EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS
EMPLOYMENT AGREEMENT
(“Agreement”)
is
made and entered into as of the 28th
day of
November, 2007 and effective as of the 1st
day of
January, 2008 (the “Effective
Date”),
by
and between Epoch Holding Corporation (the “Company”)
and
Xxxxxxx X. Xxxxxx (“Executive”).
Where
the context permits, references to the “Employer”
shall
include the Company and any successor entities thereto. Capitalized terms used
and not otherwise defined herein shall have the meanings set forth in Section
9
herein.
WITNESSETH:
WHEREAS,
Executive
has been a founder and key contributor to the business of the Company and has
served as the Chief Executive Officer since June 18, 2004;
WHEREAS,
the
Company desires to retain the services of Executive from
and
after the date hereof; and
WHEREAS,
Executive desires to provide such services subject to the terms and conditions
set forth herein;
NOW,
THEREFORE,
in
consideration of the mutual promises, covenants and agreements herein contained,
together with other good and valuable consideration the receipt of which is
hereby acknowledged, the parties hereto do hereby agree as follows:
1. SERVICES
AND DUTIES.
From
and after the Effective Date through the
Initial Term and any Renewal Term (collectively the “Employment
Period”),
Executive shall be employed by the Company in the capacity of its Chief
Executive Officer, and shall serve as a Director of the Board of Directors
of
the Company (the “Board”).
The
principal location of Executive’s employment with Employer shall be such present
location at which Employer maintains its principal location, although Executive
understands and agrees that Executive may also be required to travel for
business reasons. Executive shall devote his full business time to overseeing
the strategic and business affairs of the Company. Executive will perform such
duties as are required by Employer from time to time and normally associated
with Executive’s position, together with such additional duties, commensurate
with Executive’s positions with Employer and with its Affiliates, as may be
assigned to Executive from time to time by the Board consistent with the terms
of this Agreement. Executive shall follow and comply with all policies and
procedures and compliance manuals adopted by or in respect of Employer and
its
Affiliates, as may be applicable to Executive. Notwithstanding the foregoing,
and other than with respect to board and/or outside positions held as of the
date hereof, nothing herein shall prohibit Executive from (i) subject to
prior approval of the Board, accepting directorships unrelated to Employer
that
do not give rise to any conflict of interests with Employer or its Affiliates
and (ii) engaging in charitable and civic activities, so long as such
outside interests do not materially interfere with the performance of
Executive’s duties hereunder.
2. TERM.
Executive’s employment under the terms and conditions of this Agreement will
commence on the Effective Date. The term of this Agreement shall commence on
the
Effective Date and end on December 31, 2010 or immediately following such
earlier time that Executive’s employment terminates under Section 5 (such
period, the “Initial
Term”);
provided,
however,
on
December 31, 2010 and on each anniversary thereafter, the Employment Period
shall automatically be extended for one (1) additional year (each, a
“Renewal
Term”)
unless
either party gives written notice to the other party not to extend this
Agreement at least forty-five (45) days prior to the end of the Employment
Period (in which event this Agreement shall terminate effective as of the close
of such Term or Renewal Term, as the case may be).
3. COMPENSATION.
(a) Base
Salary.
In
consideration of Executive’s full and faithful satisfaction of Executive’s
duties under this Agreement, Employer agrees to pay to Executive a salary in
the
amount of $350,000 per annum (the “Base
Salary”),
payable in such installments as Employer pays its similarly placed employees
(but not less frequently than each calendar month), subject to usual and
customary deductions for withholding taxes and similar charges, and customary
employee contributions to the health, welfare and retirement programs in which
Executive is enrolled from time to time. The Base Salary shall be reviewed
on an
annual basis by the Compensation Committee of the Board and adjusted at the
sole
discretion of the Compensation Committee of the Board; provided,
however,
in no
event shall the Base Salary be reduced without Executive’s written approval.
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(b) Annual
Bonus Incentive.
