Exhibit 10.2
EMPLOYMENT AGREEMENT
AGREEMENT by and between National Financial Partners Corp., a Delaware
corporation ("NFP"), and Xxxxxxx X. Xxxxxxxxxx (the "EXECUTIVE") dated as of the
5th day of April, 1999.
WHEREAS, the Board of Directors of NFP (the "NFP BOARD") has determined that it
is in the best interest of NFP to employ the Executive as the President and
Chief Executive Officer of NFP, and the Executive desires to serve NFP in such
capacity.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Employment Period. NFP shall employ the Executive, and the Executive shall
serve NFP, on the terms and conditions set forth in this Agreement, for the
period beginning on the date hereof (the "COMMENCEMENT DATE") and ending on the
fifth anniversary of the Commencement Date; provided, however, that commencing
on the fifth anniversary of the Commencement Date and on each succeeding
anniversary of the Commencement Date thereafter (each such anniversary date
shall hereinafter be referred to as the "RENEWAL DATE"), unless previously
terminated, the term of this Agreement shall be automatically extended for one
additional year, unless at least 180 days prior to any Renewal Date, NFP or the
Executive shall give notice to the other party that the Agreement and the
Executive's employment hereunder shall not be so extended. The period of time
between the Commencement Date and the termination of the Executive's employment
with NFP hereunder shall be referred to herein as the "EMPLOYMENT PERIOD".
2. Position and Duties. During the Employment Period, the Executive shall serve
as the President and Chief Executive Officer of NFP and shall perform duties and
be assigned responsibilities by the NFP Board or by the Chairman of NFP (the
"CHAIRMAN") which are commensurate with such office. During the Employment
Period, the Executive shall report to the Chairman and to the NFP Board. During
the Employment Period, and excluding any periods of vacation and sick leave to
which the Executive is entitled; the Executive shall devote substantially all of
her attention and time during normal business hours to the business and affairs
of NFP and use the Executive's reasonable best efforts to carry out the
responsibilities assigned to the Executive under this Agreement faithfully and
efficiently. The Executive shall 710791.02-New York Server 7A Draft December 17,
2002 - 5:16 pm not, during the Employment Period, engage in any other business
activities that will interfere with the Executive's employment pursuant to this
Agreement. Anything herein to the contrary notwithstanding, nothing shall
preclude the Executive from (i) serving on the boards of directors of charitable
or educational organizations and/or, with the approval of the NFP Board as to
each position, which approval shall not be unreasonably withheld, on the boards
of directors of a reasonable number of other corporations or the boards of a
reasonable number of trade associations, (ii) engaging in charitable activities
and community affairs, and (iii) managing her personal and
family investments and affairs, provided that all of the foregoing activities
taken as a whole do not interfere or conflict with the proper performance of her
duties and responsibilities as NFP's President and Chief Executive Officer. NFP
hereby consents to the Executive continuing to serve on the boards of those
organizations listed on Exhibit A hereto. During the Employment Period, the
Executive's services shall be performed primarily at NFP's office located in the
New York metropolitan area, subject to travel requirements in connection with
the Executive's duties under this Agreement. In addition, as soon as practicable
subsequent to the Commencement Date, the Executive shall be elected as a member
of the NFP Board. It is the present intention of the parties that the Executive
serve as a member of such Board throughout the Employment Period. The Executive
shall be entitled to serve on NFP's nominating committee, if any, and, until an
IPO (as defined in Section 5(k)(i) hereof), shall have the right to recommend
directors reasonably acceptable to Apollo Investment Fund IV, L.P. ("APOLLO").
3. Compensation.
(a) Base Salary. During the Employment Period, NFP shall pay the Executive an
annual base salary of $600,000 ("ANNUAL BASE SALARY"), payable in equal
installments not less frequently than monthly. The NFP Board, in its sole
discretion, may increase but not reduce the Annual Base Salary.
(b) Annual Bonus. In addition to the Annual Base Salary, the Executive shall be
entitled to receive an annual bonus (the "Annual Bonus") for each calendar year
ending during the Employment Period. The Annual Bonus for 1999 shall be in an
amount which, when added to the amount of the Annual Base Salary received by the
Executive from NFP during 1999 and the amount of any salary received by the
Executive from her former employer during 1999 and any bonus or incentive
compensation paid by her former employer in respect of 1999, shall equal
$1,200,000, or such greater amount determined by the NFP Board for 1999. The
Annual Bonus shall thereafter be based on a formula relating to the EBITDA
profits of NFP proposed by the Executive, as part of the annual budget of NFP,
prior to the commencement of each subsequent year, subject to the acceptance of
such proposal by the NFP Board in its sole discretion; provided, however, that
the Annual Bonus for 2000 shall be at least $600,000. The Annual Bonus for each
year shall be payable, in cash, at the same time as bonuses are paid to other
senior executives of NFP, but in no event later than the following March 31, or,
subsequent to an IPO, no later than the thirtieth day following the completion
of such year's annual audit of NFP; provided, however, that the guaranteed
portion of the Annual Bonus for 1999 and 2000 shall be payable no later than
March 31 of the subsequent year.
(c) Equity Compensation. Subject to the Executive's execution of NFP's
Stockholders Agreement, as of the Commencement Date, the Executive shall be
granted (i) an option to purchase 4,000,000 shares of common stock, par value
$.01 per share, of
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NFP (the "COMMON STOCK") plus (ii) if Apollo shall acquire from time to time
more than 100,000,000 shares of the Common Stock (including, without limitation,
the shares owned by Apollo as of the Commencement Date the shares issuable to
Apollo pursuant to the Subscription Agreement dated as of January 13, 1999 among
Apollo and NFP (the "SUBSCRIPTION AGREEMENT") and any shares issuable upon
conversion or exercise of any securities convertible into Common Stock and any
rights such as options or warrants entitling the holder to acquire Common Stock
of NFP acquired by Apollo from time to time), an option or options to purchase a
number of shares equal to four percent (4%) of the number of shares acquired by
Apollo in excess of 100,000,000 shares up to maximum of 125,000,000 of Common
Stock at an exercise price per share of $1.00 (such options referred to
collectively as "THE OPTION"). In the event that Apollo acquires more than
125,000,000 shares of Common Stock, the parties agree to discuss granting
additional options to Executive, as may be appropriate in the circumstances,
provided that the granting of such additional options shall be subject in each
case, to the approval of the NFP Board in its sole discretion. The Option shall
have a term of ten years and shall vest in five equal installments commencing on
the day before the first anniversary of the Commencement Date and thereafter on
each of the second through the fifth anniversaries of the day before the
Commencement Date subject to earlier vesting as provided in Section 5 hereof.
The Option shall be granted pursuant to and governed by a separate agreement or
agreements with terms as provided in Exhibit B annexed hereto. For purposes of
this Section 3(c) and Section 4(c)(iii), "Apollo" shall include (j) any
"affiliate", as such term is used in Rule 12b-2 of the Securities Exchange Act
of 1934, of Apollo; (ii) any "person", as such terms is used in Section 3(a)(9)
and 13(d) of the Securities Exchange Act of 1934, who is a stockholder of NFP as
of the Commencement Date and (iii) members of the families of such affiliates or
stockholders, including trusts or partnerships set up for their benefit.
