EXHIBIT 10(x)
EMPLOYMENT AGREEMENT
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AGREEMENT made as of the 1st day of April, 1996, by and
among WARNER INSURANCE SERVICES, INC., a Delaware corporation
(the "Company"), having its principal office at 00-00 Xxxxxxx
Xxxxx, Xxxx Xxxx, Xxx Xxxxxx 00000 and XXXX X. XXXXX, residing at
00 Xxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000-0000 (the
"Employee").
W I T N E S S E T H:
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WHEREAS, the Employee has been serving as a Vice
President of the Company and has been performing the duties of a
Vice President for the Company, and the Company and the Employee
desire to continue the Employee's employment pursuant to the
terms hereof.
NOW, THEREFORE, in consideration of the
representations, warranties and mutual covenants set forth
herein, the parties agree as follows:
1. Employment. The Company, effective April 1st,
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1996, hereby agrees to continue to retain the Employee as Vice
President of the Company and the Employee hereby accepts such
employment, all upon and subject to the terms and conditions
hereinafter set forth.
2. Term. The term of employment under this Agreement
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(the "Employment Agreement") shall commence as of April 1, 1996
and shall continue in full force and effect until March 31, 1998
(the "Employment Term"), subject to earlier termination for
disability or for cause as provided in Section 5 hereof. This
Agreement may be renewed by the Company and Employee for
successive one-year terms by providing written notice of renewal
to each other, provided such written notice is given at least
ninety (90) days prior to the expiration of the then current
term.
3. Duties.
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(a) The Employee will render his services to the
Company as a Vice President and shall perform such duties and
services of those offices or positions or of such other office or
position as may be assigned to him from time to time by the Board
of Directors of the Company. In addition, the Employee will
hold, without additional compensation therefor, such other
offices and directorships in the Company or any parent or
subsidiary of the Company to which, from time to time, he may be
appointed or elected.
(b) Except as otherwise provided herein and except for
illness, permitted vacation periods and permitted leaves of
absence consistent with the past practice of the Company or as
otherwise approved by the Board of Directors of the Company, the
Employee agrees that during the term of his employment hereunder,
he shall devote all of his full working time and attention, and
give his best effort, skill and abilities, exclusively to the
business and interests of the Company.
4. Compensation; Benefits
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(a) Salary. In consideration of the services to be
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rendered by the Employee hereunder, including, without
limitation, any services rendered by him as an officer or
director of the Company or any parent, subsidiary or affiliate of
the Company, the Company agrees to pay to the Employee, and the
Employee agrees to accept as compensation, a salary of
$131,250.00 (the "Salary"), payable in accordance with the
Company's normal payroll policies. The Company, by action of the
Board of Directors or the Compensation Committee of the Board of
Directors of the Company, may, in their sole discretion, increase
the Salary at any time. The Employee's Salary shall be subject
to all applicable withholding and other taxes.
(b) Benefits. During the term of his employment
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hereunder, the Employee shall be entitled to the following
employment benefits:
(i) vacations and sick leaves in accordance with
the Company's policies from time to time in effect for
officers and executive employees of the Company; and
(ii) participation, subject to qualification and
participation requirements, in medical, life or other
insurance or hospitalization plans and any pension, profit
sharing or other employee benefit plans, presently in effect
or hereafter instituted by the Company and applicable to its
officers and executive employees.
(c) Reimbursement of Expenses. The Employee shall be
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reimbursed for reasonable and necessary expenses incurred by the
Employee in performing his employment hereunder, provided such
expenses are adequately documented in accordance with the
Company's policies.
5. Termination in Case of Disability Death or for Cause.
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(a) If the Employee, due to physical or mental injury,
illness, disability or incapacity, shall fail to render the services
provided for in this Agreement for a consecutive period of three (3)
months, or an aggregate of three (3) months in any six (6) month
period, the Company may, at its option, terminate the Employee's
employment hereunder upon fourteen (14) days' written notice to the
Employee.
(b) If the Employee shall die during the term of this
Agreement, this Agreement and the Employee's employment hereunder shall
terminate immediately upon the Employee's death.
(c) Notwithstanding anything to the contrary in this
Agreement, the Company, upon notice to the Employee, may terminate this
Agreement and the employment of the Employee hereunder for cause.
6. Severance Compensation.
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(a) In the event the Employee's employment hereunder is
terminated by the Company during the Employment Term for any reason
other than for cause, death or disability, the Company shall pay to the
Employee as severance compensation an amount equal to six (6) months'
Salary.
