EXHIBIT 10.10(a)
XXXXX XXXXX HOLDINGS, INC.
XXXXX XXXXX, INC.
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is
entered into as of December 14, 2005 (the "Effective Date"), by and between
Xxxxx Xxxxx Holdings, Inc. ("Holdings"), a Delaware corporation, and its
operating subsidiary Xxxxx Xxxxx, Inc. ("Xxxxx Xxxxx"), a Delaware corporation
(collectively, the "Company"), on the one hand, and Xxxxxx Xxxxxxx (the
"Executive"), on the other, (each a "party" and, collectively, the "parties").
WITNESSETH:
WHEREAS, the Executive was employed by Xxxxx Xxxxx as its President and
Chief Executive Officer beginning on July 1, 2002; and
WHEREAS, on March 17, 2005, Xxxxx Xxxxx and certain of its affiliates,
including Spiegel, Inc. ("Spiegel"), commenced cases (the "Bankruptcy
Proceedings") under Chapter 11 of the United States Code (the "Bankruptcy Code")
by filing petitions with the Bankruptcy Court for the Southern District of New
York (the "Bankruptcy Court") and continued to operate their businesses as
debtors and debtors in possession (each a "Debtor"); and
WHEREAS, with the approval of the Bankruptcy Court, the Executive, Xxxxx
Xxxxx and Xxxxxxx entered into a written Employment Agreement for a period
commencing as of April 1, 2003 that otherwise would have terminated as of
December 31, 2005 (the "2003 Employment Agreement");
WHEREAS, the Bankruptcy Court confirmed a Modified First Amended Joint
Plan of Reorganization of Affiliated Debtors on May 25, 2005 (the "Plan"); and
WHEREAS, pursuant to the Plan, Holdings became the owner of the common
stock of Xxxxx Xxxxx; and
WHEREAS, the Company has determined that it is essential and in its best
interests to retain the services of Xxxxx Xxxxx'x key management personnel and
to ensure their continued dedication and efforts; and
WHEREAS, the Executive is experienced in all phases of the Company's
business and possesses an intimate knowledge of the business and affairs of the
Company and its policies, procedures, methods and personnel; and
WHEREAS, each of the Boards of Directors of Holdings and Xxxxx Xxxxx has
determined that it is in the best interest of the Company to secure the
continued services and employment of the Executive, and the Executive is willing
to render such services on the terms and conditions set forth herein; and
WHEREAS, the parties wish to enter into this Agreement and thereby
supersede in its entirety the 2003 Employment Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and promises of the parties contained herein, the receipt and sufficiency of
which are hereby acknowledged, the parties, intending to be legally bound,
hereby agree as follows:
1. TERM. The Company hereby agrees to continue to employ the Executive,
and the Executive hereby accepts continued employment, in accordance with the
terms and conditions set forth herein, for a term (the "Term") commencing on the
Effective Date and expiring, unless otherwise terminated in accordance with the
applicable provisions of this Agreement, at 11:59 p.m. on the day immediately
preceding the third anniversary of the Effective Date (the "Expiration Date").
For all purposes of this Agreement, the term "the Company" shall mean Holdings
and Xxxxx Xxxxx, jointly and severally. In the event that the Company and the
Executive do not agree, in writing, at least six (6) months prior to the
Expiration Date to extend the term of the Executive's employment beyond such
date, unless otherwise terminated in accordance with the applicable provisions
of this Agreement the Executive's employment shall terminate at 11:59 p.m. on
the Expiration Date. Such termination is referred to herein as "Non-Renewal."
2. EMPLOYMENT.
(a) Position.
(i) The Executive shall be employed by the Company as the
President and Chief Executive Officer of each of Holdings and Xxxxx Xxxxx or in
such higher capacity as agreed by the Company and the Executive. The Executive
shall be the highest ranking officer of the Company, shall report only to the
Board of Directors of Holdings (the "Board"), and shall perform the duties,
undertake the responsibilities and exercise the authority customarily performed,
undertaken and exercised by persons employed in a similar executive capacity.
Subject to the terms of Holding's Compensation Committee Charter, the Executive
shall have the authority to (x) hire, promote, demote, discipline and fire all
other senior executive officers of the Company, (y) other than with respect to
himself, make recommendations with respect to the total compensation payable to
such executive officers, either categorically or on an individualized basis, as
may be appropriate, and (z) determine the total compensation payable to each
such executive officer other than any performance-based compensation payable to
named executive officers (which such performance-based compensation would not be
deductible by the Company under Section 162(m) of the Internal Revenue Code of
1986, as amended (the "Code") if determined by anyone other than the Company's
outside directors).
(ii) During the Term, the Company agrees to use its best
efforts to nominate the Executive for election to both the Board and the board
of directors of Xxxxx Xxxxx (the "Xxxxx Xxxxx Board"), and to any executive
committee of the Board or the Xxxxx Xxxxx Board, as applicable, and to use its
best efforts to cause Executive to be
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elected to the Board and to the Xxxxx Xxxxx Board (and to any corresponding
executive committee) at each applicable annual meeting of stockholders during
his employment hereunder at which Executive's applicable director term comes up
for election. Executive agrees to serve on the Board and on the Xxxxx Xxxxx
Board if elected, in each case without additional compensation. The Executive
also shall, to the extent appointed or elected, serve as a director, or as a
member of any committee, of the board (or the equivalent bodies in a
non-corporate subsidiary or affiliate) of any of the Company's subsidiaries or
affiliates (including Xxxxx Xxxxx) and as an officer or employee (in a capacity
commensurate with his position with the Company) of any such subsidiaries or
affiliates, in all cases without additional compensation or benefits. Any
compensation paid to the Executive, or benefits provided to the Executive, in
such capacities shall be credited against amounts due hereunder from the
Company.
(b) Obligations. The Executive agrees to devote his full business
time and attention to the business and affairs of the Company. The foregoing,
however, shall not preclude the Executive from serving on corporate, civic or
charitable boards or committees or managing personal investments, so long as (i)
such activities do not materially interfere with the performance of the
Executive's responsibilities hereunder and (ii) the Executive obtains the
consent of the Chairman of the Board with respect to his service on any
for-profit corporate board, such consent not to be unreasonably withheld,
conditioned or delayed. The Company hereby acknowledges that the Executive is
the sole owner of Poughkeepsie AB, a corporation organized under the laws of
Sweden, and that the Chairman has approved the Executive's continued ownership
of that enterprise. The Executive may retain any compensation or benefits
received as a result of any outside activities permitted pursuant to the terms
of this Section 2(b), and the Company shall not reduce his compensation by the
amount of any such compensation or benefits.
3. BASE SALARY. The Company agrees to pay or cause to be paid to the
Executive, commencing no later than the Effective Date and during the Term, a
base salary at the initial rate of $980,000 per year or such larger amount as
the Board may from time to time determine (the "Base Salary"). Such Base Salary
shall be payable in accordance with the Company's customary practices applicable
to its executive officers. Base Salary shall be reviewed at least annually to
ascertain whether, in the judgment of the Board (or its designee), such Base
Salary should be increased. If so increased, Base Salary shall not be decreased
thereafter and thereafter, as increased, shall be the Base Salary hereunder.
4. LONG-TERM INCENTIVE COMPENSATION.
(a) Eligibility. During the Term, the Executive shall be eligible to
participate in the Company's long-term incentive plans, including the Xxxxx
Xxxxx Holdings, Inc. 2005 Stock Incentive Plan (the "Stock Incentive Plan"), as
amended from time to time, cash-based long-term incentive plans, and such other
long-term incentive plan(s) as may be approved by the Company from time to time
in each case in a manner substantially consistent with other senior executives
generally. Except as otherwise provided herein all long-term incentive plan
awards, including any equity grants, shall be
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governed by the applicable plan or award agreement. Any such equity awards,
whether pursuant to the Stock Incentive Plan or otherwise, are referred to
herein collectively as the "Equity Awards," and, together with any other awards
made under any long-term incentive plan, are referred to herein collectively as
the "LTI Awards."
(b) Effect of this Agreement. For the avoidance of doubt, the term
"LTI Awards" shall be deemed to include those certain stock options and
restricted stock units granted to the Executive pursuant to the terms of the
Stock Incentive Plan on or about November 3, 2005, which such grants
subsequently were approved by the Board (the "November 2005 Grant"). The parties
acknowledge and agree that this Agreement modifies the terms and conditions
applicable to the November 2005 Grant and that such grant as so modified may not
comply with the terms of Section 409A of the Code. In the event that the
November 2005 Grant, as modified by the terms hereof, is deemed to not comply
with Section 409A, the Company and the Executive agree to renegotiate the
applicable terms of this Agreement so that either (i) Section 409A will not
apply or (ii) compliance with Section 409A will be achieved. Finally, any and
all future LTI Awards shall be deemed made subject to any and all terms of this
Agreement applicable to LTI Awards, notwithstanding any contrary provision of
any underlying long-term incentive plan or award agreement, such that this
Agreement shall not be deemed to modify any such future LTI Award.