The Company represents and warrants that at March 31,1999, Apollo Investment
Fund IV (including a related overseas investment fund) beneficially owned
50,000,000 shares of Common Stock of NFP. At such date no other persons or group
beneficially owned 5% or more of the shares of Common Stock of NFP and no
officer or director beneficially owned any shares of Common Stock or other
securities of NFP (or had the right to acquire beneficial ownership of any such
shares). The Company represents and warrants that there are (A) no shares of the
Company's capital stock reserved for issuance pursuant to any stock option,
employee benefit or other plans, (B) no shares of the Company's capital stock
reserved for issuance or issuable pursuant to any calls, options, warrants or
securities which are exercisable or exchangeable for, or convertible into, any
shares of the Company's capital stock, and (C) other than 75,000,000 shares of
Common Stock issuable to Apollo pursuant to
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the Subscription Agreement, no shares of the Company's capital stock, and no
calls, options, warrants or securities which are exercisable or exchangeable
for, or convertible into, any shares of the Company's capital stock, are
reserved for issuance or issuable pursuant to any subscription or other
agreements.
(d) Other Benefits. In addition to the foregoing, during the Employment Period,
the Executive shall be entitled to participate in the employee benefit plans,
practices, policies and programs of NFP as in effect from time to time, on the
same basis as other senior executives of NFP. The Executive shall be eligible to
participate in any long-term incentive compensation programs other than stock
option programs of NFP on the same basis as other senior executives of NFP.
(e) Expenses. During the Employment Period, the Executive shall be entitled to
receive prompt reimbursement for all reasonable business expenses (including
first class air travel) incurred by the Executive in accordance with NFP's
policies, practices and procedures for reimbursement of business expenses. In
addition, NFP shall promptly reimburse the Executive for any legal expenses
incurred by the Executive in connection with the preparation, negotiation and
documentation of her employment arrangements with NFP up to a maximum of
$70,000.
4. Termination of Employment.
(a) Death or Disability. In the event of the Executive's death during the
Employment Period, the Executive's employment with NFP shall terminate
automatically. Either party shall have the right to terminate the Executives
employment because of the Executive`s Disability during the Employment Period.
"DISABILITY" means that the Executive has been unable, for 180 consecutive days,
or for periods aggregating 180 business days in any period of twelve months, to
perform the Executive's duties under this Agreement, as a result of physical or
mental impairment, illness or injury, as determined by a medical doctor jointly
selected by NFP and the Executive. A termination of the Executive's employment
by either party for Disability shall be communicated to the other party by
written notice, and shall be effective on the 30th day after receipt of such
notice by the other party (the "DISABILITY EFFECTIVE DATE"), unless the
Executive returns to full-time performance of the Executive's duties before the
Disability Effective Date.
(b) By NFP. In addition to termination for Disability, NFP may terminate the
Executive's employment during the Employment Period for Cause or without Cause.
"CAUSE" means:
(i) the Executive is convicted of, or enters a plea of guilty or nolo contendere
to, a felony involving moral turpitude;
(ii) the Executive engages in conduct that constitutes willful gross neglect or
willful gross misconduct in carrying out her duties under this Agreement,
resulting, in either case, in material economic harm to NFP; or
(iii) the Executive materially breaches her obligations under Sections 6, 7 or 8
hereof.
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A termination for Cause shall not take effect without the Executive first being
given prior written notice which shall (A) state in detail the particular act or
acts or failure or failures to act that constitute the grounds on which the
proposed termination for Cause is based and (B) be given within 180 days of the
NFP Board learning of such act or acts or failure or failures to act. Following
such notice, the Executive shall be given a reasonable opportunity to be heard
by the NFP Board and to cure, to the extent capable of cure, the grounds stated
in such notice. If, following such hearing, the Executive is furnished written
notice by the Board confirming that, in its judgment, grounds for Cause on the
basis of the original notice exist, she shall thereupon be terminated four
Cause, subject to de novo review, at the Executive's election, through
arbitration in accordance with Section 9 hereof.
(c) By the Executive for Good Reason. The Executive may terminate employment
voluntarily for Good Reason. "GOOD REASON" means the occurrence of one or more
of the following events without the Executive's written consent:
(i) the failure to elect or re-elect the Executive to any of the positions
specified in Section Z hereof, including membership on the NFP Board, the
removal of the Executive from any of such positions, including membership on the
NFP Board, or a material diminution in the Executive's position, duties or
responsibilities from those held, exercised and/or assigned to the Executive in
Section 2 of this Agreement, other than as a result of an isolated,
insubstantial and inadvertent action by NFP that is not taken in bad faith and
is remedied by NFP promptly after receipt of notice thereof from the Executive;
(ii) any failure by NFP to comply with any material provision of Section 3 or 17
of this Agreement, other than an isolated, insubstantial and inadvertent failure
that is not taken in bad faith and is remedied by NFP promptly after receipt of
notice thereof from the Executive;
(iii) the failure to provide the Executive with a stock option agreement for the
initial option with terms as provided in Exhibit B hereto by May 31,1999 or the
failure to provide the Executive with a stock option agreement in a similar form
within 30 days after each acquisition by Apollo after its shares of Common Stock
owned exceed 100,000,000; the failure at any time after May 31,1999 to have a
stock option plan in effect that is consistent with the terms provided in
Exhibit B and which permits registration of the shares of Common Stock under
Form S-8 following an IPO; or the failure to adopt amendments, as necessary, to
the NFP Stockholders Agreement to effectuate the terms of the stock option
agreement;
(iv) any requirement by NFP that the Executive's services be rendered primarily
at a location or locations more than 50 miles from midtown Manhattan, New York
City, New York;
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(v) the assignment to the Executive of duties which are materially inconsistent
with her duties as President and Chief Executive Officer or which materially
impair her ability to function as President and Chief Executive Officer of NFP;
(vi) a termination of, or a material reduction in, any employee benefit or
perquisite enjoyed by the Executive, provided that the aggregate benefits and
perquisites are not materially reduced (other than as part of an
across-the-board reduction applying to other senior executives of NFP);
(vii) a breach by NFP in any material respect of any of the representations and
warranties contained in the stock option agreement or in Section 3(c) hereof; or
(viii) the failure of NFP to obtain the assumption in writing of its obligation
to perform this Agreement by any successor to all or substantially all of its
assets within 30 days of a merger, consolidation, sale or similar transaction.
(d) Notice by Executive and Cure Right. No act or omission shall constitute
"Good Reason" hereunder, unless the Executive provides written notice which
shall (A) state in detail the particular act or acts or failure or failures to
act that constitute the grounds on which the proposed termination for Good
Reason is based and (B) be given within 180 days of the Executive's learning of
such act or acts or failure or failures to act. Following such notice, NFP shall
be given a reasonable opportunity to cure, to the extent capable of cure, the
grounds stated in such notice. If NFP shall fail to cure such grounds after a
reasonable opportunity to do so, the Executive may terminate her employment for
Good Reason by written notice to NFP.