Executive shall be eligible for an annual bonus incentive (the “Annual
Bonus Incentive”
or
“Bonus”)
as
determined by the Compensation Committee of the Board, from time to time, in
accordance with Employer’s incentive compensation plan then in effect for each
fiscal year or portion thereof during the Employment Period, provided that
Executive remains employed by Employer during such period. Any Bonus earned
by
Executive for any fiscal year shall be paid in the manner set forth by the
Compensation Committee of the Board, provided such payment shall be made no
later than sixty-five (65) days following the conclusion of the fiscal year
to
which such Bonus relates. Payment of the Bonus for each fiscal year shall in
all
circumstances be contingent upon a certification of the Board that the
determination, calculation and payment of the Bonus is correct. The criteria
for
determining the Annual Incentive Bonus shall be reviewed on an annual basis
by
the Compensation Committee of the Board and adjusted at the discretion of the
Compensation Committee of the Board; provided,
however,
in no
event shall the criteria for determining the Annual Incentive Bonus be less
favorable than the criteria utilized for any other senior executive officer
of
the Company without the approval of at least a two-thirds majority of the
Board.
(c) Equity
Awards.
Executive shall be eligible for restricted stock awards or other equity based
compensation as determined by the Compensation Committee of the Board, from
time
to time, in accordance with Employer’s incentive compensation plan then in
effect for each fiscal year or portion thereof during the Employment
Period.
(d) Withholding.
All
taxable compensation payable to Executive pursuant to this Section 3 or
otherwise pursuant to this Agreement shall be subject to all applicable and
customary withholding taxes and such other excise or employment taxes as are
required under Federal law or the applicable law of any state or governmental
body to be collected with respect to compensation paid by Employer to an
employee.
(e) Discretionary
Retirement Award.
Should
Executive elect to retire during the Employment Period, the Board may consider
awarding to him a retirement bonus based on his performance during the
Employment Period and such other factors relating to the business and operations
of the Company as the Board may deem relevant.
4. BENEFITS
AND EXPENSE REIMBURSEMENT.
(a) Retirement
and Welfare Benefits.
During
the Employment Period, Executive will be entitled to participate in the usual
and customary employee benefit plans and programs offered to employees at
Executive’s level by Employer or its Affiliates, including sick time, vacation
or paid time off, and participation in Employer’s or Affiliates’ medical, dental
and insurance programs, as well as the ability to participate in Employer’s or
Affiliates 401(k) retirement savings plan, in each case in accordance with
and
subject to the terms of such plans as in effect from time to time. Nothing
in
this Section 4, however, shall require Employer or its Affiliates, if
applicable, to adopt or maintain any benefit plan or provide any type or level
of benefits to its employees, including Executive. The Company shall continue
to
maintain those life insurance policies now in place with respect to which
Executive is the named insured and to pay the premiums associated with such
policies; provided,
however,
in no
event shall Employer be required to maintain such policies if the premiums
associated with such policies during any fiscal year during the Employment
Period increases, in the aggregate, more than twenty-five percent (25%) (the
“Premium
Threshold”)
for
such coverage period; provided,
further,
however,
that
Executive shall have the option to reimburse the Company for any premiums in
excess of the Premium Threshold, in which case the Company shall continue to
maintain such policies during the applicable Employment Period.
(b) Reimbursement
of Expenses.
Employer shall reimburse Executive for any expenses reasonably and necessarily
incurred by Executive in furtherance of Executive’s duties hereunder, including
travel, meals and accommodations, upon submission by Executive of vouchers
or
receipts and in compliance with such rules and policies relating thereto as
Employer may from time to time adopt.
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5. TERMINATION.
Executive’s employment shall be terminated at the earliest to occur of the
following: (i) at the end of the Employment Period unless Executive agrees
to
continue working for Employer on mutually agreeable terms, (ii) the date on
which the Board delivers written notice that Executive is being terminated
for
Disability (as defined below), or (iii) the date of Executive’s death. In
addition, Executive’s employment with Employer may be terminated: (A) by
Employer for “Cause”
(as
defined below), effective on the date on which a written notice to such effect
is delivered to Executive; (B) by Employer at any time without Cause, effective
on the date on which a written notice to such effect is
delivered to Executive or such other date as is reasonably designated by
Employer; or (C) by Executive with “Good
Reason”
(as defined below).
(a) Termination
by Employer with Cause.
If
Executive’s employment with Employer is terminated by Employer with Cause,
Executive shall not be entitled to any further compensation or benefits other
than accrued but unpaid Base Salary (payable as provided in Section 3(a)
hereof), any accrued and unused vacation pay through the date of such
termination (collectively, the “Accrued
Benefits”)
and
any Unpaid Bonus (as defined below).