5. BONUS COMPENSATION.
(a) Annual Incentive Compensation. The Executive shall be entitled
to participate in any Holdings annual incentive or bonus plan (the "Bonus Plan")
on such terms and conditions as may be determined from time to time by the
mutual agreement of the Compensation Committee of the Board, provided that the
Executive's annual target bonus opportunity shall be at least 100% of Base
Salary for that Bonus Plan year upon attainment of Executive's pre-determined
target for such year (the "Target Bonus"), subject to a minimum bonus
opportunity of not less than 50% of Base Salary if any bonus payments are to be
paid in respect to any Bonus Plan year, and a maximum bonus opportunity of 175%
of Base Salary, and provided, further, that any performance criteria shall be
based on the achievement of goals set in advance by the Executive and the
Compensation Committee of the Board, provided, however, that if and to the
extent that the final determination as to any terms, conditions or performance
criteria for such bonus compensation must be determined solely by the Company's
outside directors in order to preserve the possibility that any resulting bonus
compensation can be deductible to the Company, such final determination may be
made by the outside directors, provided that they do so in consultation with the
Executive and provided, further, that any related goals shall be realistically
attainable. The amount and payment of any annual incentive compensation shall be
determined in accordance with the Bonus Plan (or any successor thereto) and
shall be payable pursuant to the terms of the Bonus Plan when bonuses for the
applicable performance period are paid to other senior executives of the
Company. After any increase in the Executive's target annual bonus opportunity,
the term "Target Bonus" as used in this Agreement shall thereafter refer to the
increased target opportunity.
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(b) 2005 Xxxxx Xxxxx Annual Incentive Bonus. Notwithstanding
anything to the contrary contained herein, the Executive shall be entitled to
any annual incentive compensation due and payable pursuant to the terms of the
Xxxxx Xxxxx 2005 Annual Incentive Plan to the extent unpaid as of the Effective
Date (the "2005 Bonus").
(c) One-Time Longevity Bonus. The Company shall pay to the Executive
a one-time longevity bonus in the amount of Two Hundred Fifty Thousand Dollars
($250,000), which such bonus shall be earned and paid on January 31, 2006 if
Executive continues to be employed on such date.
(d) Discretionary Bonus. Nothing contained in this Agreement shall
preclude the Company's paying such other or further discretionary bonuses to the
Executive as the Compensation Committee or the Board may see fit from time to
time.
6. EMPLOYEE BENEFITS; PERQUISITES.
(a) Employee Benefits. During the Term, the Company shall make
available to the Executive, on no less favorable terms and conditions than those
available to any other senior executive officer of the Company and subject to
the terms and conditions of the applicable plans, participation for the
Executive and his eligible dependents in any and all employee welfare benefit
plans (as such term is defined by Section 3(1) of the Employee Retirement Income
Security Act of 1974, as amended), and such other usual and customary benefits
in which employees of the Company participate from time to time (including any
deferred compensation plan).
(b) Vacation, Perquisites and other Fringe Benefits. During the
Term, the Company shall make available to the Executive, on no less favorable
terms and conditions that those available to any other senior executive officer
of the Company, such fringe benefits and perquisites as may be made available to
senior executive officers of the Company as a group. Without limiting the
foregoing, during the Term the Executive shall be entitled to (i) four (4) weeks
annual vacation, three (3) personal days and one (1) balance day, each to be
accrued in accordance with the policies established by the Company from time to
time; (ii) an annual allowance for unspecified perquisites of Twenty Thousand
Dollars ($20,000) payable in equal installments in accordance with the Company's
regular payroll practices (the "Perquisites Allowance"); and (iii) reimbursement
of expenses incurred by the Executive in connection with tax and financial
planning and related legal advice, up to an amount not to exceed Ten Thousand
Dollars ($10,000) per year ("Planning Allowance"). In addition, the Executive
shall in no way be forced or required to wear a tie for any occasion.
(c) Temporary Housing; Relocation Reimbursement. The Company
acknowledges that Executive currently resides in temporary housing with his
spouse and children that includes a security surveillance system with a direct
link to local authorities ("Security System"). During the Term, until such time
as the Executive relocates to a permanent residence in the United States, the
Company shall pay or reimburse Executive for the installation, maintenance,
repair, upgrading and operating costs of such Security System. In addition, upon
presentation of invoices, the Company shall reimburse the
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Executive for (i) reasonable costs associated with the packing, moving and
unpacking of household goods and furnishings to a new permanent residence in the
United States (the "Permanent Residence"); and (ii) up to three percent (3%) of
the purchase price of the Permanent Residence to cover the closing costs
associated with the purchase of such Permanent Residence; provided that such
costs or fees are incurred during the Term. In addition, the Company shall
reimburse the Executive for any installation, maintenance, repair, upgrading and
operating costs and expenses reasonably incurred in connection with installing
and maintaining a Security System within the Executive's permanent residence.
The Company shall gross up the compensation to be paid by the Company pursuant
to this Section 6(c) to offset all income tax (including any FICA or Medicare
taxes) incurred by Executive as a result of such reimbursed costs and expenses,
including such gross-up payment.
(d) Existing Benefits. The Company acknowledges that the Executive
has participated in Xxxxx Xxxxx'x Value in Partnership Profit Sharing and 401(k)
Savings Plan (the "VIP") and its Supplemental Executive Retirement Program (the
"SERP"), and further acknowledges and agrees that the Executive's vesting rights
in connection with his participation therein shall continue in full force and
effect and shall be administered in accordance with the terms of such plans.
(e) Right to Change Plans. Notwithstanding anything to the contrary
contained in this Agreement, but subject to Section 8(d)(v), the Company shall
not be obligated by reason of this Section 6 to institute, maintain, or refrain
from changing, amending, or discontinuing any benefit plan, program or
perquisite, so long as such changes are similarly applicable to executive
employees generally and provided that the benefits specifically set forth above
in Sections 6(b), 6(c) and 6(d) shall not be diminished.
7. OTHER BENEFITS.
(a) Life Insurance.
(i) The Company shall maintain term life insurance coverage on
the life of the Executive in an amount equal to Five Million Dollars
($5,000,000), the proceeds of which shall be payable to the beneficiary or
beneficiaries designated by the Executive. The Company shall pay the premiums
with respect to such term life insurance policy for the period commencing on the
Effective Date and ending on the later to occur of (A) the last day of the Term
and (B) the last day of the period during which employee welfare benefits are
continued pursuant to Section 9(h) of this Agreement; provided, however, that
the Company shall no longer be obligated to maintain such coverage and pay such
premiums in the event that the Executive's employment is or was terminated by
the Company for death or for Cause (as defined in Section 8(c) of this
Agreement) or by the Executive without Good Reason (as defined in Section 8(d)
of this Agreement). Such policy shall provide for its conversion, without any
further medical questionnaire or physical examination, to an individual policy
owned by the Executive subsequent to termination of his employment for any
reason. The Executive agrees to undergo any
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reasonable physical examination and other procedures as may be necessary during
the Term to maintain such policy.
(ii) During the Term, the Company shall be entitled to
maintain a "key man" term life insurance policy on the life of the Executive,
the proceeds of which shall be payable to the Company or its designees. The
Executive agrees to undergo any reasonable physical examination and other
procedures as may be necessary to maintain such policy.
(b) Expenses. The Executive shall be entitled to receive prompt
reimbursement of all expenses reasonably incurred by him in connection with the
performance of his duties hereunder or for promoting, pursuing or otherwise
furthering the business or interests of the Company, in each case in accordance
with policies established by the Board from time to time and upon receipt of
appropriate documentation.
(c) Office and Facilities. During the Term, the Executive shall be
provided with an appropriate office and with such secretarial and other support
facilities as are commensurate with the Executive's status with the Company and
adequate for the performance of his duties hereunder.
8. TERMINATION.
(a) Death. The Executive's employment hereunder shall terminate upon
the Executive's death.
(b) Disability. Either the Executive or the Company shall be
entitled to terminate the Executive's employment for "Disability" by giving the
other party a Notice of Termination (as defined below). For purposes of this
Agreement, "Disability" shall mean the Executive's inability to perform his
duties and the essential functions of his position on a full-time basis, after
reasonable accommodation by the Company, for a period of 180 consecutive days or
more as a result of physical or mental impairment, illness or injury - provided
that interim returns to work of less than ten (10) consecutive business days in
duration shall not be deemed to interfere with a determination of consecutive
days absent if the reason for absence before and after the interim return is the
same - and such condition, in the opinion of a medical doctor selected and
compensated by the Company and reasonably acceptable to the Executive or his
legal representative, is total and permanent.
