New York, 31 August 2009 Mr. Anthony Williams Old Greenwich, CT 06880
Exhibit
10.12
New York, 31 August
2009
Mr. Xxxxxxx
Xxxxxxxx
0
Xxxxxxxxx Xxxx
Xxx Xxxxxxxxx,
XX 00000
Dear
Xxxx:
We are pleased to confirm the offer of
employment, subject to the condition in paragraph 1, for the position of
Managing Director and Chief Operating Officer at Artio Global Investors Inc.
(the “Company”), reporting to Xxxxxxx Xxxx, the Company’s Managing Director and
Chief Executive Officer. Your office will be located in New York
City. This letter agreement (the “Agreement”) sets forth the terms and
conditions of your employment. You will also be subject to the
general employment policies of the Company as established from time to time,
including those set forth in the Employee Handbook and Code of
Ethics.
1. Term
of Employment:
Unless terminated earlier as provided below, you shall be employed for a
period starting on the date of the closing of initial underwritten public
offering of shares of the Company’s Class A common stock (the “Effective Date”),
and ending on the third anniversary of the Effective Date. The
initial employment term shall be extended automatically for an additional year
on the third anniversary of the Effective Date, and on each additional
anniversary thereafter, unless either party gives at least 90 days written
notice to the other that it does not wish this Agreement
extended. (The initial employment term and any extended term
shall be referred to as the “Employment Term”.) This Agreement will become
effective only if and when the Effective Date occurs. If the
Effective Date does not occur on or before November 30, 2009, this Agreement
will be
Mr. Xxxxxxx
Xxxxxxxx
August 31, 2009
Page 2 of 13
null and
void. During the Employment Term, you shall devote your full time and
efforts exclusively for the benefit of the Company, unless otherwise agreed in
writing.
2. Base
Salary: Your
starting base salary will be $280,000.00 per year, payable semi-monthly
(equivalent to $11,666.68), subject to required withholding and
deductions. Your salary will be subject to review consistent with the
Company’s policies and practices and may be adjusted as deemed appropriate by
the Board of Directors of the Company in its sole discretion.
3. Annual
Bonus: You will be
eligible for an annual cash bonus award with respect to each full calendar year
during the Employment Term, subject to the terms and conditions of the Company’s
annual bonus plan as in effect from time to time. The amount of any
such annual bonus shall be determined in the sole discretion of the
Company. The annual bonus will be payable at the same time that
bonuses are generally paid to the Company’s employees. Except as
provided below, bonus payments are not earned until payable. You must
be actively employed by the Company and considered an Employee in Good Standing
(as defined in this Agreement) on the date any such annual bonus is paid in
order to be eligible to receive any annual bonus payment.
4. Equity
Grant: You shall receive
an initial grant of 202,716 shares1 of restricted Class A common stock of Artio
Global Investors Inc. effective as of the Effective
Date. Restrictions with respect to the restricted stock shall lapse
in approximately equal installments over a five year period and shall be subject
to such other terms, conditions,
1
The number of shares to be
awarded to you has been determined assuming that an aggregate of 60,000,000
shares of all classes will be issued in connection with the public offering and
related transactions (exclusive of shares issued pursuant to awards under the
Stock Incentive Plan). If the aggregate number of shares issued
varies from 60,000,000, the number of shares to be awarded to you will vary
proportionately (rounded to the nearest full share).
Mr. Xxxxxxx
Xxxxxxxx
August 31, 2009
Page 3 of 13
restrictions and
exclusions as shall be set forth in the Artio Global Investors Inc. 2009 Stock
Incentive Plan (the “Stock Incentive Plan”) and your individual restricted stock
agreement, the terms of which documents will supersede any inconsistent
provisions in this Agreement.
5. Other
Employee Benefits: You will no
longer be eligible to make further deferrals in the Artio Global Investors Inc.
Incentive Award and Special Deferred Compensation Award Program as of the
Effective Date. Except with respect to the foregoing, you will be
eligible to participate in the Company’s other employee benefit programs,
including the Stock Incentive Plan, on the same basis as
similarly-situated employees of the Company. The Company may change
the terms of the benefit programs offered to its employees from time to time at
its sole discretion, and the Company reserves the right to discontinue any such
programs at any time. You will also be reimbursed for ordinary and
necessary business and travel expenses, properly documented and reported
pursuant to the Company’s policies and practices.
6. Termination
of Employment: Your employment may be
terminated by you or by the Company for any reason at any time prior to the end
of the Employment Term, provided that you give the Company at least 60 days
advance notice of resignation. The provisions of this paragraph 6
exclusively govern your rights upon the termination of your employment, and any
payments and benefits paid to you pursuant to this paragraph shall be the entire
severance related payments owed to you, and shall be in lieu of any severance
benefits under the Company’s or its affiliates’ severance plans (including
without limitation the Artio Global Investors Inc. Severance Pay Plan) and
notwithstanding any provisions to the contrary in such plans.
