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EMPLOYMENT AGREEMENT
This AGREEMENT (the "Agreement") is made as of September 30, 2000 (the
"Effective Date"), by and between Nextera Enterprises, Inc., a Delaware
corporation (the "Company"), and Xxxxxxx X. Xxxxx (the "Executive"). In
consideration of the mutual covenants contained in this Agreement, the Company
and the Executive agree as follows:
1. EMPLOYMENT. Commencing on the Effective Date, the Company agrees to
employ the Executive and the Executive agrees to be employed by the Company on
the terms and conditions set forth in this Agreement.
2. CAPACITY. During the Term (as hereinafter defined), the Executive shall
serve the Company as its Chief Operating Officer. In such capacity, the
Executive shall perform such services and duties in connection with the
business, affairs and operations of the Company consistent with the Executive's
status as Chief Operating Officer as may be assigned or delegated to the
Executive from time to time by or under the direction and supervision of the
Board of Directors or the Chief Executive Officer of the Company.
3. TERM. Subject to the provisions of Section 7, the term of employment
under this Agreement (the "Term") shall be for thirty (30) months from the
Effective Date (the "Initial Term") and shall automatically renew for periods of
one (1) year commencing at the expiration of the Initial Term (the "End Date")
and on each subsequent anniversary of the End Date thereafter, unless either the
Executive or the Company, acting through its Board of Directors (the "Board"),
gives written notice to the other not less than sixty (60) days prior to the End
Date or anniversary thereof, as applicable, of such party's election not to
extend the Term.
4. BOARD SEAT. The parties acknowledge that the Executive is currently
serving as a director of the Company and the Company agrees that, during the
Term, it shall nominate the Executive for re-election as a director and use all
reasonable best efforts to cause the Executive to be re-elected or re-appointed
as a director with a view toward having the Executive serve as a director
throughout the Term, subject to the Executive's right to resign from the Board
of Directors at any time. Any such resignation shall not constitute a
termination of Executive's employment or a termination or breach of this
Agreement.
5. COMPENSATION AND BENEFITS. The regular compensation and benefits payable
to the Executive under this Agreement shall be as follows:
(a) SALARY. During the Term, for all services rendered by the Executive
under this Agreement, the Company shall pay or cause to be paid to the
Executive a base salary (the "Salary") at an annual rate of Four Hundred
and Fifty Thousand Dollars ($450,000), commencing on the Effective Date.
Notwithstanding the foregoing, commencing January 1, 2001, the Company
shall cause $170,000 per year of the Salary to be paid by Sibson & Company,
LLC, a Delaware limited liability company (formerly SC/NE, LLC) and
subsidiary of the Company ("Sibson"), and the balance of the Salary will be
paid by the Company. The Salary shall be payable in periodic installments
in accordance with the Company's and Sibson's usual practice for their
senior executives.
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(b) BONUS. The Executive will be eligible for a discretionary bonus
targeted to be 80% of Salary upon achievement of goals set by the Board of
Directors. In addition, the Company shall cause Sibson to pay to the
Executive a bonus for 2000 based on his performance as a Principal of
Sibson through the Effective Date in an amount, and determined on a basis,
comparable to the bonuses paid by Sibson to its other top revenue
generating Principals for 2000.
(c) STOCK OPTIONS. As of the Effective Date, the Company shall grant to the
Executive non-qualified options to purchase 400,000 shares of the Company's
Class A Common Stock at an exercise price equal to the fair market value on
the Effective Date. Such options will vest at a rate of 25% per year over
four years on each anniversary of the Effective Date with the first tranche
vesting one year after the Effective Date. The Company represents that it
has furnished to the Executive a true and complete copy of any option plan
and/or any agreement relating to such options on or prior to the Effective
Date.
(d) REGULAR BENEFITS. The Executive shall also be entitled to participate
in the plans listed on "Schedule 1" hereto and any other employee benefit
plans, medical insurance plans, life insurance plans, disability income
plans, retirement plans, pension plans, profit sharing plans, vacation
plans, expense reimbursement plans and other benefit plans which the
Company or Sibson may from time to time have in effect for all or most of
its senior executives (collectively, "Benefits"); it being expressly
understood and agreed that the Executive will continue to participate in
the Sibson retirement plan and that the Company will pay or cause to be
paid $30,000 per annum (including for the year 2000) in contributions to
such plan for the benefit of the Executive. Such participation shall be
subject to the terms of the applicable plan documents, generally applicable
policies of the Company and/or Sibson, applicable law and the discretion of
the Leadership Council of Sibson (the "Leadership Council") or a committee
thereof (in the case of Sibson's benefit plans), the Board or a committee
thereof (in the case of the Company's benefit plans), or any administrative
or other committee provided for in or contemplated by any such plan.
