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Exhibit 10.2
AGREEMENT
Agreement made as of the 1st day of August, 1999, by and
between New Valley Corporation, a corporation incorporated under the laws of
the State of Delaware, with its principal place of business at 000 Xxxxxxxxx
Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000 (the "Company"), and X. Xxxxxx Xxxxxxxx
III, residing at 0000 Xxxx Xxxxxx, Xxx. 000, Xxxxx Xxxxx, Xxxxxxx 00000 (the
"Executive").
W I T N E S S E T H :
WHEREAS, the Company desires to employ Executive as its Vice
President, Treasurer and Chief Financial Officer and Executive is willing to
serve in such capacities;
WHEREAS, the Company and Executive desire to set forth the
terms and conditions of such employment.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements herein contained, the Company and Executive
agree as follows:
1. Employment.
The Company hereby agrees to employ Executive, and Executive
agrees to be employed by the Company, on the terms and conditions herein
contained as its Vice President, Treasurer and Chief Financial Officer and in
such other executive capacities with the Company and its affiliated entities as
assigned from time to time by more senior executives of the Company. The
Executive shall devote substantially all of his business time, energy, skill
and efforts to the performance of his duties hereunder and shall faithfully and
diligently serve the Company. The foregoing shall not prevent Executive from
participating in not-for-profit activities or from managing his passive
personal investments provided that these activities do not materially interfere
with Executive's obligations hereunder.
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2. Term of Employment.
Executive's employment under this Agreement shall be for a
term commencing on August 1, 1999 (the "Effective Date") and, subject to
earlier termination as provided in Section 7 below, terminating on August 1,
2000 (the "Initial Term"). The Initial Term shall be extended for successive
one-year periods (the "Additional Terms") unless terminated at the end of the
Initial Term or any Additional Term by either party upon ninety (90) days prior
written notice given to the other party (the Initial Term and any Additional
Terms shall be referred to as the "Employment Term"). Notwithstanding anything
else herein, the provisions of Section 8 hereof shall survive and remain in
effect notwithstanding the termination of the Employment Term or a breach by
the Company of this Agreement or any of its terms.
3. Compensation.
(a) As compensation for his services under this
Agreement, the Company shall pay Executive a salary at the rate of Two Hundred
and Fifty Thousand Dollars ($250,000) per year (the "Base Salary"), payable in
equal installments (not less frequently than monthly) and subject to
withholding in accordance with the Company's normal payroll practices. The
Executive's Base Salary shall be reviewed annually by the Company and may be
increased, but not decreased, in the Company's sole discretion. (b) In addition
to the Base Salary, the Company may, in its sole discretion, pay Executive
bonuses from time to time.
4. Benefits and Fringes.
During the Employment Term, Executive shall be entitled to
such benefits and fringes, if any, as are generally provided from time to time
by the Company to its executive employees of a comparable level, including any
life or medical insurance plans and pension and other similar plans, provided
that the Executive shall be provided with life insurance at least equal to his
Base Salary (provided he is insurable at standard rates).
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5. Expenses.
The Company shall reimburse Executive in accordance with its
expense reimbursement policy as in effect from time to time for all reasonable
expenses including at least 40 hours of continuing professional education per
annum incurred by Executive in connection with the performance of his duties
under this Agreement upon the presentation by Executive of an itemized account
of such expenses and appropriate receipts.
6. Vacation.
During the Employment Term, Executive shall be entitled to
vacation in accordance with the Company's practices, provided that Executive
shall not be entitled to less than four weeks paid vacation in each full
contract year.
7. Earlier Termination.
(a) Executive's employment under this Agreement and
the Employment Term shall terminate prior to August 1, 2000 as follows:
(i) automatically on the date of
Executive's death.
(ii) Upon written notice given by the
Company to the Executive if Executive is unable to perform his material duties
hereunder for 180 days (whether or not continuous) during any period of 360
consecutive days by reason of physical or mental disability.
(iii) Upon written notice by the Company to
the Executive for Cause. Cause shall mean (A) the Executive's conviction
(treating a nolo contendere plea as a conviction) of a felony (whether or not
any right of appeal has been or may be exercised); (B) willful refusal to
attempt to properly perform his obligations under this Agreement, or follow the
direction of the Board of Directors of the Company (the "Board") or a more
senior executive of the Company, which in either case is not remedied promptly
after receipt by the Executive of written notice from the Company specifying
the details thereof, provided the refusal to follow a direction shall not be
Cause if the Executive in good faith believes that such direction is not legal
or ethical and promptly notifies the Company in writing of such belief; (C) the
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Executive's gross negligence or willful misconduct with regard to the Company
or its affiliated entities, their business, assets or employees; (D) the
Executive's breach of fiduciary duty owed to the Company or any subsidiary
thereof, including, without limitation the obligations set forth in Section 8
hereof; or (E) any other breach by the Executive of a material provision of
this Agreement that remains uncured for ten (10) days after written notice
thereof is given to the Executive. Upon a termination for Cause, the Executive
(and his representative) shall be given the opportunity to appear before the
Board to explain why the Executive believes that Cause did not occur. Such
appearance shall be scheduled on no less than twenty (20) and no more than
forty (40) days notice to Executive. In the event the Board agrees with the
Executive, which shall be a determination made in its sole discretion, the
Executive shall be retroactively reinstated in his position.
