Exhibit 10.7
Form of Agreement
W.P. XXXXX & CO. LLC
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of the 28th day of June, 2000 between W.P.
Xxxxx & Co. LLC (the "Company"), a New York corporation at 00 Xxxxxxxxxxx Xxxxx,
Xxx Xxxx, XX 00000, and Xxxxxx X. La Puma ("Partner").
WITNESSETH:
WHEREAS, Partner has been a key employee of W.P. Xxxxx & Co., Inc.
("Old Xxxxx");
WHEREAS, the Company has acquired a substantial portion of the
business of Old Xxxxx pursuant to the terms of a merger of even date herewith;
WHEREAS, Partner contributed materially to the successful operation of
the business of Old Xxxxx acquired by the Company;
WHEREAS, the Company wishes to assure itself of the continued
availability of Partner's services, and Partner is willing to give such
assurance in return for the benefits described herein;
NOW, THEREFORE, intending to be legally bound hereby, the Company
hereby agrees to employ Partner, and Partner hereby agrees to be employed by the
Company upon the following terms and conditions:
1. Office and Duties. Partner shall service the Company as an
Executive Director and in such position shall have such duties and power with
the Company and its subsidiaries and affiliates consistent with such position
and Partner's experience and abilities as may from time to time be determined by
the board of directors of the Company (the "Board"), the Chairman of the Board,
the Chief Executive Officer or President of the Company. Except to the extent
that Partner shall otherwise be performing services for one or more entities
that are affiliated with the Company, whether through equity ownership,
contractual arrangements or otherwise, Partner will use his reasonable best
energies and abilities and will devote his full business time, except for
vacation time and reasonable periods of absence due to sickness, personal injury
or other disability, to the duties assigned to him and shall use his best
efforts, judgment, skill and energy to perform such services faithfully and
diligently to further the business interests of the Company, to improve and
advance the business and interests of the Company, to increase shareholder value
and otherwise promote the best interests of the Company's
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shareholders. Notwithstanding the immediately preceding sentence, this Paragraph
1 shall not be construed to preclude Partner from (i) serving on the board of
directors of any business corporation with the consent of the Board, which
consent shall not be unreasonably withheld, (ii) serving on the board of, or
working for, any charitable or community organization or (iii) pursuing his
personal, financial and legal affairs, so long any and all such activities
described in clauses (i) through (iii), individually or collectively, do not
interfere with the performance of Partner's duties hereunder.
2. Term. This Agreement shall be for a term commencing as of the date
hereof (the "Commencement Date") and ending on June 30, 2004, unless sooner
terminated as hereinafter provided. Unless either party elects to terminate this
Agreement at the end of the original or any renewal term by giving the other
party notice of such election at least 180 days before the expiration of the
then current term, this Agreement shall be deemed to have been renewed for an
additional one year period commencing on the day after the expiration of the
then current term. The period during which Partner is employed pursuant to this
Agreement, including any extension thereof in accordance with the preceding
sentence, shall be referred to as the "Service Period." Upon the expiration of
this Agreement at the end of its term (after taking into account all extensions
thereof), Partner shall be an at-will employee of the Company and neither party
shall have any continuing liability or obligation to the other hereunder.
3. Compensation. During the Service Period, Partner shall receive cash
compensation in the form of an annual base salary at the rate of $200,000, of
which $100,000 shall be treated as a draw and offset against any Incentive
Compensation payable to Partner as hereinafter provided (such base salary as it
may hereafter be increased from time to time shall be referred to as the "Base
Salary"). During the Service Period, Partner shall receive incentive
compensation (including, without limitation, bonuses and other forms of
compensation related to the achievement of specific performance) under the
Company's incentive compensation programs (as the same may be amended by the
Company from time to time) at a level determined by, and at the discretion of,
the Company's Executive Committee ("Incentive Compensation"). Such Base Salary
and Incentive Compensation (such items hereafter collectively referred to as
"Total Annual Compensation") shall be payable in accordance with the Company's
generally applicable practices and policies. The Executive Committee shall
periodically review Partner's Total Annual Compensation in light of the
compensation paid to other officers of the Company and the Partner's performance
(including such performance relative to other partners and officers), and may
increase such compensation by an amount it determines to be appropriate. While
it is understood that the Company may at any time and from time to time change
the criteria upon which Incentive Compensation is payable and that any payment
of Incentive Compensation is contingent upon Partner's
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satisfactory performance of his duties hereunder, the Company shall not take any
action that adversely affects Partner's opportunity to earn, subject to
appropriate performance criteria, Total Annual Compensation in an amount
substantially comparable to the amount that Partner could have earned
immediately prior to the date hereof. (The immediately preceding sentence shall
not apply, however, if Partner accepts a position with the Company that has a
different compensation structure from the position currently held by Partner).