(b) Termination
by Employer without Cause or by Executive with Good Reason.
If
Executive’s employment is terminated by Employer without Cause or by Executive
with Good Reason prior to the end of the Employment Period hereof, then
Executive shall be entitled to: (i) the Accrued Benefits and any earned and
unpaid portion of an Annual Bonus Incentive for the fiscal year prior to the
fiscal year of termination (the “Unpaid
Bonus”);
(ii) a lump sum separation payment equal to one (1) times the annual Base
Salary plus one (1) times the Average Bonus (as defined below); and (iii) the
Annual Bonus Incentive determined for the full fiscal year based solely upon
the
operations and investment performance of the Company for the twelve (12) month
period through and including the end of the fiscal quarter in which Executive’s
employment is terminated hereunder multiplied by a fraction, the numerator
of
which is the number of months (including the month of termination) during the
then current fiscal year that Executive was employed under this Agreement and
the denominator of which is twelve (12) (the “Pro-Rata
Annual Bonus Incentive”).
“Average
Bonus”
means
the three-fiscal year average (or such lesser period during the Employment
Period, if applicable) of the Annual Bonus Incentive; provided,
however,
that in
the event such termination occurs prior to the end of the 2008 Bonus period,
the
amount of the Average Bonus shall be equal to the average of (A) the 2007 Annual
Bonus Incentive actually paid to Executive and (B) the 2008 Annual Bonus
Incentive which would have been paid if Executive had been employed at the
end
of the 2008 Bonus period based solely upon the operations and investment
performance of the Company for the twelve (12) month period through and
including the end of the fiscal quarter in which Executive’s employment is
terminated hereunder.
(c) Voluntary
Resignation, Death or Disability.
If
Executive’s employment is terminated voluntarily by Executive or by reason of
Executive’s death or Disability prior to the end of the Employment Period, in
lieu of any other payments or benefits, Executive (or Executive’s estate, as
applicable) shall be entitled to (i) the Accrued Benefits and any Unpaid Bonus;
(ii) a lump sum payment equal to the remaining Base Salary payable through
the end of the fiscal year of termination (assuming Executive’s employment had
continued through such date); and (iii) the Pro-Rata Annual Bonus Incentive,
but
which shall be determined based upon an interpolation of full fiscal year
results for the fiscal year of termination based solely upon the operations
and
investment performance of the Company for the twelve (12) month period through
and including the end of the fiscal quarter in which Executive’s employment is
terminated hereunder.
(d) Termination
in Connection with a Change in Control.
If
Executive’s employment is terminated by Employer without Cause or by Executive
with Good Reason, in each case within the twelve-month period following the
occurrence of a Change in Control, then in lieu of any other payments set forth
in this Section 5, Executive shall be entitled to: (i) the Accrued Benefits
and any Unpaid Bonus; (ii) a lump sum separation payment equal to two (2)
times the annual Base Salary plus two (2) times the Average Bonus; and (iii)
a
pro-rata Annual Bonus Incentive for the fiscal year of termination.
(e) Resignation
as Officer or Director.
Upon
the termination of employment for any reason, Executive shall resign each
position (if any) that Executive then holds as an officer or director of
Employer or any of its Subsidiaries or Affiliates.
(f) Section
409A.
To the
extent required to comply with Section 409A of the Code, as determined by
Employer’s and Executive’s respective counsel, one or more payments under this
Section 5 shall be delayed to the six-month anniversary of the date of
Executive’s separation from service, within the meaning of Section 409A of the
Code.
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(g) Release
and Payment.
All
payments to Executive provided for in this Section 5 shall be conditioned upon
Executive’s (or Executive’s estate, as applicable) providing Employer with a
signed release limited in scope to employment related claims in a form
acceptable to the Board. All such payments shall be made to Executive in cash
within sixty (60) days of his death or other termination of employment.
6. RESTRICTIVE
COVENANTS.
(a) The
parties agree that the restrictive covenants set forth in Exhibit
A
hereto
(the “Restrictive
Covenants”)
are
incorporated herein by reference and shall be deemed to be contained herein.
