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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
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This Employment Agreement is made and entered into as of this 17th day
of May 1999, by and among XXXXX ASSOCIATES, INC., a Delaware corporation, THE
KROLL O'GARA COMPANY, an Ohio corporation, (hereinafter sometimes collectively
referred to as the "Company"), and Xxxxxxx X. Xxxxxxxxx (the "Executive").
WHEREAS, the Executive and the Company desire to embody in this
Agreement the terms and conditions of the Executive's employment by the Company;
NOW, THEREFORE, in consideration of the premises and mutual promises
contained in this Agreement, including the compensation paid to the Executive,
the parties hereby agree:
ARTICLE 1
EMPLOYMENT, DUTIES AND RESPONSIBILITIES
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1.1 Employment. The Company shall employ the Executive as President of
Xxxxx Associates, Inc. and the Investigative Intelligence Group. The Executive
hereby accepts such employment. The Executive agrees to devote his best efforts
to promote the interests of the Company, and, if requested by the Board of
Directors of the Company, for any affiliate of the Company.
1.2 Duties and Responsibilities. The Executive shall have such duties
and responsibilities as are consistent with his position and shall perform such
services not inconsistent with his position as shall, from time to time, be
reasonably assigned to him by the Board of Directors of the Company or any other
officer of the Company in a position superior to the Executive. The Company
shall not, without the Executive's consent, relocate the Executive outside of
the New York City Metropolitan area.
ARTICLE 2
TERM
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2.1 "Evergreen" Term. The term of the Executive's employment under this
Agreement (the "Term") shall commence on the date hereof and shall continue for
a two-year "Evergreen" period which shall automatically be renewed and extended
on a daily basis so as to always have two years remaining, unless sooner
terminated pursuant to Article V hereof. It is expressly acknowledged and agreed
by the parties that it is their intention that the term of this Agreement shall
be "Evergreen" meaning that there shall always be two (2) years remaining before
expiration thereof.
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ARTICLE 3
COMPENSATION
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3.1 Salary, Bonuses and Benefits. As compensation and consideration for
the performance by the Executive of his obligations to the Company under this
Agreement, the Executive shall be entitled to the compensation and benefits
described in the attached Exhibit A (subject, in each case, to the provisions of
ARTICLE 5 hereof).
3.2 Expenses. The Company will reimburse the Executive for reasonable
business-related expenses incurred by him in connection with the performance of
his duties hereunder during the Term, subject, however, to the Company's written
policies relating to business-related expenses as in effect, from time to time,
during the Term, a copy of which has previously been provided to the Executive.
ARTICLE 4
EXCLUSIVITY, CONFIDENTIALITY, AND NONCOMPETITION
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4.1 Exclusivity, Etc. The Executive agrees to perform his duties,
responsibilities and obligations hereunder efficiently and to the best of his
ability. The Executive agrees that he will devote his entire working time, care
and attention and best efforts to such duties, responsibilities and obligations
throughout the Term, subject to any obligations to third parties in existence as
of the date hereof, which obligations may not be in conflict with Section 4.2(d)
hereof. The Executive also agrees that he will not engage in any other business
activities pursued for gain, profit or other pecuniary advantage that are
competitive with the activities of the Company, except as permitted in Section
4.2 below. The Executive agrees that all of his activities as an employee of the
Company shall be in conformity with all policies, rules and regulations and
directions of the Company not inconsistent with this Agreement.
4.2 Confidentiality and Noncompetition.
(a) The term "Confidential Information," as employed in this Agreement,
means, except to the extent such information is otherwise publicly available and
such public availability was not wrongfully caused in any manner by the
Executive, (i) any object, material, device, substance, data, report, record,
forecast, interpretation or information, whether written or oral, not in the
public domain and relating to or reflecting any product, design, process,
procedure, formula, research, idea, invention, discovery, improvement,
equipment, scientific or technical information, method of production, business
plan, financial information, listing of names, addresses or telephone numbers,
trade secret and/or know how, and all matters pertaining thereto, of the Company
and its affiliates, whether or not contained in any written document, which are
or have been
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directly or indirectly communicated to, acquired by, or learned by the Executive
as a result of his relationship (whether as an employee or otherwise) with the
Company or any of its affiliates and (ii) any analysis, compilation, note,
study, sample, drawing, sketch, computer program, computer file or other
document, not in the public domain, whether prepared by or under the direction
of the Company or any of its affiliates, the Executive or others, and all
copies, facsimiles, replicas, photographs, and reproductions thereof, which
contain, relate to, or reflect any of the aforementioned items.
(b) The Executive shall not, directly or indirectly, either disclose
any Confidential Information, except to the extent required in the performance
of his duties as an employee of the Company or use any Confidential Information
for the benefit of himself or any person, firm, corporation, or association
other than the Company or any of its affiliates, during the Term or thereafter.