The parties agree and understand that the amount of Total Annual Compensation
may increase or decrease from period to period based on performance.
4. Equity Option Grant. Subject to the execution hereof, Partner has
been granted an option (the "Commencement Option") in respect of 25,000
membership interests in the Company (the "Common Interests"). Such options shall
vest and become exercisable in three approximately equal annual installments on
each of April 1, 2001, April 1, 2002, and April 1, 2003, or at such earlier time
or times as may otherwise be provided in this Agreement or the corresponding
award agreement. Partner agrees and acknowledges that his rights and obligations
in respect of such option shall be governed by the terms and conditions of the
related option agreement; provided that in the event of an inconsistency between
that agreement and the express terms of this Agreement, this Agreement shall
control. Without limiting the generality of the foregoing, the Board of
Directors, in its sole discretion, may grant Partner options to purchase
additional Common Interests on such terms and conditions and in such number as
it shall determine (so long as Common Interests are available for this purpose).
5. Equity Grant. Subject to the execution hereof, Partner has been
granted an award (the "Commencement Grant") with respect to 50,000 Common
Interests. Unless and until they become vested as provided in the next
succeeding sentence or as may otherwise be provided in this Agreement or the
corresponding award agreement, such Common Interests shall be subject to
forfeiture upon the Partner's termination of service. Such Common Interests will
vest in four equal installments on April 1, in each of calendar years 2001,
2002, 2003 and 2004, if Partner is still providing services to the Company
and/or its subsidiaries on such date. Partner agrees and acknowledges that his
rights and obligations in respect of such award shall be governed by the terms
and conditions of an award agreement relating to such Common Interests; provided
that in the event of an inconsistency between that agreement and the express
terms of this Agreement, this Agreement shall control. Partner shall also be
entitled to receive up to a maximum of 25,000 additional Common Interests, in
the aggregate, over a four-year performance period, if and only if (and at the
same times and in the same proportion to the total payments available) as
amounts are payable to Old Xxxxx under the performance criteria applicable in
respect of the earn-out related to the merger transaction with Old Xxxxx.
Without limiting the generality of the foregoing, the Board of Directors
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may, in its sole discretion, award Partner additional Common Interests on such
terms and conditions and in such number as it shall determine (so long as Common
Interests are available for this purpose).
6. Benefits, Perquisites and Expenses.
(a) Benefits. During the Service Period, Partner shall be eligible to
participate in each employee benefit plan sponsored or maintained by the
Company, subject to the generally applicable provisions thereof and shall be
entitled to receive such perquisites as are generally made available to
similarly situated partners in accordance with the Company's applicable policies
and practices as in effect from time to time Nothing in this Agreement shall in
any way limit the Company's right to amend, modify, terminate or add to any such
plan, policy or arrangement, in its discretion, so long as any such amendment
does not impair the rights of Partner without treating similarly situated
partners in a similar fashion. In addition, during the Service Period, the
Company shall make available for Partner's use an automobile with a cost not in
excess of $40,000, and shall pay the expenses associated with the general
maintenance and operation thereof, including parking up to $400 per month and
insurance (but excluding gasoline and other costs associated with the personal
use of the vehicle).
(b) Additional Insurance Coverage. During the term hereof, the Company
shall pay the annual costs of individual life insurance coverage and individual
disability coverage for the Partner up to a maximum annual amount of $15,000.
