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EXHIBIT 10.18
EMPLOYMENT AGREEMENT, AS AMENDED
EMPLOYMENT AGREEMENT, dated December 19, 1997 (this "Agreement"), as
amended by amendment # 1, dated January 1999, by and between Axe-Houghton
Associates, Inc., a Delaware corporation (the "Company"), and Robin N. Kerr
("Executive").
WHEREAS, Executive is currently employed by the Company pursuant to an
employment agreement dated April 8, 1993, between Executive and the Company,
which was amended on August 18, 1994 (the "Initial Employment Agreement");
WHEREAS, the Company and Executive each desire to terminate the Initial
Employment Agreement and enter into a new employment arrangement;
WHEREAS, the Company desires to employ Executive as Executive Vice
President and Senior Portfolio Manager, and Executive desires to be retained in
such capacities, on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
made herein, the Company and Executive agree as follows:
1. Employment; Duties.
(A) The Company shall employ Executive as Executive Vice President and
Senior Portfolio Manager for the "Employment Period" as defined in Section 2.
The Executive, in her capacity as Executive Vice President and Senior Portfolio
Manager, shall have such duties, responsibilities and authority with the Company
and its direct or indirect parents, subsidiaries or affiliates (collectively
referred to as "Affiliates") normally incident to such offices, subject to the
provisions of the by-laws of the Company and such Affiliates. The precise
duties, responsibilities and authority of Executive may be expanded, limited or
modified, from time to time, at the discretion of the Board of Directors of the
Company (the "Board") or the Chief Executive Officer of the Company, consistent
with the ordinary duties, responsibilities and authority of an Executive Vice
President and Senior Portfolio Manager.
(B) During the Employment Period, Executive shall render her services
solely in the performance of her duties hereunder. The Executive agrees that,
during the Employment Period, she shall devote her full working time, attention,
knowledge and experience and give her best effort, skill and abilities,
exclusively to promote the business and interests of the Company and its
Affiliates. The Executive may not serve as an officer or director of, make
investments in, or otherwise participate in, any other entity without the prior
written approval of the Board; provided, however, that the foregoing shall not
be deemed to prohibit Executive from acquiring, directly or indirectly, solely
as an investment,
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not more than two percent (2%) of any class of securities of any entity that are
registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934,
as amended (the "1934 Act"), or investments in non-public entities pursuant to
policies and procedures generally applicable to executives of the Company and
its Affiliates; and provided further, that so long as it does not interfere with
Executive's employment, Executive may serve as an officer, director or otherwise
participate in purely educational, welfare, social, religious and civic
organizations.
2. Employment Period. Executive's employment under this Agreement shall
have a term commencing on January 1, 1998 and ending on December 31, 2000 (the
"Initial Period"), unless sooner terminated in accordance with the provisions of
Section 4. On the expiration of the Initial Period and on each yearly
anniversary thereof, such employment term shall automatically renew for an
additional one-year period (each such one-year period being referred to as a
"Renewal Period"), unless sooner terminated in accordance with the provisions of
Section 4; provided, however, that no renewal shall occur if the Company or
Executive notifies the other in writing of its intention not to renew the
employment term not less than six (6) months prior to such expiration date or
anniversary, as the case may be. The period of Executive's employment under this
Agreement, as in effect from time to time, is referred to herein as the
"Employment Period".
3. Compensation and Benefits. Executive shall be entitled to the following
compensation and benefits, in each case subject to applicable deductions and
withholdings:
(A) Base Compensation. Executive shall be paid an aggregate base salary
(the "Base Salary") of $300,000 per annum. The Base Salary shall be payable in a
manner consistent with the normal payroll practices of the Company in effect
from time to time. The Board, in its sole discretion, or at the recommendation
of the Compensation and Stock Option Committee of the Board of Directors of
Hoenig Group Inc. (the "Compensation Committee"), may increase (but not
decrease) the Base Salary, at any time.