(e) Voluntary Termination by the Executive. The Executive may voluntarily
terminate her employment with NFP at any time upon at least 30 days' prior
notice to NFP. A voluntary termination in accordance with this Section 4(e)
shall not constitute a breach of this Agreement.
(f) Notice of Termination. Any termination by NFP for Cause, or by the Executive
for Good Reason, shall be communicated by Notice of Termination to the other
party hereto given in accordance with Section 10 of this Agreement. A "NOTICE OF
TERMINATION" means a written notice which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) to the extent applicable, sets
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated and (iii) if the Date of Termination (as defined below) is other than
the date of receipt of such notice, specifies the termination date (which date
shall be not more than 30 days, nor less than 15 days, after the giving of such
notice). The failure by the Executive or NFP to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing of the
grounds for a termination for Good Reason or Cause, as the case may be, stated
in such Notice of Termination shall not waive any right of the Executive or NFP,
respectively, hereunder or preclude the Executive or NFP,
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lively, from asserting such fact or circumstance in establishing such grounds
for termination.
(g) Date of Termination. "DATE OF TERMINATION" means (i) if the Executive's
employment is terminated by NFP for Cause, or by the Executive for Good Reason,
the date of receipt of the Notice of Termination or any later date specified
therein (within 120 days of such receipt), as the case may be, (ii) if the
Executive's employment is terminated by NFP other than for Cause, death or
Disability, the Date of Termination shall be the date on which NFP notifies the
Executive of such termination, (iii) if the Executive's employment is terminated
by reason of death or Disability, the Date of Termination shall be the date of
death of the Executive or the Disability Effective Date, as the case may be, and
(iv) if the Executive's employment is terminated by the Executive without Good
Reason, the Date of Termination shall be the date specified in the notice
described in Section 4(e) hereof.
5. Obligations Upon Termination.
(a) Termination Due to Death. In the event the Executive's employment is
terminated due to her death, her estate or her beneficiaries as the case maybe,
shall be entitled to:
(i) Annual Base Salary through the date of death;
(ii) Annual Bonus for the year in which the Executive's death occurs; prorated
through the date of death, based on the greater of (A) the actual award payable
for such year (assuming the Executive had remained employed by the Company
through the end of such year), and (B) the guaranteed minimum Annual Bonus for
such year (if applicable), payable when such amount would be paid in accordance
with Section 3 hereof;
(iii) immediate vesting of any outstanding stock options to the extent such
stock options would have vested within one year after the date of her death and
the continued right to exercise any stock option during the period prior to an
IPO and for two years thereafter (or, if shorter, for the remainder of its
term), to the extent such stock option was or became vested at the date of her
death, or such greater vesting and exercisability as may be approved by NFP's
Compensation Committee;
(iv) any amounts earned, accrued or owing to the Executive but not yet paid
under Section 3 above; and
(v) other or additional benefits in accordance with applicable plans and
programs of NFP.
(b) Termination Due to Disability. In the event the Executive's employment is
terminated due to her Disability, she shall be entitled in such case to the
following:
(i) any disability benefits provided to the Executive by NFP under any
disability plan;
(ii) Annual Base Salary through the Termination Date;
(iii) Annual Bonus for the year in which termination due to Disability occurs,
prorated through the Termination Date, based on the greater of (A) the actual
award payable for such year (assuming the Executive had remained employed by the
Company
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through the end of such year), and (B) the guaranteed minimum Annual Bonus for
such year (if applicable), payable when such amount would be paid in accordance
with Section 3 hereof;
(iv) immediate vesting of any outstanding stock options to the extent such stock
options would have vested within one year after the Termination Date and the
continued right to exercise any stock option during the period prior to an IPO
and for two years thereafter (or, if shorter, for the remainder of its term), to
the extent such Option was or became vested on the Termination Date, or such
greater vesting and exercisability as may be approved by NFP's Compensation
Committee;
(v) any amounts earned, accrued or owing to the Executive but not yet paid under
Section 3 above; and
(vi) other or additional benefits in accordance with applicable plans and
programs of NFP.
(c) Termination by NFP for Cause. In the event NFP terminates the Executive's
employment for Cause, she shall be entitled to:
Annual Base Salary through the Termination date;
(ii) the continued right to exercise any stock option for 30 days after the
Termination Date, to the extent such stock option was exercisable on the
Termination Date:
(iii) any amounts earned, accrued or owing to the Executive but not yet paid
under Section 3 above; and
(iv) other or additional benefits in accordance with applicable plans or
programs of NFP.
(d) Termination Without Cause by NFP or Termination by the Executive for Good
Reason. In the event the Executive's employment is terminated by NFP without
Cause (which shall not include a termination due to Disability or death), or in
the event the Executive shall terminate her employment for Good Reason, the
Executive shall be entitled to:
(i) Annual Base Salary through the Termination Date;
(ii) Annual Base Salary, at the annualized rate in effect on the Termination
Date of the Executive's employment (or in the event a reduction in Base Salary
is the basis for a termination for Good Reason, then the Annual Base Salary in
effect immediately prior to such reduction), for a period of 24 months after the
Termination Date (the "CONTINUATION PERIOD");
(iii) payment of the Annual Bonus for the year in which such termination occurs,
prorated through the Termination Date, based on the greatest of (A) the target
award opportunity for such year, (B) the guaranteed minimum Annual Bonus for
such year (if applicable) and (C) the Annual Bonus for the prior year, payable
when such amount would be paid in accordance with Section 3 hereof;
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(iv) annual incentive awards for the Continuation Period, based upon the
greatest of the amounts specified in clauses (A), (B) and (C) of Section
5(d)(iii) hereof, payable on a pro rata basis in equal monthly installments over
the Continuation Period;
(v) the continued right to exercise any stock option during the period prior to
an IPO and for two years thereafter (or, if shorter, the original term of such
option), all such options to become fully vested and exercisable on the
Termination Date;
(vi) any amounts earned, accrued or owing to the Executive but not yet paid
under Section 3 above;
(vii) continued participation on the same terms as applied before the
Termination Date in all medical, dental, hospitalization and life insurance
coverage and in other employee benefit plans or programs in which the Executive
was participating on the date of the termination of her employment until the
earlier of:
(A) the end of the Continuation Period; and
(B) the date, or dates, she receives equivalent coverage and benefits under the
plans and programs of a subsequent employer (such coverage and benefits to be
determined on a coverage-by-coverage, or benefit-by-benefit, basis); provided
that if the Executive is precluded from continuing her participation in any
employee benefit plan or program as provided in this clause (vii) of this
Section 5(d), she shall be provided with the after-tax economic equivalent of
the benefits provided under the plan or program in which she is unable to
participate for the period specified in this clause (vii) of this Section 5(d),
and payment of such after-tax economic equivalent shall be made quarterly in
advance; and
(viii) other or additional benefits in accordance with applicable plans and
programs of NFP.