(iv) Upon written notice by the Company
without Cause.
(v) Upon the voluntary resignation of the
Executive without Good Reason upon sixty (60) days prior written notice to the
Company (which the Company may in its sole discretion make effective earlier).
(b) Upon such earlier termination of the Employment
Term the Executive shall be entitled to receive any unpaid salary and accrued
vacation through his date of termination and any benefits under any benefit
plan in accordance with the terms of said plan. In addition, if the termination
is pursuant to (a)(iv) above or non-renewal of the Employment Term by the
Company pursuant to Section 2 above, the Executive shall receive, provided he
signs a release of all claims arising out of his employment with the Company or
termination thereof (other than his right to indemnification, which shall
survive) in such form as reasonably requested by the Company, severance pay in
a lump sum equal to the amount of Base Salary he would have received if he was
employed until one year after termination of the Employment Term. Such lump sum
severance shall be paid within ten (10) business days after the Executive's
execution of the aforesaid release. In the event termination is pursuant to
(a)(ii) alone, the Executive shall receive in monthly payments for one (1) year
thereafter his Base Salary reduced by any disability benefits or worker's
compensation salary replacement he receives from any program sponsored or made
available by the Company or a governmental entity. In addition, until the
earlier of (i) Executive commencing other full-time employment or (ii) 12
months after the end of the Employment Term, to the extent the Executive or his
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dependents are eligible for COBRA coverage, the Company shall pay for such
coverage. The Company and its affiliated entities shall have no other
obligations to the Executive.
8. Confidential Information and Non-Competition.
(a) Executive acknowledges that as a result of his
employment by the Company, Executive will obtain secret and confidential
information as to the Company and its affiliated entities, that the Company and
its affiliated entities will suffer substantial damage, which would be
difficult to ascertain, if Executive shall enter into Competition, as defined
below, with the Company or any affiliated entity and that because of the nature
of the information that will be known to Executive it is necessary for the
Company to be protected by the prohibition against Competition set forth
herein, as well as the Confidentiality restrictions set forth herein. Executive
acknowledges that the provisions of this Agreement are reasonable and necessary
for the protection of the business of the Company and its affiliated entities
and that part of the compensation paid under this Agreement is in consideration
for the agreements in this Section 8.
(b) Competition shall mean:
(i) participating, directly or indirectly,
as an individual proprietor, partner, stockholder, officer, employee, director,
joint venturer, investor, lender, consultant or in any capacity whatsoever
(within the United States of America, Canada, or in any country where the
Company or its affiliates do business) in a business in competition with any
operating business conducted by the Company or its affiliated entities; with
regard to which Executive worked or otherwise had responsibilities or had
access to material Confidential Information while employed by the Company or
its affiliated entities or an investment opportunity within the provisions of
subpart (E) below; provided, however, that such participation shall not
include: (A) the mere ownership of not more than one percent (1%) of the total
outstanding stock of a publicly held company; (B) the performance of services
for any enterprise to the extent such services are not performed, directly or
indirectly, for a business in the aforesaid Competition; (C) any activity
engaged in with the prior written approval of the Chief Executive Officer of
the Company; (D) the practicing of accounting in an accounting firm that
represents such competing business provided that Executive does not personally
represent such competing business; or (E) investment banking activities
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(including without limitation with an investment entity for its own account or
a fund operated by it) provided such activities do not involve any investment
opportunity that the Company or any affiliated entity is considering or
advising on at the time of termination of the Employment Term either for its
own account, any fund managed by it or for any customer or potential customer
of the Company or such entity.
(ii) recruiting, soliciting or inducing, of
any nonclerical employee or employees of the Company or its affiliated entities
to terminate their employment with, or otherwise cease their relationship with,
the Company or its affiliated entities or hiring or assisting another person or
entity to hire any nonclerical employee of the Company or its affiliated
entities or any person who within six (6) months before had been a nonclerical
employee of the Company or any of its affiliated entities. Notwithstanding the
foregoing, if requested by an entity with which Executive is not affiliated,
Executive may serve as a reference for any person who at the time of the
request is not an employee of the Company or any of its affiliated entities.
(iii) If any restriction set forth with
regard to Competition is found by any court of competent jurisdiction, or an
arbitrator, to be unenforceable because it extends for too long a period of
time or over too great a range of activities or in too broad a geographic area,
it shall be interpreted to extend over the maximum period of time, range of
activities or geographic area as to which it may be enforceable.
