EXHIBIT 10.6
EMPLOYMENT AGREEMENT
Xxxxxxxxxx.xxx, Inc., a Delaware corporation (the "Company") and Xxxxxxx
X. Xxxxxxx ("Executive") enter into this Employment Agreement as of December 19,
2002 (the "Agreement"), effective as of January 1, 2003 (the "Effective Date").
It cancels and replaces the previous employment agreement dated May 22, 2002.
WHEREAS, both the Executive and the Company are willing to enter into this
Agreement upon the terms and conditions herein set forth;
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Company and Executive
hereby covenant and agree as follows:
TERM OF EMPLOYMENT.
The Company shall employ Executive, and Executive shall be employed by the
Company for the period that begins effective as of January 1, 2003 and ends on
December 31, 2003 or such earlier date as Executive's employment terminates
under Section 4 of this Agreement (the "Employment Term").
After expiration of the initial term, as set forth herein, the Employment
Term shall be renewed each January 1 for successive one-year terms unless the
Company or Executive delivers written notice to the other party at least sixty
(60) days preceding the expiration of the initial term or any one-year extension
date of the intention not to extend the term of this Agreement.
PERFORMANCE OF DUTIES.
Executive shall have the title of Senior Vice President, Chief Financial
Officer. Executive will report to the Company's President and Chief Executive
Officer, or such other officer as the Board of Directors may direct. Executive
will have such powers and perform such duties as are normally incident to the
position of Vice President as provided in the Company's by-laws and in
accordance with applicable law, and as may be reasonably assigned by the
Company's President and Chief Executive Officer. Executive will discharge his
duties subject to and in observance of such rules, regulations, policies,
directions and restrictions as may be established from time to time by the
Company.
Throughout the Employment Term, Executive shall devote his entire full
business time, attention, knowledge and skills, faithfully, diligently and to
the best of his ability, to the active performance of his duties and
responsibilities hereunder, and do such traveling as may reasonably be required
in connection with the performance of such duties and responsibilities.
COMPENSATION.
BASE SALARY. For services rendered by Executive to the Company during the
Employment Term the Company will pay Executive an annual base salary payable in
monthly or more frequent installments, in accordance with the usual payroll
practice of the Company in an amount equal to $175,000 (the "Base Salary"), less
income tax withholdings and other normal employee deductions. The Base Salary
shall not be decreased during the Employment Term but may, at the sole
discretion of the Company, from time to time be increased by an amount which the
Company deems appropriate.
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BONUS. At the reasonable determination and sole discretion of the Board, the
Executive shall be eligible to receive periodic performance-based bonuses based
upon the factors reasonably chosen by the Board, including, without limitation,
the profitability of the Company and performance of, or contribution by,
Executive with respect thereto. Such bonus(es) shall be payable within thirty
(30) days after the end of the fiscal year in which it is earned.
STOCK OPTIONS. Executive shall be granted options to purchase 25,000 shares of
Xxxxxxxxxx.xxx, Inc. common stock. Such options will vest and become exercisable
on May 22, 2005, and will be priced consistent with the terms of the Stock
Option Plan. VACATION. Executive will be entitled to take, at such times as are
mutually convenient to Executive and the Company, a total of three (3) weeks of
paid vacation annually in accordance with the Company's policy.
FRINGE BENEFITS. The Company shall make available to Executive, throughout the
Employment Term, such benefits and perquisites as are generally provided by the
Company to its executive employees. Executive shall be eligible to participate
in and receive coverage and benefits under all group insurance, stock ownership
and other employee benefit plans, programs and arrangements of the Company which
are hereafter adopted by the Company for the benefit of its senior executive
employees, subject to and on a basis consistent with the terms, conditions and
overall administration of such plans, programs and arrangements, except that the
Company will pay 90% of the premium cost of insuring the Executive and his
dependents in the Company's health insurance plan.
BUSINESS EXPENSES. The Company shall reimburse Executive for the reasonable and
necessary business expenses incurred by Executive in connection with the
performance of his employment duties during the Employment Term. Such expenses
shall include, but are not limited to, all expenses of travel and living
expenses while away from home on business or at the request of and in the
service of the Company, provided that such expenses are incurred and accounted
for in accordance with the policies and procedures established by the Company.
Reimbursement shall be made upon the presentation by Executive to the Company of
reasonably detailed statements of such expenses.
TERMINATION.