Mr. Xxxxxxx
Xxxxxxxx
August 31, 2009
Page 4 of 13
(a) If your employment is terminated
for “Cause” as defined below or if you resign for any reason, you will be
entitled to your unpaid salary and accrued vacation (“Accrued Benefits”) through
the date of your termination, and you will not be entitled to any severance
payments.
(b) If your employment is terminated
by the Company without Cause, you will be entitled to: (i) the Accrued Benefits;
(ii) continued payment of your base salary for the greater of (x) the
balance of the Employment Term, or (y) 12 months; (iii) if the termination of
employment occurs after the end of a calendar year but before the payment of
annual bonuses in respect of such calendar year, full payment of your annual
bonus for such completed year to be paid at the time that such annual bonus
would otherwise be paid, and such annual bonus will be determined in the
Company’s discretion; (iv) if the termination of employment occurs before the
end of a calendar year, a pro-rata bonus payment determined by multiplying the
greater of (x) the bonus previously calculated and scheduled to be paid to you
with respect to the immediately prior calendar year, or (y) the average of the
bonuses paid to you (but with respect to the bonus for the immediately prior
calendar year, calculated and scheduled to be paid to you) with respect to the
previous three years, times the percentage of the then-current year (calculated
in days) during which you were employed prior to your receipt of notice of
termination; (v) continued receipt of medical and dental benefits on the same
terms applicable to continuing senior executives until the end of the Employment
Term or the date you become eligible for coverage under group medical and dental
benefits of another employer; and (vi) continued vesting or lapse of
restrictions of your initial restricted stock award described in paragraph 4
above
Mr. Xxxxxxx
Xxxxxxxx
August 31, 2009
Page 5 of 13
through the
Employment Term. The pro-rata bonus payment to be described in
subparagraph (iv) shall only be made for the calendar year in which notice of
termination is given and not for any remaining period of time of the Employment
Term.
(c) If your employment is terminated
as a result of a Change in Control as that term is defined in the Stock
Incentive Plan, as amended from time to time, in addition to the payments and
benefits set forth in paragraph 6(b), above, all of your unvested awards under
the Plan will fully vest (and all restrictions on such awards shall lapse) as of
such Change in Control.
(d) If your employment is terminated
due to death or Disability (as defined below), you or your estate or legal
representative shall be entitled to receive the Accrued Benefits, and as
applicable, the annual bonus or pro-rata bonus described in paragraph 6(b)(iii)
and (iv), respectively, above. In addition, a percentage of awards
under the Stock Incentive Plan referred to above, which would have vested (or
with respect to which restrictions would have lapsed) in the year of your death,
will vest (or will have restrictions lapse), which percentage shall be
calculated by dividing the number of days you were employed in that year by
365.
(e) If the Company elects not to
renew this Agreement by providing the notice referred to in paragraph 1,
provided you are willing and able to continue to provide services to the
Company, and the facts and circumstances indicate that you have had an
involuntary separation from service within the meaning of Section 409A (as
defined in paragraph 6(e) below), you will be entitled to receive the
Mr. Xxxxxxx
Xxxxxxxx
August 31, 2009
Page 6 of 13
payments and
benefits set forth in paragraph 6(b)(i), (ii), (iii) and (iv), respectively,
above.
(f) If at the time of your
termination of employment you are a “specified employee” as defined in Section
409A of Internal Revenue Code of 1986, as amended (“Section 409A”), you will not
be entitled to any payments upon such termination of employment until the
earlier of (i) the date that is six months after such termination of employment
for any reason other than death or (ii) the date of your death. The
preceding sentence will only apply if required to comply with Section
409A.
7. Definitions:
(a) To be considered an “Employee in Good
Standing,” you must not be in material violation of this Agreement or any
Company policy, must not have engaged in conduct which would constitute Cause
(as defined in this Agreement) and have not given a notice of your intent to
terminate your employment.
(b) “Disability” means (i)
you are unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment that can be expected to
result in death or can be expected to last for a continuous period of not less
than 12 months; (ii) you are, by reason of any medically determinable physical
or mental impairment that can be expected to result in death or can be expected
to last for a continuous period of not less than 12 months, receiving income
replacement benefits for a period of not less than three months under an
employer-sponsored accident and health plan covering you; or (iii) you are
determined to be totally disabled by the Social Security
Administration.