(B) Annual Bonus. In addition to the Base Salary, Executive shall be
entitled to receive a minimum annual bonus for each calendar year that ends
during the Employment Period of $300,000 (the "Minimum Bonus Award"), which
shall operate as a draw against, and be deducted from, a bonus pool ("Bonus
Pool") for employees of the small capitalization growth equities group
responsible for providing separate account management of institutional assets
invested in small capitalization growth equities (the "Small Cap Group"). The
Bonus Pool for a particular year shall equal thirty percent (30%) of the
Pre-Bonus Pre-Tax Profits (as defined below), less the deductions specified in
Section 3(B)(2) below. The Minimum Bonus Award plus any additional amounts paid
to Executive out of the Bonus Pool are collectively referred to herein as the
"Bonus Award". To the extent necessary to avoid the limitation on the federal
tax deductibility of the Bonus Award for any year under Section 162(m) of the
Internal Revenue Code of 1986, as amended (the "Code"), payment thereof may, at
the sole discretion of the Company, be deferred to the first taxable year of the
Company in which the payment would be fully deductible. Except as provided in
the previous sentence, the Bonus Award for a calendar year shall be payable as
soon as
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practicable after the release of the Company's audited financial statements for
such year. In the case of a deferral as described above, amounts deferred shall
be credited with such interest and on such other terms as the Company and
Executive shall mutually agree.
(1) "Pre-Bonus Pre-Tax Profits" shall mean the amount, if any,
determined in accordance with Generally Accepted Accounting Principles ("GAAP")
consistently applied from year to year, by which the total revenues of the Small
Cap Group for a particular calendar year exceed all direct expenses incurred in
generating such revenues and in the operation and conduct of the Small Cap
Group's business during that year. Such expenses include, but are not limited
to: (a) all salaries and non-bonus compensation paid to all employees of the
Small Cap Group (excluding salaries of sales personnel that are not part of the
Small Cap Group), including Executive, which includes related payroll taxes,
insurance and other benefits, any profit-sharing contributions made on behalf of
such employees, the cost of any stock options or other equity awards made to
such employees other than Restricted Shares awarded to Executive and any
restricted shares awarded to the other Senior Portfolio Manager of the Small Cap
Group, and any amounts paid to such employees upon termination of employment;
(b) rent (at cost per square foot); (c) telephones; (d) quotation, pricing,
portfolio management and client accounting systems; (e) computer hardware and
software; (f) electronic and other office equipment; (g) sales commissions
payable to Company sales personnel, (h) consulting and solicitation fees; (i)
business travel and entertainment determined in accordance with the Company's
practices; (j) legal and professional fees; and (k) membership dues and
subscriptions.
(2) For each calendar year during the Employment Period, the
following amounts shall be deducted from the Bonus Pool prior to the award of
bonuses to any employees, including Executive, of the Small Cap Group: (a) the
Minimum Cash Bonus and the cash value of Restricted Shares awarded to Executive,
and any minimum cash bonus paid and any restricted shares awarded to the other
Senior Portfolio Manager of the Small Cap Group with respect to the particular
year and (b) any Bonus Shortfall (as defined below) from prior years. In
addition there shall be deducted from the Bonus Pool any bonus paid to Executive
and the other Senior Portfolio Manager of the Small Cap Group with respect to
services rendered during the period January 1, 1998 through April 8, 1998.
(3) The amount remaining in the Bonus Pool after making the
deductions specified in Section 3(B)(2) shall be distributed to employees of the
Small Cap Group, including Executive, as Executive and the other Senior
Portfolio Manager mutually agree, subject to the approval of the Board. In the
event that, after making the necessary deductions specified in Section 3(B)(2),
the Bonus Pool for a particular year is not sufficient to pay bonuses to
employees of the Small Cap Group other than Executive and the other Senior
Portfolio Manager, the Company may determine, in its sole discretion, to pay
bonuses to such employees. The amount by which the total bonuses paid to
employees of the Small Cap Group, including Executive and the other Senior
Portfolio Manager, exceeds the amount of the Bonus Pool (the "Bonus Shortfall")
shall de deducted from the Bonus Pool for the next year, as described in Section
3(B)(2).
(C) Stock Bonus.
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(1) At the end of each calendar year during the Employment Period,
Executive shall be granted restricted shares of Hoenig Group Inc. common stock,
par value $.01 per share ("Restricted Shares") as follows:
(a) if total management fee revenues for the Small Cap Group for the
particular calendar year ("Fee Revenues") equal or exceed $4.5 million,
Executive shall receive $150,000 worth of Restricted Shares;
(b) if Fee Revenues equal or exceed $4 million, but are less than $4.5
million, Executive shall receive $100,000 worth of Restricted Shares; or
(c) if Fee Revenues equal or exceed $3.5 million, but are less than $4
million, Executive shall receive $50,000 worth of Restricted Shares.
The number of Restricted Shares to be granted under the foregoing circumstances
shall be determined by dividing the dollar value of Restricted Shares to be
awarded by the closing sales price per share of common stock on the date of the
award (the "Award Date"); provided that no fractional shares shall be awarded.