(e) Termination of Employment. If, within 24 months following a Change of
Control (as defined in Section 5(k) hereof), the Executive's employment is
terminated by NFP without Cause or by the Executive for Good Reason, the
Executive shall be entitled to the payments and benefits provided in Section
5(d) above, provided that (x) payments described in Section 5(d)(ii), (iii) and
(iv) shall be paid in a lump sum without any discount, and (y) the Continuation
Period shall be 36 months. Also, immediately following a Change of Control, all
amounts, entitlements or benefits (including, without limitation, stock options)
in which the Executive is not yet vested shall become fully vested.
(f) Voluntary Termination. In the event of a termination of employment by the
Executive on her own initiative (which shall not include a termination due to
death, Disability or termination for Good Reason), the Executive shall have the
same entitlements as provided in Section 5(c) hereof for a termination by NFP
for Cause.
(g) Tax Gross-up. In the event that the aggregate of all payments or benefits
made or provided to the Executive under this Section 5 and under all other plans
and programs of NFP (the "AGGREGATE PAYMENT") is determined to constitute a
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Parachute Payment, as such term is defined in Section 280G(b)(2) of the Internal
Revenue Code, NFP shall pay to the Executive, prior to the time any excise tax
imposed by Section 4999 of the Internal Revenue Code ("EXCISE TAX") is payable
with respect to such Aggregate payment, an additional amount which, after the
imposition of all income and excise taxes thereon, is equal to the Excise Tax on
the Aggregate Payment. The determination of whether the Aggregate payment
constitutes a Parachute Payment and, if so, the amount to be paid to the
Executive and the time of payment pursuant to this Section 5(g) shall be made by
Xxxxxx Xxxxxxxx & Co. or another independent auditor (the "AUDITOR") jointly
selected by NFP and the Executive and paid by NFP. The Auditor shall be a
nationally recognized United States public accounting firm which has not, during
the two years preceding the date of its selection, acted in any way on behalf of
NFP or any affiliate (other than Apollo Investment Fund IV and its affiliates)
thereof.
(h) No Mitigation; No Offset. In the event of any termination of employment
under this Section 5, the Executive shall be under no obligation to seek other
employment and there shall be no offset against amounts due the Executive under
this Agreement on account of any remuneration attributable to any subsequent
employment that she may obtain except as specifically provided in Section
5(d)(vii)(B) hereof or on account of any claims NFP may have against the
Executive except as specifically provided by this Agreement, provided, however
that the foregoing limitation as to offset shall not apply in the case of a
breach by the Executive of the provisions of Section 6 hereof.
(i) Nature of Payments. Any amounts due under this Section 5 are in the nature
of severance payments considered to be reasonable by NFP and are not in the
nature of a penalty.
(j) Releases. The payments and benefits provided pursuant to Sections 5(d) and
(e) hereof are intended as liquidated damages for a termination of the
Executive's employment by NFP other than for Cause, death or Disability and
shall be the sole and exclusive remedy therefor. Notwithstanding anything in
this Agreement to the contrary, the Executive shall not be entitled to any
severance payments or benefits under Sections 5(d) and (e) hereof until the
effectiveness of a release executed by the Executive and delivered to NFP,
substantially in the form of Exhibit C hereto (the "RELEASE"); provided,
however, that the Executive shall be entitled to such payments and benefits
without executing such release unless an authorized representative of NFP shall
execute and deliver to the Executive a release substantially in the form of
Exhibit D hereto promptly following the Termination Date.
(k) Change of Control. For purposes of this Agreement, a "CHANGE OF CONTROL"
shall mean:
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(i) at any time prior to an initial public offering of the Common Stock (an
"IPO"), the number of directors that Apollo and its affiliates shall have the
power to elect or designate to the NFP Board shall be less than the number of
directors that any other "person", as such term is used in Sections 3(a)(9) and
13(d) of the Securities Exchange Act of 1934, shall have the right to elect or
designate to the NFP Board;
(ii) at any time after the date hereof, individuals who, as of the date hereof,
constitute the NFP Board (the "INCUMBENT MEMBERS") cease for any reason to
constitute at least a majority of the NFP Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose election, or
nomination for election by the stockholders of NFP, was approved by a vote of at
least a majority of the then Incumbent Members shall be considered as though
such individual were an Incumbent Member, but excluding, for this purpose, any
such individual whose initial assumption of office occurs as a result of either
an actual or threatened election contest or other actual or threatened
solicitation of proxies or consents by or on behalf of any person other than the
NFP Board;
(iii) any "person", as such term is used in Sections 3(a)(9) and 13(d) of the
Securities and Exchange Act of 1934, other than Apollo, becomes a "beneficial
owner", as such term is used in Rule 13d-3 promulgated under that Act, of both
(A) Voting Securities (as defined in section 5(k)(vii) hereof) having 30% or
more of the Voting Power (as defined in Section 5(k)(vii) hereof) of NFP and (B)
Voting Securities having a greater percentage of the Voting Power than the
Voting Power represented by the Voting Securities beneficially owned by Apollo;
(iv) NFP adopts any plan of liquidation providing for the distribution of all or
substantially all of its assets;
(v) all or substantially all of the assets or business of NFP is disposed of
pursuant to a merger, consolidation or other transaction (unless the
shareholders of NFP immediately prior to such merger, consolidation or other
transaction beneficially own, directly or indirectly, in substantially the same
proportion as they beneficially owned the Voting Securities of NFP, all of the
Voting Securities or other ownership interests of the entity or entities, if
any, that succeed to the business of NFP); or
(vi) NFP combines with another company and is the surviving corporation but,
immediately after the combination, both (A) the shareholders of NFP immediately
prior to the combination hold, directly or indirectly, Voting Securities having
50% or less of the Voting Power of the combined company (there being excluded
from the Voting Securities held by such shareholders, but not from the Voting
Securities of the combined company, any shares received by affiliates of such
other company in exchange for securities of such other company) and (B)
individuals who were Incumbent Members of NFP's Board immediately before such
combination do not hold a majority of the seats on the Board of Directors of the
combined company.
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(vii) For purposes hereof (A) "Voting Securities" shall mean any securities of a
corporation entitled, or which may be entitled, to vote on matters submitted to
the stockholders generally (whether or not entitled to vote in the general
election of directors), or securities which are convertible into, or exercisable
or exchangeable for, such Voting Securities, whether or not subject to the
passage of time or any contingency and (B) "Voting power" shall mean the number
of votes available to be cast (determined by reference to the maximum number of
votes entitled to be cast by the holders of such Voting Securities, or by the
holders of any other Voting Securities into which such other Voting Securities
may be convertible, exercisable or exchangeable for, upon any matter submitted
to stockholders where the holders of all Voting Securities vote together as a
single class) by the holds of Voting Securities.
