Exhibit 10.4
EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement is made and entered into as of August 16, 1999, (the
"Effective Date") by and between Xxxxxxx Group, Inc., a Delaware corporation
(the "Company"), and Xxxx X. Xxxxx ("Employee").
WITNESSETH:
WHEREAS, Xxxxxxx Holdings (N. A.), Inc., a Delaware corporation formerly
named "Hydrant Acquisition Corp." ("Holdings"), the sole stockholder of the
Company, entered into an Amended and Restated Stock and Asset Purchase
Agreement dated as of August 13, 1999 (the "Stock and Asset Purchase
Agreement") among Tyco International (US) Inc., Xxxxxxxx Corporation, Tyco
Group S.a.r.l, and Holdings;
WHEREAS, the Company desires to continue to employ Employee upon the terms
set forth herein; and
WHEREAS, Employee desires to continue to be employed by the Company and to
appropriately memorialize the terms and conditions of such employment.
NOW THEREFORE, Employee and the Company, in consideration of the
agreements, covenants and conditions herein, hereby agree as follows:
SECTION 1. Basic Employment Provisions. (a) Employment and Term. The
Company hereby employs Employee as Chief Executive Officer of the Company, and
Employee agrees to be employed by the Company in such capacity, all on the
terms and conditions set forth herein. Such employment shall be for a period
(the "Employment Period") that will (i) commence on the Effective Date and
continue for at least three years thereafter (unless earlier terminated as
provided herein) and (ii) renew on each anniversary of the Effective Date for
an additional one-year period, on the same terms and conditions contained
herein (unless earlier terminated as provided herein), unless Employee is
timely provided a notice of nonrenewal as provided herein. The Company must
provide Employee with written notice not less than 60 days in advance of the
applicable anniversary of the Effective Date in order to avoid renewal of the
Employment Period on such anniversary as described above. Notice shall be
deemed given on the date it is received by Employee.
(b) Position. Employee shall be subject to the direction and supervision
of the Board of Directors of the Company (the "Board") and, as the Chief
Executive Officer of the Company, shall have those duties and responsibilities
which are assigned to him during the Employment Period by the Board consistent
with his position and which are customarily assigned to chief executive
officers of
comparable companies. The parties expressly acknowledge that the Employee shall
devote substantially all of his business time and attention to the transaction
of the Company's businesses. Employee agrees to perform faithfully the duties
assigned to him to the best of his ability.
SECTION 2. Compensation. (a) Salary. The Company shall pay to Employee
during the Employment Period a base salary for the services to be rendered by
Employee hereunder, The initial amount of such base salary shall be $300,000
per annum. Such base salary shall be reviewed no less frequently than annually
by the Board and shall be increased effective as of the day immediately
following each anniversary of the Effective Date (the "Adjustment Date") by an
amount that is at least equal to the product of (i) the cost of living increase
and (ii) Employee's base salary in effect immediately prior to any adjustment
for the cost of living increase. The "cost of living increase" shall mean the
difference, expressed as a percentage, between (i) the Consumer Price Index
most recently published by the Bureau of Labor Statistics of the U.S.
Department of Labor, Chicago-Xxxx-Kenosha, for urban wage earners and clerical
workers, prior to the Adjustment Date and (ii) such index as so published for
the immediately proceeding period; provided, however, that no adjustment to
Employee's base salary in effect at any time shall be made if the difference
between such indices would result in a decrease in Employee's then current base
salary. Employee's base salary may be increased further form time to time (but
not decreased) based upon an appraisal of Employee's performance under an
annual plan, such annual plan and increases, if any, being subject to the
approval of the Board (or, if existing at such time, a compensation committee
thereof) in its sole discretion. Such base salary shall accrue and be payable
in accordance with the Company's payroll practices of the Company in effect
from time to time. All such payments shall be subject to deduction and
withholding authorized or required by applicable law.
(b) Bonus. During the Employment Period, Employee shall additionally
participate in an annual bonus plan providing for an annual bonus opportunity
of not less than 36% of a bonus pool (the "Bonus Pool") (for purposes of the
fiscal year ended September 30, 2000, as calculated below); provided that the
performance objectives used in determining the Bonus Pool may be modified by
the Board.
