EXHIBIT 10.3(m)
CONFIDENTIAL AND
LEGALLY PRIVILEGED
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 28th day of October
1996, by and between XXXXX SERVICES CORPORATION, a Delaware corporation
maintaining its principal office at Two Pennsylvania Plaza, New York, New York
(the "Company") and Xxxxx X. Xxxxxxxxx, an individual now residing at 00 Xxxxxxx
Xxxxxx, Xxxx Xxxxxxxxx, Xxx Xxxx 00000 (the "Employee").
WITNESSETH THAT:
WHEREAS, the Employee is currently serving in an executive capacity as
a Vice President of the Company and the Company desires to ensure that the
Employee will continue to be available to provide human resource services for
the company; and
WHEREAS, to induce the Employee to provide such services, the Company
is offering to provide the Employee with the compensation, benefits and security
provided for in this Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto agree as follows:
1. Employment/Capacity/Term.
(a) The Company agrees to and does hereby employ the Employee,
and the Employee agrees to and hereby does enter into the employ of the Company
upon the terms and conditions set forth in this Agreement. Such employment shall
be in an executive capacity as Vice President, Human Resources of the Company.
(b) This Agreement and such employment shall commence on
November 1, 1996 and shall continue through October 31, 1999 ("the Initial
Term"), and from year to year thereafter (the "Extended Term"), subject to the
right of the Employee or the Company to terminate this Agreement and such
employment by written notice stating an intention to terminate such employment
at least thirty (30) days prior to such termination date, stating and intention
to terminate such employment (the "Termination Date"). Termination by either
party, in accordance with the provisions of the preceding sentence shall not
require a statement of the reason or cause for such termination and shall not be
deemed a breach or violation of this Agreement by the party giving such notice.
As used in this Agreement, the phrase "term of this Agreement" shall be deemed
to include the period subsequent to the date hereof and prior to termination of
this Agreement.
2. Time and Effort/Absences.
During the "term of this Agreement", the Employee shall devote his
entire time and attention during normal business hours to the business of the
Company subject to the supervision of the Board of Directors of the Company and
the President and Chief Executive Officer of the Company, and he or she shall
not engage in any other business activity whether or not such business activity
is pursued for gain, profit, or other pecuniary advantage, but this restriction
shall not be construed to restrict the Employee (i) from performing services as
a member of the Board of Directors, Board of Trustees or the like of any
non-profit entity for which the Employee receives no compensation, provided
that, such services do not unreasonably interfere with the ability of the
Employee to perform the services and discharge the responsibilities required of
him under this Agreement, and (ii) from investing his assets in such form or
manner as will not require any services on the part of the Employee in the
operation of the business of the entity in which such investments are made. The
Employee shall be excused from rendering his services during reasonable vacation
periods and during other reasonable temporary absences as authorized from time
to time by the Board of Directors or the President and Chief Executive Officer
of the Company.
3. Corporate Offices.
If elected, the Employee will serve, without additional
compensation, as an officer and director (or in either capacity) of the Company.
4. Salary/Bonus/Other Benefits.
In consideration of the services and duties to be rendered and
performed by the Employee during the term of this Agreement, the Company agrees
to pay and provide for the Employee the compensation and benefits described
below:
(a) An annual salary, payable in equal monthly or bi-weekly
installments, in the amount of One Hundred Ten Thousand Dollars ($110,000) or in
such greater amount as may from time to time be fixed by the Board of Directors
of the Company.
(b) An annual incentive bonus in such amount as may from time
to time be fixed by the Board of Directors of the Company.
(c) Other Benefits. It is intended that the Company shall
continue to provide the Employee with benefits at least as favorable as benefits
provided on behalf of other executives of the Company who furnish services of
comparable significance, as they may exist from time to time. Such benefits
presently include (i) Group Life Insurance, Supplemental Executive Group Life
Insurance, Medical and Health Insurance, Xxxxx Stock Option Plan, Executive
Pension Plan, Xxxxx Select Plan and Xxxxx 401(k) Plan and (ii) an automobile
allowance in the amount of $700 per month. Provided, however, any such
participation shall be in accordance with the provisions of such plans and
nothing
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contained in this Agreement in intended to or shall be deemed to affect
adversely any of the Employee's rights as a participant under any such plans.