6. Noncompetition Covenant.
(a) During the Employment Period and thereafter during the Restricted Period (as
defined below), the Executive will not engage in or become employed in any
capacity by, or become an officer, employee, director, agent, consultant,
contractor, shareholder or partner of, or otherwise hold an interest in, any
partnership, corporation or other entity that constitutes a Competitive Business
anywhere in the United States, except for the ownership of less than 5% of the
stock or other equity interests of a publicly traded firm or corporation. A
"Competitive Business" shall mean an entity, which derives at least 30% of its
revenues from the distribution of insurance, insurance based products, annuities
and estate planning services, but shall exclude broad-based financial and other
companies whose major products extend beyond insurance based products. For all
purposes of this Agreement (other than Section 6(b) hereof), the "RESTRICTED
PERIOD" shall mean the eighteen-month period commencing on the termination of
the Executive's employment with NFP or any subsidiary of NFP for any reason;
provided, however, that, except as provided in Section 6(b) hereof, there shall
be no Restricted Period in the event of a termination as a result of a notice
not to renew pursuant to Section 1 hereof. The Executive agrees that this
covenant is reasonable with respect to its duration, geographic area and scope.
If, at the time of enforcement of this Section 6, a court holds that the
restrictions stated herein are unreasonable under the circumstances then
existing, the parties hereto agree that the maximum period, scope or geographic
area legally permissible under such circumstances will be substituted for the
period, scope or area stated herein.
(b) in the event either party shall give notice of the non-renewal of the
Employment Period pursuant to Section l hereof, NFP may, by written notice to
the Executive given within 30 days after such notice of non-renewal, elect to
apply a Restricted Period of six months from the date of termination of the
Employment Period. In order to make such election, NFP shall be required to (i)
continue payments of Annual Base
12
Salary to the Executive during such Restricted Period, (ii) pay the Executive,
prior to the expiration of the Employment Period, a lump sum amount equal to 50%
of the largest Annual Bonus paid to the Executive during the Employment Period,
and (iii) continue participation of the Executive on the same terms as applied
immediately prior to the expiration of the Employment Period in all medical,
dental, hospitalization and life insurance coverage and in other employee
benefit plans or programs in which the Executive was then participating, until
the end of the Restricted Period; provided that if the Executive is precluded
from continuing her participation in any employee benefit plan or program as
provided in clause (iii) hereof, she shall be provided with the after-tax
economic equivalent of the benefits provided under the plan or program in which
she is unable to participate for the period specified in such clause (iii), and
payment of such after-tax equivalent shall be made prior to the expiration of
the Employment Period.
7. Nonsolicitation Covenants.
(a) No Solicitation of NFP Employees. The Executive additionally agrees that,
during the Employment Period and thereafter during the Restricted Period, the
Executive shall not directly or indirectly, on her own behalf or on behalf of
any other person or entity, other than in the course of her duties hereunder or
pursuant to broad-based media solicitations, (i) solicit, or attempt to solicit
any employee, agent or contractor of NFP, its subsidiaries or affiliates (the
"NFP AFFILIATED GROUP") to leave the employ of or cease doing business with the
NFP Affiliated Group for any reason whatsoever, or (ii) hire any executive
officer of the NFP Affiliated Group.
(b) No Solicitation of Customers. The Executive additionally agrees that, during
the Restricted Period, the Executive shall not, directly or indirectly, on her
own behalf or on behalf of any other person or entity knowingly (i) engage in
any business transaction or relationship or perform any services in any material
way competitive with NFP with a Client or Prospective Client of NFP or any
subsidiary of NFP or (ii) interfere with or induce, other than pursuant to a
broad-based media solicitation, any Client or Prospective Client to discontinue
any business relationship with NFP or any subsidiary of NFP or to refrain from
entering into a business relationship or transaction with NFP or any subsidiary
of NFP. For purposes hereof, the following terms shall have the meanings set
forth herein: (i) "CLIENT" shall mean any person or entity that is a client of
NFP or any subsidiary of NFP or that has entered into a term sheet, letter of
intent, definitive acquisition or merger agreement or similar document in
connection with the acquisition or merger (an "ACQUIRING TRANSACTION") of such
person or entity, or of the assets, securities or other interests of such person
or entity, by or with NFP or any subsidiary of NFP during the 12-month period
prior to the Date of Termination or during the Restricted Period; and (ii)
"PROSPECTIVE CLIENT" shall mean any person or entity that, to the knowledge of
the Executive, has entered into discussions with NFP or any subsidiary of NFP
relating to a potential
13
Acquiring Transaction during the 12-month period prior to the Date of
Termination of the Employment Period.
(c) Reasonableness; Extraordinary Remedies. The Executive agrees that the
covenants in this Section 7 are reasonable with respect to their duration and
scope. If, at the time of enforcement of this Section 7, a court holds that the
restrictions stated herein are unreasonable under the circumstances then
existing, the parties hereto agree that the maximum period or scope legally
permissible under such circumstances will be substituted for the period or scope
stated herein. In the event of a breach of the Executive's covenants in this
Section 7, it is understood and agreed that NFP shall be entitled to injunctive
relief as well as other applicable remedies at law or in equity available to NFP
against the Executive or others.
8. Disclosure of Confidential Information.
(a) Except to the extent (i) authorized by the express prior consent of the
Chairman, (ii) required by law or any legal process or (iii) desirable in
performing her duties under this Agreement, the Executive will not, directly or
indirectly, at any time during the Employment Period, or at any time subsequent
to the termination of the Employment Period, disseminate, disclose or divulge,
to any person, firm, corporation, association or other business entity,
Confidential Information of NFP. In the event of a breach or threatened breach
by the Executive of this Section 8, NFP shall be entitled to injunctive relief
as well as other applicable remedies at law or in equity available to NFP
against the Executive or others. For purposes hereof, "CONFIDENTIAL INFORMATION
OF NFP" shall mean any and all information about NFP or any other members of the
NFP Affiliated Group or relating to the trade secrets of NFP or any other
members of the NFP Affiliated Group, in each case disclosed to the Executive or
known by the Executive as a consequence of or through her relationship with NFP,
if such information is not publicly available or generally available in NFP's
industry (other than through a breach by the Executive of this Section 8).
(b) All computer software, telephone lists, client lists, prospective client
lists, price lists, contract forms, catalogs, books, records, files and know-how
relating to NFP acquired while the Executive is employed by or otherwise
affiliated with NFP are acknowledged to be the property of NFP and shall not be
duplicated, removed from NFP's possession or premises or made use of other than
in pursuit of the business of NFP or as may otherwise be required by law or any
legal process, or as is necessary in connection with any adversarial proceeding
against NFP and, upon termination of the Employment Period for any reason, the
Executive shall deliver to NFP, without further demands, all copies thereof
which are then in her possession or under her control. It is hereby acknowledged
that the Executive's responsibilities may include the making of technical,
product and managerial contributions of value to NFP. The Executive hereby
assigns to NFP all rights, title and interest in such contributions and
14
inventions made or conceived by the Executive, alone or jointly with others,
during the Employment Period and relating to the business of NFP or the
operations thereof. The Executive shall promptly and fully disclose all such
contributions and inventions to NFP and shall assist NFP in obtaining and
protecting the rights therein.