Executive understands, acknowledges and agrees that the Restrictive Covenants
apply (i) during his employment under this Agreement and during any period
of employment by Employer or any controlled Affiliate following the termination
of this Agreement or the expiration of the Term or any Renewal Term of this
Agreement, and (ii), as provided in Exhibit
A
hereto,
during the Non-Compete Period or any additional periods specified following
termination of his employment with Employer and by any controlled Affiliate
which may have employed him.
(b) Executive
hereby acknowledges that the provisions of Exhibit
A
hereto
are reasonable and necessary for the protection of Employer and its Affiliates
(the “Other
Parties”)
and
are not unduly burdensome to Executive and that Executive acknowledges such
obligations under such covenants. Executive further acknowledges that the Other
Parties will be irreparably harmed if such covenants are not specifically
enforced. Accordingly, Executive agrees that, in addition to any other relief
to
which the Other Parties may be entitled, including claims for damages, the
Other
Parties shall be entitled to seek and obtain injunctive relief (without the
requirement of any bond) from a court of competent jurisdiction for the purpose
of restraining Executive from an actual or threatened breach of such
covenants.
(c) Notwithstanding
anything to the contrary contained herein, nothing in this Agreement shall
be
construed or otherwise interpreted to limit or otherwise supersede any of the
terms and conditions set forth in the Stockholders Agreement, including without
limitation the restrictions set forth therein with respect to “Harmful Activity”
(as such term is defined in the Stockholders Agreement).
7. ASSIGNMENT.
This
Agreement, and all of the terms and conditions hereof, shall bind Employer
and
its successors and assigns and shall bind Executive and Executive’s heirs,
executors and administrators. No transfer or assignment of this Agreement shall
release Employer from any obligation to Executive hereunder. Neither this
Agreement, nor any of Employer’s rights or obligations hereunder, may be
assigned or are otherwise subject to hypothecation by Executive. Employer may
assign the rights and obligations of Employer hereunder, in whole or in part,
to
any of Employer’s Subsidiaries or Affiliates, or to any other successor or
assign in connection with the sale of all or substantially all of Employer’s
assets or equity or in connection with any merger, acquisition and/or
reorganization, provided the assignee assumes, in an assumption agreement in
form reasonably satisfactory to Executive, the obligations of Employer
hereunder.
8. REPRESENTATIONS
AND WARRANTIES.
(a) Executive
represents as follows:
(i) Executive
is not subject to any restriction whatsoever which would cause him to not be
able fully to fulfill his duties under this Agreement.
(b) The
Company hereby represents and warrants to Executive that it has the due
authorization and capacity to execute, deliver and satisfy its obligations
to
Executive under this Agreement, that all consents have been secured in
connection with the execution, delivery and performance of this Agreement and
that the execution, delivery and performance of this Agreement has been fully
authorized and does not and shall not contravene or breach any instrument,
agreement or document to which the Company or any Affiliate are a
party.
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9. DEFINITIONS.
As used
in this Agreement, the following defined terms have the meanings indicated
below:
(a) “Affiliate”
or
“Affiliates”
means
with respect to any specified Person, any other Person that, directly or
indirectly, owns or controls, is under common ownership or control with, or
is
owned or controlled by, such specified Person;
(b) “Cause”
means:
(i) the
willful engaging by Executive in illegal, fraudulent or unethical conduct or
gross misconduct which, in each case, is materially and demonstrably injurious
(x) to Employer or its Subsidiaries or Affiliates, (y) to the reputation of
Executive, Employer or its Subsidiaries or Affiliates, or (z) to any of the
Employer’s products or businesses; or
(ii) conviction
of a felony or guilty or nolo
contendere
plea by
Executive with respect thereto; or
(iii) a
material breach by Executive of this Agreement (x) if such breach is curable
(in
the reasonable judgment of the Board) and is not cured within ten (10) business
days following receipt of a notice of such breach or (y) if such breach is
not
curable (in the reasonable judgment of the Board); provided that Employer shall
be required to provide notice under this sentence only one time during any
fiscal year in connection with any single category of events constituting Cause
hereunder.
