior agreements and understandings, whether written or
oral, between the parties with respect to compensation due for services rendered
under this Agreement. For the avoidance of doubt, in the event of any
inconsistency between this Agreement and any plan, program or arrangement of the
Company or its affiliates, the terms of this Agreement shall
control. This Agreement may not be changed or modified except by an
instrument in writing signed by both of the parties.
7.4 Waiver. The waiver
of either party of a breach of any provision of this Agreement shall not operate
or be construed as a continuing waiver or as a consent to or waiver of any
subsequent breach.
7.5 Headings. The
section headings in this Agreement are for convenience of reference only, do not
constitute part of this Agreement and shall not be deemed to limit or affect any
of the provisions of this Agreement.
7.6 Governing
Law. This Agreement shall be governed by, and construed and
interpreted in accordance with, the internal laws of the State of New Jersey,
without reference to the principles of conflicts of laws.
7.7 Survivorship. The
respective rights and obligations of the parties under this Agreement shall
survive any termination of this Agreement to the extent necessary to effectuate
the intended preservation of such rights and obligations, including, without
limitation, Section 4 and 5 of this Agreement.
7.8 Validity. The
invalidity on unenforceability of any provision or provisions of this Agreement
shall not affect the validity or enforceability of any other provision or
provisions of this Agreement, which shall remain in full force and
effect. If any provision of this is held to be invalid, void or
unenforceable, any court so holding shall substitute a valid, enforceable
provision that preserves, to the maximum lawful extent, the terms and intent of
this Agreement.
7.9 Construction. The
parties have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement. Any reference to any federal, state or local statute
or law shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. The word
“including” shall mean including without limitation.
7.10 Section 409A.
(a) Notwithstanding
the due date of any post-employment payments, if at the time of the termination
of Executive’s employment Executive is a “specified employee” (as defined in
Section 409A, Executive will not be entitled to any payments upon termination of
employment that are subject to Section 409A until the later of (i) the date that
payments are scheduled to be made under this Agreement, or (ii)
the earlier of (A) the first day of the seventh month following the
date of termination of his employment with the Company for any reason other than
death, or (B) the date of Executive’s death. The provisions of this
paragraph will only apply if and to the extent required to avoid any “additional
tax” under Section 409A. The parties to this Agreement intend that
the determination of Executive’s termination of employment shall be made in
accordance with Treasury Reg. Section 1.409A-1(h).
(b) The
parties to this Agreement intend that this Agreement and Company’s and
Executive’s exercise of authority or discretion hereunder shall comply with the
provisions of Section 409A and the Treasury regulations relating thereto so as
not to subject Executive to the payment of interest and tax penalty which may be
imposed under Section 409A. In furtherance of this objective, to the
extent that any regulations or other guidance issued under Section 409A would
result in Executive being subject to payment of “additional tax” under Section
409A, the parties agree to use their best efforts to amend this Agreement in
order to avoid the imposition of any such “additional tax” under Section 409A,
which such amendment shall be designed to minimize the adverse economic effect
on Executive without increasing the cost to the Company (other than transactions
costs), all as reasonably determined in good faith by the Company and Executive
to maintain to the maximum extent practicable the original intent of the
applicable provisions. This Section 7.10 does not guarantee that
payments under this Agreement will not be subject to “additional tax” under
Section 409A.
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7.11 Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original but all of which will constitute one and the same
instrument.
IN WITNESS WHEREOF, each of
the parties has duly executed this Agreement on the date indicated
below. The Company represents that its execution of this Agreement
has been authorized by the Committee.
Xxxxxx Xxxxxx, Inc.
Date: ___August 1,
2008 By: /s/Xxxxxxxx .A
Xxxxxxx
Name: Xxxxxxxx
X. Xxxxxxx
Title: Chairman
of the Board
Date:
August
4,
2008 /s/Xxx X.
Xxxxx
Xxx X.
Xxxxx
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