Pursuant to and subject to the preceding sentence, unless Partner otherwise
requests to obtain different coverage, as soon as reasonably practicable after
the execution hereof, the Company shall put in place individual life insurance
coverage on Partner's life in the face amount of $4,000,000 and shall continue
such coverage in place during the Service Period (subject to Partner's being
insurable). The Company shall pay all of the costs associated with such coverage
and Partner shall have the right to designate the beneficiary or beneficiaries
thereof, except that, Partner may request that the coverage to be provided be in
the form of a whole life or similar policy, so long as the Partner agrees to pay
the additional cost of such policy over the cost of a comparable term insurance
policy. At Partner's request, any life insurance policy paid for, in whole or in
part, pursuant to this Paragraph 6(b) shall be owned by a trust established by
Partner for the benefit of his beneficiaries. Subject to, and pursuant to, the
first sentence of this Paragraph 6(b), unless Partner otherwise requests, as
soon as reasonably practicable after the execution hereof, the Company shall
assist Partner to obtain an individual disability benefits policy providing
replacement income upon disability (in addition to any coverage otherwise
available under the Company's generally applicable group coverage) of up to, but
not exceeding, $10,000 per month. The parties agree and understand that the
value of the life insurance
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coverage and the cash payment in respect of the disability coverage shall be
included in Partner's income for Federal income tax purposes. The Company's
obligations with respect to the additional life insurance and disability
insurance coverage described herein are contingent upon Partner's cooperation in
obtaining such coverage (including completing such forms and undergoing such
physical examinations as may be required by the issuer of such policy). Any such
coverage shall be provided subject to such conditions and limitations as the
issuer of such policy may impose.
(c) Business Expenses. During the Service Period, the Company shall
pay or reimburse Partner for all reasonable expenses incurred or paid by Partner
in the performance of Partner's duties hereunder, upon presentation of expense
statements or vouchers and such other information as the Company may require and
in accordance with the generally applicable policies and procedures of the
Company.
(d) Indemnification. The Company shall indemnify Partner and hold
Partner harmless from and against any claim, loss or cause of action arising
from or out of Partner's performance of services as an officer, director or
Partner of the Company or any of its subsidiaries or in any other capacity in
which Partner serves at the request of the Company on the same basis as it
indemnifies its Chief Executive Officer. If, at any time, the Company has in
effect any insurance policy providing any indemnity to the Company or third
parties with respect to the errors and omissions or other actions of officers or
directors, the Company shall cause Partner's errors, omissions or other actions
to be covered under such policy on the same terms and conditions as apply to the
Company's Chief Executive Officer.
7. Termination of Employment.
(a) Early Termination of the Service Period. Notwithstanding Paragraph
2, the Service Period shall end upon the earliest to occur of (i) a termination
of Partner's employment on account of Partner's death, (ii) a Termination due to
Disability, (iii) a Termination for Cause, (iv) a Termination Without Cause, (v)
a Termination for Good Reason, (vi) a Termination Without Good Reason or (vii) a
Termination due to a Change of Control.
(b) Benefits Payable Upon Termination. Following the end of the
Service Period pursuant to Paragraph 7(a), Partner (or, in the event of his
death, his surviving spouse, if any, or his estate) shall be paid the type or
types of compensation determined to be payable in accordance with the following
Termination Matrix, at the times established pursuant to Paragraph 7(c):
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TERMINATION MATRIX
Accrued
Earned Total Employee Severance Equity
Compensation Benefits Benefits Acceleration
------------ -------- --------- ---------------------
Termination due to Payable Payable Not Payable
Death Payable
Termination due to Payable Payable Not Payable
Disability Payable
Termination for Payable Payable Not Not Payable
Cause Payable
Termination Payable Payable Payable Payable if No Waiver
Without Cause of Noncompetiton
Provisions Pursuant
to Paragraph 8(a)
Termination With Payable Payable Payable Payable if No Waiver
Good Reason of Noncompetiton
Provisions Pursuant
to Paragraph 8(a)
Termination Payable Payable Not Payable if
Without Good Payable Noncompetiton
Reason Provisions to Extend
for 12 Months
Pursuant to Paragraph
8(a)
Termination due to Payable Payable Payable Payable
a Change of
Control
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(c) Timing of Payments. Earned Total Compensation shall be paid in a
single lump sum as soon as practicable, but in no event more than 30 days
following the end of the Service Period except that, if the Company exercises
its discretion to pay Partner any additional Incentive Compensation in respect
of his service for the period prior to the Partner's termination of services,
such amount shall be payable at the same time as such amounts would otherwise be
payable under the Company's usual practices. Accrued Employee Benefits shall be
payable in accordance with the terms of the plan, policy, practice, program,
contract or agreement under which such benefits have accrued. Severance
Benefits, if applicable, shall be paid at the same time as Partner would have
received his Base Salary had he continued to be employed and for the period
commencing on the first day after the end of the Service Period and ending on
the first to occur of (i) the first anniversary of Partner's termination of
employment and (ii) the date on which Partner breaches any of the provisions of
Paragraph 8. Notwithstanding the foregoing, the Company may elect, at any time
and in its discretion, to pay Partner the remaining Severance Benefits payable
hereunder in a single lump sum amount.