(c) Cause. The Company shall be entitled to terminate the
Executive's employment for "Cause." For purposes of this Agreement, "Cause"
shall mean that the Executive:
(i) willfully and materially fails to perform his principal
duties and responsibilities as set forth in Section 2 hereof (other than by
reason of Disability), provided, however, that if the Executive is making a good
faith effort to perform such duties and responsibilities, "Cause" shall not
include a failure by the
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Executive to achieve any particular quantitative or qualitative standard or to
meet any subjective standard of achievement, competence or professionalism;
(ii) pleads "guilty" or "no contest" to or is convicted of an
act that is defined as a felony under federal or state law (other than (x) a
traffic infraction or (y) vicarious liability solely as a result of his
position);
(iii) engages in willful misconduct that causes or could
reasonably be expected to cause material harm to the Company's business or its
reputation;
(iv) commits an act or acts of willful misrepresentation,
fraud or willful dishonesty (other than good faith expense account disputes)
that in any case is intended to result in his or another person or entity's
substantial personal enrichment at the expense of the Company;
(v) willfully fails to follow the legal written direction of
the Board, which failure is not remedied within ten (10) days after receipt by
the Executive of a written notice from the Company specifying the details
thereof; or
(vi) has materially breached any of the restrictive covenants
contained in Section 10 hereof.
For this purpose, an act or failure to act shall be considered "willful
misconduct" only if done, or omitted to be done, by the Executive in bad faith
and without a reasonable belief that such act or failure to act was in the best
interests of, or not contrary to the interests of, the Company. The Executive's
employment with the Company shall not be terminated for Cause unless he has been
given written notice by the Board of its intention to so terminate his
employment (a "Preliminary Notice of Cause"), such notice (x) to state in
reasonable detail the particular act or acts or failure or failures to act that
constitute the grounds on which the proposed termination for Cause is based and
(y) to be given within thirty (30) days of the Board's learning of such acts or
failures to act. The Executive shall have ten (10) days after the date that the
Preliminary Notice of Cause is given in which to cure such conduct, to the
extent such cure is possible. If the Executive fails to cure such conduct, the
Executive shall be entitled to a hearing before the Board, accompanied by his
counsel or other representative, at which he shall be entitled to contest the
Board's findings. Such hearing shall be held within fifteen (15) days of notice
to the Company by the Executive, provided that he requests such hearing within
fifteen (15) days of his receipt of the Preliminary Notice of Cause. If the
Executive fails to request such hearing within the 15-day period specified in
the preceding sentence, his employment may be terminated by the Company for
Cause effective upon the expiration of such period, and the Preliminary Notice
of Cause shall be deemed to constitute a Notice of Termination. If the Executive
requests such hearing and, within ten (10) days following such hearing, the
Executive is furnished with a copy of a resolution, duly adopted by the
affirmative vote of two-thirds of the members of the entire Board (excluding the
Executive), finding that, in the good-faith opinion of the Board, the
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Executive was guilty of the conduct constituting Cause as specified in the
Preliminary Notice of Cause, the Executive's employment shall be terminated by
the Company for Cause upon his receipt of such resolution, and such resolution
shall be deemed to constitute a Notice of Termination. Any such resolution shall
be accompanied by a certificate of the Secretary or another appropriate officer
of the Company that shall state that such resolution was duly adopted by the
affirmative vote of two-thirds of the members of the entire Board (excluding the
Executive) at a duly convened meeting called for such purpose. This Section 9(c)
shall not prevent the Executive from challenging in any court or arbitral panel
of competent jurisdiction the Board's determination that Cause exists or that
the Executive has failed to cure any act (or failure to act) that purportedly
formed the basis of the Board's determination.
(d) Good Reason. The Executive may terminate his employment
hereunder for "Good Reason" by delivering to the Company (x) a Preliminary
Notice of Good Reason (as defined below), such notice to be given within thirty
(30) days of the Executive's learning of act or acts or failure or failures to
act constituting Good Reason, and (y) not earlier than thirty (30) days from the
delivery of such Preliminary Notice of Good Reason, a Notice of Termination. For
purposes of this Agreement, "Good Reason" shall mean the occurrence of any of
the following without the Executive's prior written consent:
(i) the failure to continue the Executive as President and
Chief Executive Officer of the Company;
(ii) the failure to nominate the Executive to serve as a
member of the Board or any executive committee thereof (or to hold similar
positions at Xxxxx Xxxxx);
(iii) a material diminution in the Executive's duties, or the
assignment to the Executive of duties materially inconsistent with, or the
failure to assign to the Executive duties which are materially consistent with,
his duties, positions, authority, responsibilities and reporting requirements as
set forth in Section 2 of this Agreement, or the assignment of duties that
materially impair the Executive's ability to function as the President and Chief
Executive Officer of the Company;
(iv) should Holdings be reorganized such that it becomes a
direct or indirect subsidiary or controlled party of any other person or entity,
the Executive's not holding authorities, duties, responsibilities, status,
offices, titles or reporting lines in such parent or other ultimately
controlling party at least commensurate with those held by him at Holdings
immediately prior to such reorganization;
(v) a reduction in or a material delay in payment of the
Executive's total cash compensation and benefits from those required to be
provided in accordance with the provisions of this Agreement, including any such
reduction or delay occasioned by a termination of or change to any plan or
program otherwise permitted under Section 6(e);
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(vi) a reduction in the Executive's aggregate level of
participation in any of the Company's short or long-term incentive compensation
plans, or employee welfare plans or other employee benefit plans, policies,
practices or arrangements;
(vii) the Company, the Board or any person controlling the
Company requires that either the principal office of the Company or the
Executive relocate more than fifty (50) miles from the current Company
headquarters offices located in Redmond, Washington, other than (with respect to
the Executive) as a consequence of travel reasonably required to carry out the
Executive's obligations under this Agreement;
(viii) the failure of the Company to obtain the assumption in
writing of its obligation to perform this Agreement by any successor to or
acquirer of all or substantially all of the assets of the Company not later than
the effective date of a merger, consolidation, sale or similar transaction
therewith; or
(ix) any other material breach by the Company of this
Agreement;
provided, however, that "Good Reason" shall not include (X) acts not taken in
bad faith that are cured by the Company in all respects not later than ten (10)
days from the date of receipt by the Company of a written notice from the
Executive identifying in reasonable detail the act or acts constituting "Good
Reason" (a "Preliminary Notice of Good Reason") or (Y) acts taken by the Company
to reassign the Executive's duties or titles to another person or persons if the
Executive has suffered a physical or mental infirmity that renders him unable to
substantially perform his duties under this Agreement, provided that any such
acts may be taken by the Company only after receiving an opinion of a physician
reasonably acceptable to the Executive or his legal representative stating that
there is no reasonable likelihood that the Executive will be able to return to
full-time employment with the Company performing his duties hereunder within 180
days. A Preliminary Notice of Good Reason shall not, by itself, constitute a
Notice of Termination.
(e) Without Cause. The Company may terminate the Executive's
employment hereunder, without Cause, at any time and for any reason (or for no
reason) by giving the Executive a Notice of Termination, by giving the Executive
a Notice of Termination at least three (3) months prior to the desired effective
date of such notice.
(f) Without Good Reason. The Executive may terminate the Executive's
employment hereunder, without Good Reason, at any time by giving the Company a
Notice of Termination at least three (3) months prior to the desired effective
date of such notice, provided, however, that the Company shall have the right,
it its sole discretion, to terminate this Agreement at any time during such
3-month period upon sending a Notice of Termination to the Executive, in which
event the Executive shall receive, in addition to any other benefits or
compensation provided for herein,
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compensation and benefits during the balance of such period as if the Executive
remained employed pursuant to this Agreement during the balance of such period.
(g) Non-Renewal. The Executive's employment shall terminate upon
Non-Renewal.
(h) Notice of Termination. For purposes of this Agreement, a "Notice
of Termination" shall mean a notice that indicates the specific termination
provision in this Agreement relied upon and that sets forth in reasonable
detail, if applicable, the facts and circumstances claimed to provide a basis
for termination of the Executive's employment under the provision so indicated.
For purposes of this Agreement, no purported termination of employment that
requires a Notice of Termination shall be effective without such Notice of
Termination.
(i) Termination Date. "Termination Date" shall mean the date of the
termination of the Executive's employment with the Company and specifically (i)
in the case of the Executive's death, his date of death; (ii) in the case of a
termination of the Executive's employment for Cause, the relevant date specified
in Section 8(c) of this Agreement; (iii) the earlier of (A) the date specified
in any Notice of Termination delivered pursuant to Section 8(f); and (B) such
earlier date specified by the Company; (iv) in the case of a termination due to
Non-Renewal, the Expiration Date; and (v) in all other cases, the date specified
in the Notice of Termination.
(j) Public Announcements. The Executive and the Company shall
mutually agree on the time, method and content of any public announcement
regarding the termination of the Executive's employment for any reason, and
neither the Executive nor the Company shall make any public statements that are
inconsistent with the information mutually agreed upon by the Company and the
Executive. The parties hereto shall cooperate with each other in refuting any
public statements made by other persons that are inconsistent with the
information mutually agreed upon between the Executive and the Company as
described above.
