Exhibit 10.68
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EMPLOYMENT AGREEMENT
This Agreement is entered into the 14th day of August, 2000, between Barry
Colvin (the "Employee") and Tremont Advisers, Inc. (the "Company").
WHEREAS, the Company wishes to employ the Employee in a new capacity and
the Employee wishes to be employed by the Company in that capacity, and the
parties wish to embody in a written Agreement the terms and conditions under
which the Employee shall be employed.
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement, the parties agree as follows:
1. Employment and Capacity. Effective on the date written above, the
Company shall employ the Employee as Chief Operating Officer, reporting to the
President. At the outset, the Chief Operating Officer will have the following
functions report to him: Manager Research, Marketing, Data Collection Worldwide,
Tremont Products, Customer Service, Bermuda Operations, Information Technology
and Project Management. The following functions will not report to him:
Financial Operations, Human Resources, Insurance Operations, and sales of TASS
Plus, Consulting, Syndication, Minority Operations, Canadian Operations and
Index Activities.
The Employee agrees to devote all of his professional time to his assigned
duties and obligations to the business of the Company and will comply with the
directions and orders of the President of the Company with respect to the
performance of his duties and obligations. During the term of this Agreement,
the Employee shall not be engaged in any other business activity, whether such
activity is pursued for gain, profit or other financial advantage.
2. Compensation. The Employee:
Shall be paid a base salary at the rate of $275,000 (two hundred and
seventy-five thousand dollars) on an annualized basis.
Shall be paid an annual bonus of at least $200,000 (two hundred thousand
dollars) provided that the Employee must be on the active payroll of the Company
on that date and be in good standing in order to be eligible to receive his
bonus. The bonus will be paid out at the time that the Company usually pays out
annual performance bonuses.
Will receive 100,000 (one hundred thousand) options subject to the terms of
the Company's Stock Option Plan when typically granted to other employees. This
option grant usually is made in the fourth quarter of the year.
Will be eligible, during the employment period, to participate in a similar
manner as other employees in such employee benefit plans and programs as may be
established,
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maintained and amended by the Company for its employees.
3. Purchase Of Company Stock. Before December 31, 2000, the Employee shall
purchase $25,000 (twenty-five thousand dollars) of Company stock in the open
market.
4. Termination of Employment. Unless otherwise terminated as provided for
in this paragraph, this Agreement shall terminate on January 1, 2002.
This agreement may be terminated any time prior to January 1, 2002 (i) by
the Employee voluntarily; (ii) by the Company with Cause; (iii) due to the death
or disability of the Employee (as defined by the Company's long-term disability
plan); or (iv) by the Company without Cause. In instances (i), (ii) or (iii),
the Company will have no further obligation or liability to pay any salary,
bonus, compensation or other benefits beyond the period that the Employee
actually worked.
Termination with Cause shall mean those instances in which the Company
reasonably and in good faith determines that the termination of the Employee is
appropriate by reason of (i) breach of this Agreement, (ii) the Employee's
insubordination, malfeasance, dishonesty or criminal conduct; (iii) the
Employee's conviction of moral turpitude or felony; (iv) the failure of the
employee to devote all of his professional time to his assigned duties and
obligations to the business of the Company; (v) the Employee's refusal, failure
or inability to perform his duties and obligations to the Company or (vi) a
factual representation made by the Employee or in furtherance of his hiring by
the Company shall prove to have been incorrect in any material respect when
made.
The Company may terminate this Agreement without Cause at any time prior to
January 1, 2002. In such event, the Employee shall receive a severance allowance
equal to the balance of the compensation due to him through December 31, 2001,
less all amounts required to be withheld or deducted. Benefits and any other
employee entitlements shall immediately cease as of the date of termination
without Cause.
In the event that the Employee voluntarily terminates his employment with
the Company prior to January 1, 2002, he shall pay the Company $50,000 (fifty
thousand dollars) as liquidated damages but not as a penalty. Such payment will
attempt to serve as recompense to the Company for the time, opportunity loss,
and cost of securing his replacement, absence of continuity and adverse impact
on customers and employees caused by his departure. This payment shall be made
in full within 15 days from the Employee's last day of employment with the
Company.
The employment relationship between the Company and the Employee is "at
will" and remains at will, which affords either party the right to terminate the
relationship at any time for any reason or for no reason not otherwise
prohibited by law, subject to the provisions of this Agreement.
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5. Non-Solicitation and Confidentiality. Upon termination of employment for
any reason, the Employee agrees that for a period of one (1) year following such
termination, the Employee will not, directly or indirectly, solicit the
employment of or offer employment to or induce or attempt to induce the
termination of any other person employed by the Company or any of its
affiliates, whether on behalf of the Employee or any third person or entity.
Employee will not disclose during or following the period of his employment
with the Company any confidential information, trade secrets or letter
agreements regarding himself, the Company, its affiliates, customers or
employees acquired by the Employee during the period of his employment to any
person, partnership, corporation, firm, association or other entity, provided
that this obligation shall not apply where disclosure is compelled by judicial
process.
Upon termination of this Agreement, the Employee shall return all
documents, correspondence, work papers, manuals, reports, lists, records, data,
books, computer disks, printouts, or materials of or pertaining to the Company,
or its subsidiaries or affiliates in his possession or control.