(b) In the event the Employee's employment hereunder is
terminated by the Company after the Employment Term for any reason,
including the expiration of the Employment Term without renewal thereof
by the Company, and other than for cause, death or disability, the
Company shall pay to the Employee as severance compensation an amount
equal to six (6) months' Salary.
(c) If the Employee resigns from the employ of the Company
during the Employment Term as a result of the principal place of
business of the Employee being moved to a location which is greater
than fifty (50) miles from the Employee's current residence in Floral
Park, New York, the Company shall be obligated to pay to the Employee
as severance compensation an amount equal to six (6) months' Salary.
(d) Severance compensation shall be paid biweekly in
accordance with the Company's usual practices. Employee shall also be
paid biweekly for unused vacation time.
(e) In the event the Employee receives severance
compensation under this Section 6, the Employee shall not be entitled
to receive any other compensation or benefits under this Agreement
after the termination of the Employee's employment hereunder and, as a
condition to receiving such severance compensation, the Employee hereby
agrees that he shall have no other claim against the Company by reason
of this Agreement.
7. Disclosure and Assignment of Discoveries.
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(a) The Employee shall (without any additional compensation)
promptly disclose in writing to the Board of Directors of the Company
all ideas, processes, devices and business concepts (hereinafter
referred to collectively as "Discoveries"), whether or not patentable
or copyrightable, which he, while employed by the Company, conceives,
develops, acquires or reduces to practice, whether alone or with others
and whether during or after usual working hours, and which are related
to the Company's business or interests, or arise out of or in
connection with the duties performed by him hereunder; and the Employee
hereby transfers and assigns to the Company all right, title and
interest in and to such Discoveries. Upon the request of the Company,
the Employee shall (without any additional compensation), from time to
time during or after the expiration or termination of his employment,
execute such further instruments and do all such other acts and things
as may be deemed necessary or desirable by the Company to protect
and/or enforce its rights in respect of such discoveries.
(b) For purposes of this Section 7 and the following Section
8, the term "Company" shall mean and include any and all subsidiaries,
parents and affiliated corporations of the Company in existence from
time to time.
8. Non-Disclosure of Confidential Information and
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Non-Competition .
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(a) The Employee represents that he has been informed that
it is the policy of the Company to maintain as secret and confidential
all information relating to (i) the products, processes and/or business
concepts used by the Company and (ii) the customers and employees of
the Company ("Confidential Information"), and the Employee further
acknowledges that such Confidential Information is of great value to
the Company and is the property of the Company. The parties recognize
that the services to be performed by the Employee are special and
unique, and that by reason of his employment by the Company, he will
acquire Confidential Information as aforesaid. The parties confirm
that to protect the Company's goodwill, it is reasonably necessary that
the Employee agree, and accordingly the Employee does hereby agree,
that he will not directly or indirectly (except where authorized by the
Board of Directors of the Company for the benefit of the Company):
A. at any time during his employment hereunder or after he
ceases to be employed by the Company, divulge to any persons,
firms or corporations other than the Company (hereinafter referred
to collectively as "Third Parties"), or use, or cause to authorize
any Third Parties to use, any such Confidential Information, or
any other information regarded as confidential and valuable by the
Company which he knows or should know is regarded as confidential
and valuable by the Company (whether or not any of the foregoing
information is actually novel or unique or is actually known to
others); or
B. at any time during his employment hereunder and for a
period of one (1) year after he ceases to be employed by the
Company (the "Restricted Period"), solicit or cause or authorize,
directly or indirectly, to be solicited for employment, for or on
behalf of himself or Third Parties, any persons who were at any
time within one year prior to the cessation of his employment
hereunder, employees of the Company; or
C. at any time during his employment hereunder and during
the Restricted Period, employ or cause or authorize, directly or
indirectly, to be employed, for or on behalf of himself or Third
Parties, any such employees of the Company;
D. at any time during his employment hereunder and during
the Restricted Period, unless agreed to by the Company in writing,
the Employee will not accept employment with or participate,
directly or indirectly, as owner, stockholder, director, officer,
manager, consultant or agent or otherwise use his special, unique
or extraordinary skills or knowledge with respect to the business
of the Company or of any affiliate of the Company in or with any
business, firm, corporation, partnership, association, venture or
other entity or person which is engaged in any business activities
competitive with the business of the Company as such business was
conostituted during the period of employment, except that this
paragraph D shall not be construed to prohibit the Employee from
owning up to 5% of the securities of a corporation which are
publicly traded on a national securities exchange or in the
over-the-counter market; or
E. at any time during his employment hereunder and during
the Restricted Period, solicit or cause or authorize, directly or
indirectly, to be solicited, for or on behalf of himself or Third
Parties, any business from Third Parties who were, at any time
within one (1) year prior to the cessation of his employment
hereunder, customers of the Company; or
F. at any time during his employment hereunder and during
the Restricted Period, accept or cause or authorize, directly or
indirectly, to be accepted, for or on behalf of himself or Third
Parties, any business from any such customers of the Company.
