EXHIBIT 10 (a)
EMPLOYMENT AGREEMENT
AGREEMENT (the "Agreement") dated as of March 20, 2002 amending and
restating the Agreement dated as of July 10, 2001 (the "Original Agreement") by
and between Sotheby's Holdings, Inc. (the "Company") or ("Sotheby's") and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (the "Executive").
W I T N E S S E T H :
WHEREAS, the Company entered into the Original Agreement to specify
the terms and conditions on which the Executive would be employed by the
Company; and
WHEREAS, the Company and the Executive desire to amend certain
provisions of the Original Agreement as further specified herein.
NOW, THEREFORE, in consideration of the mutual promises and
conditions herein set forth, the parties hereto agree to amend the Original
Agreement and to restate the Original Agreement as so amended to read in its
entirety as follows:
1. TERM. The term of this Agreement (the "Term") shall commence on
January 1, 2001 and shall continue, unless terminated in accordance with
Paragraph 4 herein or as otherwise provided in this Agreement, until December
31, 2003.
2. DUTIES AND AUTHORITY. During the Term, the Executive agrees to
continue to serve the Company, and the Company agrees to continue to employ the
Executive, as Chief Executive Officer and President and to continue to nominate
him as a member of the Board of Directors of the Company and support, in good
faith, his election as a member of the Board of Directors of the Company. In
serving in the aforementioned positions, the Executive shall have such authority
and responsibility as are customarily attendant to such positions and as may be
specified from time to time by the Board of Directors of the Company. The
Executive shall report directly to the Board of Directors of the Company. Except
as otherwise permitted by the Company, the Executive shall devote substantially
all of his business time (excluding periods of vacation and sick leave) and
efforts to the performance of his functions and responsibilities for the Company
and its affiliates.
3. COMPENSATION AND BENEFITS. In full consideration for all services
rendered by the Executive during the Term, the Executive will receive the
following compensation and benefits:
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(a) BASE SALARY. The Executive shall receive an annual base
salary of not less than five hundred thousand dollars ($500,000) (the "Base
Salary") payable in accordance with the customary payroll practices of the
Company. During the Term, the Executive's Base Salary will be reviewed by the
Compensation Committee of the Board of Directors of the Company and may be
adjusted upward (but not downward) to reflect the Executive's performance and
responsibilities.
(b) ANNUAL INCENTIVE COMPENSATION. During the Term, the Executive
shall be eligible to receive annual incentive compensation ("Annual Incentive
Compensation"). The Executive's annual incentive target shall be one hundred
percent (100%) of the Executive's Base Salary during the year in which the
compensation is accrued, payable at such times as such Annual Incentive
Compensation is paid to other executives of the Company as determined by the
Compensation Committee in its sole discretion.
(c) RETENTION BONUS. The Executive shall receive retention
bonuses ("Retention Bonus") in the aggregate amount of seven million dollars
($7,000,000) payable as follows: (i) five hundred thousand dollars ($500,000) on
February 1, 2002; (ii) five hundred thousand dollars ($500,000) on September 1,
2002; (iii) three million dollars ($3,000,000) on December 31, 2002; and (iv)
three million dollars ($3,000,000) on December 31, 2003, provided, however, that
Executive remains continuously employed by the Company at the date each such
payment is to be made or is entitled to such payment or payments pursuant to
Section 5(a)(6) or Section 5(c). These Retention Bonuses shall not be subject to
renewal after the Term nor shall be included in any calculation pursuant
Subparagraph 3(k) or Paragraph 5 (except as set forth in this subparagraph).
(d) STOCK OPTIONS. For 2002 and 2003, the Executive shall be
granted options pursuant to the Company's Stock Option Plan (the "Stock Option
Plan") in accordance with the Company's annual practice. If a Change of Control
occurs before the Executive's 250,000 options issued in February 2001 or the
stock options granted during 2002 or 2003 (if any) have become exercisable under
the Stock Option Plan, then the Executive shall be paid in cash the difference
between the exercise price of any such options and the price per share for
Sotheby's shares in the Change of Control transaction.
(e) EXPENSE REIMBURSEMENT. The Company will reimburse the
Executive for ordinary and necessary business and travel expenses incurred in
the performance of the Executive's duties in accordance with the Company's
standard procedures in effect for the senior most executives of the Company.