(d) Definitions. For purposes of Paragraphs 7 and 8, capitalized terms
have the following meanings:
"Accrued Employee Benefits" means amounts which are vested or which
Partner is otherwise entitled to receive under the terms of or in accordance
with any plan, policy, practice or program of, or any contract or agreement
with, the Company or any of its subsidiaries, at or subsequent to the date of
his termination without regard to the performance by Partner of further services
or the resolution of a contingency, including, without limitation, in the event
of a termination due to death or a Termination due to Disability, the insurance
proceeds payable under the policies described in Paragraph 6(b).
"Change of Control" shall have the meaning ascribed thereto on the
date hereof under the 1997 Listed Share Incentive Plan pursuant to which the
Commencement Option and Commencement Grant are made.
"Earned Total Compensation" means any portion of the Partner's Base
Salary and Incentive Compensation due and payable, but unpaid, for services
rendered to the Company on or prior to the date on which the Service Period
ends. Without limiting the generality of the foregoing, the Company may, in its
sole discretion, elect to pay or award Partner such additional Incentive
Compensation that is not due and payable at his termination of employment in
respect of his pre-termination services in such amount and on such terms and
conditions as it may determine.
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"Equity Acceleration" shall mean that, pursuant to (and subject to the
limitations, if any, in) the Termination Matrix, (x) in the case of a (1) Change
of Control; (2) Termination due to death; (3) Termination due to Disability; or
(4) Termination Without Cause or a Termination With Good Reason following which
the noncompetition provisions of Paragraph 8(a) continue to apply at the
election of the Company; the Commencement Grant shall become fully vested and
nonforfeitable and the Commencement Option shall become fully and immediately
exercisable in accordance with its terms, all as of the date of such termination
and (y) in the case of a Termination Without Good Reason following which the
noncompetition provisions of Paragraph 8(a) continue to apply, at the election
of the Company, for a period of twelve months following such termination,
one-half (50%) of the Common Interests subject to the Commencement Grant that
were not vested, and one-half (50%) of the Common Interests subject to the
Commencement Option that were not vested and exercisable, in each case, as of
the date of Partner's termination of service shall become vested and immediately
exercisable as of such date of termination.
"Independent Committee" shall mean the committee initially comprised
of Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxx and Xxxxxx Xxxxxxx and as it may thereafter
be constituted from time to time in accordance with this provision. If any
member of the initial Independent Committee (or any successor thereto appointed
in accordance with this provision) ceases to a member of the Independent
Committee for whatever reason, the successor to such person on the Independent
Committee shall be appointed by the Board from the members of the Board or the
boards of directors of the Company's affiliates, subject to the approval of such
appointment by the then remaining members of the Independent Committee,
provided, however, that no person who is hereafter appointed as a member of the
Independent Committee shall be an officer or employee of the Company or a member
of the immediate family of Xxxxxxx X. Xxxxx. The Board shall have the right to
remove any member of the Independent Committee from office at any time such
person is no longer a member of the Board or of the board of directors of any
affiliated entity.
"Severance Benefits" means monthly payments in an amount equal to the
sum of (x) the Partner's monthly Base Salary as in effect immediately prior to
his termination of employment and (y) an amount equal to one-twelfth of the
Incentive Compensation payments paid to the Partner during the 24 month period
ended as of the last calendar month ended immediately prior to such termination
of service. The amount payable as Severance Benefits, however, shall be reduced
by an amount equal to 50 percent of each dollar paid to the Partner for
services, whether as an employee, consultant, partner or otherwise, during the
period Severance Benefits are payable.
"Termination Benefit" shall mean the Severance Benefits and, if
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applicable, the Equity Acceleration.