Nothing herein shall prevent the Company from modifying or discontinuing any
benefit plan on a consistent and non-discriminatory basis applicable to all such
executives.
5. Expenses.
The Employee shall be reimbursed for out-of-pocket expenses
incurred from time to time on behalf of the Company or in the performance of his
or her duties under this Agreement, upon the presentation of such supporting
documents and forms as the Company shall reasonably request.
6. Medical Leave, Reasonable Accommodation, Termination for
Medical Incapacity and Disability Benefits.
The Company agrees to provide the Employee with a medical
leave of absence not to exceed six (6) months in duration in any twelve (12)
month period if the Employee has a medical condition that precludes the Employee
from being fully functional in his or her position. The term "fully functional"
means able to travel to and from work, be at work, perform satisfactorily all
essential functions of the position as identified herein and otherwise meet the
demands of the position and the conditions of employment without significant
risk of substantial harm to self or others. Any leave entitlement granted by
Federal, state or local law shall run concurrently with the commencement of his
or her six month period of leave, whether such leave is taken all at once,
intermittently or on a reduced time basis. Nothing herein is intended to
diminish any entitlement granted by law. If appropriate, the Company will
support the Employee's application for disability benefits.
If the Employee is not able to return to the position in a
fully functional capacity at the conclusion of six months of medical leave in a
twelve month period, this Agreement may be terminated by the Board of Directors
of the Company at its sole discretion, without prior notice.
Unless otherwise prohibited by law, the Employee agrees that
the Employee will furnish for review for review by a medical professional
designated by the Company, copies of the Employee's medical records pertaining
to any medical condition for which the Employee requests a medical leave of more
than twelve (12) weeks in duration, return to work from any such leave, work
restrictions, modification or accommodation; or the Employee or the Company
believes that the Employee has a medical condition that may be causing or
contributing to performance or conduct deficiencies. The Employee also agrees to
authorize any health care professional from whom the Employee is receiving
diagnostic evaluation, treatment or other medical care to discuss the Employee's
medical condition with the medical professional designated by the Company to
receive and review the Employee's medical records. The Employee further agrees
that he or she will undergo, at the sole expense of the Company, any medical
specialty evaluation if requested to do so by the Company.
The Company agrees to provide the Employee, if he or she is
otherwise qualified for
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the position, with medically necessary accommodations if it likely will enable
the employee to be fully functional in the position and is reasonable, feasible
and will not impose undue hardship on Company operations. The term "medically
necessary" means that the accommodation has risk-avoiding or therapeutic value
in accordance with scientifically valid medical principles and practice and that
the Employee requires similar accommodation when performing comparable non-work
functions.
The inability of the Employee to be fully functional in his or
her position for medical reasons shall not constitute a breach of this Agreement
by the Employee. If this Agreement is terminated by the Company because the
Employee is not fully functional in his or her position for medical reasons, as
provided for in this paragraph, the Company shall be obligated to continue the
salary of the Employee as provided in Paragraph 4. (a) for a period equal to the
greater of (a) twelve months, or (b) such longer period as may be determined by
the Board of Directors of the Company, in each case, reduced by any disability
insurance benefits provided for the benefit of the Employee at the expense of
the Company.
7. Death/Death Benefit.
In the event of the death of the Employee during the term of
this Agreement, this Agreement shall terminate and the Employee's salary shall
continue to be paid to his or her designated beneficiary or, if none, to his or
her personal representative, through the last day of the month in which such
death occurs.
8. Severance Pay.
If the Company gives notice to terminate in accordance with
Paragraph 1 or if the employment of the Employee is terminated at any time (i)
by the Employee for Good Reason (as defined in Paragraph 9)., or (ii) by the
Company for any reason other than for Cause (as hereinafter defined), the
Company will be obligated to pay to the Employee a cash payment in an amount
equal to the product of (i) and (ii); where (i) shall equal the sum of (A) the
Employee's annual salary and (B) the Employee's annual incentive bonus during
the twelve (12) month period ending with the close of the month in which such
termination of employment occurs (the "Date of Termination"), but not less than
$50,000, which represents the 1996 target incentive, divided by twelve (12); and
where (ii) shall be the lesser of, (x) thirty-six (36), or (y) the number of
months until the Employee's normal retirement date (the "Severance Pay").