(f) BENEFITS. The Executive shall be eligible to continue to
participate in all benefit plans now or hereafter maintained by or on behalf of
the Company for its most senior executives or in which such senior executives
participate and shall receive all fringe benefits and vacations, for which the
Executive's level of employment makes him eligible in accordance with
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the Company's policies and the terms of such plans. Such benefits shall not be
reduced, unless they are reduced in the same manner for all other senior
executives of the Company.
(g) SPECIAL PAYMENT. The Executive shall be eligible to continue
to receive the special payment made to him on September 1, 2000 if it is
determined by the Company, in its sole discretion, to continue it and for as
long thereafter as the Company decides is appropriate.
(h) BUSINESS DEVELOPMENT ALLOWANCE. The Executive will be
eligible for a business development allowance of at least $25,000 for each
calendar year during the Term.
(i) CAR ALLOWANCE. During the Term, the Company will pay for the
Executive's use of a car and driver for business purposes.
(j) CONFIDENTIALITY AGREEMENT; SOTHEBY'S RULES AND POLICIES. As a
condition to the Executive's continued employment by the Company, he shall
continue to be bound by the Company's Confidentiality Agreement, Auction Rules,
Compliance Policy, and the Conflict of Interest Policy and House Rules
(collectively, the "Rules and Policies"). The Executive acknowledges that he has
read, understood and signed each of the foregoing. Nevertheless, if any
provision of the Rules or Policies expressly contradicts any provision in this
Agreement, the provisions of this Agreement shall govern.
(k) SOTHEBY'S, INC. SEVERANCE PLAN. In the event that the
Executive is terminated under such conditions that make him eligible for
benefits under the Sotheby's, Inc. Severance Plan, such benefits shall be paid
under the terms of that plan in effect on the execution date of this Agreement
regardless of whether that plan is modified during the Term of this Agreement
unless the modification results in an enhanced benefit to the Executive, in
which case he would receive the enhanced benefit.
(l) MISCELLANEOUS. All bonus payments set forth in Subparagraphs
3(c), 3(g), 3(h), and 3(k) and all termination payments made pursuant to
Paragraph 5 shall not be included for benefit contribution purposes under any
qualified or non-qualified retirement plan including but not limited to the
401(k) plan or Benefit Equalization Plan. These bonus and termination payments
are also not part of the bonus calculation in the event the Executive is
entitled to benefits under the Sotheby's, Inc. Severance Plan.
4. TERMINATION OF THE EXECUTIVE'S EMPLOYMENT.
(a) DEATH. Executive's employment shall terminate immediately
upon his death.
(b) DISABILITY. Executive's employment shall terminate upon
Executive's "Disability." For purposes of this Agreement, "Disability" means a
determination by the Company in accordance with applicable law that, as a result
of a physical or mental illness, the
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Executive is unable to perform the essential functions of his job with or
without reasonable accommodation that does not present an undue burden on the
Company.
(c) BY THE COMPANY. The Board of Directors of the Company may
terminate the Executive's employment at any time during the Term, with or
without "Cause" (as defined below), upon written notice by the Company to the
Executive, and the Executive's employment will terminate on the date notice is
given or, if specified in the notice, within sixty days after the date notice is
given.
For purposes of this Agreement, "Cause" means:
(1) the Executive's fraud, willful malfeasance or
gross negligence in the performance of his
duties which is materially injurious to the
Company; or
(2) the Executive's conviction of felony crime;
The Executive shall have thirty (30) days following the receipt of notice
from the Company of the existence of circumstances constituting Cause to correct
such circumstances. Any notice of termination for Cause must be given within
sixty (60) days following the Chairman of the Board of Directors learning of
circumstances constituting Cause.
(d) BY THE EXECUTIVE. The Executive may terminate his employment
with the Company at any time during the Term, with or without "Good Reason" (as
defined below), upon thirty (30) days prior written notice to the Company. For
purposes of this Agreement, "Good Reason" means:
(1) a material breach of this Agreement by the
Company;
(2) the Company's assignment of duties to the
Executive which are a material diminution of
his duties;
(3) the Company's removal of the Executive from
his positions of Chief Executive Officer
and/or President and/or the Company's removal
of the Executive or failure to nominate the
Executive, and support in good faith the
Executive's election, as a member of the Board
of Directors of the Company;
(4) the Company's requirement that the Executive
relocate the Executive's office or perform
more than one third of his duties during any
calendar year
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more than thirty-five (35) miles outside of
New York, New York without the Executive's
prior written consent;
(5) the Company's failure to provide timely the
Executive with compensation and the benefits
at the levels required herein; or
(6) termination of the Executive's employment
within twelve (12) months of a Change of
Control (as defined in the Stock Option Plan)
but not earlier than six (6) months after the
Change of Control.
provided, however, that the Company shall have thirty (30) days following the
receipt of notice from the Executive of the existence of circumstances
constituting Good Reason to correct such circumstances. Any notice of
termination for Good Reason must be given within thirty (30) days following the
Executive learning of circumstances constituting Good Reason.