"Termination for Cause" means a termination of Partner's service by
the Company as a result of Partner's
(i) dishonesty or disloyalty;
(ii) refusal to perform his duties in good faith or otherwise fail to carry
out the express and lawful instructions of the Chairman, Chief
Executive Officer, President or the Board;
(iii) gross negligence or willful and intentional misconduct;
(iv) engaging in conduct constituting a felony or other crime involving
moral turpitude;
(v) alcohol or drug addiction, provided that, to the extent required
thereunder, any termination as a result of such addiction may only
occur after the Company shall have attempted to make reasonable
accommodations (or shall have determined that no such reasonable
accommodation is possible under the circumstances) pursuant to the
Americans with Disabilities Act of 1990, as amended;
(vi) breach of his fiduciary duties to the Company or its shareholders;
(vii) any other material violation by Partner of the terms and conditions
of this Agreement or any agreement between the Company and such
Partner.
Notwithstanding the foregoing, except with respect to subclauses (iv) and (v),
the Company shall not have the right to effect a Termination for Cause unless
the Independent Committee determines that Partner's actions or omissions have
met one or more of the basis for such a termination outlined in subclause (i),
(ii), (iii), (vi) or (vii), and that such actions or omissions have resulted (or
are reasonably expected to result) in material harm to the business, operations
or reputation of the Company. Additionally, in the case of any actions or
omissions alleged to be in violation of subclause (iii), (vi), and (vii), the
Independent Committee may not find that Cause exists under such subclause if
such action or omission was undertaken or omitted by Partner in good faith after
consultation with his supervisor and in a manner which was understood to be
consistent with the course of action determined following such consultation,
which in either case shall be determined by the Independent Committee prior to a
Change of Control.
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Following any Change of Control, subclauses (i), (ii), and (vi) shall
automatically be deleted from the definition of a Termination for Cause, without
any further action by the Company or Partner. In making any determination
hereunder, the Independent Committee shall take into consideration the
materiality and relevance to the Company of Partner's action or conduct, and
such determination shall be final and binding on Partner and the Company.
"Termination due to a Change of Control" means the voluntary
termination by the Partner of his service prior to the first anniversary of a
Change of Control of the Company upon written notice delivered not less than ten
business days prior to the effective date of Partner's termination of
employment.
"Termination due to Disability" means a termination of Partner's
service by the Company because Partner has been incapable of substantially
fulfilling the positions, duties, responsibilities and obligations set forth in
this Agreement because of physical, mental or emotional incapacity resulting
from injury, sickness or disease for a period of (i) at least four consecutive
months or (ii) more than six months in any twelve month period. Any question as
to the existence, extent or potentiality of Partner's disability upon which
Partner and the Company cannot agree shall be determined by a qualified,
independent physician selected by the Independent Committee. The determination
of any such physician shall be final and conclusive for all purposes of this
Agreement.
"Termination With Good Reason" means any termination by the Partner of
his service on account of a material breach by the Company of any of its
material obligations to Partner hereunder (including, without limitation, any of
its obligations under Paragraph 1 or 3 hereof) or following a determination by
the Independent Committee upon a written request from the Partner that the other
terms and conditions of the Partner's services (including, without limitation,
the Partner's working relationship with the Partner's direct supervisor) have
undergone a material adverse change that substantially diminishes the Partner's
ability to perform his duties hereunder or has otherwise deteriorated in a
material and adverse fashion; provided that a termination shall not be treated
as a Termination With Good Reason if Partner shall have consented in writing to
the occurrence of the event giving rise to the claim of Termination With Good
Reason. A Termination With Good Reason must be effected by a written notice from
Partner setting forth in detail the conduct alleged to be the basis for such
termination, provided that, Partner shall not have the right to terminate his
service hereunder pursuant to a Termination With Good Reason (i) if, within the
ten-business day period following receipt of Partner's written notice, the
Company shall have cured the conduct alleged to have caused the material breach
and (ii) unless Partner actually terminates employment within 30 days following
the end of the Company's cure period. Notwithstanding the
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foregoing, if the Company disputes whether a breach has occurred, or whether any
breach is material, the Independent Committee shall decide, in good faith,
whether the alleged conduct by the Company entitles Partner to quit pursuant to
a Termination With Good Reason and the time period referred to in subclause (ii)
in the immediately preceding sentence shall not end earlier than 10 days
following the date on which the Independent Committee notifies Partner of its
decision. The determination by the Independent Committee as to Partner's
eligibility for a "Termination With Good Reason" shall be final and binding on
Partner and the Company.