Nothing contained in this Agreement shall be construed to create any
obligation on the part of the Company or Sibson to establish any such plan
or to maintain the effectiveness of any such plan which may be in effect
from time to time; PROVIDED, HOWEVER, the Benefits offered to the Executive
shall be substantially similar to those Benefits extended to the Executive
by Sibson immediately prior to the date hereof and, PROVIDED FURTHER, that
at any time the Company, in its sole discretion may, or may cause Sibson,
(A) to modify or terminate any Benefits provided to the Executive as the
Company deems necessary to provide that any employee Benefit plan and
related trust intended to be qualified and exempt under Sections 401(a) and
501(a) of the Internal Revenue Code of 1986, as amended, respectively,
shall be so qualified and exempt, or (B) to otherwise comply with the
applicable requirements of the Employee Retirement Income Security Act of
1974, as amended (or other applicable law). In the event that any Benefits
are terminated or materially reduced pursuant to the immediately preceding
proviso, the Company shall provide the Executive with other Benefits or one
or more cash payments which in the aggregate on an after-tax basis are
equal to the value of such terminated or materially-reduced Benefits
through the date of the Executive's termination of employment.
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(e) PAST SERVICE. The Executive shall be credited with all past service
with Sibson & Company, L.P., a Delaware limited partnership (the
"Partnership") and Sibson in the calculation of all benefits and for all
other relevant purposes whatsoever where past service or seniority shall be
considered, subject to any regulatory limitations. For purposes of the
preceding sentence, the Executive shall be deemed to have begun employment
with the Company on the date the Executive began employment with the
Partnership or its predecessors, as applicable.
(f) VACATION. The Executive's vacation entitlement shall be the same as the
policy of Sibson immediately prior to the date hereof.
(g) TAXATION OF PAYMENTS AND BENEFITS. The Company shall undertake to make
deductions, withholdings and tax reports with respect to payments and
Benefits under this Agreement to the extent that it reasonably and in good
faith believes that it is required to make such deductions, withholdings
and tax reports. Payments under this Agreement shall be in amounts net of
any such deductions or withholdings. Nothing in this Agreement shall be
construed to require the Company to make any payments to compensate the
Executive for any adverse tax effect associated with any payments or
benefits or for any deduction or withholding from any payment or benefit.
(h) EXCLUSIVITY OF SALARY AND BENEFITS. The Executive shall not be entitled
to any payments or benefits other than those provided under this Agreement
(other than customary business expense reimbursements submitted and
approved in accordance with Company policy).
6. EXTENT OF SERVICE. During the Executive's employment under this
Agreement, the Executive shall, subject to the direction and supervision of the
Board, devote substantially all of the Executive's business time, and use the
Executive's best efforts and business judgment, skill and knowledge to the
advancement of the Company's interests and to the discharge of the Executive's
duties and responsibilities under this Agreement. The Executive shall not engage
in any other business activity, except as may be approved by the Company which
approval shall not be unreasonably withheld; provided that nothing in this
Agreement shall be construed as preventing the Executive from:
(a) investing the Executive's assets in any company or other entity in a
manner not prohibited by the Non-Compete, Non-Solicitation, Proprietary
Information, Confidentiality and Inventions Agreement (the "Non-Compete
Agreement") referred to in Section 8(a) and in such form or manner as shall
not require any material activities on the Executive's part in connection
with the operations or affairs of the companies or other entities in which
such investments are made; or
(b) engaging in religious, charitable or other community or non-profit
activities that do not materially impair the Executive's ability to fulfill
the Executive's duties and responsibilities under this Agreement.
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7. TERMINATION AND TERMINATION BENEFITS. Notwithstanding the provisions of
Section 3, the Executive's employment under this Agreement shall terminate under
the following circumstances set forth in this Section 7.
(a) TERMINATION BY THE COMPANY FOR CAUSE.
(i) The Executive's employment under this Agreement may be terminated
for Cause without further liability on the part of the Company
effective immediately upon a vote of the Board and written notice to
the Executive. Subject to Section 7(g), only the following shall
constitute "Cause" for such termination:
(A) material dishonest statements or acts of the Executive with
respect to the Company or any affiliate of the Company;
(B) conviction of the Executive for (x) a felony or (y) any
misdemeanor involving moral turpitude, deceit, dishonesty or
fraud; or
(C) willful and material breach of this Agreement or the
Non-Compete Agreement by the Executive, gross negligence, willful
misconduct or willful failure or refusal of the Executive to
comply with explicit directions of the Board, which directions
are consistent with Section 2 of this Agreement, in each instance
after fifteen (15) days written notice and an opportunity to
cure.