5. SEVERANCE PAYMENT.
(a) WITHOUT CAUSE AND GOOD REASON TERMINATION. If during the Term
the Company terminates the Executive's employment without Cause or the Executive
terminates his employment for Good Reason, all compensation payable to the
Executive under Paragraph 3 hereof will cease as of the effective date of notice
of such termination (the "Termination Date") and the Executive will be entitled
to the following:
(1) All accrued but unpaid Base Salary through the
Termination Date plus the Executive's then
current Base Salary through December 31, 2003,
payable in a lump sum;
(2) Annual Incentive Compensation payable in a
lump sum, as if the Executive remained
employed through December 31, 2003, in an
annualized amount equal to his annual
incentive target as most recently determined
pursuant to Subparagraph 3(a) prior to the
Termination Date;
(3) All previously earned and accrued (but unpaid)
entitlements and benefits from the Company,
including any such entitlements and benefits
as an Executive under this Agreement or under
the Company's pension, disability and life
insurance plans, policies and programs, if
any;
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(4) Full benefit coverage for the Executive, his
spouse and other eligible dependents under all
of the Company's life insurance, disability,
accidental death and dismemberment and other
Executive welfare programs, plans and policies
(including, but not limited to, health and
dental insurance plans and policies but
excluding the benefits provided pursuant to
Subparagraphs 3(h) and (i)) through December
31, 2003 provided that if the Company Health
and Welfare Programs do not permit
continuation of coverage through December 31,
2003, the Company will reimburse the
Executive, on an after tax basis, for the cost
of obtaining comparable coverage;
(5) Immediate vesting of all outstanding unvested
stock options. To the extent the Executive is
prohibited from exercising the stock options
granted in February 2001 or during 2002 and
2003 (if any) under the Stock Option Plan, he
shall be paid cash in lieu of exercising such
options; and
(6) On, or within fifteen (15) days following the
Termination Date, payment of any portion of
the Retention Bonuses described in Paragraph
3(c) not paid as of the Termination Date.
The amounts set forth in Paragraph 5(a)(1)-(4) above are in addition
to any payments to which the Executive may be entitled pursuant to the Company's
Severance Plan, if applicable.
(b) TERMINATION FOR CAUSE OR TERMINATION BY THE EXECUTIVE WITHOUT
GOOD REASON. If the Executive's employment is terminated by the Company for
Cause or by Executive without Good Reason, Executive shall receive Base Salary
through the date of termination to the extent not theretofore paid, all benefits
accrued to the date of termination that are not forfeited under the terms of the
plans, and (i) if the Executive terminates his employment without Good Reason,
unpaid Annual Incentive Compensation accrued during the calendar year prior to
the calendar year in which the termination is effective or (ii) if the
Executive's employment is terminated by the Company for Cause and the actions(s)
or occurrence(s) constituting Cause took place in the year in which the
termination is effective, unpaid Annual Incentive Compensation accrued during
the calendar year prior to the calendar year in which the termination is
effective.
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(c) TERMINATION DUE TO DEATH OR DISABILITY. In the event of the
Executive's death or Disability during the Term, Executive's employment will
terminate as of the date of the Executive's death or Disability and he (or his
Estate or beneficiaries as applicable) will receive (i) the sums set forth in
paragraphs 5(a)(3) and (5) and (ii) all compensation and benefits that the
Executive would have been paid, or to which he would have been entitled, had he
remained employed for one (1) year after the Termination Date, regardless of
whether the end of the one year period is subsequent to December 31, 2003.
(d) EXPIRATION OF THE TERM. If the Company does not offer to
renew this Agreement at least six (6) months prior to the expiration of the Term
on terms at least as favorable as those in the final year of the Executive's
employment except that its Term need be no longer than two (2) years and such
agreement need not include the retention bonus in Paragraph 3(c). The Executive
shall, upon the expiration of the Term, be entitled to receive benefits under
the Company's Severance Plan as if he were entitled to receive such benefits
under the terms of the Plan.