"Termination Without Cause" means any termination by the Company of
Partner's service with the Company for any reason other than (i) a Termination
due to Disability, (ii) a Termination due to death or (iii) a Termination for
Cause.
"Termination Without Good Reason" means any termination by Partner of
Partner's service with the Company for any reason other than (i) a Termination
due to death or (ii) a Termination With Good Reason.
(e) Full Discharge of Company Obligations. Payment of the amounts
described in this Paragraph 7 following termination of his service (including
amounts payable with respect to Accrued Employee Benefits) shall be in full and
complete satisfaction of Partner's rights under this Agreement and any other
claims he may have in respect of his service with the Company or any of its
subsidiaries. Such amounts shall constitute liquidated damages with respect to
any and all such rights and claims and, upon Partner's receipt of such amounts,
the Company shall be released and discharged from any and all liability to
Partner in connection with this Agreement or otherwise in connection with
Partner's employment with the Company and its subsidiaries. The Company shall
have no obligation to pay the Partner any Severance Benefits unless and until
the Partner executes a release of claims against the Company and its affiliates
in a form reasonably acceptable to and approved by the Company.
8. Non-Competition, Confidential Information, Etc.
(a) Noncompetition. During the term of this Agreement, as the same may
be renewed and extended, and for a period of
(i) 12 months following the termination of Partner's service with the
Company for any reason other than a Termination for Cause, provided
that,
(x) such period shall be reduced to 6 months following any
termination
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of service by the Partner (other than a Termination With Good
Reason) unless the Company shall advise Partner in writing not
later than the end of business on the fifteenth (15th) business
day commencing after the date of such termination that it has
elected to have the noncompetition period continue for the full
12 month period following such termination, in which case Partner
shall be deemed to have become vested in one-half (50%) of the
Common Interests subject to the Commencement Grant that were not
vested, and in one-half (50%) of the Common Interests subject to
the Commencement Option that were not vested and exercisable, in
each case, as of the date of Partner's termination of service and
(y) such period shall lapse as of the date of Partner's termination
of service, if (1) such termination were either a Termination
With Good Reason or Termination Without Cause and (2) the Company
advises Partner in writing not later than the end of business on
the fifth (5th) business day commencing after the date of such
termination that it has elected to waive the benefit of this
Paragraph 8(a) instead of fully vesting the Commencement Grant
and the Commencement Option on an accelerated basis pursuant to
Paragraph 7, or
(ii) 18 months following the termination of Partner's service with the
Company due to a Termination for Cause,
Partner shall not, without the written consent of the Company, directly or
indirectly, as a stockholder owning beneficially or of record more than 5% of
the outstanding shares of any class of stock of any issuer, or as an officer,
director, employee, partner, consultant, joint venturer, proprietor, or
otherwise, engage in or become interested in any Competing Business in the
United States, United Kingdom, France or in any other jurisdiction in which the
Company is actively engaged in business or with respect to which, at the time of
Partner's action (or, if Partner is not an employee of the Company at such time,
the date his service with the Company terminated), the Company had taken
material steps toward becoming actively engaged in such business. For purpose of
this Agreement, the term "Competing Business" shall mean any business which is
engaged in (i) the business of structuring, obtaining the financing for, or
otherwise implementing or facilitating long-term financing of corporate property
using leasing arrangements ("Leasing Transactions") or (ii) any other business
activity in which Partner personally participated (other than solely in an
administrative capacity with respect to matters for which Partner had no
material responsibility) during the 12 month immediately preceding the relevant
time of a
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type and kind that, at the relevant time, is conducted by the Company and which
accounts for ten percent (10%) or more of either the Company's gross revenues or
net after tax income ("Other Material Activities"); provided that nothing in
this Agreement shall preclude Partner from providing services to any Competing
Business so long as such services do not relate, directly or indirectly, to
Leasing Transactions or Other Material Activities. Without limiting the
generality of the foregoing, Partner acknowledges and agrees that the Company is
engaged in business in each state of the United States, United Kingdom and
France. Notwithstanding the foregoing, following a Change of Control, (i) if