(b) The Employee agrees that he will not, at any time,
remove from the Company's premises any drawings, notebooks, data and
other documents and materials relating to the business and procedures
heretofore or hereafter acquired, developed and/or used by the Company
without prior written consent of the Board of Directors of the Company,
except as reasonably necessary to the discharge of his duties
hereunder.
(c) The Employee agrees that, upon the expiration of his
employment by the Company for any reason, he shall forthwith deliver up
to the Company any and all order-books, customer lists, logs, drawings,
notebooks and other documents and materials, and all copies thereof, in
his possession or under his control relating to any Confidential
Information or any discoveries or which is otherwise the property of
the Company.
(d) The Employee agrees that any breach or threatened breach
or alleged breach or alleged threatened breach by him of any provision
of this Section 8 shall entitle the Company, in addition to any other
legal remedies available to it, to apply to any court of competent
jurisdiction to enjoin such breach or threatened breach or alleged
breach or alleged threatened breach. The parties understand and intend
that each restriction agreed to by the Employee hereinabove shall be
construed as separable and divisible from every other restriction, and
that the unenforceability, in whole or in part, of any other
restriction, will not effect the enforceability of the remaining
restrictions and that one or more or all of such restrictions may be
enforced in whole or in part as the circumstances warrant. No waiver
of any one breach of the restrictions contained in this Section 8 shall
be deemed a waiver of any future breach.
(e) The Employee hereby acknowledges that he is fully
cognizant of the restrictions put upon him by this Section 8, and that
the provisions of this Section 8 shall survive the termination of this
Employment Agreement and his employment with the Company.
9. Conflicting Agreements and Warranties of the Employee.
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The Employee hereby represents and warrants to the Company that (a)
neither the execution of this Agreement by the Employee nor the
performance by the Employee of any of his obligations or duties
hereunder will conflict with or violate or constitute a breach of the
terms of any employment or other agreement to which the Employee is a
party or by which the Employee is bound, and (b) the Employee is not
required to obtain the consent of any person, firm, corporation or
other entity in order to enter into this Agreement or to perform any of
his obligations or duties hereunder.
10. Notices.
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(a) All notices, requests, demands or other communications
hereunder shall be deemed to have been given if delivered in writing
personally or by certified mail to each party at the address set forth
below, or at such other address as each party may designate in writing
to the other:
If to the Company:
Warner Insurance Services, Inc.
00-00 Xxxxxxx Xxxxx
Xxxx Xxxx, Xxx Xxxxxx 00000
Attention: President and Chief Executive Officer
with a copy to:
Xxxx & Priest LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx, Esq.
If to the Employee:
Xxxx X. Xxxxx
00 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000-0000
11. Entire Agreement. This Agreement contains the
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entire understanding of the parties with respect to the subject
matter hereof, supersedes any prior agreement between the
parties, and may not be changed or terminated orally. No change,
termination or attempted waiver of any of the provisions hereof
or thereof shall be binding unless in writing and signed by the
party against whom the same is sought to be enforced. No
provision hereof shall be construed against a party because that
provision or any other provision was drafted by or at the
direction of such party.
12. Successors and Assigns. This Agreement shall be
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binding upon and shall inure to the benefit of the respective
heirs, legal representatives, successors and assigns of the
parties hereto.
13. Severability. In the event that any one or more
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of the provisions of this Agreement shall be declared to be
illegal or unenforceable under any law, rule or regulation of any
government having jurisdiction over the parties hereto, such
illegality or unenforceability shall not affect the validity and
enforceability of the other provisions of this Agreement.
14. Counterparts. This Agreement may be executed in
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one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
15. Governing Law. All matters concerning the
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validity and interpretation of and performance under this
Agreement shall be governed by the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above written.
WARNER INSURANCE SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: President
/s/ Xxxx X. Xxxxx
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XXXX X. XXXXX