Employee agrees that the terms "confidential information" and "trade
secrets" means information (i) regarding the Company's personnel, customers and
clients (including but not limited to their identity, location, service
requirements and charges), business associates and contacts, sales and sales
methods, accounts, suppliers, products or service presentations, pricing and
cost practices, marketing strategies, plans for future development and other
trade secrets relating to the business of the Company which was obtained,
learned, or created by the Employee in carrying out the Company's business and
(ii) any information pertaining to the Company on any computer or electronic
data base to which the Employee had access during his employment with the
Company including information on PCs, networks, disks or other magnetic media
and any copies that were made, received or downloaded onto any laptop or other
privately owned computer.
Employee agrees to inform any new employer prior to accepting employment,
of the existence of the provisions of this Paragraph.
6. Non-Competition. Until the expiration of the employment period under
Paragraph 4 or if the Employee is terminated with or without Cause or if the
Employee voluntarily terminates his employment with the Company, the Employee
agrees not to engage, directly or indirectly (whether as an officer, director,
agent, employee, consultant or by ownership or otherwise) in a hedge fund
investment business in the Company's market area or solicit or accept business
from any of the Company's customers or accounts for a competitive business in
the Company's market area for a period of 6 (six) months following the
termination of his employ with the Company, not to extend past January 1, 2002.
The Company's market area extends a radius of 100 (one hundred) miles from each
of the following cities: New York, St. Louis, Chicago, London and San Francisco.
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Employee agrees to inform any new employer prior to accepting employment of
the existence of the provisions of this Paragraph.
Upon written application by the Employee following his termination from the
Company's employ, the Company may determine that although the Employee seeks to
be engaged in a competitive business, that engagement will not adversely impact
the Company. Under these circumstances, the Company will not unreasonably
withhold permission for the Employee to engage in a competitive business.
7. Enforceability. The Employee acknowledges that the covenants contained
in Paragraphs 4, 5 and 6 are necessary to protect the Company and that any
violation of such covenants would cause irreparable injury to the Company. The
Employee agrees that in the event of a breach or a threatened breach of any of
the provisions of Paragraphs 4, 5 or 6, the Company shall be entitled to
injunctive relief as a matter of right in any court of competent jurisdiction
without posting bond and to all other rights and remedies which may be available
under applicable law against the Employee, the Employee's employers, employees,
partners, agents or other associates. If the Company brings an action to enforce
any of the covenants set forth in Paragraphs 4, 5 or 6, the employee shall be
obligated to reimburse the Company for the costs of bringing the action,
including reasonable attorney's fees. The Company's right to injunctive relief
is in addition to whatever other remedies the Company may have, including the
recovery of damages from the Employee.
If, in a judicial proceeding, a court shall refuse to enforce one or more
of the covenants contained in Paragraphs 4, 5 or 6 because the duration is too
long or the scope is too broad, it is expressly agreed that for the purpose of
such proceeding, the duration and scope will be deemed reduced to the extent
necessary to permit the enforcement of these covenants.
The existence of any claims or causes of action of the Employee against the
Company, whether predicated on this Agreement or otherwise, shall not constitute
a defense to the enforcement by the Company of the covenants in Paragraphs 4, 5
or 6.
8. Representation. The Employee represents to the Company that neither the
acceptance of employment, nor the execution, delivery and performance of this
Agreement by the Employee results or will result in a breach or a default under
any other agreement.
9. Waiver of Breach. The waiver by the Company of any breach of any
provision of this Agreement by the Employee shall not operate or be construed as
a waiver of any other past, present or future rights granted under this
Agreement to the Company. No waiver shall be valid unless in writing and signed
by an authorized officer of the Company.
10. Validity. If any portion of this Agreement is determined to be invalid
or unenforceable, such determination will not affect the validity or
enforceability of the remaining portions or Paragraphs of this Agreement as a
whole, and this Agreement will then be interpreted
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as if the invalid or unenforceable portions had not been inserted.
11. Understanding. This Agreement contains the entire understandings of the
parties with respect to the subject matter of the Agreement covering the period
between August 14, 2000 and December 31, 2001, and supersedes all prior
agreements, whether oral or written. This Agreement may not be changed orally
but only by a written agreement, signed by the party against whom enforcement of
any waiver, change, modification, extension or discharge is sought.
12. Governing Law. This Agreement shall be governed by the laws of the
State of New York (regardless of the laws that might otherwise govern under
applicable conflict of laws principles) as to all matters, including but not
limited to matters of validity, construction, effect, performance and remedies.
13. Arbitration. Except for the seeking of injunctive relief described in
Paragraphs 7, any controversy or dispute relating to the Employee's employment
by the Company will be settled by binding arbitration conducted in New York City
in accordance with the rules of the American Arbitration Association, and
judgment upon the award rendered may be entered and enforced in any court having
jurisdiction over the matter.
14. Binding Effect. The Employee acknowledges that the services to be
rendered by him are unique and personal. Accordingly, the Employee may not
assign any of his rights or delegate any of his duties or obligations under this
Agreement. This Agreement shall be binding upon and inure to the benefit of the
parties to this Agreement and their respective heirs, personal representatives,
successors and assigns as applicable.
15. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and sent by certified mail to the
Employee's last known residence or to the Company's principal office.
It shall be noted that the terms "he," "him" or "his" shall be applied to
the parties without regard to gender and any headings in this Agreement have
been inserted for convenience only and have no legal effect.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first written above.
ON BEHALF OF THE COMPANY EMPLOYEE
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BY: Robert Schulman BY: Barry Colvin
President, Tremont Advisers, Inc.
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