Partner terminates his service with the Company in a Termination for Good Reason
or is terminated by his employer other than in a Termination for Cause, all
restrictions imposed on Partner pursuant to this paragraph shall cease to be
effective at the date of his termination of service and (ii) the only activities
that will be treated as Other Material Activities shall be those business
activities, if any, that, immediately prior to the Change of Control were Other
Material Activities, and at the time of the alleged competitive activity, are
Other Material Activities for the Company. The Company and Partner acknowledge
and agree that the provisions of this Paragraph 8(a) are intended to protect the
legitimate business interests of the Company and not to restrain the ability of
Partner to obtain gainful employment. The Company agrees that this Paragraph
8(a) should not be interpreted to preclude Partner from raising capital or
seeking to structure or effect financial transactions in respect of investments
of a type or nature not undertaken by the Company and its affiliates, even if
such other investments compete for investment funds from the same sources of
funds as the Company looks to for its transactions (e.g., this Paragraph 8(a)
will not preclude Partner from participating in the structure, financing or
implementation of a venture capital fund or mezzanine debt fund, even if the
potential investors in such funds include some or all of the same persons or
entities as would generally invest in a transaction sponsored or promoted by the
Company). Notwithstanding the immediately preceding sentence, Partner agrees to
not attempt to establish a commercial arrangement with American Express during
the period during which this Paragraph 8(a) is applicable without the prior
written consent of the Company.
(b) Confidential Information. Except to the extent otherwise required
under judicial or administrative process from a court or administrative agency
having jurisdiction over Partner or in the ordinary course of the Partner's
services hereunder, during the term of this Agreement and at all times
thereafter, Partner shall not, without the written consent of the Company, use
for his personal benefit, or disclose, communicate or divulge to, or use for any
company other than the Company or its subsidiaries or affiliates, any
Confidential Information (as defined below) that had been made known to Partner
or learned or acquired by Partner while in the employ of Company or its
subsidiaries or affiliates, unless such information has become public other than
by reason of Partner's breach of this covenant. Confidential Information shall
mean
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(i) information not in the public domain (or in the public domain as a
result of a breach by Partner or another partner of the Company who is
also bound by a similar confidentiality clause) regarding the business
methods, business policies, procedures, techniques, research or
developments projects or results, trade secrets, or other processes of
or developed by the Company;
(ii) any names and addresses of customers or clients or any data on or
relating to past, present or prospective customers or clients not in
the public domain (or in the public domain as a result of a breach by
Partner or another partner of the Company who is also bound by a
similar confidentiality clause); and
(iii) any other material information not in the public domain (or in the
public domain as a result of a breach by Partner or another partner of
the Company who is also bound by a similar confidentiality clause)
relating to or dealing with the business operations or activities of
the Company which has been designated by the Company as confidential
or which, if disclosed to any third party, would result in a material
adverse effect to the Company.
(c) Company Property. Promptly following Partner's termination of
service with the Company, Partner shall return to the Company all property of
the Company, and all copies thereof in Partner's possession or under his
control.
(d) Nonsolicitation of Employees. Partner agrees that for a period of
two years after the termination of his service with the Company, he will not and
will not assist or encourage any other person to (i) employ, hire, engage or be
associated (as a shareholder, partner, employee, consultant or in a similar
capacity) with any employee, partner or other person connected with the Company
who rendered services as a professional, including, without limitation, all
persons who provide direct and substantial services with respect to Leasing
Transactions or any business or type that constitutes an Other Material
Activity, regardless of whether Paragraph 8(a) restricts Partner's ability to
compete in such Other Material Activity (the "Restricted Employees"), at the
time of such termination or during any part of the six months (three months, in
the case of any employee who was not also an officer of the Company) preceding
such termination of service, (ii) induce any Restricted Employees to leave the
employ of the Company or any of its affiliates, or (iii) solicit the employment
of any Restricted Employees on his own behalf or on behalf of any other business
enterprise.