(c) All samples, drawings, sketches, documents and written information
of any kind reflecting any of the Confidential Information or relating to the
Company's or any of its affiliates' business or products which come into
possession of the Executive shall remain the sole property of the Company or
such affiliate and shall not be copied, photocopied, reprinted or otherwise
reproduced or disseminated by the Executive, except in the performance of his
duties as an employee of the Company. Upon the earlier of the Company's request
therefor or the termination of the Executive's employment by the Company, the
Executive shall return all such samples, drawings, sketches, documents and
written information, and all copies, facsimiles, replicas, photocopies, and
reproductions of them, to the Company.
(d) The Executive hereby covenants and agrees to refrain, during his
employment and for a period of two (2) years after the date of termination of
the Executive's employment during the Term (i) if such termination during the
Term was for Cause (as hereinafter defined) or (ii) if the Executive terminates
his employment during the Term other than for "Good Reason" (as hereinafter
defined), from, directly or indirectly, (a) engaging in his own behalf in the
Investigative and Intelligence Business (as hereinafter defined), or (b) owning
any interest in or engaging in or performing any service for any person, firm,
corporation or other entity, either as a partner, owner, employee, consultant,
agent officer, director or shareholder that (A) derives a meaningful portion of
its revenues from the Investigative and Intelligence Business or (B) is a
meaningful competitor in the Investigative and Intelligence Business.
Notwithstanding the foregoing, for purposes of this Section 4.2(d), the term
"Term" shall not include any extensions or renewals of this Agreement or
renewals beyond the two year anniversary date of this Agreement. The Executive
will not at any time during the period of the Executive's employment by the
Company and for a period of one (1) year thereafter induce or assist others to
induce or attempt to induce, in any manner, directly or indirectly, any
employee, agent, representative, customer or any other person or concern dealing
with or in any way associated with the Company or any of its affiliates to
terminate or to modify in any other fashion to the detriment of the Company or
any of its affiliates such association with the Company or any of its
affiliates. The Executive
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represents that his experience and capabilities are such that the provision of
this paragraph will not prevent him from earning a livelihood. Notwithstanding
any provision of this Section 4.2(d), (i) it shall not be a violation of this
Section 4.2(d) for the Executive to own two percent (2%) or less of a public
company, provided that the Executive does not exert or have the power to exert
any management or other control over such public company, and (ii) the Executive
shall not be required to sell or transfer the Executive's ownership interest in
any company involved in the Investigative and Intelligence Business which the
Executive owns as of the date of this Agreement. The Investigative and
Intelligence Business shall mean the business of private investigations,
executive protection, corporate investigation, risk and crisis management,
forensic auditing and/or business intelligence.
(e) The parties hereto agree that the Executive's agreements contained
in paragraph (b) through (d) of this Article relate to matters of unique
character and peculiar value impossible of replacement, that breach of such
agreements by the Executive will cause the Company great and irreparable injury
therefor, that the remedy at law for any breach of the agreements contained in
(b) through (d) will be inadequate and that the Company, in addition to any
other relief available to it, shall be entitled to seek temporary restraining
orders and temporary and permanent injunctive relief or other equitable relief
without the necessity of proving actual damage or of providing any bond so as to
prevent a breach of any of the agreements contained in (b) through (d) of this
Article and to secure the enforcement thereof.
ARTICLE 5
TERMINATION
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5.1 Termination by the Company. The Company shall have the right,
subject to the terms of this Agreement, to terminate the Executive's employment
at any time, with or without "Cause". For purposes of this Agreement, "Cause"
shall mean the non-appealable conviction of Executive of a felony.
5.2 Termination by the Executive.
(a) The Executive shall have the right, subject to the terms of this
Agreement, to terminate his employment at any time with or without "Good
Reason." For purposes of this Agreement, "Good Reason" shall mean (A) a Change
in Control of the Company (as defined below); (B) any assignment to Executive of
any duties other than those contemplated by, or any limitation on the powers of
Executive in any respect not contemplated by, this Agreement; (C) any removal of
Executive from or any failure to re-elect Executive to any of the positions he
holds as of the date of this Agreement; (D) a reduction in Employee's rate of
compensation, including Stock Options and
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Incentive Stock, not agreed to in writing by him; (E) a failure by Company to
comply with any other material provision of this Employment Agreement; (F) the
occurrence of an event which either directly or indirectly results in a change
of the Executive's reporting responsibility such that the Executive is required
to report to any person or persons other than Xxxxxxx X'Xxxx and/or Xxxxx Xxxxx.
(b) "Change in Control of the Company" shall be deemed to have occurred
if any "person" (as such term is used in Sections 13(d) and 14(d)(2) of the
Exchange Act), other than Xxxxx Xxxxx personally (and specifically not his
estate or personal representatives), is or becomes the "beneficial owner" (as
defined in Rule 13d-3 promulgated under the Exchange Act), directly
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or indirectly, of securities of the Company representing thirty-five percent
(35%) or more of the combined voting power of the Company's then outstanding
securities.