9. Resolution of Disputes. Any dispute or controversy between the parties
relating to or arising out of this Agreement or any amendment or modification
hereof shall be determined by arbitration in New York, New York by and pursuant
to the rules then prevailing of the American Arbitration Association, other than
claims for injunctive relief under Sections 6, 7 or 8. The arbitration award
shall be final and binding upon the parties and judgment may be entered thereon
by any court of competent jurisdiction. The service of any notice, process,
motion or other document in connection with any arbitration under this Agreement
or the enforcement of any arbitration award hereunder may be effectuated either
by personal service upon a party or by certified mail duly addressed to her or
it or to her or its executors, administrators, personal representatives, next of
kin, successors or assigns, at the last known address or addresses of such party
or parties. Pending the final resolution of any arbitration or court proceeding,
NFP shall continue payment of all amounts due the Executive under this Agreement
and all benefits to which the Executive is entitled at the time the dispute
arises and the Executive may exercise any stock options of NFP with respect to
which the exercisability thereof is in dispute. The arbitrator shall have the
power to award costs of the arbitration.
10. Notice. Any notice, request, reply, instruction, or other communication
provided or permitted in this Agreement must be given in writing and may be
served by depositing same in the United States mail in certified or registered
form, postage prepaid, addressed to the party or parties to be notified with
return receipt requested, or by delivering the notice in person to such party or
parties. Unless actual receipt is required by any provision of this Agreement,
notice deposited in the United States mail in the manner herein prescribed shall
be effective on dispatch. For purposes of notice, the address of the Executive,
her spouse, any purported donee or transferee or any administrator, executor or
legal representative of the Executive or her estate, as the case may be, and of
NFP shall be as follows:
To the Executive:
Xxxxxxx X. Xxxxxxxxxx
c/o National Financial Partners Corp.
1301 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
NFP:
National Financial Partners Corp.
1301 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
15
Attention: Xxxxxx X. Xxxxx Chairman
NFP shall have the right from time to time and at any time to change its address
and shall have the right to specify as its address any other address by giving
at least ten (10) days' written notice to the Executive. The Executive shall
have the right from time to time and at any time to change her address and have
the right to specify as her address any other address by giving at least ten(10)
days' written notice to NFP. Notices and communications shall be effective when
actually received by the addressee.
11. Controlling Law. The execution, validity, interpretation and performance of
this Agreement shall be determined and governed by the laws of the State of New
York, without reference to principles of conflicts of laws.
12. Entire Agreement. The Executive and NFP acknowledge that this Agreement
contains the entire agreement of the parties with respect to the subject matter
hereof and supersedes any other agreement, whether written or oral, between them
concerning the subject matter hereof. The captions of this Agreement are not
part of the provisions hereof and shall have no force or effect.
13. Severability. If any provision of the Agreement is rendered or declared
illegal or unenforceable by reason of any existing or subsequently enacted
legislation or by decree of a court of competent jurisdiction, the parties shall
promptly meet and negotiate substitute provisions for those rendered or declared
illegal or unenforceable, but all remaining provisions of this Agreement shall
remain in full force and effect.
14. Survival. The provisions of this Agreement, including, without limitation,
Sections 5, 6, 7, 8, 9,10,11,12,13,14,15,16,17 and 19, shall survive the
termination of the Employment Period and the termination of this Agreement to
the extent necessary to carry out the intentions of the parties.
15. Effect of Agreement, Assignment, Required Assumption. This Agreement shall
be binding upon the Executive and her heirs, executors, administrators, legal
representatives, successors and assigns, and NFP and its successors and assigns.
The Executive may not assign any rights or obligations hereunder (other than by
will or operation of law) without the prior written consent of NFP and, except
with respect to a successor entity (as described below), NFP may not assign any
rights or obligations hereunder without the prior written consent of the
Executive. NFP shall require any person who is the successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or a
substantial portion of the business or assets of NFP to expressly assume the
obligations of NFP hereunder. The term "NFP" as used in this Agreement shall
expressly include any such successors.
16. Amendments; Waivers. This Agreement cannot be changed, modified or amended,
and no provision or requirement hereof may be waived, without the consent in
writing of the Executive and NFP. The failure of a party at any time or times to
require performance of any provision hereof shall in no manner affect the right
of such party
16
at a later time to enforce the same. No waiver by a party of the breach of any
term or covenant contained in this Agreement, whether by conduct or otherwise,
in any one or more instances, shall be deemed to be, or construed as, a further
or continuing waiver of any such breach, or a waiver of the breach of any other
term or covenant contained in this Agreement.
17. Indemnification.
(a) NFP agrees that if the Executive is made a party, or is threatened to be
made a party, to any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "PROCEEDING"), by reason of the fact that she
is or was a director, officer or employee of NFP or is or was serving at the
request of NFP as a director, officer, member, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, whether or not the basis of such
Proceeding is the Executive's alleged action in an official capacity while
serving as a director, officer, member, employee or agent, the Executive shall
be indemnified and held harmless by NFP to the fullest extent legally permitted
or authorized by NFP's certificate of incorporation or bylaws or resolutions of
NFP's Board of Directors or, if greater, by the laws of the State of Delaware,
against all cost, expense, liability and loss (including, without limitation,
attorneys fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by the
Executive in connection therewith, and such indemnification shall continue as to
the Executive even if she has ceased to be a director, member, employee or agent
of NFP or other entity and shall inure to the benefit of the Executive's heirs,
executors and administrators. NFP shall advance to the Executive all reasonable
costs and expenses incurred by her in connection with a Proceeding within 20
days after receipt by NFP of a written request for such advance. Such request
shall include an undertaking by the Executive to repay the amount of such
advance if it shall ultimately be determined that she is not entitled to be
indemnified against such costs and expenses.
(b) Neither the failure of NFP (including its board of directors, independent
legal counsel or stockholders) to have made a determination prior to the
commencement of any proceeding concerning payment of amounts claimed by the
Executive under Section 17(a) above that indemnification of the Executive is
proper because she has met the applicable standard of conduct, nor a
determination by NFP (including its board of directors, independent legal
counsel or stockholders) that the Executive has not met such applicable standard
of conduct, shall create a presumption that the Executive has not met the
applicable standard of conduct.
(c) NFP also agrees that if the Executive is made a party, or is threatened to
be made a party, to any action, suit or proceeding by reason of the termination
of her employment with her prior employer or her accepting employment with NFP,
she shall be indemnified and held harmless by NFP against all cost, expense,
liability and
17
loss (including, without limitation, attorney's fees) incurred or suffered by
the Executive in connection therewith.
(d) NFP agrees to obtain and maintain a directors and officers' liability
insurance policy covering the Executive to the extent NFP provides such coverage
for its other executive officers.
18. Withholding. Notwithstanding any other provision of this Agreement, NFP may
withhold from amounts payable under this Agreement all federal, state, local and
foreign taxes that are required to be withheld by applicable laws or
regulations.
19. Beneficiaries/References. The Executive shall be entitled, to the extent
permitted under any applicable law, to select and change a beneficiary or
beneficiaries to receive any compensation or benefit payable hereunder following
the Executive's death by giving NFP written notice thereof. In the event of the
Executive's death or a judicial determination of her incompetence, reference in
this Agreement to the Executive shall be deemed, where appropriate, to refer to
her beneficiary, estate or other legal representative.
20. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original. It shall not be necessary when
making proof of this Agreement to account for more than one counterpart.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and,
pursuant to the authorization of the NFP Board, NFP has caused this Agreement to
be executed in its name on its behalf, all as of the day and year first above
written.
/s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxxxx
NATIONAL FINANCIAL
PARTNERS CORP.
/s/ Xxxxxx X. Xxxxx
---------------------------------
By: Xxxxxx X. Xxxxx
Title: Chairman of the Board
18
Exhibit A
1. Xxxxx Xxxxx Mutual Funds
2. Xxxxx, Xxxxxxxx & Company
19
Exhibit B
Terms of Stock Option Agreement Between NFP and Optionee Stock Option Agreement
shall include, without limitation, the following:
A. Terms from Employment Agreement
1. Number of shares
2. Vesting
3. Exercise price
4. Post-termination vesting and exercise
5. Definitions, including
"Cause," "Disability," "Good Reason," "Change of Control"
6. Arbitration of disputes
7. Notices
8. Term
B. Customary Option Exercise Provisions:
1. Notice
2. Payment of exercise price and tax withholding in the form of any of (or
combination of) the following:
.. cash, wire transfer, or check
.. withholding shares
.. shares of Common Stock then owned; or
.. cashless exercise procedures.
C. Definition of "Fair Market Value" ("FMV")
l. During period NFP is not publicly traded, FMV shall mean for all purposes
fair market value as determined by the Board of Directors in good faith after
consultation with Bear Xxxxxx & Co. or another investment banker of nationally
recognized standing. Such valuation shall be subject to arbitration in the event
Optionee disagrees with such valuation.
2. If NFP is publicly traded, FMV shall mean the average closing price of such a
share or such other securities on the ten most recent days on which such shares
or securities were sold on such exchange or market, ending with the day of the
action or event requiring determination
D. Transferability of Option
The option shall not be transferable except by:
1. will or law of descent and distribution;
2. to family members and trusts (set up to benefit optionee and/or family
members); or
3. to a Section 501(c)(3) charitable organization or a Section 509 private
foundation.
E. Anti-Dilution Provisions
1. In the event of any recapitalization, spin-off, stock split, consolidation,
20
reorganization or exchange or similar transaction or the issuance of shares
below FMV, appropriate adjustments shall promptly be made in the number and/or
kind of equity securities subject to the option and/or in the exercise price
and/or such other terms and conditions of the option, so as to avoid dilution of
the rights of the Optionee and of the after-tax economic opportunity and value
represented by the option.
2. If NFP does not survive the transaction or becomes a subsidiary of another
entity, Optionee may elect
(a) to cause NFP to enable her to exercise option immediately prior to the
transaction;
(b) to be provided a replacement option in securities of the surviving entity
with comparable terms to her original option or
(c) to receive a cash payment equal to the excess of the FMV over the Exercise
Price.
In the event Optionee elects (b) or (c), she shall not be subject to drag-along
provisions under Section 2.6 of the Stockholders Agreement.
F. Registration Rights
1. All shares issued upon Optionee's exercise of Option or issuable upon
exercise of any vested portion of the Option shall be "Registrable Securities"
under Section 3.1(b) of the Stockholders Agreement.
2. In order to facilitate the sale of shares issuable upon exercise of the
Option, at all times after NFP becomes subject to the reporting requirements of
the Securities and Exchange Act of 1934, as amended, NFP shall use reasonable
efforts to (a) file all periodic reports required to be filed under such Act at
the times provided therein or in the rules and regulations of the Securities and
Exchange Commission thereunder and (b) to file and cause to become and remain
effective a Registration Statement on Form S-8 (or any successor form) with
respect to any outstanding options granted pursuant to the Optionee's Employment
Agreement, which Registration Statement shall contain a "reoffer prospectus" as
that term is used in General Instruction C to Form S-8.
4. Following an IPO the Optionee shall not be subject to the limitations
contained in Section 2.4 of the Stockholders Agreement and shall be entitled to
transfer any shares free of any restrictions under the Stockholders Agreement
(other than those specified in Section 2.2 thereof).
C. Put Rights
1. For a period of 2 years, commencing on earlier of Optionee's termination of
employment and expiration of option, Optionee shall have the right to cause NFP
to purchase any shares acquired by her on exercise for the FMV on the date of
her written notice to NFP.
2. Optionee shall not have put rights on shares that are then saleable in the
public market without regard to the limitation of Rule 144.
21
H. Tag-Along Rights
In determining the number of tag-along shares Optionee may elect to sell under
Section 2.5 of the Stockholders Agreement, she shall be deemed to own a number
of shares which includes the number of shares remaining subject to option,
whether or not vested.
I. NFP Representations
1. NFP has Board authorization to enter into Stock Option Agreement.
2. The execution, delivery and performance of the Stock Option Agreement does
not violate any laws or NFP policies, plans or agreements.
3. NFP has sufficient shares available after giving effect to shares reserved
for issuance pursuant to (i) NFP plans, (ii) calls, options, warrants or
securities convertible into NFP stock or (iii) any subscription.
J. Relationship among Stock Option Agreement, Stock Option Plan and Stockholders
Agreement
1. All documents shall be drafted or amended, as the case may be, to permit
effectuation of the terms of the Stock Option Agreement.
2. In addition the Stockholders Agreement shall be amended to provide for
the following:
(a) Section 2.6.1. The third party investment bank required to give the fairness
opinion for a drag-along should be Bear Xxxxxx or another nationally recognized
investment bank jointly selected by NFP and Optionee which has not done business
with NFP or its affiliates during the two years preceding such opinion.
(b) Section 4.11. The Stockholders Agreement should also apply, by its terms, to
permitted transferees.
K. Miscellaneous
1. Company's obligation to deliver shares is contingent on Optionee's satisfying
all tax obligations.
2. All amendments must be in writing.
3. Delaware law applies.
22
Exhibit C
GENERAL RELEASE
THIS GENERAL RELEASE is entered into between National Financial Partners Corp.,
a Delaware corporation ("NFP"), and Xxxxxxx Xxxxxxxxxx (the "EMPLOYEE") as of
the day of . NFP and the Employee agree as follows:
-- -----
1. Employment Status. The Employee's employment with NFP shall terminate
effective as of , .
-------- ----
2. Payment and Benefits. Upon the effectiveness of the terms set forth herein,
NFP shall provide the Employee with the payments and benefits set forth in
Section 5[(e) or (f)] of the Employment Agreement between NFP and the Employee,
dated as of April 5, 1999 (as amended from time to time, the "EMPLOYMENT
AGREEMENT").
3. Confidentiality of Release. The parties agree that the existence and terms of
this Release are and shall remain confidential. The parties shall not disclose
the fact of this Release or any of its terms or provisions to any person without
the prior, written consent of the other party hereto; provided, however, that
nothing in this Paragraph 3 shall prohibit disclosure of such information to the
extent required by law, nor prohibit disclosure of such information by the
Employee to any legal or financial consultant, all of whom shall first agree to
be bound by the confidentiality provisions of this Paragraph 3, nor prohibit
disclosure of such information within NFP in the ordinary course of its business
to those persons with a need to know, as reasonably determined by NFP, or by NFP
to any legal or financial consultant.