For
purposes of this definition, no act or failure to act on the part of Executive
shall be considered “willful”
unless
it is done, or omitted to be done, by Executive in bad faith or without
reasonable belief that Executive’s action or omission was in the best interests
of Employer (or its Affiliates, if applicable) or was done or omitted to be
done
with reckless disregard to the consequences. Any act, or failure to act, based
upon authority given pursuant to a resolution duly adopted by a vote of at
least
seventy-five percent (75%) of the then outstanding Board or based upon the
advice of counsel for Employer shall be conclusively presumed to be done, or
omitted to be done, by Executive in good faith and in the best interests of
Employer. Cause shall not exist hereunder unless and until Employer has
delivered to Executive, along with a notice of termination for Cause, a copy
of
a resolution duly adopted by the Board (excluding Executive if Executive is
a
member of the Board) at a meeting thereof called and held for such purpose
(after reasonable notice to Executive and an opportunity for Executive, together
with counsel, to be heard before the Board), finding that in the good faith
opinion of the Board an event set forth in clauses (i) through (iii) has
occurred and specifying the particulars thereof in detail.
(c) “Change
in Control”
means
an event described in Section 409A(a)(2)(A)(v) of the Code, and regulations
promulgated thereunder.
(d) “Code”
means
the Internal Revenue Code of 1986, as amended.
(e) “Disability”
means,
as determined by the Board in good faith, Executive’s inability, due to
disability or incapacity, to perform all of Executive’s duties hereunder on a
full-time basis for (i) periods aggregating one-hundred-eighty (180) days,
whether or not continuous, in any continuous period of
three-hundred-and-sixty-five (365) days or, (ii) where Executive’s absence is
adversely affecting the performance of Employer in a significant manner, periods
greater than ninety (90) days and Executive is unable to resume Executive’s
duties on a full time basis within ten (10) days of receipt of written notice
of
the Board’s determination under this clause (ii).
(f) “fiscal
year”
means
any consecutive twelve (12) month period commencing on July 1 and ending on
June
30. In the event Employer, in its sole discretion, elects to change its fiscal
year in accordance with its governing documents and applicable state law, any
payments and/or incentive criteria hereunder shall be paid and/or modified
to
reflect any “stub period” payments owed to Executive for any fiscal year during
the Employment Period.
(g) “Good
Reason”
means
the occurrence of one of the following:
(i) a
material diminution or other material adverse change in Executive’s office,
duties, salary, benefits or responsibilities made without Executive’s prior
written consent;
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(ii)
a
material breach by the Employer of this Agreement; or
(iii) a
requirement by the Employer that Executive’s principal place of work be moved to
a location more than fifty (50) miles away from its then current
location.
Good
Reason shall not exist hereunder unless Executive first provides sixty (60)
days
prior written notice to the Board which notice alleges the occurrence of one
of
the aforementioned events in specific detail. Notwithstanding the foregoing,
however, Executive shall not have the ability to terminate this Agreement if
the
facts alleged in such written notice have been cured prior to the expiration
of
such sixty (60) day notice period.
(h) “Non-Compete
Period”
means:
(i) in
all
cases, the period consisting of the Initial Term and any Renewal Term then
in
effect; and
(ii) in
the
event of a termination of employment with Cause or by the Executive without
Good
Reason, the Non-Compete Period will be extended for an additional period
consisting of the twelve (12) month period after the termination of Executive’s
employment; and
(iii) in
the
event of a termination of employment because of death or Disability, or in
the
event of a termination by Executive with Good Reason or by Employer without
Cause (including in connection with the occurrence of a Change in Control),
the
period consisting of the Initial Term or Renewal Term then in effect (after
giving effect to such termination).
(i) “Person”
means
any natural person, corporation, limited liability company, general partnership,
limited partnership, proprietorship, other business organization, trust, union,
association or governmental entity.
(j) “Stockholders
Agreement”
means
that certain Stockholders Agreement dated June 2, 2004, by and among the
Company, Executive and the other signatories thereto.
(k) “Subsidiary”
means
a
subsidiary of Employer (or other referenced entity, as the case may be) as
defined in Rule 405 of Regulation C of the Securities Act of 1933, as
amended.
10. GENERAL.
(a) Notices.
Any
notices provided hereunder must be in writing and shall be deemed effective
upon
the earlier of one business day following personal delivery (including personal
delivery by telecopy or telex), or the third business day after mailing by
first
class mail to the recipient at the address indicated below:
To
Employer:
Epoch
Holding Corporation
000
Xxxxx
Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Chairman, Compensation Committee
Notices
to Executive shall be given at the location set forth in Employer’s records, or
to such other address or to the attention of such other person as the recipient
party may have specified by prior written notice to the sending
party.
