EMPLOYMENT AGREEMENT
TMP WORLDWIDE INC. ("TMPW") and XXXXX X. XXXXXX ("Xxxxxx") enter into
this agreement as follows:
1. TMPW shall employ Xxxxxx and Xxxxxx agrees to serve as Executive
Vice President - Finance and Strategy of TMPW. Xxxxxx'x employment shall
commence on the date hereof. Xxxxxx shall use his best efforts and devote all
of his professional time to the business and affairs of TMPW and its affiliates.
Employment shall be for an indefinite term on an at-will basis. Either party
may terminate this employment relationship at any time, for any reason, with or
without cause. In the event that the employment relationship is terminated, the
terms and conditions of Xxxxxx'x entitlements (if any) are as set forth in
Section 9 below.
2. Xxxxxx will report to the President of TMPW and shall perform
such duties and responsibilities with respect to TMPW and its affiliates as
shall from time to time be reasonably directed by the President or TMPW's Board
of Directors.
3. TMPW shall pay Xxxxxx, as compensation for services performed, an
annual salary at the rate of $200,000 and, in addition, an annual minimum bonus
of at least $35,000 payable at the end of each calendar year, pro-rated for
periods of less than a full year. The annual salary and minimum annual bonus
payable to Xxxxxx may, from time to time, be increased by TMPW in writing in its
sole discretion and, if and when increased, TMPW shall be obligated to pay
Xxxxxx such sum in accordance with the terms of this agreement.
4. Xxxxxx will receive those health and other employee fringe
benefits that all other senior executives of TMPW receive. Such benefits and
benefit plans are subject to change at any time in the sole discretion of TMPW.
Xxxxxx will also be entitled to participate in the TMPW 401(k) plan in the same
fashion as other senior executives of TMPW.
5. Xxxxxx agrees that during his employment and at all times
thereafter, he will not use or disclose any confidential information, trade
secret or other proprietary information relating to TMPW or its affiliates that
is acquired by him during the course of his employment (whether before or after
the date of this agreement) and which is not generally know to others in the
industry. Upon his termination, Xxxxxx agrees to return to TMPW all records and
documents whether written, printed or electronically or magnetically recorded,
and all copies thereof, containing any information relating to TMPW or its
affiliates.
6. If Xxxxxx'x employment terminates for any reason, whether
voluntarily or involuntarily, he agrees that for a period of twelve months
following his termination, he will not solicit any active accounts of TMPW or
its affiliates or any prospective accounts that, during the twelve months
preceding termination, were, or were in the process of being, solicited by TMPW
or any of its affiliates.
7. Subject always to the right of TMPW to terminate the employment
of Xxxxxx at will, Xxxxxx'x employment may terminate for any one of the five
categories of termination events set forth below:
(a) Termination for "cause." "Cause" shall mean (i) a material and
intentional act of fraud, dishonesty, theft, or other form of moral
turpitude involving TMPW or any of its affiliates and having the probable
tendency to materially or adversely affect TMPW or any of its affiliates;
(ii) a material and intentional failure or refusal to act in accordance
with a reasonable, proper and lawful direction from the President or Board
of Directors of TMPW, where such refusal to act continues for a period of
three business days after actual receipt of written notice of such failure
or refusal; (iii) indictment for a crime involving the property, business
relationship or employees of TMPW or any of its affiliates; or (iv) a
material and intentional breach of Xxxxxx'x duty of care or duty of loyalty
to TMPW or any of its affiliates.
(b) Termination by reason of death.
(c) Termination by reason of disability. "Disability" shall mean a
physical or mental disability that prevents Xxxxxx from performing the
essential functions of Xxxxxx'x position for 180 calendar days in any
nine-month period.
(d) Voluntary resignation.
(e) Termination for "other reasons." "Other reasons" shall mean any
reason other than "cause," death, "disability" or voluntary resignation.
8. Each party agrees to provide the other with reasonable notice of
termination, consistent with common business and professional customs to be
determined in the sole and unreviewable discretion of the party providing
notice.
9. Xxxxxx shall have the following entitlements upon termination of
employment:
(a) In the event Xxxxxx is terminated for "cause" or his voluntary
resignation, he shall not be entitled to receive any further salary, bonus
(or pro-rata bonus), or benefits from TMPW following the effective date of
his termination of employment.