4. No Liability. This Release does not constitute an admission by NFP, or any of
its subsidiaries, affiliates, divisions, trustees, officers, directors,
partners, agents, or employees, or by the Employee, of any unlawful acts or of
any violation of federal, state or local laws.
5. Release. In consideration of the payments and benefits set forth in Section
5[(e) or (f)] of the Employment Agreement, the Employee for herself, her heirs,
administrators, representatives, executors, successors and assigns
(collectively, "EMPLOYEE RELEASORS") does hereby irrevocably and unconditionally
release, acquit and forever discharge NFP and its subsidiaries, affiliates,
divisions, successors, assigns, trustees, officers, directors, partners, agents,
and former and current employees, including without limitation all persons
acting by, through, under or in concert with any of them (collectively, "NFP
Releasees"), and each of them from any and all charges, complaints, claims,
liabilities, obligations, promises, agreements, controversies, damages,
remedies, actions, causes of action, suits, rights, demands, costs, losses,
debts and expenses (including attorneys' fees and costs) of any nature
whatsoever, known or unknown, whether in law or equity and whether arising under
federal, state or local law and in particular including any claim for
discrimination based upon race, color, ethnicity, sex, age (including the Age
Discrimination in
23
Employment Act of 1967), national origin, religion, disability, or any other
unlawful criterion or circumstance, which Employee Releasors had, now have, or
may have or claim to have in the future against each or any of the NFP Releasees
by reason of any matter, cause or thing occurring, done or omitted to be done
from the beginning of the world until the date of the execution of this Release
relating to the Employee's employment with NFP and its subsidiaries and
affiliates; provided, however that nothing herein shall release NFP from its
continuing obligations under the Employment Agreement or under any plans or
programs of NFP, and that this release shall not apply to any rights the
Employee may have to obtain contribution in the event of the entry of judgment
against her as a result of any act or failure to act for which both the Employee
and NFP are jointly responsible.
6. Bar. The Employee acknowledges and agrees that if she should hereafter make
any claim or demand or commence or threaten to commence any action, claim or
proceeding against the NFP Releasees with respect to any cause, matter or thing
which is the subject of Paragraph 5 of this Release, this Release may be raised
as a complete bar to any such action, claim or proceeding, and the applicable
NFP Releasee may recover from the Employee all costs incurred in connection with
such action, claim or proceeding, including attorneys' fees.
7. Restrictive Covenants. The Employee acknowledges that the provisions of
Sections 6, 7 and 8 of the Employment Agreement shall continue to apply pursuant
to their terms.
8. Governing Law. This Release shall be governed by and construed in accordance
with the laws of the State of New York.
9. Acknowledgement. The parties hereto have read this Release, understand it,
and voluntarily accept its terms, and the Employee acknowledges that she has
been advised by NFP to seek the advice of legal counsel before entering into
this Release, and has been provided with a period of twenty-one (21) days in
which to consider entering into this Release.
10. Revocation. The Employee has a period of seven (7) days following the
execution of this Release during which the Employee may revoke this Release, and
this Release shall not become effective or enforceable until such revocation
period has expired.
11. Counterparts. This Release may be executed by the parties hereto in
counterparts, which taken together shall be deemed one original.
IN WITNESS WHEREOF, the parties have executed this Release on the date first set
forth above.
---------------------------------
XXXXXXX XXXXXXXXXX
24
NATIONAL FINANCIAL PARTNERS CORP.
---------------------------------
By:
Title:
25
Exhibit D
GENERAL RELEASE
THIS GENERAL RELEASE is entered into between National Financial Partners Corp.,
a Delaware corporation (" NFP") and Xxxxxxx X. Xxxxxxxxxx (the "EMPLOYEE") as of
the day of , . NFP and the Employee agree as follows:
---- ----- ----
1. Release. NFP on behalf of itself and its subsidiaries, affiliates,
successors, assigns, officers, directors, agents, partners and current and
former employees (collectively, the "RELEASORS") agrees to and does hereby
irrevocably and unconditionally release, acquit and forever discharge the
Employee, and her heirs, executors, administrators, representatives, successors
and assigns (hereinafter collectively referred to as the "EMPLOYEE RELEASEES"),
with respect to and from any and all charges, complaints, claims, liabilities,
obligations, promises, agreements, controversies, damages, remedies, causes of
action, suits, rights, demands, costs, losses, debts, and expenses (including
attorneys' fees and costs) of any kind whatsoever, known or unknown, whether in
law or equity and whether arising under federal, state or local law, which the
Releasors had, now have, or may have or claim to have in the future against each
or any of the Employee Releasees by reason of any matter, course or thing
whatsoever from the beginning of the world until the date of execution of this
Release relating to the Employee's employment with NFP and its subsidiaries;
provided, however, that nothing herein shall release the Employee from
obligations or restrictions arising under or referred to or described in
Sections 6, 7, and 8 of the Employment Agreement between NFP and the Employee,
dated as of April 5,1999 (as amended from time to time, the "EMPLOYMENT
AGREEMENT"), or impair the right or ability of NFP to enforce such provisions in
accordance with the terms of the Employment Agreement.
2. Bar. NFP acknowledges and agrees that if it should hereafter make any claim
or demand or commence or threaten to commence any action, claim or proceeding
against any of the Employee Releasees with respect to any cause, matter or thing
which is the subject of Paragraph 1 of this Release, this Release may be raised
as a complete bar to any such action, claim or proceeding, and the applicable
Employee Releasee may recover from NFP all costs incurred in connection with
such action, claim or proceeding, including attorneys' fees.
3. Governing Law. This Release shall be governed by and construed in accordance
with the laws of the State of New York.
4. Confidentiality of Release. The parties agree that the existence and terms of
this Release are and shall remain confidential. The parties shall not disclose
the fact of this Release or any of its terms or provisions to any person without
the prior, written consent of the other party hereto; provided, however, that
nothing in this Paragraph 4 shall prohibit disclosure of such information to the
extent required by law, nor
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prohibit disclosure of such information by the Employee to any legal or
financial consultant, all of whom shall first agree to be bound by the
confidentiality provisions of this Paragraph 4, nor prohibit disclosure of such
information by or within NFP in the ordinary course of its business to those
persons or entities with a need to know, as reasonably determined by NFP.
5. No Liability. This Release does not constitute an admission by the Employee,
or by NFP, or any of its subsidiaries, affiliates, divisions, trustees,
officers, directors, partners, agents, or employees, of any unlawful acts or of
any violation of federal, state or local laws.
6. Counterparts. This Release may be executed by the parties hereto in
counterparts, which taken together shall be deemed one original.
IN WITNESS WHEREOF, the parties have executed this Release on the date first set
forth above.
NATIONAL FINANCIAL PARTNERS CORP.
---------------------------------
By:
Title:
---------------------------------
Xxxxxxx X. Xxxxxxxxxx
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