9. COMPENSATION UPON TERMINATION OF EMPLOYMENT.
(a) For Cause; Without Good Reason. If during the term of this
Agreement, the Executive's employment under this Agreement is terminated by the
Company for Cause, by the Executive other than for Good Reason and other than by
reason of Non-Renewal or the Executive's death or Disability, the Company's sole
obligations hereunder shall be as follows:
(i) Payments. To pay the Executive promptly (or otherwise in
accordance with any deferral election(s) made previously by the Executive or as
provided in Section 9(k) hereof) the following amounts to the extent not paid as
of the Termination Date: (A) any Base Salary and any Perquisite Allowance or
Planning Allowance through the Termination Date; (B) any accrued and unused
vacation through the Termination Date; (C) any amounts that the Executive had
previously deferred (including any interest earned or credited thereon); (D) any
other compensation that has been earned, accrued or
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is owing, under the terms of any applicable plan, program, or arrangement
(including the VIP and the SERP), to the Executive as of the Termination Date,
including any incentive awards under the Bonus Plan and any LTI Awards under any
long-term incentive plan (including the Stock Incentive Plan), or any successor
to any such plan; and (E) reimbursement of any and all expenses subject to
reimbursement pursuant to the terms of Sections 6(b), 6(c), and 7(b) hereof upon
receipt of appropriate documentation therefore.
(ii) Additional Benefits and Entitlements. To provide promptly
to the Executive any other or additional vested benefits and entitlements in
accordance with applicable plans, programs, practices and arrangements of the
Company, but without duplicating any benefits, payments or entitlements to be
provided pursuant to Section 9(a)(i) above.
(The benefits, payments and entitlements to be provided to Executive pursuant to
Section 9(a) are referred to collectively as the "Accrued Compensation." The
Executive also shall be entitled to a Pro-Rata Bonus (as defined below) in the
event of the termination of his employment under this Agreement by reason of his
retirement, to be paid at such time as other participants in the Bonus Plan are
paid their respective bonuses in respect of the applicable Bonus Plan year.)
(b) Without Cause or for Good Reason More than Six Months Prior to a
Change of Control. If the Executive's employment hereunder is terminated by the
Company without Cause or by the Executive for Good Reason, in each case more
than six (6) months prior to a Change of Control (as defined in Section 9(j) of
this Agreement), the Company's sole obligations hereunder shall be as follows:
(i) Accrued Compensation. The Company shall pay promptly to
the Executive the Accrued Compensation;
(ii) Pro-Rata Bonus. The Company shall pay to the Executive,
at such time as other participants in the Bonus Plan are paid their respective
bonuses in respect of that Bonus Plan year, (A) a bonus equal to the product of
(1) the greater of (x) the Target Bonus under the Bonus Plan (or its successor)
for the Bonus Plan year during which the Termination Date occurs, and (y) the
actual bonus under such plan (or its predecessor) paid or payable to the
Executive in respect of the immediately preceding Bonus Plan year (whether or
not deferred), provided, however, that any actual bonus paid or payable in
respect of calendar year 2004 shall be disregarded for purposes of this
calculation, and (2) the fraction obtained by dividing (a) the number of days in
the plan year elapsed through and including the Termination Date by (b) 365; and
(B) if the Termination Date occurs in 2005, a similarly determined pro-rata
share of the Executive's 2005 Bonus (collectively, the "Pro-Rata Bonus");
(iii) Additional Base Salary. The Company shall continue to
pay the Executive for a period of two (2) years following the Termination Date
an amount equal to his Base Salary as in effect immediately prior to the
Termination Date,
12
such payments to be made in accordance with the Company's customary practices
applicable to its executive officers generally;
(iv) Insurance Premiums. The Company shall continue to pay the
premiums provided for in Section 7(a) of this Agreement for the applicable time
period set forth therein;
(v) Employee Welfare Benefits. The Company shall continue to
provide employee welfare benefits in accordance with the terms of Section 9(h)
below for the applicable time period set forth therein;
(vi) Accelerated Vesting; Exercise Period. Notwithstanding
anything to the contrary contained herein or in any plan, program, practice or
arrangement, any then unvested Equity Awards or other LTI Awards granted
pursuant to the terms of Section 4 or otherwise shall immediately vest as of the
Termination Date, with any stock options granted in connection with any such LTI
Award remaining exercisable for the remainder of the original option term
without regard to the termination of the Executive's employment (collectively,
the "Award Adjustment");
(vii) Termination Year Bonus. The Company shall pay the
Executive, at such time as other participants in the Bonus Plan are paid their
respective bonuses in respect of the Bonus Plan year during which the
Termination Date occurs (the "Termination Year"), an amount equal to the
difference between (A) the product of (1) the greater of (y) the Executive's
Target Bonus under the Bonus Plan (or its successor) for the Termination Year,
and (z) the actual bonus under such plan (or its predecessor) paid or payable to
the Executive in respect of the immediately preceding Bonus Plan year (whether
or not deferred), provided, however, that any actual bonus paid or payable in
respect of calendar year 2004 shall be disregarded for purposes of this
calculation, and (B) the Pro-Rata Bonus paid to the Executive under Section
9(b)(ii) above;
(viii) Additional Bonus Compensation. The Company shall pay
the Executive, at such time as other participants in the Bonus Plan are paid
their respective bonuses, in respect of each of the two (2) Bonus Plan years
immediately following the Termination Year, an amount equal to the greater of
(A) the Executive's Target Bonus for the Termination Year; and (B) the
Executive's actual annual incentive compensation paid or payable with respect to
the plan year immediately preceding the Termination Year (whether or not
deferred), provided that any actual bonus paid or payable in respect of calendar
year 2004 shall be disregarded for purposes of this calculation, and provided,
further, that the Company shall pay in respect of the last of such Bonus Plan
years only a pro rata share of such annual bonus equal to the product of such
bonus and a fraction, the numerator of which is the number of days during the
Termination Year through and including the Termination Date and the denominator
of which is 365;
(ix) Outplacement Services. The Company shall provide for the
Executive outplacement services at the expense of the Company, up to an amount
not to exceed thirty five thousand dollars ($35,000), through a professional
person or entity of
13
the Executive's choice, subject to the approval of the Company, which approval
shall not be unreasonably withheld, conditioned or delayed, at a level
commensurate with the Executive's position, for a period of up to one (1) year
commencing on or before the one-year anniversary of the Termination Date, but in
no event extending beyond the date on which the Executive commences other
full-time employment (the "Outplacement Services");
(x) Relocation Expenses. Upon presentation of invoices, the
Company shall reimburse the Executive for (i) reasonable costs associated with
the packing, moving and unpacking of household goods and furnishings to a new
permanent residence in Sweden; (ii) broker's fees and commissions payable on the
sale of the Executive's then current principal residence in the United States up
to an amount equal to six percent (6%) of the selling price of such residence;
and (iii) up to three percent (3%) of the purchase price of the Executive's new
permanent residence in Sweden to cover the closing costs associated with the
purchase of such new permanent residence; provided that such costs or fees are
incurred within one (1) year following the Termination Date. The Company shall
gross up the compensation to be paid by the Company pursuant to this Section
9(b)(ix) to offset all income taxes incurred by Executive as a result of such
reimbursed costs and expenses, including such gross-up payment. Such relocation
expenses, as so grossed up, are "Relocation Expenses";
(xi) Defined Benefit Plans. The Company shall provide two (2)
years additional service and compensation credit (at the Executive's then
compensation level) for benefit purposes under any defined benefit type
retirement plan, including the SERP if then in effect, and, if the Executive is
not eligible to receive benefits under any such plan on the Termination Date,
two (2) additional years of age for determining eligibility to receive such
benefits, provided that with regard to any plan qualified under Section 401(a)
of the Code the additional amounts may be provided on a nonqualified plan basis;
(xii) Defined Contribution Plans. The Company shall pay
promptly after termination two (2) times the amount of the maximum Company
annual contribution or match to any defined contribution type plan in which the
Executive participates, including the VIP; and
(xiii) Deferred Income Plans. All of Executive's accounts
under any deferred income plan of the Company shall vest in full, provided that
to the extent not so permitted under such plan, but subject to Section 9(k), the
Company shall pay the Executive an amount in place of and outside of the plan
equal to the value of the amount that would have vested under the plan.
(c) Without Cause or for Good Reason If Within Six Months Prior to,
or Two Years after, a Change of Control. If the Executive's employment hereunder
is terminated by the Company other than for Cause or by the Executive for Good
Reason, in either case within six (6) months prior to, or within two (2) years
after, a Change of Control, the Company's obligation hereunder shall be
identical to its obligation had such termination occurred immediately prior to
the beginning of such period, provided,
14
however, that (i) the multiplier of "2" as it appears in Sections 9(b)(iii),
(viii), (xi) and (xii) above in each instance shall be substituted with a
multiplier of "3;" (ii) any sums payable pursuant to Sections 9(b)(i), (iii),
(vii) or (viii) shall be paid in a lump sum within fifteen (15) days after the
Termination Date; (iii) the cap applicable to Outplacement Services shall be
raised to fifty thousand dollars ($50,000); and (iv) nothing contained herein
shall preclude, limit or delay any payments or benefits otherwise owing to the
Executive as the result of such Change in Control pursuant to any "CIC Plan" (as
defined below) then in effect, provided further, that the Executive shall not be
entitled to any duplicative payments or benefits as a result of the interaction
of any such CIC Plan and this Agreement.
