Employment Agreement - TMP Worldwide Inc. and Andrew J. McKelvey
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement"), dated as of November 15, 1996,
by and between TMP WORLDWIDE INC., a Delaware corporation (the "Company"), and
ANDREW J. MCKELVEY ("Employee").
PRELIMINARY RECITALS
The Company desires that Employee be employed to serve in a senior
executive capacity with the Company, and Employee desires to be so employed by
the Company, upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants set forth in
this Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. EMPLOYMENT.
1.1 ENGAGEMENT OF EMPLOYEE. The Company agrees to employ
Employee and Employee agrees to accept employment as Chairman of the Board and
President of the Company, all in accordance with the terms and conditions of
this Agreement.
1.2 DUTIES AND POWERS. During the Employment Period (as defined
below), Employee will serve as Chairman of the Board and President of the
Company and will have such responsibilities, duties and authorities, and will
render such services of an executive and administrative character and act in
such other executive capacity for the Company and its affiliates (as defined
below) as shall from time to time be reasonably directed by the Company's
board of directors (the "Board"). Employee shall devote Employee's best
efforts, energies and abilities and substantially all of Employee's business
time, skill and attention to the business and affairs of the Company. The
Company shall nominate Employee for election as a director of the Company for
all periods of Employee's employment hereunder. Notwithstanding anything
herein to the contrary, Employee may engage in other activities so long as
such activities do not unreasonably interfere with Employee's performance of
his duties hereunder.
1.3 EMPLOYMENT PERIOD. Employee's employment under this
Agreement shall begin on the date hereof and shall continue through and until
November 14, 2001 (the "Initial Employment Period"). Thereafter, the term of
this Agreement shall automatically be renewed for successive one year terms
(each, a "Renewal Period") unless either party shall give the other notice of
nonrenewal at least ninety (90) days prior to the expiration of the then current
Initial Employment Period or Renewal Period, as the case may be.
Notwithstanding anything to the contrary contained herein, the Initial
Employment Period and each Renewal Period are subject to termination pursuant to
SECTIONS 1.4, 1.5 and 1.6 below. The Initial Employment Period and all Renewal
Periods are sometimes collectively referred to herein as the "Employment
Period".
1.4 TERMINATION BY THE COMPANY. In addition to the nonrenewal
rights of the Company set forth in SECTION 1.3 hereof, the Company has the right
to terminate the Employment Period (and, consequently, Employee's employment
under this Agreement), by notice
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to Employee in writing at any time, (i) for "Cause" or (ii) without Cause for
any or no reason, subject to the provisions of SECTION 2.2. Any such
termination shall be effective upon the date of service of such notice pursuant
to SECTION 4.6.
"Cause" as used herein means the occurrence of any of the
following events:
(a) any repeated willful failure or refusal of Employee to
perform Employee's duties that continues or shall not have ceased within 30
days after the Board has given written notice to Employee specifying in
reasonable detail the manner in which Employee has failed to perform such
duties or comply with such directions; or
(b) conviction (which, through lapse of time or otherwise, is
not subject to appeal) of (i) a felony or (ii) any crime involving moral
turpitude.
1.5 TERMINATION BY EMPLOYEE. In addition to the nonrenewal
rights of Employee set forth in SECTION 1.3 hereof, Employee has the right to
terminate the Employment Period (and, consequently, Employee's employment under
this Agreement) by ninety (90) days prior written notice to the Company for any
or no reason (a "Voluntary Termination"). Notwithstanding anything to the
contrary contained herein, the Company may accelerate the effective date of a
Voluntary Termination to any date including, but not limited to, the date on
which notice is received by the Company. Following a notice of Voluntary
Termination, Employee agrees to fulfill Employee's duties hereunder and shall
cooperate fully in completion and turnover of all matters involving Employee
until such termination becomes effective, unless otherwise consented to by the
Company.