The Restricted Shares shall vest as follows: 50% shall vest immediately on the
Award Date and, subject to Section 3(C)(2) and Section 3(C)(3) below, an
additional 25% shall vest on each of the first two anniversaries of the Award
Date.
(2) The Restricted Shares shall be subject to the following
forfeiture provisions:
(a) If, during the Employment Period, Executive engages in Prohibited
Conduct (as defined in Section 3(C)(2)(c)), no further vesting of the Restricted
Shares shall occur. In addition, Executive shall forfeit any vested portion of
the Restricted Shares and instead shall receive a cash payment, without
interest, equal to the lower of the fair market value of the Restricted Shares
on the Award Date or the fair market value of the Restricted Shares on the date
of such Prohibited Conduct. In the event that Executive has disposed of the
Restricted Shares, Executive shall promptly pay to the Company the positive
difference, if any, between the amount Executive realized on the disposition of
the Restricted Shares and the fair market value of the Restricted Shares on the
Award Date.
(b) If, following the Employment Period, Executive engages in the
Prohibited Conduct described in Section 3(C)(2)(c)(i) or, if during the six
months immediately following termination of the Employment Period, Executive
engages in the Prohibited Conduct described in Sections 3(C)(2)(c)(ii) through
(v), Executive shall forfeit any vested Restricted Shares and instead receive a
cash payment, without interest, equal to the lower of fair market value of the
Restricted Shares on the Award Date or the fair market value of the Restricted
Shares on the date of such Prohibited Conduct. In the event that Executive has
disposed of the Restricted Shares, Executive shall promptly pay to the Company
the positive difference between the amount Executive realized on the disposition
of the Restricted Shares and the fair market value of the Restricted Shares on
the Award
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Date.
(c) "Prohibited Conduct" shall mean conduct which: (i) violates the
terms of the covenants not to compete or not to solicit contained in Sections 8
and 9 of this Agreement; (ii) involves a material breach of loyalty or
confidentiality owed to the Company or any of its Affiliates; (iii) involves a
material breach of this Agreement which is not cured within the given cure
period; (iv) disparages the Company or any of its Affiliates or any of their
respective officers or directors; or (v) is materially injurious to the Company
or any of its Affiliates and is not otherwise permissible under this Agreement.
(3) Upon a "Change in Control" of Hoenig Group Inc. during the
Employment Period, all of the Restricted Shares shall immediately vest. For
purposes of this Agreement, "Change in Control" shall have the same meaning
given to it in the Hoenig Group Inc. 1996 Long-Term Stock Incentive Plan (the
"1996 Plan") or such other plan or plans under which the Restricted Shares are
granted.
(4) Upon termination of the Employment Period for any reason (except
termination by the Company other than for Cause or by Executive with Good
Reason), no further Restricted Shares shall vest. Upon termination of the
Employment Period by the Company other than for Cause or by Executive for Good
Reason, all unvested Restricted Shares shall immediately vest. In addition, all
unvested Restricted Shares shall immediately vest at the end of the Initial
Period or any applicable Renewal Period if the Company elects not to renew
Executive's employment term under this Agreement.
(5) Each grant of Restricted Shares shall be subject to the terms
and conditions of the 1996 Plan or such other plan or plans under which they are
granted (including acceleration of vesting upon a Change in Control), and shall
be evidenced by an award certificate or other agreement which shall contain
terms not inconsistent with the provisions of this Section 3(C).
(D) Benefits. The Executive also shall be entitled to participate in
the employee and fringe benefit and group insurance programs provided by the
Company for its officers and employees generally and in accordance with the
terms of the applicable plan documents as they may be revised from time to time.
Executive shall be entitled to receive such other benefits as are generally
provided to executives of the Company. The Executive also shall be entitled to
reimbursement for reasonable out-of-pocket expenses incurred in connection with
the business of the Company in accordance with the Company's policies and
procedures.
4. Termination.
(A) The Company may, with or without prior notice, terminate the
Employment Period with or without Cause (as defined below) or for Disability (as
defined below). The Executive may terminate the Employment Period only for Good
Reason. The Employment Period shall automatically terminate upon Executive's
death or upon expiration of the Initial Period or a Renewal Period, as the case
may be, in the event that the Company
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or Executive elects not to renew. Except as otherwise provided in this
Agreement, Executive's rights and the obligations of the Company hereunder shall
cease as of the effective date of the termination; provided, however, that
Executive shall be entitled to receive any accrued but unpaid Base Salary, any
awarded but unpaid Bonus Awards and any amount accrued under Company benefit
plans as provided pursuant to the terms of such plans (the "Accrued
Obligations").