(d) Disability. If the Executive's employment hereunder is
terminated by either party by reason of the Executive's Disability, the
Company's sole obligations hereunder shall be as follows:
(i) Accrued Compensation. The Company shall pay the Executive
promptly any Accrued Compensation;
(ii) Pro-Rata Bonus. The Company shall pay to the Executive
the Pro-Rata Bonus with respect to the Bonus Plan year in which the Termination
Date occurs at such time as other participants in the Bonus Plan are paid their
respective bonuses in respect of that Bonus Plan year;
(iii) Base Salary. The Company shall continue to pay the
Executive, at such time and otherwise in accordance with the Company's customary
practices applicable to its executive officers, 100% of Base Salary for the
first 12 months following the Termination Date and 50% of Base Salary for the
next 12 months following the Termination Date; provided, however, that such Base
Salary shall be reduced by the amount of any benefits the Executive receives by
reason of his Disability under the Company's relevant disability plan or plans;
(iv) Insurance Premiums. The Company shall continue to pay the
premiums provided for in Section 7(a) of this Agreement for the time period set
forth therein;
(v) Accelerated Vesting; Exercise Period. The Executive shall
receive an Award Adjustment; and
(vi) Relocation Expenses. The Executive shall receive
Relocation Expenses.
(e) Death. If the Executive's employment hereunder is terminated due
to his death, the Company's sole obligations hereunder shall be as follows:
(i) Accrued Compensation. The Company shall pay promptly to
the Executive's estate or his beneficiaries (as the case may be) any Accrued
Compensation;
15
(ii) Pro-Rata Bonus. The Company shall pay to the Executive's
estate or beneficiaries (as the case may be), the Pro-Rata Bonus with respect to
the Bonus Plan year in which the Termination Date occurs at such time as other
participants in the Bonus Plan are paid their respective bonuses in respect of
that Bonus Plan year;
(iii) Life Insurance Proceeds. The Company shall provide such
assistance as is necessary to facilitate the payment of the life insurance
proceeds provided for in Section 7(a) of this Agreement to the Executive's
beneficiary or beneficiaries;
(iv) Accelerated Vesting; Exercise Period. The Executive shall
receive an Award Adjustment; and
(v) Relocation Expenses. The Executive's estate or
beneficiaries (as the case may be) shall receive Relocation Expenses.
(f) Non-Renewal. If the Executive's employment hereunder is
terminated as a consequence of Non-Renewal, the Company's sole obligation
hereunder shall be as follows:
(i) Accrued Compensation. The Company shall pay promptly to
the Executive the Accrued Compensation;
(ii) Pro-Rata Bonus. The Company shall pay to the Executive
the Pro-Rata Bonus with respect to the Bonus Plan year in which the Termination
Date occurs at such time as other participants in the Bonus Plan are paid their
respective bonuses in respect of that Bonus Plan year;
(iii) Additional Base Salary. The Company shall continue to
pay the Executive for a period of one (1) year following the Termination Date an
amount equal to his Base Salary as in effect immediately prior to the
Termination Date, such payments to be made in accordance with the Company's
customary practices applicable to its executive officers generally;
(iv) Insurance Premiums. The Company shall continue to pay the
premiums provided for in Section 7(a) of this Agreement for the applicable time
period set forth therein; and
(v) Employee Welfare Benefits. The Company shall continue to
provide employee welfare benefits provided for in Section 9(h) below for the
applicable time period set forth therein;
(vi) Accelerated Vesting; Exercise Period. Notwithstanding
anything to the contrary contained herein or in any plan, program, practice or
arrangement, any then unvested Equity Awards or other LTI Awards granted as of
or prior to the Effective Date pursuant to the terms of Section 4 or otherwise
(including the November 2005 Grant) shall immediately vest as of the Termination
Date, with any stock options granted in connection with any such LTI Award
remaining exercisable for the
16
remainder of the original option term without regard to the termination of the
Executive's employment;
(vii) Outplacement Services. The Executive shall receive
Outplacement Services;
(viii) Relocation Expenses. The Executive shall receive
Relocation Expenses;
(ix) Defined Benefit Plans. The Company shall provide one (1)
year additional service and compensation credit (at the Executive's then
compensation level) for benefit purposes under any defined benefit type
retirement plan, including the SERP if then in effect, and, if the Executive is
not eligible to receive benefits under any such plan on the date of termination,
one (1) additional year of age for determining eligibility to receive such
benefits, provided that with regard to any plan qualified under Section 401(a)
of the Code the additional amounts may be provided on a nonqualified plan basis;
(x) Defined Contribution Plans. The Company shall pay promptly
after termination one (1) times the amount of the maximum Company annual
contribution or match to any defined contribution type plan in which the
Executive participates, including the VIP; and
(xi) Deferred Income Plans. All of Executive's accounts under
any deferred income plan of the Company shall vest in full, provided that to the
extent not so permitted under such plan, but subject to Section 9(k), the
Company shall pay the Executive an amount outside of the plan equal to the value
of the amount that would have vested under the plan.
(g) Determination of Base Salary. For purposes of this Section 9,
Base Salary shall be the higher of (i) the Base Salary at the annualized rate in
effect on the Termination Date; and (ii) the Base Salary at the annualized rate
in effect during the calendar year immediately preceding the year in which the
Termination Date occurs.
(h) Continuation of Employee Welfare Benefits.
(i) The Company shall, at its expense, provide to the
Executive and his beneficiaries continued participation in all medical, dental,
vision, prescription drug, hospitalization and life insurance coverages and in
all other employee welfare benefit plans, programs and arrangements in which the
Executive was participating immediately prior to the Termination Date, on terms
and conditions that are no less favorable than those that applied on the
Termination Date, during the following periods:
(A) The period during which the Executive is receiving
continued payment of Base Salary pursuant to Section 9(b)(iii), 9(d)(iii) or
9(f)(iii) of this Agreement; or
17
(B) For a period of three (3) years following the
Termination Date, if the Executive's employment is terminated by the Company
other than for Cause or by the Executive for Good Reason within either the
period six months prior to or two years after a Change of Control.
(ii) Notwithstanding the foregoing, the Company's obligation
under this Section 9(h) shall be reduced to the extent that equivalent coverages
and benefits (determined on a coverage-by-coverage and benefit-by-benefit basis)
are provided under the plans, programs or arrangements of a subsequent employer
of the Executive.
(iii) In the event that the Executive is precluded from
continuing full participation in any employee benefit plan, program or
arrangement as contemplated by this Section 9(h), the Company shall provide to
the Executive the after-tax economic equivalent of any benefit or coverage
foregone. Payment of such after-tax economic equivalent shall be made quarterly.
(iv) Following the end of the period during which medical
benefits are provided to the Executive under this Section 9(h), the Executive
shall be eligible for any remaining period of continued health coverage that may
be required by Section 4980 of the Code or other applicable law, based on a
qualifying event occurring on the Termination Date.
(i) No Mitigation; No Offset. In the event of any termination of his
employment hereunder, the Executive shall not be required to mitigate the amount
of any payment provided for in this Agreement by seeking other employment or
otherwise, and no such payment shall be offset or reduced by the amount of any
compensation provided to the Executive in any subsequent employment, except as
provided in Section 9(h) of this Agreement. In addition, the amounts payable
hereunder shall not be subject to setoff, counterclaim, recoupment, defense or
other right that the Company may have against the Executive or others, except
upon a final unappealable judgment against the Executive for the benefit of the
Company.
(j) Change of Control.
(i) For purposes of this Agreement, the term "Change of
Control" shall have the same meaning as that set forth in Section 2.8 of the
Xxxxx Xxxxx Holdings, Inc. Senior Officer Change in Control Compensation
Benefits Plan, as adopted by the Board on or about November 3, 2005, a copy of
which is attached hereto as Exhibit A (the "CIC Plan"), without regard to any
subsequent amendments or modifications thereto (unless the Executive shall
separately consent in writing in his sole discretion to the application to this
Agreement of each such amendment or modification).
(ii) (A) In the event of a Change in Control of the Company,
the Executive may be eligible for benefits under the CIC Plan merely upon the
occurrence of a Change in Control. The Company shall provide to the Executive
any such benefits that would be due in accordance with the terms of the CIC Plan
without
18
regard to any requirement under the CIC Plan that the Executive waive or
otherwise forego any benefits to which the Executive may be entitled pursuant to
the terms of this Agreement in the event of a Change in Control (referred to
herein as a "Waiver Requirement"). In addition, the Executive may be eligible
for certain additional benefits under the CIC Plan in the event the Executive's
employment is terminated at a time and in a manner prescribed by such plan. The
Company shall provide to the Executive any such additional benefits that would
be due in accordance with the terms of the CIC Plan without regard to any Waiver
Requirement.
(B) In the event the Executive's employment is
terminated at a time and in a manner that would entitle the Executive to the
benefits provided pursuant to Section 9(c) hereof, (1) the Executive shall
receive, without duplicating any benefits to be provided pursuant to
subparagraph (A) above, those benefits to be provided pursuant to Section 9(c)
and Section 11 hereof, respectively, (2) subject to the terms of Section 9(k)
below, any such benefits shall be paid in an accelerated manner in accordance
with the terms of Section 9(c); and (3) the Executive shall be subject to the
lesser of (a) any constraints or restrictions imposed by the CIC Plan then in
effect, and (b) those imposed hereby.