(c) During and after the Employment Term, Executive
shall hold in a fiduciary capacity for the benefit of the Company and its
affiliated entities all secret or confidential information, knowledge or data
relating to the Company and its affiliates, and their respective businesses,
including any confidential information as to customers of the Company or its
affiliated entities, (i) obtained by Executive during his employment by the
Company or its affiliated entities and (ii) not otherwise public knowledge or
known within the Company's or affiliated entity's industry. Executive shall
not, without prior written consent of the Company, unless compelled pursuant to
the order of a court or other governmental or legal body having jurisdiction
over such matter, communicate or divulge any such information, knowledge or
data to anyone other than the Company and those designated by it. In the event
Executive is compelled by order of a court or other governmental or legal body
to communicate or divulge any such information, knowledge or data to anyone
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other than the Company and those designated by it, Executive shall promptly
notify the Company of any such order and shall cooperate fully with the Company
in protecting such information to the extent possible under applicable law.
(d) Upon termination of Executive's employment with
the Company and its affiliated entities, or at any other time as the Company
may request, Executive will promptly deliver to the Company all documents
(whether prepared by the Company, an affiliated entity, Executive or a third
party) relating to the Company or an affiliated entity or any of their
businesses or property which Executive may possess or have under his direction
or control.
(e) During the Employment Term and for one (1) year
thereafter, Executive will not enter into Competition with the Company or its
affiliated entities.
(f) In the event of a breach or potential breach of
this Section 8, Executive acknowledges that the Company and its affiliated
entities will be caused irreparable injury and that money damages may not be an
adequate remedy and agree that the Company and its affiliated entities shall be
entitled to injunctive relief (in addition to its other remedies at law) to
have the provisions of this Section 8 enforced.
9. Executive Representation
Executive represents and warrants that he is under no
contractual or other limitation from entering into this Agreement and
performing his obligations hereunder.
10. Indemnification
The Executive shall be entitled to be indemnified by the
Company for his actions as an officer, director, employee, agent or fiduciary
of the Company or its affiliated entities to the fullest extent permitted by
applicable law and shall have legal fees and other expenses paid to him in
advance of final disposition of a proceeding provided he executes an
undertaking to repay such amounts if, and to the extent, required to do so by
applicable law. The Company shall cover the Executive under any directors and
officers liability insurance policy to the same extent as its other senior
officers.
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11. Entire Agreement; Modification.
This Agreement constitutes the full and complete
understanding of the parties hereto and will supersede all prior agreements and
understandings, oral or written, with respect to the subject matter hereof.
Each party to this Agreement acknowledges that no representations, inducements,
promises or agreements, oral or otherwise, have been made by either party, or
anyone acting on behalf of either party, which are not embodied herein and that
no other agreement, statement or promise not contained in this Agreement shall
be valid or binding. This Agreement may not be modified or amended except by an
instrument in writing signed by the party against whom or which enforcement may
be sought.
12. Severability.
Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms of
provisions of this Agreement in any other jurisdiction.
13. Waiver of Breach.
The waiver by any party of a breach of any provisions of this
Agreement, which waiver must be in writing to be effective, shall not operate
as or be construed as a waiver of any subsequent breach.
14. Notices
All notices hereunder shall be in writing and shall be deemed
to have been duly given when delivered by hand, or one day after sending by
express mail or other "overnight mail service," or three days after sending by
certified or registered mail, postage prepaid, return receipt requested. Notice
shall be sent as follows: if to Executive, to the address as listed in the
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Company's records; and if to the Company, to the Company at its office or set
forth at the head of this Agreement, to the attention of the Chairman. Either
party may change the notice address by notice given as aforesaid.
15. Assignability; Binding Effect.
This Agreement shall be binding upon and inure to the benefit
of Executive and Executive's legal representatives, heirs and distributees, and
shall be binding upon and inure to the benefit of the Company, its successors
and assigns. This Agreement may not be assigned by the Executive. This
Agreement may not be assigned by the Company except in connection with a merger
or a sale by the Company of all or substantially all of its assets and then
only provided the assignee specifically assumes in writing all of the Company's
obligations hereunder.
16. Governing Law.
(a) All issues pertaining to the validity,
construction, execution and performance of this Agreement shall be construed
and governed in accordance with the laws of the State of Florida, without
giving effect to the conflict or choice of law provisions thereof.
(b) Any dispute or controversy with regard to this
Agreement, other then injunctive relief pursuant to Section 8, shall be settled
by arbitration in Miami, Florida before the American Arbitration Association
("AAA") in accordance with the rules of Commercial Arbitration of the AAA. The
decision of the arbitrators shall be final and binding upon the parties hereto
and may be entered in any court having jurisdiction. The parties shall each
bear fifty (50) percent of the cost of the AAA and the arbitrators, but each
party shall bear its or his own legal expenses.
17. Headings.
The headings in this Agreement are intended solely for
convenience or reference and shall be given no effect in the construction or
interpretation of this Agreement.
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18. Counterparts.
This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company has caused this Agreement to
be duly executed and Executive has hereunto set his hand as of the date first
set forth above.
NEW VALLEY CORPORATION
By: /s/ Xxxxxxx X. XxXxx
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Name: Xxxxxxx X. XxXxx
Title: Chairman and Chief Executive Officer
By: /s/ X. Xxxxxx Xxxxxxxx III
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X. Xxxxxx Xxxxxxxx III
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