(B) In the event the Company terminates the Employment Period other
than for Cause, or if Executive terminates the Employment Period for Good
Reason, Executive shall be entitled to receive, in addition to the Accrued
Obligations, the following payments ("Termination Payments"), in each case
subject to applicable deductions and withholdings:
(1) if Fee Revenues for the twelve (12) months immediately preceding
the date of termination equal or exceed $4.5 million, a payment equal to
$750,000 multiplied by the number of years and/or fraction thereof remaining
until the end of the Initial Period or any applicable Renewal Period, as the
case may be;
(2) if Fee Revenues for the twelve (12) months immediately preceding
the date of termination equal or exceed $4.0 million, but are less than $4.5
million, a payment equal to $700,000 multiplied by the number of years and/or
fraction thereof remaining until the end of the Initial Period or any applicable
Renewal Period, as the case may be;
(3) if Fee Revenues for the twelve (12) months immediately preceding
the date of termination equal or exceed $3.5 million, but are less than $4.0
million, a payment equal to $650,000 multiplied by the number of years and/or
fraction thereof remaining until the end of the Initial Period or any applicable
Renewal Period, as the case may be; or
(4) if Fee Revenues for the twelve (12) months immediately preceding
the date of termination are less than $3.5 million, a payment equal to $600,000
multiplied by the number of years and/or fraction thereof remaining until the
end of the Initial Period or any applicable Renewal Period, as the case may be.
(4) All Termination Payments shall be paid out over the remaining
term of the Initial Period or any applicable Renewal Period, as the case may be,
in equal monthly installments.
(C) In the event of Executive's death after the Employment Period has
been terminated by the Company other than for Cause or by Executive for Good
Reason, the Company shall make any Termination Payments due under Section 4(B)
which would otherwise have been payable to Executive to Executive's estate or
designated beneficiary.
(D) A termination of the Employment Period (1) upon expiration
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of the Initial Period or any Renewal Period, whether at the Company's or
Executive's election, or (2) by reason of Executive's death or Disability, shall
not constitute a termination other than for Cause or for Good Reason, and
therefore, upon such termination, Executive shall be entitled to receive only
the Accrued Obligations, except as otherwise provided in Section 3(C)(4).
(E) As a condition to her entitlement to receive Termination Payments,
Executive shall (1) have executed and delivered to the Company a waiver and
release satisfactory to the Company waiving and releasing all rights and claims
against the Company and its Affiliates and their respective officers, agents,
directors and employees, and such waiver and release shall have become
irrevocable, and (2) not engage in Prohibited Conduct.
(F) In the event the Employment Period terminates for any reason
(except death), Executive agrees that if at that time she is a director or
officer of the Company or any of its Affiliates, she will immediately deliver
her written resignation as such director or officer, such resignation to become
effective immediately.
(G) Notwithstanding anything contained herein to the contrary, the
Company may reduce the Termination Payments to the extent such Termination
Payments, when added to other payments made to Executive (including the vesting
of Restricted Shares), constitute a "parachute payment" as defined in Section
280G of the Code.
(H) For purposes of this Agreement:
(1) "Cause" shall mean an event where Executive: (a) commits any act
of fraud or dishonesty in connection with her employment or willful misconduct
or other act which materially injures the Company or any of its Affiliates; (b)
breaches Section 5, 6, 7, 8 or 9, or any other material provision of this
Agreement or any material representation, warranty, covenant or condition in
this Agreement or any material fiduciary duty to the Company or any of its
Affiliates which, if curable, is not cured within fifteen (15) days from the
date the Company notifies Executive thereof; (c) fails, refuses or neglects to
timely perform any material duty or obligation under this Agreement and such
failure, refusal or neglect is not cured by Executive within fifteen (15) days
from the date the Company notifies Executive thereof; (d) commits a material
violation of any law, rule, regulation or by-law of any governmental authority
(state, federal or foreign), any securities exchange or association or other
regulatory or self-regulatory body or agency applicable to the Company or any of
its Affiliates or any general policy or directive of the Company or any of its
Affiliates communicated in writing to Executive; (e) is charged with a crime
involving moral turpitude, dishonesty, fraud or unethical business conduct, or a
felony; (f) is subject to the occurrence of an event or condition which makes it
unlawful for Executive to perform her duties hereunder, including the issuance
of any order, decree, decision or judgment, which remains in effect for eight
(8) weeks or more; (g) gives or accepts undisclosed commissions or other
payments in cash or in kind in connection with the affairs of the Company or any
of its Affiliates or their respective clients; (h) is expelled or suspended in
excess of eight (8) weeks, or is subject to an order temporarily (for a period
in
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excess of eight weeks) or permanently enjoining Executive from the securities,
investment management or investment banking business or from acting in the
capacity contemplated by this Agreement by the SEC, the NASD, any national
securities exchange or any self-regulatory agency or governmental authority
(state, foreign or federal); or (i) fails to obtain or maintain any
registration, license or other authorization or approval that the Company or any
of its Affiliates in their discretion reasonably believes is required for
Executive to perform her duties hereunder. Any termination for Cause under this
Agreement shall be made by delivering written notice thereof to Executive, which
notice shall include the specific section of this Agreement which is relied upon
and the reason that has given rise to a termination for Cause.