(iii) In all other respects, in the event of a conflict
between the provisions of any CIC Plan adopted by the Company that is otherwise
applicable to the Executive and the provisions of this Agreement, the provisions
of this Agreement shall prevail as to the Executive.
(k) IRC Section 409A Deferrals.
(i) Notwithstanding anything to the contrary contained herein,
in the event that any payment, compensation or other benefit provided to the
Executive upon his termination is determined, in whole or in part, to constitute
"nonqualified deferred compensation" within the meaning of Section 409A of the
Code, and the Executive is a specified employee as defined in Section
409A(2)(B)(i) of the Code, such payments will not be paid before the day that is
six months plus one day after the Termination Date (the "New Payment Date"). The
aggregate of any payments that otherwise would have been paid to the Executive
during the period between the Termination Date and the New Payment Date shall be
paid to the Executive in a lump sum on such New Payment Date. Thereafter, any
payments that remain outstanding as of the day immediately following the Payment
Date shall be paid without delay over time period originally scheduled, in
accordance with the terms of this Agreement.
(ii) The parties acknowledge and agree that the interpretation
of Section 409A of Code and its application to the terms of this Agreement is
uncertain and may be subject to change as additional guidance and
interpretations become available. Anything to the contrary herein
notwithstanding, all benefits or payments provided by the Company to the
Executive that would be deemed to constitute "nonqualified deferred
compensation" within the meaning of Section 409A of the Code are intended to
comply with Section 409A and, in the event that any such benefit or payment is
deemed to not comply with Section 409A, the Company and the Executive
19
agree to renegotiate in good faith any such benefit or payment so that either
(i) Section 409A will not apply or (ii) compliance with Section 409A will be
achieved. In any event, the Company makes no representation or warranty and the
Company shall have no liability to Executive or any other person if any
provisions of this Agreement are determined to constitute "nonqualified deferred
compensation" within the meaning of Section 409A of the Code and the terms of
such provisions do not satisfy the additional conditions applicable to
nonqualified deferred compensation under Section 409A of the Code.
10. EMPLOYEE COVENANTS.
(a) Disclosure of Information. The Executive recognizes that he has
access to and knowledge of confidential and proprietary information of the
Company that is essential to the performance of his duties under this Agreement.
The information that the Company regards as confidential and proprietary or as
trade secrets includes all information, including any formula, compilation,
program, device, method, technique, or process that derives independent economic
value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means, by other persons who can obtain economic
value, actual or potential, from its disclosure or use. The Executive shall not,
during or after his employment by the Company, in whole or in part, disclose
such information to any person (other than an employee of the Company or a
person to whom disclosure is reasonably necessary or appropriate in connection
with the performance by the Executive of his duties as an executive officer of
the Company), for any reason or purpose whatsoever, nor shall he make use of any
such information for his own purposes, except (i) to the extent disclosure is or
may be required by law, by a court of law or by any governmental agency or other
person or entity with apparent jurisdiction to require him to divulge, disclose
or make available such information, (ii) to protect his legal rights hereunder
or (iii) in confidence to an attorney or other advisor for the purpose of
securing professional advice concerning the Executive's personal matters
provided such attorney or other advisor agrees to observe these confidentiality
provisions. This Section 10(a) shall not preclude the use or disclosure by the
Executive of any information obtained by him other than by reason of his
employment by the Company or known generally to the public or known within the
Company's trade or industry (other than as a result of disclosure by him in
violation of this Section 10(a)). This confidentiality covenant has no temporal,
geographical or territorial restriction.
(b) Covenants Regarding Other Employees. During the Term, and for a
period of one (1) year thereafter, the Executive agrees not to actively solicit
directly any exempt, supervisory or management (as such terms are defined under
the Fair Labor Standards Act) employee ("Prohibited Employee") of the Company to
terminate his or her employment with the Company or to interfere in a similar
manner with the business of the Company. For each breach of this provision by
Executive, in addition to the injunctive rights and remedies available to the
Company as provided in this Agreement but otherwise as the Company's exclusive
remedy, Executive hereby agrees to pay the Company, not as penalty but as
liquidated damages to reimburse the Company for training and recruiting costs
incurred in replacing such Prohibited Employee, a sum equal
20
to fifty percent (50%) of the employee's annual salary as of the date of the
Prohibited Employee's termination of employment with the Company.
(c) Non-Competition. During the Term, and for a period of six (6)
months thereafter, the Executive agrees that he will refrain from and will not,
directly or indirectly, as an individual, partner, member, officer, director,
stockholder, employee, advisor, independent contractor, joint venturer,
consultant, agent, representative, salesman or otherwise, enter into, engage in,
be employed by or be engaged as an independent contractor by any direct or
catalog retail business that competes with the Company, provided that such
business operates stores in the United States and generates at least twenty
percent (20%) of its overall earnings from its United States-based operations
(each a "Competitor"). The restrictions of this Section 10(c) shall not be
violated by (i) the ownership of no more than five percent (5%) of the
outstanding securities of any company whose stock is traded on a national
securities exchange or is quoted in the Automated Quotation System of the
National Association of Securities Dealers ("NASDAQ"); (ii) other outside
business investments that do not in any manner conflict with the services to be
rendered by the Executive for the Company and that do not diminish or detract
from the Executive's ability to render his required attention to the business of
the Company; or (iii) the Executive's employment by (or association with) any
entity so long as the Executive is not employed directly by any division or
business unit thereof that would constitute a Competitor.
11. CERTAIN ADDITIONAL PAYMENTS.
(a) Notwithstanding anything to the contrary set forth in Section 9
above, in the event it shall be determined that any payment, benefit or
distribution of any type to or for the benefit of the Executive by the Company,
any of its affiliates, or any person who acquires ownership or effective control
of the Company or ownership of a substantial portion of the Company's assets
(within the meaning of Section 280G of the Code and the regulations thereunder)
or any affiliate of such person, whether paid or payable, received or
receivable, or distributed or distributable pursuant to the terms of this
Agreement or otherwise (the "Total Payments"), is subject to the excise tax
imposed by Section 4999 of the Code or any similar successor provision or any
interest or penalties with respect to such excise tax (such excise tax, together
with any such interest and penalties, are collectively referred to as the
"Excise Tax"), then the Executive shall be entitled to receive an additional
payment (the "Gross-Up Payment") in an amount such that after payment by the
Executive of all taxes (including any interest or penalties imposed with respect
to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Total Payments (not including the Gross-Up Payment).
(b) All determinations as to whether any of the Total Payments are
"parachute payments" (within the meaning of Section 280G of the Code), whether a
Gross-Up Payment is required, the amount of such Gross-Up Payment and any
amounts relevant to the last sentence of Section 11(a), shall be made by an
independent accounting firm selected by the Company from among the largest five
accounting firms in the United States (the "Accounting Firm"). Unless the
Executive agrees otherwise in writing, the
21
Accounting Firm cannot during the two years preceding the date of its selection
have acted in any way on behalf of the Company or any of its affiliates. The
Accounting Firm shall provide its determination (the "Determination"), together
with detailed supporting calculations, regarding the amount of any Gross-Up
Payment and any other relevant matter, both to the Company and the Executive,
within five days of the Termination Date, if applicable, or such earlier time as
is requested by the Company or the Executive (if the Executive reasonably
believes that any of the Total Payments may be subject to the Excise Tax). Any
determination by the Accounting Firm shall be binding upon the Company and the
Executive. As a result of uncertainty in the application of Section 4999 of the
Code at the time of the initial determination by the Accounting Firm hereunder,
it may be determined that the Company should have made Gross-Up Payments
("Underpayment"), or that Gross-Up Payments will have been made by the Company
which should not have been made ("Overpayments"). In either such event, the
Accounting Firm shall determine the amount of the Underpayment or Overpayment
that has occurred. In the case of an Underpayment, the amount of such
Underpayment shall be promptly paid by the Company to or for the benefit of the
Executive. In the case of an Overpayment, the Executive shall, at the direction
and expense of the Company, take such steps as are reasonably necessary
(including the filing of returns and claims for refund), follow reasonable
instructions from, and procedures established by, the Company, and otherwise
reasonably cooperate with the Company to correct such Overpayment. The Executive
and the Company shall each reasonably cooperate with the other in connection
with any administrative or judicial proceedings concerning the existence or
amount of liability for Excise Tax with respect to the Total Payments.
(c) The parties acknowledge and agree that the CIC Plan provides for
a Gross-Up Payment to be made under one or more circumstances (the "Gross-Up
Plan"). The parties further acknowledge and agree that, notwithstanding any
Waiver Requirement contained in the CIC Plan, (i) the Executive shall receive
any benefits to which he would be eligible pursuant to the terms of the Gross-Up
Plan (without regard to any amendments or modifications thereto (unless the
Executive shall separately consent in writing in his sole discretion to the
applicable to this Agreement of each such amendment or modification)); (ii)
without duplicating the benefits to be provided pursuant to the foregoing
subclause (i), the Executive shall receive the benefits provided pursuant to
this Section 11, and (iii) the Executive shall be subject to the lesser of (A)
any constraints or restrictions imposed by the Gross-Up Plan then in effect as
to the Executive, and (B) those imposed hereby.