In making any determination under this Section 7(a), the Board
shall act fairly and in good faith and shall give the Executive an
opportunity to appear and be heard at a meeting of the Board or the
compensation committee of the Board, which meeting may be held
telephonically at the request of either the Company or the Executive,
and present evidence on the Executive's behalf.
(b) TERMINATION BY THE EXECUTIVE. The Executive's employment under this
Agreement may be terminated by the Executive by written notice to the
Company at least sixty (60) days prior to such termination.
(c) TERMINATION BY THE COMPANY WITHOUT CAUSE OR BY THE EXECUTIVE WITH GOOD
REASON. Subject to the payment of Termination Benefits pursuant to Section
7(d), the Executive's employment under this Agreement may be terminated by
the Company without Cause upon written notice to the Executive by a vote of
the Board or by the Executive with Good Reason upon written notice to the
Board. For purposes of this Agreement, "Good Reason" shall mean, without
the Executive's written consent, the occurrence of any of the following
circumstances:
(i) the assignment to the Executive of any duties substantially
inconsistent and adverse with the position of Chief Operating Officer
of the Company or a significant adverse alteration in the nature or
status of the Executive's responsibilities or the conditions of the
Executive's employment as Chief Operating Officer;
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(ii) the Company's reduction of the Executive's Salary as in effect on
the Effective Date or as the same may be increased from time to time
except for across-the-board salary reductions similarly affecting all
management personnel of the Company;
(iii) the Company's failure to continue in effect any material
compensation or benefit plan in which the Executive participates,
unless an equitable arrangement (embodied in an ongoing substitute or
alternative plan) has been made with respect to such plan, or the
Company's failure to continue the Executive's participation therein
(or in such substitute or alternative plan) on a basis not materially
less favorable, both in terms of the amount of benefits provided and
the level of the Executive's participation relative to other
participants; or
(iv) the Company-required relocation of the Executive's residence or
principal place of business to a location outside of the Manhattan
business district; provided; however, Executive acknowledges that he
may be required to spend a substantial amount of time traveling on
Company business. The Company shall pay for all of Executive's
reasonable travel and living expenses associated with such travel from
the New York City metropolitan area;
(v) the Company's failure to pay to the Executive any portion of the
Executive's current compensation or to pay to the Executive any
portion of an installment or deferred compensation under any deferred
compensation program of the Company within seven (7) days of the date
such compensation is due;
(vi) the Company's failure to continue to provide the Executive with
benefits substantially similar to those enjoyed by the Executive under
any of the Company's life insurance, medical, health and accident, or
disability plans in which the Executive participates, the taking of
any action by the Company which would directly or indirectly
materially reduce any of such benefits, or the failure by the Company
to provide the Executive with the number of paid vacation days to
which the Executive is entitled on the basis of years of service with
the Company in accordance with the Company's normal vacation policy;
or (vii) in the event the Company engages in a merger or other
business combination or a sale of all or substantially all of its
assets, the failure of any successor to the Company to expressly
assume the obligations of the Company under this Agreement, except
that any such successor need not assume the obligations described in
Section 4 (Board Seat) hereof.
(d) CERTAIN TERMINATION BENEFITS. Unless otherwise specifically provided in
this Agreement or otherwise required by law, all compensation and benefits
payable to the Executive under this Agreement shall terminate on the date
of termination of the Executive's employment under this Agreement.