For purposes of this Section 2(b), the Bonus Pool shall be calculated as a
portion of the EBITDA (as defined herein) of the Company and its subsidiaries
for the fiscal year ended September 30, 2000:
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XXXXXXX GROUP, INC.
(dollars in millions)
EBITDA FACTOR POOL
-------- ----------- ----------
Level 0 $0-125 0% $0.00
Xxxxx 0 000-000 1.50%-2.00% 1.88-3.00
Xxxxx 0 000-000 2.00%-2.50% 3.00-4.13
Xxxxx 0 000-000 2.50%-3.00% 4.13-5.40
Xxxxx 0 000-000 3.00%-3.50% 5.40-6.83
Xxxxx 0 000-000 3.50%-4.00% 6.83-8.40
Percentage multipliers shall be linear between levels once the minimum
EBITDA is achieved.
For purposes of this Section 2(b), "EBITDA" for a fiscal year (i) shall
mean the consolidated net income of the Company and its subsidiaries for such
fiscal year, determined in accordance with U. S. generally accepted accounting
principles consistently applied in accordance with the accounting methodologies
and procedures of the Company and its subsidiaries ("GAAP") plus (A) provisions
for taxes based on income or profits to the extent deducted in computing such
consolidated net income, plus (B) consolidated interest expense of the Company
and its subsidiaries for such period, whether paid or accrued, to the extent
any such expense was deducted in computing such consolidated net income, plus
(C) depreciation, amortization and other non-cash expenses of the Company and
its subsidiaries for such period (excluding any non-cash expense to the extent
it represents an accrual or reserve for cash expense in any future period or
amortization of a prepaid cash expense paid in a prior period) to the extent
any such expense was deducted in computing such consolidated net income, and
(ii) shall be subject to adjustment as set forth in the immediately subsequent
paragraph. Notwithstanding anything to the contrary contained in this
Agreement, there shall be excluded from the calculation of consolidated net
income of the Company and its subsidiaries, to the extent such consolidated net
income would otherwise be affected thereby, (a) gains and losses from the
direct or indirect issuances, conveyances, transfers or leases (other than
operating leases entered in to in the ordinary course of business), assignment
or other transfer for value by the Company or any subsidiary thereof to any
person or entity other than the Company or any subsidiary thereof of (x) any
capital stock of any subsidiary of the Company or (y) any other property or
assets of the Company or any subsidiary thereof other than in the ordinary
course of business; (b) in the case of a successor to the Company by
consolidation or merger or as a transferee of all or substantially all of the
Company's assets, any income or loss of the successor prior to such
consolidation, merger or transfer; (c) in the case of the acquisition by the
Company of the capital stock or the assets of any entity, any income or loss of
such entity prior to such transaction; (d) fees and expenses incurred by the
Company or allocated to the Company in connection with the transactions
contemplated by this Stock and Asset Purchase Agreement; (e) items of income or
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loss classified as extraordinary or non-recurring in accordance with GAAP; (f)
monitoring, financial advisory and other similar fees and expenses paid by or
on behalf of the Company to any DLJ Entity or DLJ Affiliate (each as defined in
the Stockholders Agreement dated as of August 16, 1999 among the parties
thereto (the "Stockholders Agreement")) and (g) payments made toward the
Royalty Payments (as defined in the U.S. $500,000,000 Credit Agreement dated as
of August 16, 1999 among Xxxxxxx Group, Inc., as the borrower, various
financial institutions, as the lenders, The First National Bank of Chicago, as
the administrative agent for the lenders, DLJ Capital Funding, Inc., as the
syndication agent for the lenders, and Bayerische Hypo-Und Vereinsbank AG, New
York Branch, as the documentation agent for the lenders, as may be amended
fi-om time to time). The business of the company will be managed in good faith
by Employee and the Board in the ordinary course of business with due regard
for the provisions of this Section 2(b).
From time to time, the Board (or the Compensation Committee thereof) in
its sole discretion may make adjustments in the EBITDA for a fiscal year so
that extraordinary or unusual charges or credits, acquisitions, mergers,
consolidations and other corporate transactions and other elements of or
factors influencing the calculation of EBITDA do not distort or affect the
operation of this Agreement in a manner inconsistent with its purpose. The
decisions of the Board (or, if applicable, the Compensation Committee thereof)
as to the computation of EBITDA and other determinations to be made with
respect to this Agreement shall be final, conclusive and binding on all
parties.