(e) CHANGE OF CONTROL. If a "Change of Control" (as defined in
the Stock Option Plan) occurs and the Executive terminates his employment no
earlier than six (6) months following the Change of Control and no later than
twelve (12) months following the Change of Control, the Executive shall receive
compensation and benefits as if his employment was terminated by him for Good
Reason.
(f) RELEASE. Any payments payable pursuant to this Paragraph 5
other than unpaid compensation shall only be payable if the Executive delivers
to the Company a release, as required under the Sotheby's, Inc. Severance Plan,
of all his claims (except with regard to claims for payments or benefits
specifically payable or providable hereunder which are not yet paid as of the
effective date of the release, claims for vested accrued benefits, claims under
the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA")
or claims relating to any rights of indemnification under Paragraph 8(e)),
occurring up to the release date with regard to the Company and its respective
past or present officers, directors and employees in such form as reasonably
requested by the Company.
6. NON-COMPETE AND NON-SOLICITATION AGREEMENT.
(a) Because of the importance of stability and confidentiality
during this time of uncertainty for the Company, and because the Executive has
specialized, unique confidential knowledge vital to the Company, the Executive
agrees that, during the Restricted Period (defined below), he will not, without
the consent of the Company, in New York, California, England, France or
Switzerland engage directly or indirectly in the live or on-line Art Auction
Business or in any other business in which the Company is actively engaged or is
actively seeking to become engaged as of the time the Executive's employment
terminates (a "Competing Business"), whether such engagement by the Executive is
as an officer, director, proprietor, employee, partner, owner, consultant,
advisor, agent, sales representative or other
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participation. For purposes of this Agreement, the Art Auction Business involves
auctions of property in the collecting categories that the Company offers for
sale in its core business at the time of termination. For purposes of this
Agreement, the "Restricted Period" is during the course of the Executive's
employment and the earlier of (i) six (6) months after the end of the Term or
(ii) twelve (12) months after the termination of the Executive's employment.
(b) In addition to the foregoing, during the Restricted Period,
the Executive agrees that he will not, either alone or in concert with others,
and will not cause another to in any such case directly or indirectly,
(1) recruit, solicit or induce any Sotheby's
employees to terminate their employment with
Sotheby's;
(2) solicit the business of, do business with, or
seek to do business with, any Client of the
Company (as defined herein);
(3) encourage or assist any Competing Business to
solicit or service any Client of the Company;
or
(4) otherwise induce any Client of the Company to
cease doing business with, or lessen its
business with, the Company.
(c) The term "Client" shall not include clients of Sotheby's with
whom the Executive had no dealings on behalf of Sotheby's, or clients he
developed and maintained without any support or assistance, whether financial or
otherwise, from Sotheby's, but shall include any person who has or has had
business with the Company with whom the Executive did have dealings as well as,
insofar as property that was at any time owned by such person is concerned, that
person's estate, heirs and/or immediate family.
(d) If at any time there is a judicial determination by any court
of competent jurisdiction that the time period, geographical scope, or any other
restriction contained in this Paragraph 6 is unenforceable against the
Executive, the provisions of this Paragraph 6 shall not be deemed void but shall
be deemed amended to apply as to such maximum time period, geographical scope
and to such other maximum extent as the court may judicially determine or
indicate to be enforceable.
7. LEGAL AND EQUITABLE REMEDIES. Sotheby's shall be entitled to enjoin
a violation by the Executive of any provision hereof. Moreover, the parties
hereto acknowledge that the damages suffered by Sotheby's as a result of any
violation of this Agreement may be difficult to ascertain. Accordingly, the
parties agree that in the event of a breach of this
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Agreement by the Executive, Sotheby's shall be entitled to specific enforcement
by injunctive relief of the Executive's obligations to Sotheby's. The remedies
referred to above shall not be deemed to be exclusive of any other remedies
available to Sotheby's, including to enforce the performance or observation of
the covenants and agreements contained in this Agreement.
8. MISCELLANEOUS.
(a) NOTICE. Whenever notice is required hereunder, it shall be
given in writing and addressed to the Company at the main business office, and
to the Executive at the address reflected in the payroll records of the Company.
(b) ENTIRE AGREEMENT. This Agreement supersedes any and all
existing agreements between the Executive and the Company relating to the terms
and conditions of the Executive's employment.