5.3 Death. In the event the Executive dies during the Term, this
Agreement shall automatically terminate, such termination to be effective on the
date of the Executive's death.
5.4 Disability. In the event that the Executive shall suffer a
disability which shall have prevented him from performing satisfactorily his
obligations hereunder for a period of at least ninety (90) consecutive days or
one hundred eighty (180) non-consecutive days within any three hundred
sixty-five (365) day period, the Company shall have the right to terminate the
Executive's employment, such termination to be effective upon the giving of
notice thereof to the Executive in accordance with Section 6.3 hereof.
5.5 Effect of Termination.
(a) In the event of termination of the Executive's employment for any
reason, the Company shall pay to the Executive (or his beneficiary, heirs or
estate in the event of his death) any base salary or other compensation in
accordance with the normal pay practices of the Company upon a termination of
employees for similar reasons.
(b) In the event of termination of the Executive's employment (i) by
the Company for Cause, (ii) by the Executive for other than for Good Reason,
neither the Executive nor any beneficiary, heir or estate of the Executive shall
be entitled to any further compensation other than the amounts described in
Section 5.5(a) hereof.
(c) In the event of termination of the Executive's employment by the
Company other than for Cause, or by the Executive for Good Reason, or upon the
occurrence of Executive's Death or Disability as defined in Sections 5.3 and 5.4
hereof, the Company shall immediately pay the Executive, in addition to the
amounts described in Section 5.5(a) hereof, an amount equal to the value of the
Executive's Salary, plus Annual Bonus plus Additional Compensation, plus Stock
Options and Incentive Stock, as those terms and amounts are defined and set
forth in this Agreement and Exhibit A hereto, for the full remainder of the
Term. Such amount shall be payable in a lump sum.
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ARTICLE 6
MISCELLANEOUS
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6.1 Benefit of Agreement; Assignment; Beneficiary.
(a) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns (but only to the extent the Agreement
relates to such entity), including, without limitation, any corporation or
person which may acquire all or substantially all of the Company's assets or
business or with or into which the Company may be consolidated or merged. This
Agreement shall also inure to the benefit of, and be enforceable by, the
Executive and his personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive should
die while any amount would still be payable to the Executive hereunder if he had
continued to live, all such amount shall be paid in accordance with the terms of
this Agreement to the Executive's beneficiary, devisee, legatee or other
designee, or if there is no such designee, to the Executive's estate.
(b) The Company shall require any successor (whether direct or
indirect, by operation of law, by purchase, merger, consolidation or otherwise)
to all or substantially all of the business and/or assets of the Company to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession had taken place.
(c) Upon a reorganization, merger or consolidation of The Xxxxx-X'Xxxx
Company with one or more corporations as a result of which The Xxxxx-X'Xxxx
Company is not to be the surviving corporation (whether or not The Xxxxx-X'Xxxx
Company shall be dissolved or liquidated) or upon the execution of an agreement
for the sale or transfer of all or substantially all of the assets of The
Xxxxx-X'Xxxx Company ("Change-in-Control Event") at the option of the Executive,
the Term shall be modified to eighteen (18) months from the Change-in-Control
Event. Provided, however, that nothing contained in this Section 6. l (c) shall
limit or otherwise modify Executive's rights under ARTICLE 5.
6.2 Notices. Any notice required or permitted hereunder shall be in
writing and shall be sufficiently given if personally delivered or if sent by
registered or certified mail, postage prepaid, with return receipt requested,
addressed: (a) in the case of the Company to the Chief Operating Officer of the
Company, and (b) in the case of the Executive, to the Executive's last known
address as reflected in the Company's records, or to such other address as the
Executive shall designate by written notice to the Company. Any notice given
hereunder shall be deemed to have been given at the time of receipt thereof by
the person to whom such notice is given if personally delivered or at the time
of mailing if sent by registered or certified mail.
6.3 Entire Agreement; Amendment. This Agreement contains the entire
agreement of the parties hereto with respect to the terms and conditions of the
Executive's employment during the Term and supersedes any and all prior
agreements and understandings, whether written or oral, between the parties
hereto with respect to compensation due for services rendered hereunder. This
Agreement may not be changed or modified except by an instrument in writing
signed by both of the parties hereto.
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6.4 Waiver. The waiver of either party of a breach of any provision of
this Agreement shall not operate or be construed as a continuing waiver or as a
consent to or waiver of any subsequent breach hereof.
6.5 Headings. The Article and Section headings herein are for
convenience of reference only, do not constitute a part of this Agreement and
shall not be deemed to limit or affect any of the provisions hereof.