(c) Benefits. During the Employment Period, Employee shall be entitled to
participate in such other employee benefit plans, programs and arrangements as
are customarily accorded the executives of the Company.
SECTION 3. Termination. (a) Death or Disability. Employment of Employee
under this, Agreement shall terminate automatically upon the death or total
disability of Employee. For purposes of this Agreement, "total disability"
shall be deemed to have occurred if Employee shall have been unable to perform
the duties of his employment due to mental or physical incapacity for a period
of 6 consecutive months or for any 12 months in any period of 24 consecutive
months.
(b) Cause. The Board may terminate the employment of Employee under this
Agreement for Cause. For the purposes of this Agreement, "Cause" shall be
deemed to be (i) Employee's failure (other than immaterial failures not
occurring in bad faith and which, if capable of being remedied, are remedied by
Employee within 30 days after receipt of notice thereof given by the Company)
to act in accordance with the x x x x instructions of the Board, which
instructions are also consistent with the terms of this Agreement; (ii)
Employee's conviction of a
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felony arising from or any act of fraud, embezzlement, or willful dishonesty by
Employee in relation to the business or affairs of the Company or any other
felonious conduct on the part of Employee that is demonstrably detrimental to
the best interests of the Company or any subsidiary or affiliate thereof; (iii)
Employee's being repeatedly under the influence of illegal drugs or alcohol
while performing his duties; or (iv) any other willful act which is
demonstrably injurious to the financial condition or business reputation of the
Company or any subsidiary or affiliate thereof, including Employee's breach of
the provisions of any written noncompetition, nonsolicitation or
confidentiality covenant in favor of the Company binding upon Employee.
Notwithstanding the foregoing, Employee will not be deemed to have been
terminated for "Cause" hereunder unless and until there shall have been
delivered to Employee a copy of a resolution duly adopted by an affirmative
vote of not less than a majority of the full Board (excluding Employee) then in
office at a meeting of the Board called and held for such purpose, after
reasonable notice to Employee and an opportunity for Employee, together with
his counsel (if Employee chooses to have counsel present at such meeting), to
be heard before the Board, finding that, in the good faith opinion of the
Board, Employee had committed an act constituting "Cause" as herein defined and
specifying the particulars thereof in detail; provided, however, that nothing
herein will limit the right of Employee or his beneficiaries to contest the
validity or propriety of any such determination; and provided, further, that
such determination will not create any presumption that "Cause" in fact exists.
(c) Without Cause. The Company may terminate the employment of Employee
under this Agreement without Cause.
(d) Constructive Termination. Employee may elect to terminate his
employment under this Agreement upon a Constructive Termination Without Cause,
as defined in the next sentence, For purposes of this Agreement, "Constructive
Termination Without Cause" shall mean a termination of Employee's employment at
his initiative following the occurrence, without Employee's prior written
consent, of one or more of the following events:
(i) receipt of notice from the Company that the Employment Period
shall not be renewed as described in Section l(a);
(ii) any failure by the Company to comply with any of the provisions
of this Agreement, other than immaterial failures not occurring in bad
faith and which, if capable of being remedied, are remedied by the Company
within 30 days after receipt of notice thereof given by Employee;
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(iii) the material diminution of Employee's position (including
status, offices, titles and reporting relationships), duties or
responsibilities, as described in Section 1, as in effect during the
effectiveness of this Agreement, excluding immaterial actions not taken in
bad faith and which are remedied by the Company within 30 days after
receipt of notice thereof given by Employee;
(iv) any purported termination by the Company of Employee's
employment, other than as expressly permitted by Section 3(b);
(v) the Company relocates its principal offices, or requires Employee
to have his principal location of work changed, to any location that is in
excess of 100 miles from the location thereof on the date hereof (other
than any relocation recommended or approved by Employee); or
(vi) any failure by the Company to comply with and satisfy the
provisions of Section 6, or failure by any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly 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; provided, in either case, that the
successor contemplated by Section 6 has received, at least 10 days prior
to the giving of notice of constructive termination by Employee, written
notice from the Company or Employee of the requirements of the provisions
of Section 6 or of such failure.