(c) AMENDMENTS AND WAIVERS. No provisions of this Agreement may
be amended, modified, waived or discharged except as agreed to in writing by the
Executive and the Company. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion will not be considered a
waiver thereof or deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
(d) SUCCESSORS. This Agreement shall be binding upon and inure to
the benefit of the Executive and the Company and its successors and permitted
assigns. Neither this Agreement nor any of the rights of the parties hereunder
may be assigned by either party hereto except that the Company may assign its
rights and obligations hereunder to a corporation or other entity that acquires
substantially all of its assets. Any assignment or transfer of this Agreement in
violation of the foregoing provisions will be void.
(e) INDEMNIFICATION. The Executive shall be indemnified and held
harmless by the Company, or its successors or assigns, from and against any
losses, claims, damages, liabilities or actions, to the fullest extent permitted
by law.
(f) GOVERNING LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and/or to be performed in that State, without regard to any
choice of law provisions thereof.
(g) ARBITRATION. Any dispute, controversy or claim arising out of
or relating to this Agreement, or breach thereof (other than an action or
proceeding for an injunction or other equitable relief pursuant to Paragraph 7
hereof), shall be settled by arbitration in New York City in accordance with the
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association by a single arbitrator. The arbitrator's award shall be
final and binding upon both parties, and judgment upon the award may be entered
in any court of
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competent jurisdiction in any state of the United States or country or
application may be made to such court for a judicial acceptance of the award and
an enforcement as the law of such jurisdiction may require or allow. The losing
party in such arbitration shall be liable for any costs, including attorneys'
fees. If there is a dispute as to which party lost, costs and fees shall be
allocated by the arbitrator.
(h) TAX GROSS-UP. Notwithstanding anything herein to the
contrary, if it is determined by the Company on or prior to the date the
applicable payments and/or benefits are paid or thereafter by the Internal
Revenue Service (the "IRS") pursuant to an IRS audit of the Executive's federal
income tax return(s) (an "Audit"), that any payment or benefit provided to the
Executive under this Agreement would be subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended, or any interest
or penalties with respect to such excise tax (such excise tax, together with any
interest or penalties thereon, is herein referred to as the "Excise Tax"), then
the Company shall pay (either directly to the IRS as tax withholdings or to the
Executive as a reimbursement of any amount of taxes, interest and penalties paid
by the Executive to the IRS) both the Excise Tax and an additional cash payment
(a "Gross-Up Payment") in an amount that will place the Executive in the same
after-tax economic position that the Executive would have enjoyed if the payment
or benefit had not been subject to the Excise Tax. The amount of the Gross-Up
Payment shall be calculated by the Company's regular independent auditors based
on the amount of the Excise Tax paid by the Company as determined by the Company
or the IRS. If the amount of the Excise Tax determined by the IRS is greater
than an amount previously determined by the Company, the Company's auditors
shall recalculate the amount of the Gross-Up Payment. The Executive shall
promptly notify the Company of any IRS assertion during an Audit that an Excise
Tax is due with respect to any payment or benefit, but the Executive shall be
under no obligation to defend against such claim by the IRS unless the Company
requests, in writing, that the Executive undertake the defense of such IRS claim
on behalf of the Company and at the Company's sole expense. In such event, the
Company may elect to control the conduct to a final determination through
counsel of it own choosing and at its sole expense, of any audit, administrative
or judicial proceeding involving an asserted liability relating to the Excise
Tax, and the Executive shall not settle, compromise or concede such asserted
Excise Tax and the Executive shall cooperate with the Company in each phase of
any contest.
(i) MITIGATION. The Executive shall have no duty to mitigate any
amounts payable or benefits provided under this Agreement.
(j) WITHHOLDINGS. The Company is authorized to withhold from any
benefit provided or payment due hereunder the amount of withholding taxes due
any federal, state, or local authority in respect of such benefit or payment and
to take such other action as may be necessary in the opinion of the Company to
satisfy all obligations for the payment of such withholding taxes.
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(k) SEVERABILITY. If any provision of this Agreement is invalid
or unenforceable, the balance of this Agreement will remain in effect, and if
such provision is inapplicable to any person or circumstance, it will
nevertheless remain applicable to all other persons and circumstances.
(l) ATTORNEYS' FEES. At the request of the Executive, the Company
shall pay the Executive's reasonable attorneys' fees incurred by the Executive
in connection with preparation, execution and delivery of this Agreement.
(m) EFFECTIVENESS. All of the provisions hereof that were part of
the Original Agreement became effective on and as of the date of the Original
Agreement, and all amendments to the Original Agreement contained herein shall
be effective on and as of January 1, 2002.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
SOTHEBY'S HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman of the Board
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