(2) "Good Reason" shall mean (a) the Company changes Executive's
status, title or position as Executive Vice President and Senior Portfolio
Manager of the Company and such change represents a material reduction in the
status, title or position conferred hereunder; or (b) the Company materially
breaches this Agreement, and such change in status or breach is not cured by the
Company within thirty (30) days from the date Executive delivers a notice of
termination for Good Reason. Such notice of termination for Good Reason shall
include the specific section of this Agreement which is relied upon and the
reason that the Company's act or failure to act has given rise to Executive's
termination for Good Reason.
(3) "Disability" shall mean Executive's inability to perform her
duties by reason of mental or physical disability for at least one hundred and
twenty (120) consecutive days or any one hundred and twenty (120) days (whether
or not consecutive) in any one-hundred eighty (180) consecutive day period. In
the event of a dispute as to whether Executive is disabled within the meaning
hereof, either party may from time to time request a medical examination of
Executive by a doctor appointed by the chief of staff of a hospital selected by
mutual agreement of the parties, or as the parties may otherwise agree, the
written medical opinion of such doctor shall be conclusive and binding upon the
parties as to whether Executive has become disabled and the date when such
disability arose. The cost of any such medical examination shall be borne by the
Company.
5. Trade Secrets and Confidential Information. The Executive recognizes
that it is in the legitimate business interest of the Company to restrict her
disclosure or use of Trade Secrets and Confidential Information (as defined
below) relating to the Company and its Affiliates for any purpose other than in
connection with her performance of her duties to the Company, and to limit any
potential appropriation of such Trade Secrets and Confidential Information by
Executive. Executive therefore agrees that all Trade Secrets and Confidential
Information relating to the Company and its Affiliates heretofore or in the
future obtained by Executive shall be considered confidential and the
proprietary information of the Company and its Affiliates. During the Employment
Period, Executive shall not use or disclose, or authorize any other person or
entity to use or disclose, any Trade Secrets or other Confidential Information,
other than as necessary to further the business objectives of the Company and
its Affiliates in accordance with the terms of her employment hereunder. The
term "Trade Secrets or other Confidential Information"
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includes, by way of example and without limitation, matters of a technical
nature, "know-how", formulas, secret or proprietary processes, works of
authorship, computer programs (including documentation of such programs),
services, materials, patent applications, new product plans, other plans,
technical information, technical improvements, test data, progress reports and
research projects, and all other matters of a business nature, such as business
plans, prospects, financial information, marketing plans and strategies,
proprietary information about costs, profits, markets and sales, lists of
customers and suppliers of the Company and its Affiliates, procurement and
promotional information, credit and financial data concerning customers or
suppliers of the Company and its Affiliates, information relating to the
management, operation and planning of the Company and its Affiliates, plans for
future development, and other information of a similar nature, in each case to
the extent not available to the public. After termination of the Employment
Period for any reason, Executive shall not use or disclose Trade Secrets or
other Confidential Information.
6. Company Property, Return of Documents and Property.
(A) All records, files, documents, computer programs, software, discs
or magnetic tape, equipment and similar items relating to the business of, or
provided by, the Company or Affiliates, including but not limited to all
correspondence, manuals, letters, notes, notebooks, reports, flow-charts,
proposals, documents concerning the Company's clients, products, services or
processes, records relating to the Company's Performance Record (as defined
below), and all materials derived therefrom, in each case in whatever medium,
(collectively "Company Property") which Executive shall prepare or receive from
the Company or its Affiliates during the Employment Period shall remain the sole
and exclusive property of the Company and Affiliates, as the case may be.
(B) Upon termination of the Employment Period, or at any time upon the
request of the Company, Executive (or her heirs or personal representatives)
shall deliver to the Company (1) all documents and materials (including, without
limitation, computer files) containing Trade Secrets or other Confidential
Information relating to the business and affairs of the Company and its
Affiliates, and (2) all Company Property which is in the possession or under the
control of Executive (or her heirs or personal representatives).