Notwithstanding the foregoing, in the event of termination of the
Executive's employment with the Company pursuant to Section 7(c) or the
Company's failure to renew this Agreement as contemplated by Section 7(h),
subject to the Executive's continuing compliance with his obligations under
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the Non-Compete Agreement (other than those under the Section entitled
"Non-Compete/Exclusivity"), the Company shall provide to the Executive the
following termination benefits ("Termination Benefits"):
(i) continuation of the Executive's Salary at the rate then in effect
pursuant to Section 5(a);
(ii) (A) a bonus for the year in which the termination occurs pro rata
for the period of service in such year, based upon (x) the bonus
amount, if any, paid to the Executive pursuant to Section 5(b) for the
year preceding the year in which the termination of employment occurs
or (y) if the termination occurs prior to the determination of an
annual bonus for such preceding year under this Agreement, the
targeted bonus of 80% of Salary (such applicable amount under clause
(x) or (y) being referred to as the "Applicable Bonus"), and (B)
payments at an annual rate based upon the Applicable Bonus to be paid
monthly during the period set forth in subsection (iv) below;
(iii) continuation of all Benefits to the extent authorized by and
consistent with 29 U.S.C. ss.1161 et seq. (commonly known as "COBRA"),
with the cost of the regular premium for such Benefits shared in the
same relative proportion by the Company and the Executive as in effect
on the date of termination (it being understood that such continuation
of Benefit includes continued participation in the Sibson retirement
plan as provided in Section 5(d) hereof);
(iv) The Termination Benefits set forth in (i), (ii)(B) and (iii)
above shall continue effective until the later of (x) the expiration
of the Initial Term or (y) one (1) year from the date of the
termination of the Executive's employment, and will include such
payments for accrued vacation pay and any similar items required by
law. Notwithstanding the foregoing, nothing in this Section 7(d) shall
be construed to affect the Executive's right to receive COBRA
continuation entirely at the Executive's own cost to the extent that
the Executive may continue to be entitled to COBRA continuation after
the Executive's right to cost sharing under Section 7(d)(iii) ceases;
(v) Any options exercisable for Class A Common Stock granted to the
Executive which are not vested at that time shall be deemed to have
vested to the extent of one hundred percent (100%) of such remaining
unvested portion;
(vi) The Company shall pay seventy-five percent (75%) of the
Executive's premiums for medical/health Benefits for the period from
the date of termination of the Executive's employment under this
Agreement until the Executive becomes eligible for full Medicare
benefits. Such post-retirement medical/health Benefits shall be
substantially similar in the aggregate to the medical/health Benefits
for which the Executive was eligible during his period of employment
with the Company;
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(vii) Executive will be released from the restrictions and covenants
contained within the section entitled "Non-Compete/Exclusivity" under
the Non-Compete Agreement executed by Executive, and upon termination
of the payment of the Termination Benefits set forth in (i), (ii)(B)
and (iii) above, Executive will be released from the restrictions and
covenants contained within the section entitled "Non-Solicitation"
under the Non-Compete Agreement executed by Executive; provided,
however, that at Executive's option upon prior written notice to the
Company, Executive shall be released from the restrictions and
covenants contained within the section entitled "Non-Solicitation"
under the Non-Compete Agreement executed by Executive, and the Company
shall have no further liability or obligation for the payment of any
remaining Termination Benefits under Sections 7(d)(i), 7(d)(ii)(B) and
7(d)(iii) from and after the date of such notice, which Termination
Benefits shall be forfeited by Executive; and
(viii) In addition to the foregoing, in the event of the termination
of the Executive's employment with the Company for any reason, the
Executive shall be entitled to payment of any accrued and unpaid
Benefits for which the Executive may otherwise be vested or entitled
in accordance with the terms of the applicable plans governing such
Benefits and to payment for reimbursable expenses under applicable
Company policy within thirty (30) days of termination.
(e) DISABILITY. At the election of the Company, this Agreement shall
terminate on such date as may be selected by the Company after the
Executive shall have failed to render and perform the services required of
him under this Agreement during any period of 90 days within any 120 day
period during the Term because of physical or mental disability. In the
event of such termination, the Company shall have no further obligation for
the payment of compensation or benefits hereunder, except (i) for
compensation accrued and unpaid through the termination date and (ii) the
payment of any disability insurance to which the Executive may be entitled.
If there should be any dispute between the parties as to the Executive's
physical or mental incapacity or disability pursuant to this Section 7(e),
such question shall be settled by the opinion of an impartial reputable
physician agreed upon for this purpose by the parties or their
representatives, or failing agreement within ten (10) days after a written
request therefor by any party to the other party, one selected in
accordance with the rules of the American Arbitration Association. The
certificate of such physician as to the matter in dispute shall be final
and binding on the parties.
(f) DEATH. In the event of termination as a result of the Executive's
death, the Company shall have no further obligation to the Executive's
representatives and heirs hereunder.
(g) LEAVE OF ABSENCE UPON INDICTMENT. Upon indictment of the Executive for
(A) a felony or (B) any misdemeanor involving moral turpitude, deceit,
dishonesty or fraud ("indictment," for these purposes, meaning an
indictment, probable cause hearing or any other procedure pursuant to which
an initial determination of probable or reasonable cause with respect to
such offense is made), the Board, at its option, may place the Executive on
a paid leave of absence from employment for a period of up to six (6)
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months from such election. At the end of the six (6) month period if the
indictment is pending, the Board may terminate the Executive for "Cause"
effective immediately upon written notice to the Executive without further
liability on the part of the Company. In making any determination under
this Section 7(g), the Board shall act fairly and in good faith and shall
give the Executive an opportunity to appear and be heard at a meeting of
the Board or the compensation committee of the Board, which meeting may be
held telephonically at the request of either the Company or the Executive,
and present evidence on the Executive's behalf.