(b) Severability.
Any
provision of this Agreement which is deemed invalid, illegal or unenforceable
in
any jurisdiction shall, as to that jurisdiction and subject to this paragraph
be
ineffective to the extent of such invalidity, illegality or unenforceability,
without affecting in any way the remaining provisions hereof in such
jurisdiction or rendering that or any other provisions of this Agreement
invalid, illegal, or unenforceable in any other jurisdiction. If any covenant
should be deemed invalid, illegal or unenforceable because its scope is
considered excessive, such covenant shall be modified so that the scope of
the
covenant is reduced only to the minimum extent necessary to render the modified
covenant valid, legal and enforceable.
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(c) Entire
Agreement.
This
document, together with its attached exhibit, and the Stockholders Agreement
constitute the final, complete, and exclusive embodiment of the entire agreement
and understanding between the parties related to the subject matter hereof
and
supersedes and preempts any prior or contemporaneous understandings, agreements,
or representations by or between the parties, written or oral.
(d) Counterparts.
This
Agreement may be executed on separate counterparts, any one of which need not
contain signatures of more than one party, but all of which taken together
will
constitute one and the same agreement.
(e) Amendments.
No
amendments or other modifications to this Agreement may be made except by a
writing signed by both parties. Nothing in this Agreement, express or implied,
is intended to confer upon any third person any rights or remedies under or
by
reason of this Agreement.
(f) Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York applicable to agreements made and/or to be performed in that
State, without regard to any choice of law provisions thereof. Except as
provided under Section 10(k) hereto, all disputes arising out of or related
to
this Agreement shall be submitted to the state and federal courts of New York,
and each party irrevocably consents to such personal jurisdiction and waives
all
objections thereto, but does so only for the purposes of this
Agreement.
(g) Survivorship.
The
provisions of this Agreement necessary to carry out the intention of the parties
as expressed herein (including, without limitation, the Restrictive Covenants
provided in Section 6 hereof and Exhibit
A
hereto)
shall survive the termination or expiration of this Agreement.
(h) Waiver.
The
waiver by either party of the other party’s prompt and complete performance, or
breach or violation, of any provision of this Agreement shall not operate or
be
construed as a waiver of any subsequent breach or violation, and the failure
by
any party hereto to exercise any right or remedy which it may possess hereunder
shall not operate or be construed as a bar to the exercise of such right or
remedy by such party upon the occurrence of any subsequent breach or violation.
No waiver shall be deemed to have occurred unless set forth in a writing
executed by or on behalf of the waiving party. No such written waiver shall
be
deemed a continuing waiver unless specifically stated therein, and each such
waiver shall operate only as to the specific term or condition waived and shall
not constitute a waiver of such term or condition for the future or as to any
act other than that specifically waived.
(i) Captions.
The
captions of this Agreement are for convenience and reference only and in no
way
define, describe, extend or limit the scope or intent of this Agreement or
the
intent of any provision hereof.
(j) Construction.
The
parties acknowledge that this Agreement is the result of arm’s-length
negotiations between sophisticated parties, each afforded representation by
legal counsel. Each and every provision of this Agreement shall be construed
as
though both parties participated equally in the drafting of the same, and any
rule of construction that a document shall be construed against the drafting
party shall not be applicable to this Agreement.
(k) Arbitration.
Except
as necessary for Employer, its Subsidiaries, Affiliates, and their respective
successors or assigns or Executive to specifically enforce or enjoin a breach
of
this Agreement (to the extent such remedies are otherwise available, including
as provided and limited in Section 10(l) hereof), the parties agree that any
and
all disputes that may arise in connection with, arising out of or relating
to
this Agreement, or any dispute that relates in any way, in whole or in part,
to
Executive’s services on behalf of Employer or any Affiliate, the termination of
such services or any other dispute by and between the parties or their
Subsidiaries, Affiliates, and their respective successors or assigns, shall
be
submitted to binding arbitration in New York, New York, before
JAMS, pursuant to the JAMS Employment Arbitration Rules & Procedures (the
“Rules”), including the internal appeal process provided for in Rule 32 of the
Rules, and before a single arbitrator to be mutually agreed upon by the parties.