1.6 ADDITIONAL TERMINATION. The Employment Period shall
automatically terminate upon Employee's death or upon thirty days' written
notice from the Board in the event of Disability. Employee shall be deemed to
have a "Disability" for purposes of this Agreement if Employee is unable to
perform, by reason of physical or mental incapacity, Employee's duties or
obligations under this Agreement, for a total period of 270 days in any 360-day
period. The Board shall determine, according to the facts then available,
whether and when the Disability of Employee has occurred. Such determination
shall be made by the Board in the exercise of reasonable discretion.
2. COMPENSATION AND BENEFITS.
2.1 SALARY. In consideration of Employee performing Employee's
duties under this Agreement, during the Employment Period, the Company will pay
Employee a base salary at a rate of one million five hundred thousand dollars
($1,500,000) per annum (the "Base Salary"), payable in accordance with the
Company's regular payroll policy for salaried employees. If the Employment
Period is terminated pursuant to SECTION 1.4, SECTION 1.5 or SECTION 1.6 above,
then the Base Salary for any partial year will be prorated based on the number
of days elapsed in such year during which services were actually performed by
Employee, subject to the provisions of SECTION 2.2 below.
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2.2 COMPENSATION AFTER TERMINATION.
(a) If the Employment Period or this Agreement is terminated (i)
by the Company for Cause, (ii) by Employee pursuant to a Voluntary
Termination, or (iii) through expiration or nonrenewal of the Employment
Period, then the Company shall have no further obligations hereunder or
otherwise with respect to Employee's employment from and after the
termination date (except payment of Employee's Base Salary and benefits
described in SECTION 2.3 hereof, including but not limited to mandatory
bonuses, in each case which have accrued through the date of termination or
expiration), and the Company shall continue to have all other rights
available hereunder. If the Employment Period or this Agreement is
terminated by virtue of Employee's death or Disability, then the Company
shall have no further obligations hereunder or otherwise with respect to
Employee's employment from and after the termination date (except payment
of Employee's Base Salary and benefits described in SECTION 2.3 hereof,
including but not limited to mandatory bonuses, through the date which is
one hundred eighty (180) days after such termination) and the Company shall
continue to have all other rights available hereunder.
(b) If the Employment Period is terminated by the Company
without Cause, Employee shall be entitled to receive as severance pay (i)
Employee's Base Salary hereunder, and (ii) the benefits described in
SECTION 2.3 hereof, including but not limited to mandatory bonuses, in each
case for the period of time which would have been remaining in the Initial
Employment Period or the Renewal Period, as the case may be, in absence of
such termination, payable at such times and in such manner as would have
been the case had Employee remained employed hereunder.
2.3 OTHER BENEFITS.
(a) VACATION AND EMPLOYEE BENEFITS. During the Employment
Period, Employee shall be entitled to such vacations and to participate in
and receive any other fringe benefits customarily provided by the Company
to its senior management personnel, including but not limited to
hospitalization and health and disability insurance to the extent offered
by the Company.
(b) BUSINESS EXPENSES. During the Employment Period, the
Company will reimburse Employee in accordance with Company policy for
Employee's normal out-of-pocket expenses incurred in the course of
performing Employee's duties hereunder. Employee shall provide the Company
with all receipts and documentation supporting such expenses as may
reasonably be requested by the Company.
(c) MANDATORY BONUSES. With respect to each three month period
of the Employment Period, Employee shall be entitled to and shall be paid a
mandatory non-discretionary bonus of three hundred seventy-five thousand
dollars ($375,000), payable no later than the last day of the three month
period to which it relates.
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2.4 TAXES, ETC. All compensation payable to Employee hereunder
is stated in gross amount and shall be subject to all applicable withholding
taxes, other normal payroll deductions and any other amounts required by law to
be withheld.