(h) FAILURE TO RENEW AGREEMENT. In the event the Company elects not to
extend the term of this Agreement as permitted by Section 3 and the
Executive's employment is terminated, the Executive shall be entitled to
the Termination Benefits described in Section 7(d). In the event that the
Executive elects not to extend the Term of this Agreement as provided in
Section 3 and the Executive's employment is terminated, the Executive shall
be entitled to the termination benefits described in Sections 7(d)(vi) and
7(d)(viii).
8. NON-COMPETE, NON-SOLICITATION, PROPRIETARY INFORMATION, CONFIDENTIALITY
AND INVENTIONS AGREEMENTS.
(a) The Executive agrees to sign the Non-Compete, Non-Solicitation,
Proprietary Information, Confidentiality and Inventions Agreement, the form
of which is attached hereto as Exhibit "A" and, except as set forth in
Section 7(d)(vi), to comply with such Agreement during the Term.
(b) LITIGATION AND REGULATORY COOPERATION. During the Executive's
employment, the Executive shall cooperate fully with the Company in the
defense or prosecution of any claims or actions now in existence or which
may be brought in the future against or on behalf of the Company which
relate to events or occurrences that transpired while the Executive was
employed by the Company; provided, however, that the Executive shall be
permitted to give testimony and appear as a witness in any proceeding in
which such testimony or appearance is required by law. The Executive's full
cooperation in connection with such claims or actions shall include, but
not be limited to, being available to meet with counsel to prepare for
discovery or trial and to act as a witness on behalf of the Company at
mutually convenient times. During the Executive's employment, the Executive
also shall cooperate fully with the Company in connection with any
investigation or review of any federal, state or local regulatory authority
as any such investigation or review relates to events or occurrences that
transpired while the Executive was employed by the Company. The Executive
also agrees to provide reasonable cooperation to the Company on matters of
the type described in this Section 8(b) after termination of the
Executive's employment. The Company shall reimburse the Executive for any
reasonable out-of-pocket expenses incurred in connection with the
Executive's performance of obligations pursuant to this Section 8(b).
(c) REMEDIES. The Executive agrees that it would be difficult to measure
any damages caused to the Company which might result from any breach by the
Executive of the promises set forth in this Section 8, and that in any
event money damages would be
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an inadequate remedy for any such breach. Accordingly, the Executive agrees
that if the Executive breaches, or proposes to breach, any portion of this
Section 8, the Company shall be entitled, in addition to all other remedies
that it may have, to an injunction or other appropriate equitable relief to
restrain any such breach without showing or proving any actual damage to
the Company.
9. GENERAL.
(a) ARBITRATION OF DISPUTES. Any controversy or claim arising out of or
relating to this Agreement or the breach thereof or otherwise arising out
of the Executive's employment or the termination of that employment
(including, without limitation, any claims of unlawful employment
discrimination whether based on age or otherwise) shall, to the fullest
extent permitted by law, be settled by arbitration in any forum and form
agreed upon by the parties or, in the absence of such an agreement, under
the auspices of the American Arbitration Association ("AAA") in New York,
New York, the Employment Dispute Resolution Rules of the AAA, including,
but not limited to, the rules and procedures applicable to the selection of
arbitrators, except that the arbitrator shall apply the law as established
by decisions of the U.S. Supreme Court and the federal and state courts
sitting in New York in deciding the merits of claims and defenses under
federal law or any state or federal anti-discrimination law, and any awards
to the Executive for violation of any anti-discrimination law shall not
exceed the maximum award to which the Executive could be entitled under the
applicable (or most analogous) anti-discrimination or civil rights laws. In
the event that any person or entity other than the Executive or the Company
may be a party with regard to any such controversy or claim, such
controversy or claim shall be submitted to arbitration subject to such
other person or entity's agreement. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. The
arbitrator shall have the authority to grant the prevailing party
reasonable costs and expenses, including reasonable attorney's fees and the
costs of the arbitration. This Section 9(a) shall be specifically
enforceable. Notwithstanding the foregoing, this Section 9(a) shall not
preclude either party from pursuing a court action for the sole purpose of
obtaining a temporary restraining order or a preliminary injunction in
circumstances in which such relief is appropriate; provided that any other
relief shall be pursued through an arbitration proceeding pursuant to this
Section 9(a).