If JAMS is not in business or is no longer providing arbitration services,
then
the American Arbitration Association shall be substituted for JAMS for the
purposes of arbitration under this section, and its Commercial Arbitration
Rules
(and not National Rules for the Resolution of Employment Disputes) shall be
used. The parties further agree that each party shall pay its own costs,
arbitration expenses and attorneys’ fees, unless the arbitrator (or appeal
panel) determines it is just and proper under the circumstances to award costs,
arbitration expenses and/or attorneys’ fees to either party and provided
further, that if either party prevails on a statutory claim, which affords
the
prevailing party an award of costs and attorneys’ fees, then the arbitrator may
award reasonable costs and attorneys’ fees to the prevailing party, consistent
with applicable law. The arbitrator shall issue a written decision and award
supported by essential findings of fact and conclusions of law. The arbitrator
shall have no jurisdiction or authority to issue any award contrary to or
inconsistent with this Agreement or applicable law. Judgment in a court of
competent jurisdiction may be had on the decision and award of the arbitrator
(or the appeal panel). For this purpose, the parties agree to submit to the
jurisdiction of the state courts located in the Borough of Manhattan, New York
and the U.S. District Courts for the Southern District of New York. Subject
to Section 10(l) hereof, this arbitration obligation extends to any and all
claims that may arise by and between the parties or their Subsidiaries,
Affiliates and their respective successors or assigns, and expressly extends
to,
without limitation, claims or causes of action for wrongful termination,
impairment of ability to compete in the open labor market, breach of an express
or implied contract, breach of the covenant of good faith and fair dealing,
breach of fiduciary duty, fraud, misrepresentation, defamation, slander,
infliction of emotional distress, disability, loss of future earnings, and
claims under the United States Constitution, and applicable state and federal
fair employment laws, federal and state equal employment opportunity laws,
and
federal and state labor statutes and regulations, including, but not limited
to,
the Civil Rights Act of 1964, as amended, the Fair Labor Standards Act, as
amended, the Americans With Disabilities Act of 1990, as amended, the
Rehabilitation Act of 1973, as amended, the Employee Retirement Income Security
Act of 1974, as amended, the Age Discrimination in Employment Act of 1967,
as
amended, and any other state or federal law.
(l) Third
Party Beneficiaries.
Except
as expressly provided herein, nothing in this Agreement shall confer any rights
or remedies upon any Person other than the parties hereto.
(m) Certain
Expenses.
Employer shall reimburse Executive for its reasonable and documented legal
fees
and expenses incurred in connection with the preparation of this
Agreement.
[Signature
page follows]
7
| EPOCH HOLDING CORPORATION | ||
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxxxxx | |
|
Name: Xxxxxxx X. Xxxxxxx |
||
| Title: Chief Operating Officer | ||
|
Accepted
and Agreed to:
|
|
/s/
Xxxxxxx X. Xxxxxx
|
|
|
|
Xxxxxxx
X. Xxxxxx
|
[Signature
Page for EPOCH Holding
Corporation/Xxxxxxx X. Xxxxxx Employment Agreement]
8
Restrictive
Covenants
Covenant
Not to Compete.
Executive acknowledges that (i) Executive will be a key employee of
Employer, (ii) Executive will receive payments pursuant to Section 3 of this
Agreement, (iii) Executive has and will continue to have knowledge, information
and other know-how regarding Employer’s business as a key employee thereof, and
(iv) Executive has and will continue to develop relationships and contacts
with
Employer’s clients and investors as a key employee of Employer, and that all of
these factors would permit him to compete with Employer. Executive further
acknowledges that the covenants set forth in this Exhibit
A
constitute a material inducement to Employer to employ Executive pursuant to
this Agreement and that Employer would not have agreed to employ Executive
unless Executive had agreed to the covenants set forth in this Exhibit
A.
Accordingly, Executive therefore covenants and agrees as follows:
Nature
of Competition.