WITH OR WITHOUT CAUSE FOR ANY REASON OR NO REASON. This Employment Agreement may
be terminated at any time at the option of the Company or the Executive with or
without cause for any reason or no reason. As used in this Agreement, the term
"Cause" means: (i) executive's conviction of, or plea of nolo contendere to, a
felony; (ii) Executive's breach of any duty of loyalty to the Company,
misappropriation of the Company's funds, or dishonest, fraudulent, illegal or
unethical business conduct; (iii) Executive's failure to satisfactorily perform
his duties under this Agreement, which failure continues after notice from the
Company and a cure period of 30 days; (iv) Executive's breach of any obligations
provided in this Agreement; (v) Executive's illegal use of controlled
substances, (vi) any material breach of this Agreement by the Executive (other
than one identified above) which shall continue after notice from the Company
and a reasonable cure period. Termination for Cause shall be effective
immediately for those events described in subparagraphs (i), (ii), (iv), and
(v). Termination for Cause shall be effective immediately upon the giving of
notice by the Company to Executive of the continuance of Executive's failure to
perform or comply with respect to the items described in subparagraph (iii)
above or the continuance of a breach described in subparagraph (vi) above. In
the event that the Executive is purportedly terminated for cause and a court,
arbitrator, or other tribunal having jurisdiction determines that Cause was not
present, then such purported termination for Cause shall be deemed a termination
without Cause pursuant to this section.
DEATH. This Employment Agreement shall terminate automatically effective upon
the death of Executive.
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DISABILITY. This Employment Agreement shall terminate automatically effective
upon Notice of Termination to Executive (or such later date as may be specified
in such notice) following a determination by the Board of Directors that the
Executive is unable to perform, onsite, the essential functions of his
employment position due to a disability of Executive that cannot be reasonably
accommodated by the Company.
TERMINATION BY EXECUTIVE. Executive may terminate the Employment Term upon
written Notice of Termination to the Company delivered in person to the Company
president at least 60 days before the effective date of such termination. In the
event of termination by Executive, Executive agrees to notify company president
personally and confidentially prior to providing such notification to any other
Company employee or person outside of the Executive's immediate family and legal
adviser.
NOTICE OF TERMINATION. Any termination of the Employment Term by the Company or
by Executive (other than termination upon Executive's death) shall be
communicated by written Notice of Termination to the other party hereto with no
less than 60 days' prior notice. For purposes of this Agreement, a "Notice of
Termination" shall mean a written notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Employment Term under the section so indicated.
TERMINATION DISPUTES. If, within 7 days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, the Date of Termination shall
be the date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding and final arbitration award or by a final
judgment, order or decree of a court of competent jurisdiction (the time for
appeal therefrom having expired and no appeal having been perfected).
NO FURTHER LIABILITY UPON TERMINATION WITH OR WITHOUT CAUSE FOR ANY REASON OR NO
REASON. If the Employment Agreement is terminated by the Company or the
Executive for any reason or no reason, the Company shall have no further
liability, financial or otherwise, under this Agreement except to pay Executive
(i) the value of any accrued salary or other compensation due to Executive as of
the effective date of such termination, and (ii) any benefit payable under the
employee benefit plans, programs and arrangements of the Company in which
Executive is a participant on the date of delivery of the Notice of Termination.
COMPENSATION UPON DEATH. If the Employment Term is terminated by the death of
the Executive, the Company shall have no further liability under this Agreement
except to pay Executive (i) the value of any accrued salary, or other
compensation due to Executive as of the date of the Executive's death, and (ii)
any benefit payable under all employee benefit plans, programs and arrangements
of the Company in which Executive is a participant on the date of his death.
COMPENSATION UPON DISABILITY. If the Employment Term is terminated by the
Company due to Executive's disability, the Company shall have no further
liability under this Agreement except to pay Executive (i) the value of any
accrued salary or other compensation due to Executive as of the effective date
of such termination, and (ii) any benefit payable under the employee benefit
plans, programs and arrangements of the Company in which Executive is a
participant on the date of delivery of the Notice of Termination, provided,
however, that in the event Executive is paid disability benefits under any
disability benefit plan of the Company in which he participates, any salary
payments made to Executive during such period shall be reduced by the sum of
such amounts.
CHANGE OF CONTROL Within three months preceding or twelve months following a
change of control, as defined below, should the Executive's employment be
terminated without cause, or should the Executive be assigned duties or
responsibilities that are inconsistent with his authority, duties and
responsibilities as Chief Financial Officer of the Company, or should the
Executive be transferred to a location which is an unreasonable distance from
the principal executive office of the Company, the Executive shall be entitled
to receive, and the Company shall be obligated to pay, an amount equal to two
years base salary and bonus at the current targeted amount. Additionally, all
stock options held by the Executive shall be deemed to be vested and immediately
exercisable. Payment of such salary and bonus shall be made within thirty days
of the Company receiving notice from the Executive that such payment under this
section is due, and, along with the immediate vesting of all stock options,
shall constitute a complete discharge of all obligations of the Company to the
Executive, except that Executive shall continue to be bound by Sections 5 and 6
hereof. As used herein, a "change of control" of the Company shall be deemed to
have occurred if any person, group or company, other than Xxxxxx Xxxxx and
Xxxxxxx Xxxxx, shall at any time beneficially own shares of Common stock of the
Company which represent in excess of 50% of either (a) the total votes entitled
to be cast by all outstanding shares of Common stock of the Company or (b) all
outstanding shares of Common stock of the Company.