6.6 Governing Law. This Agreement shall be governed by, and construed
and interpreted in accordance with, the internal laws of the State of New York
without reference to the principles of conflict of laws.
6.7 Agreement to Take Actions. Each party hereto shall execute and
deliver such documents, certificates, agreements and other instruments and shall
take such other actions, as may be reasonably necessary or desirable in order to
perform his or its obligations under this Agreement or to effectuate the
purposes hereof.
6.8 Venue and Jurisdiction. Any action or proceeding arising from or
relating to this Agreement and/or Executive's employment or relationship with
the Company shall exclusively be brought in the courts of the State of New York,
County of New York or in the United States District Court for the Southern
District of New York, and each of the parties hereto consents to the
jurisdiction of such courts (and the appropriate appellate courts) in any such
action or proceeding and waives any objections to venue therein.
6.9 Survivorship. The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement to the extent
necessary to effectuate the intended preservation of such rights and
obligations.
6.10 Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision or provisions of this Agreement, which shall remain in full
force and effect. If any provision of this Agreement is held to be invalid, void
or unenforceable, any court so holding shall substitute a valid, enforceable
provision that preserves, to the maximum lawful extent, the terms and intent of
this Agreement.
6.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement effective as of the date first written above.
THE KROLL O'GARA COMPANY
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: Chairman of the Board
XXXXX ASSOCIATES, INC.
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: Chairman of the Board
EXECUTIVE
/s/ XXXXXXX X. XXXXXXXXX
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Xxxxxxx X. Xxxxxxxxx
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EXHIBIT A TO EMPLOYMENT AGREEMENT
The Executive shall receive as compensation for his performance under
the attached Employment Agreement the following:
(a) Salary. The Company shall pay the Executive a base salary during
the Term, payable in accordance with the normal payment procedures of the
Company, subject to such withholdings and other normal employee deductions as
may be required by law, at the annual rate of not less than $400,000, for the
first calendar year of the Term, and thereafter Executive's salary shall be
increased by a rate of not less than 4% of the previous year's salary on January
1 of each year of Executive's employment. The Board of Directors of the Company
shall also review such compensation not less frequently than annually during the
Term, but any adjustment in Executive's salary may only be greater than as
previously set forth.
(b) Annual Bonus. In addition to base salary, the Executive shall earn
incentive compensation ("incentive compensation") and the Company shall pay each
fiscal year, or any fractional period thereof during the term, incentive
compensation in accordance with the plan approved by the Compensation Committee
and/or the Board of Directors of the Company or The Xxxxx-X'Xxxx Company each
fiscal year.
(c) Additional Compensation. In addition to the compensation set forth
in sections (a) and (b) above, Executive shall be entitled to the following
Additional Compensation:
(i) Simultaneously with the execution of this Agreement, the
Company shall pay to the Executive the sum of $40,000.
(ii) On January 2, 2000, the Company shall pay the Executive
$100,000. Such payment shall be made irrespective of whether the Executive is
employed by the Company on January 2, 2000.
(iii) On each three-year anniversary date of this Agreement,
the Company shall pay Executive an additional $350,000 over and above all other
compensation to which Executive is entitled. If the Executive's employment with
the Company is terminated other than for Cause, the Executive shall be
immediately entitled to the $350,000 payment which would have been paid at the
three-year anniversary date next following the date of termination.
(d) Benefits. The Executive shall participate during the Term in such
pension, life insurance, health, death, disability and major medical insurance
plans, and in such other employee benefit plans and programs, for the benefit of
the employees of the Company, as may be maintained, from time to time, during
the Term, in the
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Company's discretion, in each case to the extent and in the manner available to
other officers of the Company and subject to the terms and provisions of such
plans or programs. Nothing herein shall limit the Company's ability to change,
modify, cancel or amend any such pension, life insurance, health, death,
disability or medical insurance plans.
(e) Vacation. The Executive shall be entitled to paid vacation in
accordance with Company policy during the Term.
(f) Stock Options and Incentive Stock.
(i) On March 25, 1999, the Executive was granted 50,000 stock
options under, and in accordance with the terms of, The Xxxxx-X'Xxxx Company's
1996 Stock Option Plan at an exercise price of $26.938, which options shall vest
over a three year period (one-third in each year) commencing one year after the
date of grant.
(ii) On March 25, 1999, the Executive was granted 6,000
incentive shares under The Xxxxx-X'Xxxx Company's 1998 Stock Incentive Plan.
Such incentive shares shall vest as follows: 2,000 shares on January 1, 2000,
2,000 shares on January 1, 2001, and 2,000 shares on January 1, 2002.
(iii) The Executive shall participate in stock options in
future years consistent with other senior executives.
(iv) The Executive shall participate in incentive stock plans
in future years consistent with other senior executives.
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