Termination of the Employee's employment on account of his or her disability,
death or retirement (as hereinafter defined) will not be considered a
termination of the Employee's employment by the Company and will not require the
Company to pay and provide any Severance Pay. No Severance Pay will be required
if the employment of the Employee is terminated by the Company for Cause (as
hereinafter defined) or by the Employee (other than for Good Reason as defined
in Paragraph 9.) or if the Employee gives notice to terminate in accordance with
Paragraph 1. The Severance Pay provided herein is provided in order to reinforce
and encourage the continued loyalty, attention, and dedication of the Employee
to the Company's business and affairs without the concerns which normally arise
from the possibility of a loss of employment security. As used herein, the terms
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"Retirement" and "Cause" shall have the following meanings, respectively:
(a) Retirement.
Termination of the Employee's employment on account of "Retirement"
shall mean termination on or after the Employee's normal retirement date in
accordance with the terms of the Xxxxx 401(k); and
(b) Cause.
Termination by the Company of the Employee's employment for "Cause"
shall mean termination as a result of (i) the willful and continued failure by
the Employee to perform substantially the services contemplated by this
Agreement (other than any such failure resulting from the Employee's incapacity
due to physical or mental illness) after a written demand for substantial
performance is delivered to the Employee by a member or representative of the
Board of Directors of the Company or the President and Chief Executive Officer
of the Company which specifically identifies the manner in which it is alleged
that the Employee has not substantially performed such services, or (ii) the
willful engaging by the Employee in gross misconduct which is materially and
demonstrably injurious to the Company; provided that, no act, or failure to act,
on the Employee's part shall be considered "willful" unless done, or omitted to
be done, in bad faith and without reasonable belief that such action or omission
was in, or not opposed to, the best interests of the Company. It is also
expressly understood that the Employee's attention to or engagement in matters
not directly related to the business of the Company shall not provide a basis
for termination for Cause if such attention or engagement is authorized by the
terms of this Agreement or has otherwise been approved by the Board of Directors
of the Company. Anything in this Agreement to the contrary notwithstanding, the
Employee's employment may bot be terminated for Cause unless and until there
shall have been delivered to the Employee a copy of a resolution duly adopted by
the affirmative vote of not less than three-quarters of the entire membership of
the Board at a meeting of the Board called and held for that purpose(after
reasonable notice to the Employee and an opportunity for the Employee, together
with his counsel, to be heard before the Board), finding that in the good faith
opinion of the Board the Employee was guilty of the conduct set forth in clause
(i) or (ii) of this subparagraph (b) and specifying the particulars thereof in
detail. Except as otherwise provided in Paragraphs 1 and 6, not purported
termination by the Company of the Employee's employment which is not justified
as a termination of the Employee's employment for Cause shall be effective .
9. Termination by the Employee for Good Reason.
The termination by the Employee of this Agreement and his
employment for "Good Reason" shall be deemed a justifiable termination of his
employment and shall excuse the Employee from the obligation to render services
as provided in Paragraph 2. hereof. Upon such termination, the Employee shall be
entitled to Severance Pay in accordance with the provisions of Paragraph 8.
hereof. As used herein, the phrase "Good Reason" shall mean:
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(a) a change in the Employee's status, title or position as an officer
of the Company or the Xxxxx Group in the executive capacity set forth in this
Agreement which, in his or her reasonable judgment, does not represent a
promotion from or enhancement of his status, title and position, or, the
assignment by the Board of Directors of the Company to the Employee of any
duties or responsibilities which in his or her reasonable judgment, are
inconsistent with such status, title or position, or any removal of the Employee
from or failure to reappoint or reelect him or her to such position, except in
connection with a justifiable termination by the Company of the Employee's
employment for Cause or on account of disability, the retirement or death of the
Employee or the termination by the Employee of his employment other than for
Good Reason;
(b) a reduction in the Employee's annual salary or a failure
by the Company to pay to the Employee any installment of the annual salary
required by Paragraph 4. which failure continues for a period of twenty (20)
days after written notice thereof is given by the Employee to the Company;
(c) the failure by the Company within ten (10) days of notice
from the Employee to obtain the assumption of this Agreement in form and
substance to the reasonable satisfaction of the Employee by any successor (other
than by merger of consolidation for which no separate assumption is necessary)
as referred to in Paragraph 12; or
(d) any refusal by the Company to allow the Employee to attend
to matters or engage in activities not directly related to the business of the
Company which is permitted by this Agreement or which, prior thereto, was
permitted by the Board of Directors of the Company.