CONFIDENTIAL INFORMATION.
DISCLOSURE AND USE. Executive shall not disclose or use at any time, either
during or after Executive's employment with the Company or any other direct or
indirect subsidiary of the Company (collectively referred to herein as the
"Company"), any trade secrets or other confidential information, whether
patentable or not, of the Company, including but not limited to, technical or
non-technical data, a formula, pattern, compilation, program, device, method,
technique, drawing, process, financial data, or list of actual or potential
customers or suppliers, of which Executive is or becomes informed or aware
during his employment, whether or not developed by
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Executive, except (i) as may be required for Executive to perform his employment
duties with the Company; (ii) to the extent such information has been disclosed
to Executive by a third party who is not subject to restriction on the
dissemination of such information or becomes generally available to the public
other than as a result of a disclosure by a party who is not subject to
restriction on the dissemination of such information; (iii) information which
must be disclosed as a result of a subpoena or other legal process, after the
Company has had the opportunity to request a suitable protective order for such
information, or (iv) unless Executive shall first secure the Company's prior
written authorization. This covenant shall survive the termination of
Executive's employment with the Company, and shall remain in effect and be
enforceable against Executive for so long as any such Company secret or
confidential information retains economic value, whether actual or potential,
from not being generally known to other persons who can obtain economic value
from its disclosure or use. Executive shall execute such reasonable further
agreements of Executive's obligations to the Company concerning non-disclosure
of Company trade secrets and confidential information as the Company may require
from time to time. RETURN OF MATERIALS. Upon termination of the Employment Term,
Executive (or in the event of termination due to Executive's death, his estate
or devisee, legatee or other designee, as applicable) shall promptly deliver to
the Company all assets of the Company, including materials of a secret or
confidential nature relating to the Company's business, which are in the
possession or under the control of Executive.
INVENTIONS AND DISCOVERIES.
Executive hereby assigns to the Company all of his rights, title and
interest in and to all inventions, discoveries, processes, designs and other
intellectual property, including without limitation, copyrights, patents,
trademarks and trade names (hereinafter referred to collectively as the
"Inventions"), and all improvements on existing Inventions made or discovered by
Executive during the Employment Term. Promptly upon the development or making of
any such Invention or improvement thereon, Executive shall disclose the same to
the Company and shall execute and deliver to the Company such reasonable
documents as the Company may request to confirm the assignment of Executive's
rights therein and, if requested by the Company, shall assist the Company in
applying for copyrights and trademark protection and in applying for and
prosecuting any patents which may be available for said Invention or
improvement. The Company acknowledges and hereby notifies Executive that this
section 6 does not apply to an Invention for which no equipment, supplies,
facility or trade secret information of the Company was used and which was
developed entirely on Executive's own time, unless (a) the Invention relates to
(i) the business of the Company, or (ii) the Company's actual or demonstrably
anticipated research or development, or (b) the Invention results from any work
performed by Executive for the Company.
RESTRICTIVE COVENANTS.
RESTRICTION ON COMPETITION. During the Employment Term and for a one-year
period following the Employment Term, Executive shall not, without the prior
written authorization of the Board of Directors of the Company, directly or
indirectly render services of a business, professional or commercial nature
(whether for compensation or otherwise) to a broker of personal lines insurance
or engage in any activity whether alone, as a partner, or as an officer,
director, employee, consultant, independent contractor, or stockholder in any
other corporation, person, or entity which is a personal lines insurance broker.
RESTRICTION ON EMPLOYEE SOLICITATION. During the Employment Term and for a
one-year period following the Employment Term, Executive shall not employ or
attempt to employ or assist anyone else to employ any person who is at such
time, or at any time during the preceding year was, an employee of or consultant
to the Company. As used in this section 8, the verb "employ" shall include its
variations, for example, retain, engage or conduct business with; the term the
"Company" shall include subsidiaries or affiliates, if any, of the Company.
REASONABLE SCOPE AND TIME. The parties acknowledge that the time, scope,
and other provisions of this Agreement have been specifically negotiated by the
parties and agree that all such provisions are reasonable under the
circumstances and are given as an integral and essential part of Executive's
employment hereunder. In the event that any covenant contained in this Agreement
is determined by any court of competent jurisdiction to be unenforceable by
reason of its extending for too great a period of time or by reason of its being
too extensive in any other respect, it shall be interpreted to extend only over
the maximum period of time for which it may be enforceable and to the maximum
intent in all other respects as to which it may be enforceable, all as
determined by such court in such action.