(b) INTEGRATION. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes all
prior understandings and agreements between the parties, whether oral or
written, with respect to any related subject matter.
(c) ASSIGNMENT: SUCCESSORS AND ASSIGNS, ETC. Neither the Company nor the
Executive may make any assignment of this Agreement or any interest herein,
by operation of law or otherwise, without the prior written consent of the
other party provided that the Company may assign its rights under this
Agreement without the consent of the Executive in the event that the
Company shall effect a reorganization, consolidate with or merge into any
other corporation, partnership, organization or other entity, or transfer
all or substantially all of its properties or assets to any other
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corporation, partnership, organization or other entity; provided such
successor is the functional equivalent of the Company. This Agreement shall
inure to the benefit of and be binding upon the Company and the Executive,
their respective successors, executors, administrators, heirs and permitted
assigns.
(d) ENFORCEABILITY. If any portion or provision of this Agreement
(including, without limitation, any portion or provision of any section of
this Agreement) shall to any extent be declared illegal or unenforceable by
a court of competent jurisdiction, then that court shall have the power to
alter such provision to make it enforceable to the fullest extent permitted
by law. The remainder of this Agreement, or the application of such portion
or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to
the fullest extent permitted by law.
(e) WAIVER. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of any party
to require the performance of any term or obligation of this Agreement, or
the waiver by any party of any breach of this Agreement, shall not prevent
any subsequent enforcement of such term or obligation or be deemed a waiver
of any subsequent breach.
(f) NOTICES. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and
delivered in person or sent by a nationally recognized overnight courier
service or by registered or certified mail, postage prepaid, return receipt
requested, to the Executive at the last address the Executive has filed in
writing with the Company or, in the case of the Company, at its main
offices, attention of the Chief Executive Officer, and shall be effective
on the date of delivery in person or by courier or three (3) days after the
date mailed.
(g) AMENDMENT. This Agreement may be amended or modified only by a written
instrument signed by the Executive and by a duly authorized representative
of the Company.
(h) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be taken
to be an original; but such counterparts shall together constitute one and
the same document.
10. CONSENT TO JURISDICTION.
(a) GOVERNING LAW. This contract shall be construed under and be governed
in all respects by the laws of the State of New York without giving effect
to the conflict of laws principles of such state.
(b) CONSENT TO JURISDICTION. To the extent that any court action is
permitted consistent with or to enforce Section 9(a) of this Agreement, the
parties hereby consent to the jurisdiction of the state and federal courts
in New York, New York. Accordingly, with respect to any such court action,
each of the Executive and the Company (a) submits to the personal
jurisdiction of such courts; (b) consents to service of process; and (c)
waives
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any other requirement (whether imposed by statute, rule of court, or
otherwise) with respect to personal jurisdiction or service of process.
11. TERMINATION OF PRIOR EMPLOYMENT AGREEMENTS. All prior employment
agreements between the Executive and the Company or any of its subsidiaries or
affiliates, including, but not limited to, the Employment Agreement by and
between the Executive and Sibson, dated as of August 31, 1998 (the "1998
Employment Agreement"), are superseded by this Agreement and are terminated and
are null and void, except that the Executive shall be entitled to any accrued
and unpaid salary, bonus or benefits under the 1998 Employment Agreement through
the Effective Date.
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INTENDING TO BE LEGALLY BOUND by this Agreement and IN WITNESS THEREOF, the
undersigned parties have executed this Agreement as of this 30th day of
September, 2000.
/s/ Xxxxxxx X. Xxxxx
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State of Residence: New York
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ACCEPTED:
NEXTERA ENTERPRISES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Its: Chief Financial Officer
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SCHEDULE 1
BENEFITS
(A) MEDICAL: The supplemental medical reimbursement plan reimburses
Executive for deductibles, co-insurance amounts and expenses which are
reasonable and customary with respect to the Company's medical or dental plans.
Expenses for vision care are also covered. No more than $15,000 per family may
be reimbursed in any given calendar year.
(B) LIFE INSURANCE: Executive may obtain whole life split-dollar insurance
with a death benefit equal to two times Salary. The policy is owned by the
Executive. The Company pays the premium and is entitled to that portion of the
cash value equal to the premium it has paid. Executive may also buy supplemental
term life. Participation in both the split-dollar plan and supplemental life
plan is subject to medical underwriting. Alternatively, the Company may make a
payment to a Executive in lieu of coverage under the split-dollar plan.