10. Notice of Termination.
Any purported notice of termination of the Employee's
employment (other than a Notice given by either party pursuant to Paragraph 1.
hereof) shall be communicated in writing and delivered to the other party as
provided in Paragraph 12., below (hereinafter a "Notice of Termination").
11. Confidentiality and Limited Covenant Not to Compete.
In connection with the performance of the Employee's job
duties in a position of trust and confidence, he or she will develop or receive
confidential, restricted or unpublished information involving trade secrets,
customer-related information, vendor-related information, copyrights, lists,
data and other information, strategic planning or operating data, computer
programs, financial, pricing, operating or training data or other confidential
business techniques, processes, methods or information which is not generally
known to the public (collectively referred to as "proprietary information").
Employee will receive or have access to "proprietary information" which was
obtained and developed through the investment of substantial amounts of money,
time and effort by the Company. Employee acknowledges and agrees that disclosure
of such "proprietary information" or its use for the benefit of any other person
or entity would be
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injurious to the Company. Employee also acknowledges and agrees that unless
Employee agrees to maintain the confidentiality of such "proprietary
information" and to limit its use solely to the Company, Employee would not have
been granted employment and if already employed, Employee's employment would
cease immediately. Regardless of the cessation of Employees employment for any
reason, the Employee's obligation to continue to maintain the confidentiality of
the "propriety information" shall continue.
The Employee agrees to deliver to the Company, at its request,
or in any event, upon cessation of Employee's employment with the Company (for
whatever reason and at whatever time) (a) all memoranda, notes, records, files
or other documentation, whether made or compiled by the Employee alone or in
conjunction with others (regardless of whether such persons are employed by the
Company); (b) all proprietary and other information of the Company which is in
Employee's control or possession; and (c) copies of such information, as well as
other corporate property. Regardless of cessation of Employee's employment by
the Company, and without any fee, the Employee will assist the Company in
protecting all rights the Company may have to such proprietary information.
The Employee recognizes that, as a direct consequence of the
materials, information and training provided to him or her by the Company, the
access he or she is granted to proprietary information and the opportunities
that he or she will have while employed by the Company to cultivate the loyalty
and goodwill of the Company's customers, suppliers, vendors and other persons,
it is important that the Employee refrain from engaging in activities which
could result in damage to the Company's business.
The Employee further recognizes that the Company has invested
considerable time and money to train its employees, in the services provided by
the Company and to develop the special skills required to perform such services.
Therefore, he or she will not, during the term of his or her employment with the
Company and for a period of one (1) year immediately thereafter, solicit,
entice, hire or otherwise seek to persuade, either directly or through any other
entity, any officer, employee, consultant or agent of the Company to discontinue
such relationship for any reason. During such period, the Employee will not
solicit business with any customers of the Company, nor will he or she seek to
entice or persuade any sources of referral, vendors or other entities, who are
then doing business with the Company to reduce, discontinue or curtail any
services provided to the Company in any respect.
To avoid the use of "proprietary information", the Employee
agrees to refrain from engaging in competing employment either directly or
indirectly on his or her own behalf or as an agent, consultant or employee of
any partnership, corporation or other entity, in any state where the Company
conducts business for a period of six (6) months after his or her employment
ceases (regardless of the reason for cessation of such employment).