(b) In the event Xxxxxx'x employment is terminated by reason of his
death, TMPW shall pay to his estate (i) a pro-rata portion of his minimum
annual bonus payable as of his date of death; (ii) his then current salary
for twelve months following his death; and (iii) his minimum annual bonus
for the twelve-month period following his death. The foregoing payments
and entitlements shall be paid at such times as they would have been paid
had he remained employed.
(c) In the event Xxxxxx'x employment is terminated by reason of his
"disability" of for "other reasons," he shall be entitled to receive: (i) a
pro-rata portion of his minimum annual bonus, calculated as of the
effective date of the termination of his employment; (ii) his then current
salary for twelve months following the effective date of the termination of
his employment; (iii) his minimum annual bonus for the
-2-
twelve-month period following the effective date of termination of his
employment; and (iv) the benefits set forth in Section 4 for a period of
twelve months following the effective date of termination of his
employment, to the extent such benefits continue to be provided to other
managerial employees of TMPW. The foregoing payments, benefits and
entitlements shall be paid at such times as they would have been paid had
he remained employed. Xxxxxx'x entitlement to items (ii), (iii) and (iv)
of this subsection are subject to the provisions of subsection (d) and (e)
below.
(d) In the event Xxxxxx'x employment is terminated by reason of
"disability" or for "other reasons" Xxxxxx is obligated, during the period
when he is entitled to receive his then current salary and minimum annual
bonus from TMPW, to use his best efforts to obtain alternative income
directly or indirectly from the performance of personal services in a
position consistent with his qualifications, experience and position with
TMPW or prior position immediately preceding his employment by TMPW. Any
such payment made to Xxxxxx of his then current salary and minimum annual
bonus shall be reduced by the amount of income earned by him directly or
indirectly from the performance of personal services during the period when
he is entitled to receive his then current salary and minimum annual bonus
from TMPW following termination, whether paid during that period or
subsequently. Xxxxxx is obligated to advise TMPW in writing as to all such
amounts of income (including but not limited to salary and bonus) earned by
him during the period (and whether or not paid during that period or
subsequently) each time he receives a payment of his then current salary or
minimum bonus.
(e) TMPW shall have no obligation to provide Xxxxxx with any employee
benefits under subsection (c) above during any period of time when
comparable benefits are made available to him by another employer. In the
event he is required to contribute money for any such comparable benefits
available through another employer (or under the provisions of COBRA), TMPW
may, at its option, either pay him the amount of any such contributions or
provide him with TMPW-provided benefits at its cost. As a condition of
receipt of employee benefits from TMPW following termination of employment,
Xxxxxx is obligated to provide TMPW with written notice of the terms,
conditions, and costs to him (if any) of all employee benefits made
available to him by another employer during any period of time when he is
entitled to receive such benefits from TMPW.
10. Xxxxxx shall receive four weeks of annual paid vacation
calculated as of his date of hire and employment anniversary date. Any unused
pro-rata portion of his annual paid vacation shall be paid to Xxxxxx upon
termination of his employment for any reason. Xxxxxx shall not be entitled to
any carryover of unused vacation from year to year unless authorized at the time
in writing by the President or Board of Directors of TMPW.
11. All notices, demands or other communications to be given or
delivered under by reason of this agreement shall be in writing and shall be
deemed to have been properly served if delivered personally, by courier, or by
certified or registered mail, return receipt requested and first class postage
prepaid, in the case of notices to the Company to it at 0000
-0-
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, to the attention of Xxxxxx XxXxxxxx
and Xxxxxx Xxxxxxxx, and in the case of notices to Xxxxxx to him at 00 Xxxxxxx
Xxxxxx, Xxxx Xxxx, XX 00000, or such other addresses as the recipient party has
specified by prior written notice to the sending party. All such notices,
demands and communications shall be deemed received upon the actual delivery
thereof in accordance with the foregoing.
12. This agreement (i) constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes any previous
arrangements relating thereto, including but not limited to the Employment
Agreement between the parties executed on June 3, 1994, (ii) may be signed in
counterparts, (iii) shall be governed by the laws of the state of New York
(other than the conflicts of laws provisions thereof) and (iv) may not be
amended, terminated or waived orally.
13. This agreement shall be binding upon and shall inure to the
benefit of TMPW and its successors and assigns.
Executed on November 18, 1996 at New York, New York.
TMP Worldwide Inc.
By: /s/ XXXXXX X. XXXXXXXX
------------------------------
Xxxxxx X. XxXxxxxx
President
/s/ XXXXX X. XXXXXX
----------------------------------
Xxxxx X. Xxxxxx
-4-