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(e) Injunctive Relief. Partner agrees and acknowledges that the
remedies at law for any breach by him of the provisions of this Paragraph 8 will
be inadequate and that the Company shall be entitled to obtain injunctive relief
against him from a court of competent jurisdiction in the event of any such
breach. If any such court of competent jurisdiction shall determine that the
restrictions contained in this Paragraph 8 are unreasonable as to time or
geographical area, such court shall reform said restrictions to the extent
necessary in the opinion of such court to make them reasonable and enforceable.
9. Miscellaneous.
(a) Indulgences, Etc. Neither the failure nor any delay on the part of
either party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence.
(b) Controlling Law. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement shall be governed by and
construed in accordance with the laws of the State of New York notwithstanding
any conflicting choice-of-law provisions.
(c) Notices. All notices, requests, demands and other communications
required or permitted under this Agreement and the transactions contemplated
herein shall be in writing and shall be deemed to have been given when delivered
in person or three days after being deposited in the United States mail in a
postpaid envelope by registered or certified mail, return receipt requested or
by 24-hour courier service.
(d) Binding Effect. This Agreement shall be binding on, and shall
inure to the benefit of, the Company and any person or entity that succeeds to
the interest of the Company (regardless of whether such succession does or does
not occur by operation of law) by reason of the sale of all or a portion of the
Company's stock, a merger, consolidation or reorganization involving the Company
or a sale of the assets of the business of the Company in which Partner performs
a majority of his services, unless the Company otherwise elects in writing to
retain responsibility for the duties and obligations of the Company (and the
benefits conveyed to the Company) under this Agreement. This Agreement shall
also inure to the benefit of Partner's heirs, executors, administrators and
legal representatives.
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(e) Assignment. Except as provided under Paragraph (d), neither this
Agreement nor any of the rights of obligations hereunder shall be assigned or
delegated by any party hereto without the prior written consent of the other
party.
(f) Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original as against the
party whose signature appears thereon, and both of which shall together
constitute one and the same instrument. This Agreement shall become binding when
one or more counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflected hereon as the signatories.
(g) Severability; Reformation. In the event that one or more of the
provisions of this Agreement shall become invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not be affected thereby. In the event any of
Paragraph 8(a), (b), (c) or (d) is not enforceable in accordance with its terms,
Partner and the Company agree that such Paragraph shall be reformed to make such
Paragraph enforceable in a manner which provides the Company the maximum rights
permitted at law.
(h) Entire Agreement. This Agreement and the agreements relating to
the terms of the option and equity grants made pursuant to Paragraphs 4 and 5
hereof contain the entire understanding among the parties hereto with respect to
the subject matter hereof, and supersede all prior and contemporaneous
agreements and understandings, inducements or conditions, express or implied,
oral or written, except as herein contained. The express terms hereof control
and supersede any course of performance and/or usage of the trade inconsistent
with any of the terms hereof. This Agreement may not be modified or amended
other than by an agreement in writing.
(i) Shareholder Rights. Whenever in this Agreement reference is made
to the interests of the Company's shareholders and there exists or may exist a
conflict in the interests of such shareholders, the Independent Committee shall
determine the action or conduct that is in the interests of shareholders.
(j) Paragraph Headings. The paragraph headings in this Agreement are
for convenience only; they form no part of this Agreement and shall not affect
its interpretation.
(k) Gender, Etc. Words used herein, regardless of the number and
gender specifically used, shall be deemed construed to include any other number,
singular or
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plural, and any other gender, masculine, feminine or neuter, as the context
requires.
(l) Number of Days. In computing the number of days for purposes of
this Agreement, all days shall be counted, including Saturdays, Sundays and
holidays; provided, however, that if the final day of any time period falls on a
Saturday, Sunday or holiday, then the final day shall be deemed to be the next
day which is not a Saturday, Sunday or holiday.
(m) Prevailing Parties. Following a Change of Control, any party which
prevails in a lawsuit pertaining to the enforcement or interpretation of any
provision of this Agreement shall be entitled to recover all reasonable
attorney's fees incurred by such party with respect to the lawsuit, in addition
to any other remedies to which the party is entitled under the law, from the
opposing party to such lawsuit.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered on the date first above written.
W.P. XXXXX & CO, LLC
By /s/ Xxxxxx X. XxXxx
-------------------------------------
Xxxxxx X. XxXxx
/s/ Xxxxxx X. XxXxxx
-------------------------------------
Xxxxxx X. XxXxxx