The Employee recognizes and agrees that ascertaining damages
in the event of his
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or her breach or violation of any covenant or undertaking contained in this
Agreement would be difficult, if not impossible, and further recognizes that the
various rights and duties created in this Agreement are essential for the
operation of the Company's business operations. Consequently, irreparable injury
would result from any violation of this Agreement by him or her. Since it would
be difficult, if not impossible, to compensate fully the Company by monetary
damages in the event of the Employee's breach (although the Company retains the
right to commence a civil action seeking monetary damages), the Employee agrees
that the Company, in addition to and without limiting any other remedy or right
it may have, shall have the immediate right to obtain a preliminary, and
subsequently, a final injunction against the Employee, to be issued by a court
of competent jurisdiction, enjoining the Employee from engaging in any breach or
violation of this Agreement. An injunction shall be issued without posting a
bond that otherwise might be required. If an injunction is issued or if monetary
damages are awarded against the Employee, he or she will reimburse the Company
for the legal fees and court costs incurred in obtaining such relief (including
all appeals and other proceedings).
12. Binding Effect.
This Agreement shall be binding upon and inure to the benefit
of:
(a) Any successors or assigns of the Company, whether by way
of a merger or consolidation, or liquidation of the Company, or by way of the
Company selling all or substantially all of the assets of the Company to a
successor entity; however, in the event of the assignment by the Company of this
Agreement, the Company shall nevertheless remain liable and obligated to the
Employee in accordance with the terms hereof; and
(b) The Employee's estate, his executors, administrators,
heirs and beneficiaries.
13. Notices.
Any notice or other communication required under this
Agreement shall be in writing, shall be deemed to have been given and received
when delivered in person, or, if mailed, shall be deemed to have been given when
deposited in the United States mail, first class, registered or certified,
return receipt requested, with proper postage prepaid, and shall be deemed to
have been received on the third business day thereafter, and shall be addressed
as follows:
If to the Company, addressed to:
Xxxxx Services Corporation
Xxx Xxxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President and Chief Executive
Officer
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With a copy to its: General Counsel
If to the Employee, addressed to:
Xxxxx X. Xxxxxxxxx
00 Xxxxxxx Xxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
or such other address as to which any party hereto may have notified the other
in writing.
14. Governing Law.
This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New York, without regard to its
conflict or choice of law provisions to preserve the parties' intent, and the
enforceability of this Agreement.
15. Entire Agreement.
This Agreement contains the entire arrangement or
understanding between the Employee and the Company relating to the employment of
the Employee by the Company. No provision of the Agreement may be modified or
amended except by any instrument in writing by or for both parties hereto. All
references to paragraphs refer to paragraphs of this Agreement.
16. Waiver.
Failure of either party hereto to insist upon strict
compliance by the other party with any term, covenant or condition hereof shall
not be deemed a waiver of such term, covenant or condition, nor shall any waiver
or relinquishment or failure to insist upon strict compliance of any right or
power hereunder at any one or more times be deemed a waiver or relinquishment of
such right or power at any other time or times.
17. Assignment by Employee.
The rights and benefits of the Employee under this Agreement
are personal to him or her and no such right or benefit shall be subject to
voluntary or involuntary alienation, assignment or transfer; provided, however,
that nothing in this Paragraph 1 shall preclude the Employee from designating a
beneficiary or beneficiaries to receive any benefit payable on his death.
18. Severability.
If for any reason any provision of this Agreement shall be
held invalid, such invalidity shall not affect any other provision of this
Agreement not held so invalid, and all other provisions shall
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to the full extent consistent with law continue in full force and effect. If any
such provision shall be held invalid in part, such invalidity shall in no way
affect the remaining portion of such provision not held so invalid, and the
remaining portion of such provision, together with all other provisions of this
Agreement, shall to the full extent consistent with law continue in full force
and effect.
19. Headings.
The headings of paragraphs are included solely for convenience
of reference and shall not control the meaning or interpretation of any of the
provisions of this Agreement.
XXXXX SERVICES CORPORATION
Dated: By /s/ R. Xxxxxxx Xxxxx
---------------------------- ------------------------------
President and Chief Executive
Officer
Dated: 10/28/96 By /s/ Xxxxx X. Xxxxxxxxx
---------------------------- ------------------------------
Xxxxx X. Xxxxxxxxx, Employee
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