(C) AUTOMOBILE: The Company will provide Executive with an automobile
allowance of $2,000 per month for the purpose of either leasing an automobile or
obtaining car service. The Executive agrees to assume the lease upon termination
of employment.
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EXHIBIT A
NONCOMPETE, NON-SOLICITATION, PROPRIETARY INFORMATION,
CONFIDENTIALITY AND INVENTIONS AGREEMENT
This Agreement is made as of September 30, 2000, by and between Nextera
Enterprises Inc., a Delaware corporation, and the undersigned Executive.
Executive and Nextera have also entered into an Employment Agreement of even
date herewith (the "Employment Agreement"). In consideration of the employment
and continued employment of Executive by Nextera Enterprises, Inc., its
successors, subsidiaries and affiliates (collectively, "Nextera"), the Executive
agrees to certain restrictions on activities necessary to avoid conflicts of
interest, ensure the exclusivity of Executive's services and protect the
goodwill, confidential information, and legitimate business interests of Nextera
and its clients. To further these objectives, the Executive agrees to comply
with the following provisions of this Agreement ("Agreement") as follows:
NONCOMPETE/EXCLUSIVITY
During the period of employment by Nextera:
1. the Executive will devote substantially all of the Executive's business
time to the business of Nextera in accordance with Section 6 of the
Executive's Employment Agreement with Nextera of even date herewith;
2. will not engage in any business activity, current or proposed, which
competes with the services or products being developed, marketed or sold by
Nextera; and
3. will not, without prior written consent of Nextera, invest in, enter
into or assist any venture, enterprise, or endeavor which competes or
intends to compete with Nextera, other than as a less than five percent
(5%) stockholder of a publicly held company or a stockholder of a publicly
held company which derives none or an immaterial portion (i.e., less than
ten percent (10%)) of its revenues from services which compete with the
services of Nextera.
The Executive represents that, to the best of the Executive's knowledge,
employment by Nextera will not conflict with any agreement to which the
Executive is subject.
NON-SOLICITATION
1. The Executive acknowledges that the names and details of the firms with
whom the Executive's has dealings while employed by Nextera constitute
trade secrets
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belonging to Nextera. In order to preserve Nextera's trade secrets, during
employment with Nextera and for a period of two (2) years after termination
of the Executive's employment with Nextera for any reason, which two (2)
year period or restrictions shall be reduced or eliminated as provided in
the Employment Agreement in the event that Nextera terminates Executive's
employment without Cause (as defined in the Employment Agreement) or
Executive terminates his employment for Good Reason (as defined in the
Employment Agreement):
(a) the Executive will not solicit or cause to be solicited, or aid in
the solicitation of business from firms for which the Executive did
work or from whom the Executive actively solicited business during the
Executive's employment with Nextera or any of its subsidiaries or
affiliates; and
(b) the Executive will not directly or indirectly contact or solicit
any employee of Nextera with regard to present, future or contemplated
employment opportunities on behalf of himself, or any other person,
firm, corporation, governmental agency or other entity.
PROPRIETARY INFORMATION
1. Proprietary Information refers to any information, not generally known
in the relevant trade or industry, which was obtained from Nextera or any
of its clients, past, present, or prospective, other than information that
is or becomes known to the public or trade through no breach of this
Agreement by the Executive.
2. Proprietary Information includes, but is not limited to, the following
items, whether or not labeled as such: customer lists, notes, drawings and
writings; computer programs (including source and object codes),
algorithms, systems, tools, spreadsheets, related documentation such as
user manuals, functional and technical specifications, system descriptions,
program documentation, output reports, terminal displays, and data file
contents; plans, process and preparations for Nextera's current and
proposed business activities; discoveries, inventions, developments, ideas,
research, engineering, designs, and products; projects and improvements
made or conceived in connection with Nextera's customer and prospective
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customer's lists; and marketing and financial data of Nextera and its
clients.
3. The Executive agrees not to disclose the existence of or contents of any
documents, records, discs, tapes, and other media that contain Proprietary
Information, and will not copy or remove any such material from Nextera or
its client's premises, except as required by the Executive's duties or as
approved by an authorized officer of Nextera.
4. The Executive agrees to comply with all restrictions and regulations of
Nextera's clients concerning any and all information such clients deem
proprietary or confidential.
5. The Executive agrees that any material relating to any matter within the
scope of the business of Nextera, and any materials of clients of Nextera,
is and shall remain the property of Nextera or such clients, as the case
may be, and that upon termination of employment or at any earlier time as
requested by Nextera, the Executive will immediately deliver such material
and all copies in Executive's possession or control to Nextera or such
clients, as the case may be.