SECTION 4. Compensation Following Termination. (a) Death or Disability. If
the Employment Period is terminated pursuant to Section 3(a), then this
Agreement shall terminate, and no further compensation shall be payable to
Employee, except that (i) Employee or Employee's estate, heirs or
beneficiaries, as applicable, shall be entitled, in addition to any other
benefits to which Employee is or may become entitled under any benefit plan, to
receive from the Company continued payment of (A) Employee's then current base
salary hereunder for the remainder of the Company's fiscal year as if the
Employment Period had not been terminated pursuant to Section 3 (a) and expense
reimbursement pursuant to Section 5; (B) if the performance objectives pursuant
to Section 2(b) have been satisfied, Employee's then current bonus prorated for
the period of Employee's employment during the Company's fiscal year in which
the Employment Period is terminated and (C) all other benefits to which
Employee would otherwise be entitled hereunder during the Employment Period for
a period of 18 months after the date that the Employment Period terminates (the
"Relevant Period") and (ii) any options on shares of the common stock of, or
other equity interest (such options or other equity interest, the "Equity
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Interest") in, Holdings awarded to Employee shall be governed as provided for
under the applicable option plan or award or other agreement relating to the
Equity Interest.
(b) Termination for Cause or Voluntary Termination. If the Employment
Period is terminated for Cause or is voluntarily terminated by Employee for
reasons other than those described in Sections 3(a) or 3(d), then, subject to
Section 4(e), no further compensation or benefits shall be paid to Employee
after the date of termination (other than compensation earned but not paid
prior to the date of termination and expense reimbursement pursuant to Section
5)' and any Equity Interest in Holdings awarded to Employee shall be governed
as provided for under the applicable option plan or award or other agreement
relating to the Equity Interest.
(c) Termination Without Cause. If the Employment Period is terminated
pursuant to Sections 3(c), then Employee shall be entitled to continue to
receive from the Company continued payment of (i) 18 months' base salary
hereunder and (ii) 150% of Employee's bonus for the Company's fiscal year ended
most recently prior to such termination (paid in equal installments during such
1 8-month period). In addition, notwithstanding any provisions of the
applicable option plan or award or other agreement relating to any Equity
Interest in Holdings awarded to Employee, the Equity Interest shall vest and
become exercisable, and the Equity Interest and all shares previously acquired
in connection with the Equity Interest shall be subject to right of repurchase
by the Company or its appointed designee at a price equal to the Fair Market
Value (as defined in the applicable option plan or award or other agreement
relating to the Equity Interest) of the Equity Interest or such shares as of
the date of repurchase; moreover, Employee shall have the right to sell the
Equity Interest and all shares previously acquired in connection with the
Equity Interest to Holdings or its appointed designee at a price equal to the
Fair Market Value of the Equity Interest or such shares as of the date of sale.
Employee shall further be entitled during the Relevant Period to continue to
receive the benefits to which he would otherwise be entitled during the
Employment Period pursuant to Section 2(c) until the earlier of (x) the 1
8-month anniversary of the date that the Employment Period terminates or (y)
such time as Employee is eligible to receive comparable benefits from
subsequent employment or self-employment. Such continuation of compensation and
benefits shall continue for the period described herein, notwithstanding any
earlier death of Employee.
(d) Constructive Termination Without Cause. If the Employment Period is
terminated pursuant to Section 3(d), then Employee shall be entitled to
continue to receive from the Company continued payment of (i) 18 months' base
salary hereunder and (ii) 150% of Employee's bonus for the Company's fiscal
year ended most recently prior to such termination (paid in equal installments,
during
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such 18-month period). In addition, notwithstanding any provisions of the
applicable option plan or award or other agreement relating to any Equity
Interest in Holdings awarded to Employee, the Equity Interest shall vest and
become exercisable, and the Equity Interest and all shares previously acquired
in connection with the Equity Interest shall be subject to right of repurchase
by the Company or its appointed designee at a price equal to the Fair Market
Value (as defined in the applicable option plan or award or other agreement
relating to the Equity Interest) of the Equity Interest or such shares as of
the date of repurchase; moreover, Employee shall have the right to sell the
Equity Interest and all shares previously acquired in connection with the
Equity Interest to Holdings or its appointed designee at a price equal to the
Fair Market Value of the Equity Interest or such shares as of the date of sale.