(d) In all other respects, in the event of a conflict between the
provisions of any Gross-Up Plan adopted by the Company that is otherwise
applicable to the Executive and the provisions of this Agreement, the provisions
of this Agreement shall prevail as to the Executive.
12. INDEMNIFICATION.
(a) The Company agrees that if the Executive is made a party, or is
threatened to be made a party or is otherwise involved (including as a witness),
in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a
22
"Proceeding"), by reason of the fact that he is or was a director, officer or
employee of the Company or is or was serving at the request of the Company as a
director, officer, member, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether or not the basis of the Proceeding is
the Executive's alleged action in an official capacity while serving as a
director, officer, member, employee or agent, the Executive shall be indemnified
and held harmless by the Company to the fullest extent legally permitted or
authorized by the Company's certificate of incorporation or bylaws or
resolutions of the Company's Board of Directors or, if greater, by the laws of
the State of Delaware, as the same exist or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
broader indemnification rights than such certificate of incorporation, bylaw,
resolution or law permitted prior to such amendment), from and against all
liability, loss, cost or expense (including attorneys' and other professionals'
fees and disbursements; judgments; fines; taxes; surcharges; or penalties and
amounts paid in settlement) incurred or suffered by the Executive in connection
with such Proceeding (or part thereof), provided that, except as provided for in
Section 12(c), the Company shall indemnify the Executive with respect to or in
connection with a Proceeding (or part thereof) initiated by the Executive only
if such Proceeding (or part thereof) was authorized by the Board or the board of
directors of Xxxxx Xxxxx, as applicable.
(b) In the event the Executive is made a party or is threatened to
be made a party or is otherwise involved (including as a witness) in any
Proceeding, the Company shall advance to or for the benefit of the Executive all
expenses (including attorneys' and other professionals' fees and disbursements)
incurred by the Executive in defending or participating in any such Proceeding
in advance of its final disposition; provided, that such advancement of expenses
shall be made only upon the delivery of an undertaking to such Company, by or on
behalf of the Executive, to repay all amounts so advanced if it shall ultimately
be determined by a final judgment of a court of competent jurisdiction, after
all appeals (or as to whose judgment the time for seeking such an appeal has
expired without such an appeal having been timely filed) (a "Final
Adjudication") that the Executive is not entitled to indemnification for such
expenses under this Section 12 or otherwise. No security shall be required with
respect to any such undertaking, and the Executive's financial condition shall
not be considered with respect thereto.
(c) If a claim by the Executive for indemnification is not paid in
full within thirty (30) days after delivery to the Company of a written claim
therefor, including reasonable supporting vouchers, or if a claim by the
Executive for advances is not paid in full within ten (10) days after receipt of
such written claim, the Executive may at any time thereafter bring suit against
the Company to recover the unpaid amount of any such claim. In any such suit, or
in a suit brought by the Company to recover any advances pursuant to the terms
of the undertaking from the Executive seeking an advance, the Executive shall be
entitled to be paid also by the Company the expenses (including reasonable
attorneys' and other professionals' fees and disbursements) of prosecuting or
defending such suit or action.
23
(d) In (i) any suit brought by the Executive to enforce a right to
ultimate indemnification, or (ii) any suit by the Company to recover an advance
of expenses from the Executive pursuant to the terms of an undertaking from the
Executive, the Company shall prevail only upon a Final Adjudication in its favor
that the Executive is not or was not entitled to such advances or
indemnification. To the extent that the Executive has been successful on the
merits or otherwise in defense of any Proceeding with respect to which the
Executive seeks indemnification, or of any issue, claim or matter therein, the
Executive shall be deemed entitled to indemnification with respect thereto,
provided, however, that an adverse termination of any such Proceeding (or any
issue, claim or matter therein) in which the Executive is a party, whether by
order, judgment, settlement, conviction or a plea of nolo contendere (or its
equivalent), shall not, of itself, create any presumption that the Executive is
not entitled to such indemnification. Further, neither the failure of the
Company (including its Board, independent legal counsel or shareholders) to have
made a determination prior to the commencement of any suit brought by the
Executive that indemnification of the Executive is proper because the Executive
has met the proper standard of conduct, nor an actual determination by the
Company (including its Board, independent legal counsel or shareholders) that
the Executive has not met such standard of conduct shall create a presumption in
any judicial or arbitral proceeding that the Executive has not met such standard
of conduct. In the case of a suit brought by the Executive to enforce a right to
indemnification or to an advance of expenses, or by the Company to recover an
advance of expenses pursuant to the terms of the Executive's undertaking, both
the burden of going forward and the burden of proving that the Executive is not
entitled to be indemnified, or to such advance of expenses, at all times shall
be on the Company.
(e) The Executive will promptly notify the Company of any
potentially indemnifiable injuries and claims of which the Executive is made
aware, provided that the Executive's failure to make such prompt notification
shall not mitigate or vitiate the Company's obligations to indemnify (or make
advances to or for the benefit of) the Executive except to the extent the
Company's ability to defend against such matter has been adversely affected
thereby.
(f) In the event that the Company accepts its obligations hereunder,
it shall have sole control to select defense counsel, direct the defense of any
such Proceeding and settle claims arising therein, provided that any such
settlement provides a complete release from liability for the Executive and does
not impose non-indemnified liability on the Executive. Notwithstanding anything
to the contrary contained in this Section 12(f), in the event that the Company
shall not accept its obligations hereunder or, having done so, fails to select
counsel for the Executive reasonably acceptable to the Executive within fifteen
(15) days after the Company's receipt of notice from the Executive that a
Proceeding has arisen requiring such appointment, or if such counsel determines
that its representation of the Executive presents a conflict of interest, then
the Executive (i) may select its own counsel to represent it in such Proceeding,
the fees and disbursements of such counsel to be paid for by the Company, (ii)
may control the Executive's own defense of such Proceeding and (iii) may settle
any claims brought against the Executive in such Proceeding, such settlement to
be subject to the reasonable
24
approval of the Company and, if so approved, to be paid by the Company. Even in
the event that the Company does timely appoint counsel to represent the
Executive and such counsel finds no conflict of interest in such representation,
the Executive shall nevertheless have the right to select and to obtain
representation by separate legal counsel. If the Executive exercises such right,
all costs and expenses incurred by the Executive for such separate counsel shall
be borne by the Executive.
(g) The rights to indemnification and to advancement of expenses
conferred in this Section 12 are contract rights and shall survive (i)
termination or expiration of this Agreement and (ii) the termination or
expiration, for any reason (including death), of employment of the Executive by
the Company. The Executive's rights under this Section 12 shall inure to the
benefit of the heirs, personal representatives and estate of the Executive. Any
modification of any of the provisions of this Section 12 shall not adversely
affect any right of the Executive under this Section 12 that existed at or prior
to the time of such modification. The rights to indemnification and to the
advancement of expenses conferred in this Section 12 are cumulative and shall
not be exclusive of any other right that the Executive may have or hereafter
acquire under any statute, provision of law, organizational document of the
Company, resolution of the Board or of the stockholders of the Company,
agreement or otherwise.
(h) The Company agrees to continue and maintain a directors' and
officers' liability insurance policy covering the Executive, until such time as
actions against the Executive are no longer permitted by law, with terms and
conditions no less favorable than the most favorable coverage then applying to
any other senior level executive officer or director of the Company. The Company
acknowledges that its obligations under Section 12(a) are not dependent on the
availability of either such insurance or payments thereunder.
13. SUCCESSORS AND ASSIGNS.
(a) This Agreement shall be binding upon and shall inure to the
benefit of the Company, its successors and assigns, and the Company shall
require any successor or assign expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession or assignment had taken place. The
term "the Company" as used herein shall include any such successors and assigns.
The term "successors and assigns" as used herein shall mean a corporation or
other entity acquiring or otherwise succeeding to, directly or indirectly, all
or substantially all the assets and business of the Company (including this
Agreement) whether by operation of law or otherwise.
(b) The obligations of the Executive hereunder are personal in
nature and may not be assigned by the Executive. However, this Agreement shall
inure to the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive dies and any amount(s) are owed to him
pursuant to this Agreement, all such amounts, unless otherwise provided herein,
shall be paid to Executive's beneficiary in accordance with the terms of this
Agreement. If the Executive has not named a
25
beneficiary, then such amounts shall be paid to the Executive's devisee,
legatee, or other designee, or if there is no such designee, to the Executive's
estate.
14. ARBITRATION. Except as otherwise provided by law, disputes and
controversies arising under or in connection with this Agreement shall be
settled in accordance with the provisions respecting the resolution of disputes
as set forth on Exhibit B attached hereto.
15. FEES AND EXPENSES. In addition to and separate from the Planning
Allowance, the Company shall pay the legal fees reasonably incurred by the
Executive in connection with the negotiation and execution of this Agreement or
any agreement ancillary hereto, payable upon submission of the billing statement
or paid receipt for such services rendered by the Executive's counsel.