Mr. Xxxxxxx
Xxxxxxxx
August 31, 2009
Page 7 of 13
(c) “Cause” shall mean willful failure to
follow legitimate directions of your supervisors after both notice and 30 days’
allowance to cure such failure was given; neglect or failure in any material
respect to perform or to discharge your duties; gross negligence in the
performance of your responsibilities; any act or acts constituting a felony or
any crime involving fraud, moral turpitude or misrepresentation, or any
violation of securities or other laws, regulations or rules governing the
Company’s or its affiliates’ business; any act or omission which in the
reasonable judgment of the Company could reasonably be expected to injure the
reputation, business or business relationships of the Company or its affiliates;
any breach of the policies of the Company and its affiliates with respect to the
conduct of its business or the trading of securities; any material breach of any
agreement between the Company and you by which you may be bound.
8.
Confidential Information and Intellectual Property: In order to
perform your duties for the Company or its affiliates, you will have access to
confidential and proprietary information of the Company, its affiliates, related
entities, and third parties doing business with the Company or its
affiliates. You agree that your access to such information is
intrinsic to and essential to the success of your employment with the
Company. You further agree that, during your employment with the
Company and its affiliates and thereafter, you will not make any unauthorized
use or disclosure of Confidential Information (as defined below) to which you
had access as a result of your employment with the Company or its
affiliates. Upon separation from employment with the Company, and
upon request, during your employment with the Company, you agree to return any
and all Confidential Information in whatever form it is maintained.
Mr. Xxxxxxx
Xxxxxxxx
August 31, 2009
Page 8 of 13
For purposes of this Agreement, “Confidential
Information” shall mean any confidential or private information not generally
known to the public, including business plans, opportunities, and strategies;
marketing and merchandising techniques and plans; information regarding the
identity, finances, business, pricing and trading terms, opinions, needs,
requirements, desires, demands, or practices of, or charges made to or by,
clients or prospective clients of the Company, its affiliates and related
entities; information regarding contacts with clients and potential clients;
information regarding the identities, skills, qualities, competencies, characteristics,
expertise, or experience of the directors, officers, or employees of the
Company, its affiliates and related entities; information regarding the
compensation practices of, or payments made to or by, the Company, its
affiliates and related entities; the contents of communications, oral or
written, with, by, or between directors, officers, employees, or agents of the
Company, its affiliates and related entities; intellectual property, such as
trade secrets, designs, inventions, know-how, manufacturing processes, product
formulae, design specifications, writings and other works of authorship,
computer programs, and other works, whether patentable or not.
Nothing in this Agreement, however, shall
prohibit you from complying with a court order or other legal obligation to
produce information, but you agree to provide the Company notice (to the extent
you are permitted to do so), immediately upon becoming aware of any such
obligation, or of any subpoena or order, to produce information related to the
Company, and to cooperate fully with the Company in obtaining such protection as
the Company deems appropriate.
You further agree that all work produced by you
while employed by the Company or in connection with your employment with the
Company and all associated copyrights and commercial proprietary rights are the
exclusive property of the Company. You will
Mr. Xxxxxxx
Xxxxxxxx
August 31, 2009
Page 9 of 13
return all such
information, in whatever form, to the Company upon separation from employment
with the Company for any reason and, during your employment, upon request from
the Company.
Any non-disclosure provision in this paragraph
does not prohibit or restrict you (or your attorney) from responding to any
inquiry, or providing testimony by or before the Securities and Exchange
Commission, FINRA (formerly the National Association of Securities Dealers,
Inc.), any other self-regulatory organization, or any other federal or state
regulatory authority.
9.
Non-Solicitation and Non-Competition: In consideration
of your employment, the payments and benefits to be paid upon the termination of
your employment as set forth in paragraph 6, above, and the access to
confidential information provided by the Company in order for your to perform
your duties, during your employment with the Company and, for a period of 12
months following your separation from employment with the Company, you will not,
on your own behalf or on the behalf of others, directly or indirectly, in any
geographic area or market where you have been involved with the business of the
Company or its affiliates:
(a) Engage in or perform any services
that involve the direct or indirect responsibility for management, in whole or
in part, of one or more investment accounts or funds, or a group of investment
accounts or funds, including performing any senior management role involving
authority over one or more persons performing such investment management
services. This restriction does not include managing your own
investment accounts or those of your immediate family.
Mr. Xxxxxxx
Xxxxxxxx
August 31, 2009
Page 10 of 13
(b) Solicit or induce any person for the
purpose of causing any funds or accounts for which the Company provides
investment management services to be withdrawn from the Company or any
affiliate.
(c) Solicit, induce, or influence, or
attempt to solicit, induce, or influence, any employee of the Company (other
than clerical or secretarial staff) or any affiliate to terminate his or her
employment;
(d) Recruit, hire, or assist in the
recruitment or hiring of any employee of the Company or any affiliate by any
person, association, or entity not affiliated with the Company; and
(e) Solicit, induce, or influence,
or attempt to solicit, induce, or influence, any client of, or person or entity
that is reasonably anticipated in the following six months to become a client
of, the Company or an affiliate to reduce business with, or divert business
from, the Company or any affiliate.