7. Discoveries and Work.
(A) All Discoveries and Works (as defined below) made or conceived by
Executive during her employment by the Company, jointly or with others, that
relate to the present or anticipated activities of the Company or its
Affiliates, or are used or usable by the Company or its Affiliates shall be
owned by the Company or its Affiliates. The term "Discoveries and Works"
includes, by way of example and without limitation, Trade Secrets and other
Confidential Information, patents and patent applications, trademarks and
trademark registrations and applications, service marks and service mark
registrations and applications, trade names, copyrights and copyright
registrations and applications. Executive shall (1) promptly notify, make full
disclosure to, and execute and deliver any documents requested by the Company or
any of its Affiliates, as the case may
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be, to evidence or better assure title to Discoveries and Works in the Company
or its Affiliates, as so requested, (2) renounce any and all claims, including
without limitation to claims of ownership and royalty, with respect to all
Discoveries and Works and all other property owned or licensed by the Company or
its Affiliates, (3) assist the Company and its Affiliates in obtaining or
maintaining for itself at its own expense United States and foreign patents,
copyrights, trade secret protection or other protection of any and all
Discoveries and Works, and (4) promptly execute, whether during her employment
with the Company or thereafter at the Company's expense, all applications or
other endorsements necessary or appropriate to maintain patents and other rights
for the Company and its Affiliates and to protect the title of the Company and
its Affiliates thereto, including but not limited to assignments of such patents
and other rights. Any Discoveries and Works which, within six (6) months after
the termination of the Employment Period, are made, disclosed, reduced to a
tangible or written form or description, or are reduced to practice by Executive
and which pertain to the business carried on, or products or services being sold
or developed by, the Company or any of its Affiliates at the time of such
termination shall, as between Executive and the Company, be rebuttably presumed
to have been made during the Employment Period. Executive acknowledges that all
Discoveries and Works shall be deemed "works made for hire" under the Copyright
Act of 1976, as amended, 17 U.S.C. (Section) 101.
(B) Executive hereby acknowledges and agrees that the investment
performance record of the Small Cap Group existing as of the date hereof as well
as achieved during the Employment Period, which includes without limitation the
investment performance record of the Small Capitalization Growth Equities
composite (collectively the "Performance Record"), is the sole and exclusive
property of the Company, and that the Company retains all rights, title and
interest in the Performance Record, including the sole right to advertise and
market such Performance Record. Executive further agrees that she shall not have
any right, during the Employment Period or thereafter, to use or claim any
ownership interest in the Performance Record, or any portion thereof, without
the prior written consent of the Company. Notwithstanding the foregoing
provision and subject to all applicable rules and laws and interpretations
thereof, including but not limited to the Investment Advisers Act of 1940, as
amended, the Investment Company Act of 1940, as amended, the rules of the
National Association of Securities Dealers ("NASD"), the rules of the
Association for Investment Management and Research ("AIMR"), state securities
laws, and the other provisions of this Agreement, Executive may refer to the
published Performance Record of the Company's Small Cap Group during the
Employment Period for the sole and limited purpose of informing third parties of
Executive's prior employment experience.
8. Non-Competition. During the Non-competition Period, Executive shall not
(except as an officer, director, employee, agent or consultant of the Company or
any of its Affiliates) directly or indirectly, own, manage, operate, join, or
have a financial interest in, control or participate in the ownership,
management, operation or control of, or be employed as an employee, agent or
consultant, or in any other individual or representative capacity whatsoever, or
use or permit her name to be used in connection with, or be otherwise connected
in any manner with any business or enterprise, wherever located, which is
similar to or competitive with the business carried on or planned by the
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Company or any of its Affiliates at any time during the one year immediately
preceding the termination of the Employment Period, unless Executive shall have
obtained the prior written consent of the Board; provided, however, that the
foregoing restriction shall not be construed to prohibit the ownership by
Executive of not more than two percent (2%) of any class of securities of any
corporation which is engaged in any of the foregoing businesses, having a class
of securities registered pursuant to Sections 12(b) or 12(g) of the 1934 Act,
which securities are publicly owned and regularly traded on any national
securities exchange or in the over-the-counter market; provided further, that
such ownership represents a passive investment and that neither Executive nor
any group of persons including Executive in any way, either directly or
indirectly, manages or exercises control of any such corporation, guarantees any
of its financial obligations, otherwise takes part in its business other than
exercising her rights as a stockholder, or seeks to do any of the foregoing.