6. Nextera may provide the Executive with equipment (portable personal
computer, software, etc.) for Executive's use in the course of employment
by Nextera. The Executive acknowledges that any such equipment will remain
the exclusive property of Nextera, and the Executive agrees to deliver such
equipment to Nextera, as directed by Nextera, upon termination of
employment for any reason, or at any time upon request of Nextera.
CONFIDENTIALITY
1. Except in connection with the Executive's duties for Nextera, the
Executive will not use or disclose to anyone outside Nextera, and will not
use any Proprietary Information or material relating to the business of
Nextera, or its clients, either during or after employment by Nextera,
except with the written permission of Nextera.
2. The Executive will not disclose to Nextera, and will not induce Nextera
to use any confidential information or material belonging to others where
such disclosure would, to the Executive's knowledge, violate any rights of,
or any duty owing to, a third party.
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3. The Executive agrees not to discuss any information or respond to any
inquiries from the press or other information agencies regarding Nextera
without the express permission of Nextera, other than responding in the
ordinary course of business to inquiries regarding the consulting industry
generally or work done for clients of Nextera.
4. The Executive shall be permitted to give testimony and appear as a
witness in any proceeding in which such testimony or appearance is required
by law, provided the Executive reasonably furnishes notice to Nextera in
order to enable Nextera to seek a protective order, if applicable.
INVENTIONS
1. The Executive agrees to disclose promptly and fully to Nextera all
developments, inventions, discoveries, improvements, and proposals for new
programs, systems, services, products, tools, or business endeavors which
are related to any business activity by Nextera, current or proposed
(collectively called "Developments").
2. The Executive hereby assigns to Nextera the Executive's entire right,
title, and interest in each and every work product or Development related
to any business activity by Nextera, current or proposed (collectively
called "Work Product"):
(a) made, developed or conceived solely by the Executive or jointly
with others during or in the course of the Executive's employment by
Nextera,
(b) made, developed or conceived wholly or partially as the result of
any task assigned to the Executive or any work performed by the
Executive for or on behalf of Nextera or its clients, and/or
(c) made or developed with the use of Nextera facilities or equipment.
3. The Executive agrees to grant to Nextera a right of first refusal to
market on a mutually agreed royalty basis, and a perpetual non-exclusive
license to use, each and every Work Product or Development made, developed
or conceived by the Executive during employment by Nextera which is not
covered under the preceding paragraph.
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4. During employment with Nextera, the Executive agrees to provide Nextera
with copies of any manuscripts produced by the Executive relating to the
business of Nextera or which refers to Nextera in any manner for approval
by Nextera prior to submission for publication.
5. The Executive does not, however, assign any Developments, if any,
relating in any way to Nextera business which were made prior to employment
with Nextera, which Developments, if any, are identified on Exhibit A,
attached to this Agreement.
GENERAL
1. The Executive's obligations under this Agreement shall survive the
termination of employment. The Executive understands that this Agreement
does not create an obligation of Nextera or any other party to continue
employment.
2. Nextera shall have the unrestricted right to assign this Agreement to
its parent company, its affiliates, and any and all successors in interest.
3. It is agreed that Nextera may inform any person or entity subsequently
employing or evidencing an intention to employ, Executive of the nature of
the information Nextera asserts to be confidential, and may inform said
person or entity of the existence of this Agreement, and provide to such
persons or entity a copy of this Agreement.
4. Any breach of this Agreement by the Executive may cause irreparable
damage, and in the event of such a breach, Nextera shall have, in addition
to any remedies at law, the right to an injunction to prevent or restrain a
breach of the Executive's obligations hereunder.
5. Nextera's failure to exercise any rights under this Agreement does not
constitute a waiver of such right in the event of a subsequent violation of
this Agreement.
6. This Agreement shall be governed by the laws of the state of Executive's
employment.
7. In the event a court of competent jurisdiction shall determine that any
provision in this Agreement is too restrictive in scope or duration, then
that court shall have the power to alter such provision to make it
enforceable
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to the fullest extent permitted by law. Such a determination shall not have
the effect of rendering any other provision herein contained invalid.
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INTENDING TO BE LEGALLY BOUND by this Agreement and IN WITNESS THEREOF, the
undersigned parties have executed this Agreement as of this 30th day of
September, 2000.
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ACCEPTED:
NEXTERA ENTERPRISES, INC.
By:
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Its:
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