During
the Non-Compete Period, Executive shall not, without the Employer’s prior
written consent, directly or indirectly, for his own account, or in any capacity
on behalf of any other third Person, whether as an officer, director, employee,
partner, joint venturer, consultant, investor or otherwise, engage, or assist
others to engage, in whole or in part, in any business deriving more than ten
percent (10%) of its revenues or income from providing investment management
services (a “Competing
Business”);
provided,
however,
that
ownership of stock of a business shall not be deemed a violation of this
Exhibit
A
if and
for so long as (i) the stock of such business is publicly traded; (ii) such
ownership does not exceed 5% of the aggregate outstanding equity interest of
such business and (iii) Executive does not otherwise participate in the
management, operations or affairs of such business. Notwithstanding the
foregoing, nothing in this Agreement shall be construed to prohibit Executive
from (i) rendering services to, acquiring an economic interest in or otherwise
providing assistance to the Employer or any of their Affiliates or any pooled
investment vehicle which is advised or sub-advised by the Company or any of
their respective Affiliates, (ii) providing investment management services
(whether personally or as an employee or partner of a business formed for this
purpose) solely on his own behalf or on behalf of one or more of his family
members, including trusts of which his family members are the principal
beneficiaries and Persons established solely for the benefit of, and wholly
owned by, his family members or (iii) rendering services to, acquiring an
economic interest in or otherwise providing assistance to any immediate family
member engaged in providing investment management services. Furthermore,
Executive may notify the Employer of any proposed activity for the purpose
of
soliciting a conclusion as to whether such activity would violate this
Exhibit
A.
The
Employer agrees that it shall approve or disapprove Executive’s proposal within
30 days of such notice. If the Employer approves such activity for purposes
of
this Exhibit
A,
then
such activity, as disclosed in Executive’s request for approval, will not
constitute a violation of this Exhibit
A.
Confidential
Information.
During
the Employment Period and at all times thereafter, Executive shall hold in
a
fiduciary capacity for the sole benefit of Employer and its Affiliates, all
secret or confidential information, knowledge or data (collectively,
“Confidential
Information”),
including without limitation trade secrets, investments, contemplated
investments, business opportunities, Company or investment performance,
valuation models and methodologies, relating to the business of the Employer
and
their respective Affiliates, and their respective businesses including, without
limitation, the identity of any investor or client and the fact that such person
is an investor or client of the Company: (i) obtained by Executive during
Executive’s employment hereunder and (ii) not otherwise in the public domain.
Executive shall not, without prior written consent of Employer (which may be
granted or withheld in its sole and absolute discretion), use, or communicate
or
divulge any Confidential Information, or any related knowledge or data to anyone
other than Employer or its Affiliates or those designated by Employer or its
Affiliates, except to the extent compelled pursuant to the order of a court
or
other body having jurisdiction over such matter or based upon the advice of
his
counsel that such disclosure is legally required; provided,
however,
that
Executive will assist Employer or its Affiliates, at Employer or such
Affiliates’ expense, in obtaining a protective order, other appropriate remedy
or other reliable assurance that confidential treatment will be accorded such
information so disclosed pursuant to the terms of this Agreement.
All
processes, technologies, investments, contemplated investments, business
opportunities, valuation models and methodologies, and inventions (collectively,
“Inventions”),
including without limitation new contributions, improvements, ideas, business
plans, discoveries, trademarks and trade names, conceived, developed, invented,
made or found by Executive, alone or with others, during the Employment Period,
whether or not patentable and whether or not on Employer’s, or its respective
Affiliates’ time or with the use of their facilities or materials, shall be the
property of Employer or such Affiliates, as applicable, and shall be promptly
and fully disclosed by Executive to Employer or such Affiliates, as applicable.
Executive shall perform all necessary acts (including, without limitation,
executing and delivering any confirmatory assignments, documents, or instruments
requested by Employer or its Affiliates) to vest title to any such Invention
in
Employer or its respective controlled Affiliate, as applicable, to enable such
party, at its expense, to secure and maintain domestic and/or foreign patents
or
any other rights for such Inventions.
Without
limiting anything contained above, Executive agrees and acknowledges that all
personal and not otherwise public information about Employer and their
respective Affiliates, including, without limitation, their respective
investments, investors, transactions, historical performance, or otherwise
regarding or concerning Employer or its Affiliates, shall constitute
Confidential Information for purposes of this Agreement. In no event shall
Executive during or after his employment hereunder, disparage Employer or its
Affiliates or any of their respective officers, directors or
employees.
The
provisions of this Exhibit
A
shall
not be deemed to limit any of the rights available to the respective parties
under the any other agreements to which they may be parties and those which
arise under applicable law.
9