Upon the written request of Executive following termination of the Employment
Period, the Company shall provide a list of businesses or enterprises that at
the time of termination of the Employment Period or during the preceding one
year, have been planned by the Company or any of its Affiliates. For purposes of
this Agreement, the Non-competition Period shall mean (i) the Employment Period,
(ii) one year following termination of the Employment Period if terminated by
the Company for Cause or by Executive other than for Good Reason; and (iii) any
period during which Executive is receiving Termination Payments as a result of
the Company's termination of the Employment Period other than for Cause or
Executive's termination of the Employment Period for Good Reason. In the event
that the Company terminates the Employment Period other than for Cause, or if
Executive terminates the Employment Period for Good Reason, Executive may elect
at any time after such termination, by ten (10) days advance written notice to
the Company, to terminate the Non-Competition Period. On and after such
election, the Company shall have no further obligation to make any Termination
Payments, except for such amounts as shall have been accrued prior to the date
of such election. Such election shall not effect any of the rights of the
Company with respect to the Non-Competition Period occurring prior to such
election. Notwithstanding anything contained herein to the contrary, Executive
shall be relieved of the provisions of this Section 8 upon termination of the
Employment Period (other than by reason of termination for Cause, without Cause
or for Good Reason) as a result of non-renewal, whether at the Company's or
Executive's election.
9. Non-Solicitation. (A) During the Noncompetition Period and for one year
following termination of the Employment Period as a result of non-renewal,
whether at the Company's or Executive's election, Executive agrees, directly or
indirectly, whether for her own account or for the account of any other
individual or entity, not to solicit or canvas the trade, business or patronage
of any individuals or entities that were either customers of the Company or any
of its Affiliates during the twelve (12) months immediately preceding the
termination of the Employment Period, or prospective customers with respect to
whom a sales effort, presentation or proposal was made by the Company, or any
Affiliate for whom Executive was working at the time of such termination, during
the twelve (12) months immediately preceding the date of termination. Upon the
written request of Executive following termination of the Employment Period, the
Company shall provide a list of customers and prospective customers subject to
this Section 9.
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(B) Executive further agrees that, during the Noncompetition Period and
for one year following termination of the Employment Period as a result of
non-renewal, she shall not, directly or indirectly, (1) solicit, induce, enter
into any agreement with, or attempt to influence any individual who was an
employee or consultant of the Company or any of its Affiliates at any time
during the time Executive was employed by the Company, to terminate her
employment relationship with the Company or any of its Affiliates or to become
employed by Executive or any individual or entity by which Executive is employed
or (2) interfere in any other way with the employment, or other relationship, of
any employee or consultant of the Company or any of its Affiliates.
Notwithstanding the foregoing the provisions of this Agreement and subject to
all applicable rules and laws and interpretations thereof, including but not
limited to, federal, state and common law fiduciary duties, Executive shall be
entitled to enter into an agreement with Ellen Adnopoz regarding employment
after termination of the Employment Period hereunder.
10. Enforcement. (A) Executive agrees that the remedies at law for any
breach or threatened breach by her of any of the provisions of Sections 5
through 9 will be inadequate, and that, in addition to any other remedy to which
the Company may be entitled at law or in equity, the Company shall be entitled
to a temporary or permanent injunction or injunctions or temporary restraining
order or orders to prevent breaches of the provisions of Sections 5 through 9
and to enforce specifically the terms and provisions thereof, in each case
without the need to post any security or bond. Nothing herein contained shall be
construed as prohibiting the Company from pursuing, in addition, any other
remedies available to the Company for such breach or threatened breach. A waiver
by the Company of any breach of any provision hereof shall not operate or be
construed as a waiver of a breach of any other provision of this Agreement or of
any subsequent breach by Executive.
(B) It is expressly understood and agreed that although the Company and
Executive consider the restrictions contained in Sections 5 through 9 to be
reasonable for the purpose of preserving the goodwill, proprietary rights and
going concern value of the Company, if a final judicial determination is made by
a court having jurisdiction that the time or territory or any other feature of
any restriction contained in such Sections 5 through 9 is an unenforceable
restriction on Executive's activities, the provisions of such Sections 5 through
9 shall not be rendered void but shall be deemed amended to apply as to such
maximum time and territory and to such other extent as such court may judicially
determine or indicate to be reasonable. Alternatively, if the court referred to
above finds that any restriction contained in Sections 5 through 9 or any remedy
provided herein is unenforceable, and such restriction or remedy cannot be
amended so as to make it enforceable, such finding shall not affect the
enforceability of any of the other restrictions contained therein or the
availability of any other remedy. The provisions of Sections 5 through 9 shall
in no respect limit or otherwise affect Executive's obligations under other
agreements with the Company.