The restrictions set forth in paragraph (a)
above will not apply if, and only if, the Company elects not to renew this
Agreement or terminates this Agreement for any reason other than for
Cause as defined above. You agree that these restrictions are reasonable in all
respects and necessary to protect the legitimate business interests of the
Company and that the payments and benefits in paragraph 6, above, are
satisfactory compensation and consideration for such
restrictions. You further agree that any breach of these obligations
will result in irreparable harm to the Company. The Company reserves
the right to pursue all remedies available as a result of a breach of these
provisions, including, but not limited to, injunctive relief, as appropriate,
and damages.
10. Cooperation
and Non-Disparagement: During your
employment with the Company and its affiliates and thereafter, you agree
that:
Mr. Xxxxxxx
Xxxxxxxx
August 31, 2009
Page 11 of 13
·
You
will cooperate at the expense of the Company (except that you are not authorized
to retain legal counsel without the prior approval of the Company) with any
reasonable request from the Company or its authorized representatives in
connection with any internal or external investigation, matter before any
governmental agency, or legal proceeding; and
·
You will not make
any comment or take any action which disparages, defames, or places in a
negative light the Company, its affiliates or related entities or their past or
present officers, directors or employees.
11. Dispute
Resolution and Jury Waiver: You and the
Company agree that any dispute regarding the terms of this offer, or any aspect
of your employment, compensation or the termination of your employment will be
decided by a court of competent jurisdiction located in New York County, New
York. You and the Company hereby agree to WAIVE A JURY TRIAL in all
actions and proceedings relating to or arising from your employment, including
your compensation and the termination of your employment.
12. Taxes
and Withholding: All payments or
benefits provided under this Agreement are subject to any applicable employment
or tax withholdings or deductions. In addition, the parties hereby agree
that it is their intention that all payments or benefits provided under this
Agreement be exempt from, or if not so exempt, comply with, Section 409A
and this Agreement shall be interpreted accordingly. You
hereby are advised to seek independent advice from your tax advisor(s) with
respect to the application of Section 409A to any payments or benefits under
this Agreement. Notwithstanding the foregoing, the Company does not
guarantee the tax treatment of any payments or benefits under this
Agreement.
Mr. Xxxxxxx
Xxxxxxxx
August 31, 2009
Page 12 of 13
13. Successors: You may not
assign any rights and obligations created by this Agreement. The
Company, however, may assign this Agreement and all rights and obligations it
creates to any successor to the Company’s business.
14. Construction
of Agreement and Controlling Law: Except as
specifically provided for herein, this Agreement shall constitute the entire
understanding relating to your employment. No delay by either party
in exercising any rights under this Agreement shall operate as a waiver of such
right or any other rights. If any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid or unenforceable,
the other provisions of this Agreement shall remain in full force and effect,
and the provisions that are determined to be invalid, unenforceable, or unlawful
will either be limited so that they will remain in effect to the extent
permissible by law, or the court may substitute, to the extent enforceable,
provisions similar thereto so as to provide, to the fullest extent allowed by
law, the benefits and protections intended by this Agreement. This
Agreement may not be amended unless any such amendment is made in writing and
executed by the Chief Executive Officer of the Company and
you. Subject to its obligations hereunder, the Company and its
affiliates reserve the right to amend, modify or terminate any of its or their
employment policies, employee benefit plans, incentive compensation arrangements
at any time and, thereby, to modify the terms and conditions of employment
generally applicable to all employees at any time. This Agreement
shall be governed by the laws of the State of New York, excluding its
conflict-of-law principles.
Please acknowledge your acceptance of this
Agreement by signing and returning a copy of this Agreement to Xxxxxxx Xxxx,
Head of Human Resources, by September 14, 2009. By signing below, you
also agree to waive any past express or implied contract of employment which
might otherwise have arisen during your prior conversations.
Mr. Xxxxxxx
Xxxxxxxx
August 31, 2009
Page 13 of 13
Consequently, as of
the Effective Date, this Agreement supersedes any prior letters or agreements of
employment or engagement. It likewise supersedes any prior understandings,
conversations or agreements, verbal or in writing, regarding your employment
¾ past and future
¾ with Artio Global
Investors Inc., Artio Global Management LLC or any affiliated company, and it
constitutes the full understanding between you and the Company.
Very truly
yours,
| by: | by: | |||||
| Xxxxxxx Xxxx | Xxxxxxx Xxxx | |||||
| Managing Director | Senior Vice President & | |||||
| Chief Executive Officer | Head of Human Resources | |||||
| Artio Global Management LLC | ||||||
| Accepted: | ||||||
| Xxxxxxx Xxxxxxxx | Date | |||||