Employee shall further be entitled during the Relevant Period to continue to
receive the benefits to which he would otherwise be entitled during the
Employment Period pursuant to Section 2(c) until the earlier of (x) the
18-month anniversary of the date that the Employment Period terminates or (y)
such time as Employee is eligible to receive comparable benefits from
subsequent employment or self-employment. Such continuation of compensation and
benefits shall continue for the period described herein, notwithstanding any
earlier death of Employee.
(e) Voluntary Termination under Certain Circumstances. If (i) the
Employment Period is voluntarily terminated by Employee for reasons other than
those described in Section 3(d), (ii) the shares are not traded on an exchange
or principal trading market on the date of such termination and (iii) such
termination occurs after the eighth anniversary of then Effective Date, then no
further compensation or benefits shall be paid to Employee after the date of
termination (other than compensation earned but not paid prior to the date of
termination and expense reimbursement pursuant to Section 5). In addition,
notwithstanding any provisions of the applicable option plan or award or other
agreement relating to any Equity Interest in Holdings awarded to Employee, the
Equity Interest shall vest and become exercisable, and the Equity Interest and
all shares previously acquired in connection with the Equity Interest shall be
subject to right of repurchase by Holdings or its appointed designee at a price
equal to the Fair Market Value of the Equity Interest or such shares as of the
date of repurchase; moreover, Employee shall have the right to sell the Equity
Interest and all shares previously acquired in connection with the Equity
Interest to Holdings or its appointed designee at a price equal to the Fair
Market Value of the Equity Interest or such shares as of the date of sale.
(f) Rating Downgrade. If, at any time that Employee is due any payment
under Sections 4(c) or 4(d), the generic rating of the long-term unsecured debt
of the Company and its Subsidiaries is suspended; withdrawn or falls (as
determined by Xxxxx'x Investors Service, Inc., Standard & Poor's Ratings
Services of The XxXxxx-Xxxx Companies, Inc. or their respective successors) and
such
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suspension, withdrawal or downgrade is not a result of any action taken or
omitted to be taken by Employee during his employment with the Company, then an
amount equal to the sum of all remaining payments under Sections 4(c) or 4(d)
shall be paid within 30 days of such suspension, withdrawal or downgrade.
SECTION 5. Expense Reimbursement. Upon the submission of reasonably
detailed documented expense account reports, the Company shall reimburse
Employee for all reasonable business-related travel and entertainment expenses
incurred by Employee in the course of his employment with the Company.
SECTION 6. Assignability; Binding Nature. This Agreement shall be binding
and inure to the benefit of the parties, and their respective successors, heirs
(in the case of Employee) and assigns. No obligations of the Company under this
Agreement may be assigned or transferred by the Company except pursuant to a
merger or consolidation of the Company in which the Company is not the
continuing entity, or the sale or liquidation of all or substantially all of
the assets of the Company; provided that the assignee or transferee is the
surviving entity or successor to all or substantially all of the assets of the
Company and such assignee or transferee assumes the liabilities, obligations
and duties of the Company, as contained in this Agreement, either contractually
or as a matter of law. As used in this Agreement, the "Company" shall mean the
Company as hereinbefore defined, respectively, and any successor to their
business and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
SECTION 7. Confidential Information. (a) Nondisclosure. During the
Employment Period or at any time thereafter, irrespective of the time, manner
or cause of the termination of this Agreement, Employee will not directly or
indirectly reveal, divulge, disclose or communicate to any person or entity,
other than authorized officers, directors and employees of the Company, in any
manner whatsoever, any Confidential Information (as hereinafter defined) of the
Company or any subsidiary or affiliate thereof without the prior written
consent of the Board.
(b) Definition. As used in this Section 7, "Confidential Information"
means information about the Company or any subsidiary or affiliate thereof, or
their respective businesses, products and practices which information is
disclosed to or known by Employee as a direct or indirect consequence of or
through Employee's employment and is not generally known in the business in
which the Company or such subsidiary or affiliate thereof is or may be engaged.
However, Confidential Information shall not include under any circumstances any
information with respect to the foregoing matters which is (i) available to the
public from an originating source other than Employee; (ii) released in writing
by the Company to the public; (iii) required to be disclosed by Employee
pursuant to
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any court process or any government or agency or department of any government
or (iv) the subject of a written waiver executed by the Company for the benefit
of Employee.