SEVERABILITY.
If any provision of this Agreement is held invalid or unenforceable,
either in its entirety or by virtue of its scope or application to given
circumstances, such provision shall thereupon be deemed (i) modified only to the
extent necessary to render it valid, or (ii) not applicable to given
circumstances, or (iii) excised from this
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Agreement, as the situation may require, and this Agreement shall be construed
and enforced as if such provision had been included herein as so modified in
scope or application, or had not been included herein, as the case may be.
ARBITRATION OF DISPUTES.
Any controversy or claim arising out of or relating to this Agreement, or
the breach of this Agreement, (other than a controversy arising out of or
relating to Sections 5, 6, 7 or 8 hereof), shall be settled by arbitration in
Chicago, Illinois, conducted in accordance with the American Arbitration
Association Commercial Arbitration Rules by an independent arbitrator chosen by
mutual consent and agreement of both parties. Either the Company or Executive
may institute such arbitration proceeding by giving written notice to the other
party. The decision of the arbitrator shall be final and binding upon both
parties hereto. Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof.
ENFORCEMENT.
Executive hereby acknowledges that the Company would suffer irreparable
injury if the provisions of sections 6, 7, and 8 herein, which shall survive the
termination of this Agreement, were breached and that the Company's remedies at
law would be inadequate in the event of such breach or threatened breach.
Accordingly, Executive hereby agrees that any such breach or threatened breach
may, in addition to any and all other available remedies (including those
remedies provided in section 10), be preliminarily and permanently enjoined in a
court of law or equity by the Company without bond.
GENERAL PROVISIONS.
NOTICES. ANY NOTICE, REQUEST, DEMAND OR OTHER COMMUNICATION REQUIRED OR
PERMITTED TO BE GIVEN HEREUNDER SHALL BE IN WRITING AND DELIVERED OR SENT BY
E-MAIL, REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY A
FACSIMILE, TELEGRAM OR TELEX, ADDRESSED AS FOLLOWS:
To the Company: Xxxxxxxxxx.xxx, Inc.
0000 Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000
Attention: President
Fax: (000) 000-0000
To Executive: Xxxxxxx X. Xxxxxxx, at current address on file.
Either the Company or Executive may, at any time, by notice to the other,
designate another address for service of notice on such party. When the letter,
facsimile, telegram or telex is dispatched as provided for above, the notice
shall be deemed to be made when the addressee receives the e-mail, letter,
facsimile, telegram or telex, or within three days after it is sent, whichever
is earlier.
AMENDMENTS. Neither this Agreement nor any of the terms or conditions hereof may
be waived, amended or modified except by means of a written instrument duly
executed by the party to be charged therewith.
CAPTIONS AND HEADINGS. The captions and section headings used in this Agreement
are for convenience of reference only, and shall not affect the construction or
interpretation of this Agreement or any of the provisions hereof.
GOVERNING LAW. This Agreement, and all matters or disputes relating to the
validity, construction, performance or enforcement hereof, shall be governed,
construed and controlled by and under the laws of the State of Illinois without
regard to principles of conflicts of law.
SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors and permitted assigns.
COUNTERPARTS. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original hereof, but all of which together
shall constitute one and the same instrument.
ENTIRE AGREEMENT. Except as otherwise set forth or referred to in this
Agreement, this Agreement constitutes the sole and entire agreement and
understanding between the parties hereto as to the subject matter hereof, and
supersedes all prior discussions, agreements and understandings of every kind
and nature between them as to such subject matter.
RELIANCE BY THIRD PARTIES. This Agreement is intended for the sole and exclusive
benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors and permitted
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assigns, and no other person or entity shall have any right to rely on this
Agreement or to claim or derive any benefit therefrom absent the express written
consent of the party to be charged with such reliance or benefit.
EFFECTIVE DATE.
This Agreement shall be effective on the Effective Date.
ACKNOWLEDGEMENT.
EXECUTIVE ACKNOWLEDGES THAT HE HAS READ, UNDERSTOOD AND ACCEPTS THE
PROVISIONS OF THIS AGREEMENT, WHICH IS THE ENTIRE AGREEMENT BETWEEN THE
EXECUTIVE AND THE COMPANY. EXECUTIVE ALSO ACKNOWLEDGES THAT HE HAS HAD THE
OPPORTUNITY TO AND HAS REVIEWED THE TERMS AND CONDITIONS OF THIS AGREEMENT WITH
COMPETENT COUNSEL.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the date written above.
FOR XXXXXXXXXX.XXX, INC. FOR EXECUTIVE
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxx Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer Senior Vice President and Chief
Financial Officer
Date: December 19, 2002 Date: December 19, 2002
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