3. CONFIDENTIAL INFORMATION. During the term of this Agreement and
thereafter, Employee shall keep secret and retain in strictest confidence, and
shall not, without the prior consent of the Board, furnish, make available or
disclose to any third party or use for the benefit of Employee or any third
party, any Confidential Information. As used in this SECTION 3, "Confidential
Information" shall mean any trade secret, proprietary or confidential
information relating to the business or affairs of the Company, the Business,
any Other Business, or the Company's affiliates, including but not limited to
information relating to financial statements, customer identities, potential
customers, employees, suppliers, servicing methods, equipment, programs,
strategies and information, analyses, profit margins or other trade secret,
proprietary or confidential information used by the Company or its affiliates,
including, without limitation, computer, software, hardware and related
information; provided, however, that Confidential Information shall not include
any information which is in the public domain or becomes known in the industry
through no wrongful act on the part of Employee. Employee acknowledges that the
Confidential Information is vital, sensitive, confidential and proprietary to
the Company and/or its affiliates. As used in this Agreement, the term
"affiliate" shall have the meaning ascribed to that term in Rule 405 of the
Securities Act of 1933, as amended, and shall include each past and present
affiliate of such person or entity. If this Agreement or the Employment Period
expires or is terminated for any reason, then, notwithstanding such termination,
the provisions contained in this SECTION 3 shall remain in full force and
effect. Employee acknowledges and agrees that the covenants set forth in this
SECTION 3 are reasonable and necessary for the protection of the business
interests of the Company and its affiliates, that irreparable injury will result
to the Company and its affiliates if Employee breaches any of the terms hereof
and that in the event of Employee's actual or threatened breach of any such
terms, the Company and its affiliates may have no adequate remedy at law.
Employee accordingly agrees that in the event of any actual or threatened breach
by Employee of any of the terms of this SECTION 3, the Company and its
affiliates shall be entitled to injunctive relief, specific performance and
other equitable relief, without bond and without the necessity of showing actual
monetary damages, subject to hearing as soon thereafter as possible. Nothing
contained herein shall be construed as prohibiting the Company and its
affiliates from pursuing any other remedies available to them for such breach or
threatened breach, including but not limited to the recovery of damages.
4. MISCELLANEOUS.
4.1 ASSIGNMENT. All covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective legal representatives, heirs, successors and
assigns of the parties hereto, whether so expressed or not.
4.2 ENTIRE AGREEMENT. Except as otherwise expressly set forth
herein, this Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof, and supersedes and preempts all prior oral
or written understandings and agreements with respect to the subject matter
hereof.
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4.3 SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
4.4 AMENDMENT; MODIFICATION. No amendment or modification of
this Agreement and no waiver by any party of the breach of any covenant
contained herein shall be binding unless executed in writing by the party
against whom enforcement of such amendment, modification or waiver is sought.
No waiver shall be deemed a continuing waiver or a waiver in respect of any
subsequent breach or default, either of a similar or different nature, unless
expressly so stated in writing.
4.5 GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with, and all questions concerning the construction,
validity, interpretation and performance of this Agreement shall be governed by,
the laws of the State of New York without giving effect to provisions thereof
regarding conflict of laws.
4.6 NOTICES. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been properly served if (a) delivered
personally, (b) delivered by courier, or (c) delivered by certified or
registered mail, return receipt requested and first class postage prepaid, in
each case to the parties at their addresses set forth below or such other
addresses as the recipient party has specified by prior written notice to the
sending party. All such notices and communications shall be deemed received
upon the actual delivery thereof in accordance with the foregoing.
(a) If to Employee:
c/o TMP Worldwide Inc.
1633 Broadway, 33rd Floor
New York, NY 10019
(b) If to the Company:
TMP Worldwide Inc.
1633 Broadway, 33rd Floor
New York, NY 10019
Attention: Board of Directors
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4.7 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same Agreement.
4.8 DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive
headings in this Agreement are inserted for convenience of reference only and
are not intended to be part of or to affect the meaning or interpretation of
this Agreement. The use of the word "including" in this Agreement shall be by
way of example rather than by limitation. The Preliminary Recitals set forth
above are incorporated by reference into this Agreement.
4.9 NO STRICT CONSTRUCTION. The language used in this Agreement
will be deemed to be the language chosen by the parties hereto to express their
mutual interest, and no rule of strict construction will be applied against any
party hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
COMPANY:
TMP WORLDWIDE INC.
By: /s/ THOMAS G. COLLISON
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Name: Thomas G. Collison
Title: Senior Vice President
EMPLOYEE:
/s/ ANDREW J. MCKELVEY
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Andrew J. McKelvey
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