(c) Return of Property. Upon termination of Employee's employment with the
Company, Employee will surrender to the Company all Confidential Information,
including without limitation, all lists, charts, schedules, reports, financial
statements, books and records of the Company or any subsidiary or affiliate
thereof, and all copies thereof, and all other property belonging to the
Company or any subsidiary or affiliate thereof; provided that Employee shall be
accorded reasonable access to such Confidential Information subsequent to the
Employment Period for any proper purpose as determined in the reasonable
judgment of the Company, which will include the use thereby by Employee in any
litigation or similar proceeding to which Employee is a party or in an audit by
any government agency involving Employee.
SECTION 8. Agreement Not to Compete. Employee hereby agrees that during
the period of his employment with the Company and, for a period of 18 months
after the date that the Employment Period terminates for any reason, Employee
shall not, either in his own behalf or as a partner, member, officer, director,
employee, consultant, advisor, agent or shareholder (other than (i) as the
holder of less than 5% of the outstanding capital stock of any corporation with
a class of equity security registered under Section 12(b) or Section 12(g) of
the Securities Exchange Act of 1934, as amended from time to time, or (ii) any
capital stock of Holdings or its successors) engage in, invest in or render
services to any person or entity engaged in the businesses in which the Company
or any subsidiary or affiliate thereof are then engaged and situated within any
country. Nothing contained in this Section 8 shall be construed as restricting
Employee's right to sell or otherwise dispose of any business or investments
owned or operated by Employee as of the date hereof.
SECTION 9. Agreement Not to Solicit Employees. Employee agrees that
following the termination of the Employment Period for any reason, for the
Relevant Period, neither he nor any af(pound)iliate shall, on behalf of any
business engaged in a business competitive with the Company or any subsidiary
or affiliate thereof, solicit or induce, or in any manner attempt to solicit or
induce, any person employed by, or any agent of, either of the Company or any
subsidiary or affiliate thereof to terminate his employment or agency, as the
case may be, with either of the Company or such subsidiary or affiliate.
SECTION 10. Enforcement of Noncompetition and Nonsolicitation
Restrictions. Employee acknowledges that the restrictions imposed under
Sections 8 and 9, in view of the nature of the businesses in which the Company
are engaged and Employee's position with the Company, are reasonable and
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necessary to protect the legitimate interests of the Company. However, Employee
agrees that if any of these restrictions are construed to be invalid or
unenforceable, the remainder of the restrictions shall not be affected, and if
any restriction is held to be unenforceable because of the area covered, the
duration or the scope, Employee agrees that the court making such determination
shall have the power to reduce the area and/or the duration, and/or limit the
scope, and the restriction shall then be enforceable in its reduced form. While
the Company and Employee intend that the restrictions set forth in Sections 8
and 9 be observed and enforced for the full duration of the applicable periods
described in Sections 8 and 9, the Company and Employee agree that if Employee
violates these restrictions during such period, or a court of competent
jurisdiction rules that these restrictions are not enforceable during any
portion of the applicable periods described in Section 8 or 9, Employee shall
not be entitled to any of the amounts, if any, paid or payable under Sections
4(c) or 4(d) in respect of any such periods that the restrictions are not
observed by Employee or any such periods that the restrictions are ruled
unenforceable by any such court. Employee acknowledges and accepts that the
restrictions and remedies in this Agreement will apply without regard to the
reason for termination of Employee's employment with the Company, or to whether
Employee's employment is terminated by Employee or by the Company.
SECTION 11. No Violation. Employee hereby represents and warrants to the
Company that the execution, delivery and performance of this Agreement by
Employee does not, with or without the giving of notice or the passage of time,
or both, conflict with, result in a default, right to accelerate or loss of
rights under any provision of any agreement or understanding to which Employee
or, to the best knowledge of Employee, any of Employee's affiliates, are a
party or are otherwise bound.
SECTION 12. Captions. The captions, headings and arrangements used in this
Agreement are for convenience only and do not in any way affect, limit or
amplify the provisions hereof.
SECTION 13. Notices. All notices required or permitted to be given
hereunder shall be in writing and shall be deemed delivered, whether or not
actually received, two days after deposited in the United States mail, postage
prepaid, registered or certified mail, return receipt requested, addressed to
the party to whom notice is being given at the specified address or at such
other address as such party may designate by notice as herein provided:
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Company: Xxxxxxx Group, Inc.