11. Executive's Representations. Executive represents and warrants to the
Company that (A) she is able to perform fully her duties and responsibilities
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contemplated by this Agreement and (B) there are no restrictions, covenants,
agreements or limitations of any kind on her right or ability to enter into and
fully perform the terms of this Agreement.
12. Assignment. The rights and obligations of the parties under this
Agreement shall not be assignable by either the Company or Executive, provided,
however, that this Agreement is assignable by the Company to any of its
Affiliates, to any successor in interest to the business of any of the Company,
or to a purchaser of all or substantially all of the assets of the Company.
13. Notices. Any notice required or permitted under this Agreement shall be
in writing and shall be deemed to have been effectively made or given upon
receipt if personally delivered, on the third business day after having been
mailed properly addressed in a sealed envelope, postage prepaid by certified or
registered mail, or on the first business day after having been delivered by a
reputable overnight delivery service. Unless otherwise changed by notice, notice
shall be properly addressed to Executive if addressed to:
Robin N. Kerr
463 Hollow Tree Ridge Road
Darien, CT 06820
and properly addressed to the Company if addressed to:
Axe-Houghton Associates, Inc.
Royal Executive Park
4 International Drive
Rye Brook, NY 10573
Attention: Chief Executive Officer
14. Severability. Wherever there is any conflict between any provision of
this Agreement and any statute, law, regulation or judicial precedent, the
latter shall prevail, but in such event the provisions of this Agreement thus
affected shall be curtailed and limited only to the extent necessary to bring
them within such requirements. In the event that any provision of this Agreement
shall be held by a court of proper jurisdiction to be indefinite, invalid, void
or voidable or otherwise unenforceable, the balance of the Agreement shall
continue in full force and effect unless such construction would clearly be
contrary to the intentions of the parties or would result in an unconscionable
injustice.
15. Effect of Termination of Employment Period. Any termination of the
Employment Period shall not terminate any other provisions of this Agreement
except as otherwise provided herein.
16. Counterparts. This Agreement may be executed in several
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counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
17. Disputes. Any claim or controversy arising out of or relating to this
Agreement, or any breach thereof, or otherwise arising out of or relating to
Executive's employment, compensation and benefits with the Company or the
termination thereof, shall be settled by arbitration in New York, New York in
accordance with the Voluntary Labor Arbitration Rules of the American
Arbitration Association ("AAA"), or if the AAA refuses to accept and process any
such dispute for arbitration, then the rules of procedure established by the
Center for Public Resources; provided, however, that the parties agree that (A)
the panel of arbitrators shall be prohibited from disregarding, adding to or
modifying the terms of this Agreement, except as required by law; (B) the panel
of arbitrators shall be required to follow established principles of substantive
law and the law governing burdens of proof; (C) only legally protected rights
may be enforced in arbitration; (D) the panel of arbitrators shall be without
authority to award punitive or exemplary damages; (E) the chairperson of the
arbitration panel shall be an attorney licensed to practice law in New York who
has experience in similar matters; (F) the panel of arbitrators shall consist
solely of arbitrators from the securities or investment management industry; and
(G) any demand for arbitration made by Executive or the Company, must be filed
and served, if at all, within one hundred and eighty (180) days of the
occurrence of the act or omission complained of. Any claim or controversy not
submitted to arbitration in accordance with this Section 17 shall be considered
waived, and, thereafter, no arbitration panel or tribunal or court shall have
the power to rule or make any award on any such claim or controversy. The award
rendered in any arbitration proceeding held under this Section 17 shall be final
and binding, and judgment upon the award may be entered in any court having
jurisdiction thereof; provided, however, that the judgment conforms to
established principles of law and is supported by substantial record evidence.
Notwithstanding the foregoing, either the Company or Executive may elect not to
have this Section 17 apply with respect to matters arising from the provisions
of Sections 5 through 9, in which case such matters shall be subject to the
enforcement provisions of Section 10 hereof.
18. Miscellaneous; Choice of Law. This Agreement constitutes the entire
agreement, and supersedes all prior agreements, including the Initial Employment
Agreement, of the parties hereto relating to the subject matter hereof, and
there are no written or oral terms or representations made by either party other
than those contained herein. This Agreement shall be governed by and construed
and enforced in accordance with the domestic laws of the State of New York,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of New
York.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
AXE-HOUGHTON ASSOCIATES, INC.
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By: /s/ Lloyd Buchanan
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Its: Chief Operating Officer
/s/ Robin Kerr
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ROBIN KERR
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