X/X XXX Xxxxxxxx Xxxxxxx Xxxxxxxx 00, X.X.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
Employee: Xxxx X. Xxxxx
C/X Xxxxxxx Group, Inc.
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
With a copy to :
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Xx
Fax: (000) 000-0000
SECTION 14. Invalid Provisions. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under present or future laws, such
provisions shall be fully severable, and this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement; the remaining provisions of this Agreement
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance for this Agreement. In
lieu of each such illegal, invalid or unenforceable provision, there shall be
added automatically as part of this Agreement a provision as similar in terms
to such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
SECTION 15. Amendments. This Agreement may be amended in whole or in part
only by an instrument in writing setting forth the particulars of such
amendment and duly executed by an officer of the Company and by Employee.
SECTION 16. Waiver. No delay or omission by any party hereto to exercise
any right or power hereunder shall impair such right or power to be construed
as a waiver thereof. A waiver by any of the parties hereto of any of the
covenants to be performed by any other party or any breach thereof shall not be
construed to be a waiver of any succeeding breach thereof or of any other
covenant herein contained. Except as otherwise expressly set forth herein, all
remedies provided for in this Agreement shall be cumulative and in addition to
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and not in lieu of any other remedies available to any party at law, in equity
or otherwise.
SECTION 17. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original, and all of which
together shall constitute one and the same Agreement.
SECTION 18. Governing Law. This Agreement shall be construed and enforced
according to the laws of the State of New York.
SECTION 19. Payment Upon Death of Employee. In the event of the death of
Employee during the term hereof, any unpaid payments due either prior to
Employee's death or after Employee's death shall be payable as designated by
Employee in writing to the Company. In the event of the death of all such
persons so designated by Employee, either prior to the death of Employee or
during any time when payments are due as provided herein, or in the event
Employee fails to so designate, or withdraws all such designations, said
payments thereafter shall be made to Employee or to Employee's estate, heirs or
beneficiaries.
SECTION 20. Prior Employment Agreement. This Agreement supersedes any and
all other employment, change-in-control, severance or similar agreements
(written or oral) between Employee and the Company.
SECTION 21. Arbitration. Any dispute between the parties arising out of
this Agreement, whether as to this Agreement's construction, interpretation or
enforceability or as to any party's breach or alleged breach of any provision
of this Agreement, shall be submitted to arbitration in accordance with the
following procedures:
(i) Either party may demand such arbitration by giving notice of that
demand to the other party. The notice shall state (x) the matter in controversy
and (y) the name of the arbitrator selected by the party giving the notice.
(ii) Not more than 15 days after such notice is given, the other party
shall give notice to the party who demanded arbitration of the name of the
arbitrator selected by the other party. If the other party shall fail to timely
give such notice, the arbitrator that the other party was entitled to select
shall be named the Arbitration Committee of the American Arbitration
Association. Not more than 15 days after the second arbitrator is so named, the
two arbitrators shall select a third arbitrator. If the two arbitrators shall
fail to timely select a third arbitrator, the third arbitrator shall be named
by the Arbitration Committee of the American Arbitration Association.
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(iii) The dispute shall be arbitrated at a hearing that shall be concluded
within 10 days immediately following the date that the dispute is submitted to
arbitration, unless a majority of the arbitrators shall elect to extend the
period of arbitration. Any award made by a majority of the arbitrators (x)
shall be made within 10 days following the conclusion of the arbitration
hearing, (y) shall be conclusive and binding on the parties, and (z) may be
made the subject of a judgment of any court having jurisdiction.
(iv) All expenses of the arbitration shall be borne by the Company. The
agreement of the parties contained in the foregoing provisions of this Section
21 shall be a complete defense to any action, suit or other proceeding
instituted in any court or before any administrative tribunal with respect to
any dispute between the parties arising out of this Agreement.
SECTION 22. No Duty to Mitigate. Except to the extent set forth in Section
4(c), Employee shall not be required to mitigate the amount of any payment or
benefit to be provided pursuant to Section 4 by seeking other employment or
otherwise.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
COMPANY
XXXXXXX GROUP, INC.
By:
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Name:
Title:
EMPLOYEE
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Xxxx X. Xxxxx