16. TAX WITHHOLDING. The Company may withhold from any compensation or
benefits payable under this Agreement all federal, state, city or other taxes
the withholding of which may be required pursuant to any law or governmental
regulation or ruling, as well as any other deductions regularly taken in the
ordinary course (e.g., employee-paid insurance premiums).
17. BENEFICIARIES. The Executive may designate one or more persons or
entities as the primary or contingent beneficiaries of any amounts to be
received under this Agreement. Such designation must be in the form of a signed
writing acceptable to the Board or the Board's designee. The Executive may make
or change such designation(s) at any time.
18. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement (including any Notice of
Termination or related notice) shall be in writing and shall be deemed to have
been duly given when personally delivered or sent by registered or certified
mail, return receipt requested, postage prepaid, or upon receipt if overnight
delivery service or facsimile is used, addressed as follows:
To the Executive:
Xxxxxx Xxxxxxx
c/o Xxxxx Xxxxx Holdings, Inc.
00000 XX 00xx Xxxxxx
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy (not itself constituting notice) to:
Xxxxxxxx & Xxxxxxxx LLP
000 00xx Xxxxxx XX
Xxxxxxxxxx, XX 00000
Att'n: Xxxxx X. Xxxxxxx
26
Phone: (000) 000-0000
Facsimile: (000) 000-0000
To the Company:
Xxxxxxx Xxxxxx End
Chair of the Board of Directors
Xxxxx Xxxxx Holdings, Inc.
00000 XX 00xx Xxxxxx
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy (not itself constituting notice) to:
Xxxxxxx X. Xxxxxx
General Counsel
Xxxxx Xxxxx Holdings, Inc.
00000 XX 00xx Xxxxxx
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Delivery shall be deemed to occur on the earlier of actual receipt or tender and
rejection by the intended recipient. Any party may change its address by notice
to the other parties consistent with this Section 18.
19. SURVIVORSHIP. Except as otherwise set forth in this Agreement, the
respective rights and obligations of the Executive and the Company hereunder
shall survive any termination of the Executive's employment.
20. AMENDMENT; WAIVER. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and the Company. No waiver by either
party hereto at any time of any breach by any other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
21. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Washington, including its
statutes of limitation (or United States federal law, to the extent applicable),
without regard to any otherwise applicable principles of conflicts of law or
choice of law rules (whether of the State of Washington or any other
jurisdiction) that would result in the application of the substantive or
procedural rules or law of any other jurisdiction.
27
22. SEVERABILITY. The provisions of this Agreement shall be deemed
severable, and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
23. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, if any,
understandings and arrangements, oral or written, between the parties hereto
with respect to the subject matter hereof. No agreement or representations, oral
or otherwise, express or implied, with respect to the subject matter hereof have
been made by either party that are not expressly set forth in this Agreement.
24. COUNTERPARTS. This Agreement may be executed in one or more
counterparts (including via facsimile) each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
25. CONSTRUCTION. No provision of this Agreement shall be interpreted or
construed against any party because that party or its legal representative
drafted that provision. The captions and headings of the Sections of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement. Unless the context of this Agreement clearly requires
otherwise: (a) references to the plural include the singular, the singular the
plural, and the part the whole, (b) references to one gender include all
genders, (c) "or" has the inclusive meaning frequently identified with the
phrase "and/or," (d) "including" has the inclusive meaning frequently identified
with the phrase "including but not limited to" or "including without
limitation," (e) references to "hereunder," "herein" or "hereof" relate to this
Agreement as a whole, and (f) the terms "dollars" and "$" refer to United States
dollars. Section, subsection, exhibit and schedule references are to this
Agreement as originally executed unless otherwise specified. Any reference
herein to any statute, rule, regulation or agreement, including this Agreement,
shall be deemed to include such statute, rule, regulation or agreement as it may
be modified, varied, amended or supplemented from time to time. Any reference
herein to any person shall be deemed to include the heirs, personal
representatives, successors and permitted assigns of such person.
26. COMPANY REPRESENTATION. The Company represents and warrants that it
has obtained or will obtain any approvals that are necessary for the Company to
enter into and implement this Agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
by its duly authorized officer and the Executive has executed this Agreement as
of the day and year first above written.
THE COMPANY:
XXXXX XXXXX HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx, Senior Vice President,
General Counsel and Secretary
XXXXX XXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx, Senior Vice President,
General Counsel and Secretary
THE EXECUTIVE:
/s/ Xxxxxx Xxxxxxx
------------------------------------------------
Xxxxxx Xxxxxxx
29
EXHIBIT A
XXXXX XXXXX HOLDINGS, INC. SENIOR OFFICER
CHANGE IN CONTROL COMPENSATION BENEFITS PLAN
AS ADOPTED ON OR ABOUT NOVEMBER 3, 2005
31
EXHIBIT B
DISPUTE RESOLUTION
(a) Negotiations. In the event of any dispute, controversy or claim
by or among the Executive or the Company arising out of or relating to this
Agreement, the Executive's employment by the Company or the termination of such
employment, including as to the interpretation of this Agreement or as the
arbitrability of any issue arising hereunder, the disputing parties or their
representatives shall meet at a place mutually agreed upon by such parties as
soon as reasonably possible (but not later than ten (10) days after notice from
any party hereto to the other parties hereto that the party giving notice has
such a dispute) and shall enter into good faith negotiations aimed at resolving
the dispute. If they are unable to resolve the dispute in a mutually
satisfactory manner within ten (10) days from the date of such meeting, the
disputing parties shall proceed as follows.
(b) Mediation. First, the disputing parties shall endeavor to choose
a mutually-acceptable mediator and mediation process to supplement their efforts
at negotiating a resolution of any dispute. If the parties cannot agree on a
mediation process within ten (10) days after any party has, by notice to each
other disputing party, demanded mediation, then the parties shall engage in good
faith mediation under the auspices of JAMS, using a mediator sitting in the
Redmond, Washington, metropolitan area and otherwise in accordance with the JAMS
Mediation Rules and Procedures then in effect. The disputing parties shall share
equally the costs of mediation, including the fees and expenses of the mediator.
Each disputing party shall be responsible for its own legal and other
professional fees and expenses incurred in connection with such mediation. If
the parties cannot agree on a mediator within ten (10) days after the initiation
of mediation efforts through JAMS, any disputing party may request JAMS to
appoint a neutral mediator in the Redmond, Washington, metropolitan area, and
each disputing party shall agree to such appointment except for good cause
shown.
(c) ADR. If the parties are unable to resolve their dispute through
negotiations or mediation, then, at any time after the second full day of
mediation before the mediator, any disputing party may demand, by notice to each
other disputing party, an end to mediation and the initiation of mandatory,
binding arbitration. In such event, the disputing parties first shall endeavor
to: (i) choose a mutually acceptable alternative dispute resolution ("ADR")
mechanism, including without limitation choosing one or more third party
arbitrators; and (ii) set forth the general framework for the ADR process. If
the disputing parties are unable to agree to a mutually acceptable ADR mechanism
within ten (10) days from the date of the initial proposal from any party with
respect thereto, the disputing parties shall take the actions set forth below.
(d) Arbitration. All other disputes among the parties arising out of
or relating to this Agreement that are not resolved as set forth above shall be
resolved solely
32
by binding arbitration pursuant to the United States Arbitration Act, 9 U.S.C.
Section 1 et seq. All disputes as to whether any dispute is subject to
arbitration shall also be settled by binding arbitration. Either party may
commence arbitration proceedings at any time after the tenth (10th) day after
notice from one party to the other of the inability of the parties to agree upon
a mutually acceptable ADR mechanism as set forth above.
(e) Arbitrator Selection. Any arbitration shall be conducted in the
Redmond, Washington, metropolitan area (or such other area mutually agreeable to
all parties) before a single arbitrator mutually selected by the parties thereto
or, in the event the parties shall fail to agree, by a three-person panel acting
pursuant to the Commercial Arbitration Rules and, if applicable at such time,
the Streamlined Arbitration Rules and Procedures then in effect of the American
Arbitration Association ("AAA"). To the extent, if any, that there is any
conflict between the provisions of this Exhibit A and any applicable rules
promulgated by the AAA, this Exhibit A shall be deemed duly modified to the
extent necessary to obtain the agreement of the AAA to administer the
arbitration proceedings. The three person arbitration panel shall consist of one
arbitrator selected by each disputing party (or group of parties with common
interests) and one arbitrator selected by the first two arbitrators. In the
event that any disputing party shall fail to appoint timely an arbitrator, or in
the event that the first two arbitrators fail to reach agreement within ten (10)
days as to the presiding arbitrator, any disputing party may request the AAA to
appoint such arbitrator. Before submitting a list of potential arbitrators to
the parties for their consideration, the AAA shall consult with each party to
discuss the applicable qualifications for the proposed arbitrators. Each
arbitrator shall be a currently licensed lawyer in the United States of America
with at least ten (10) years experience.
(f) Proceedings.
(i) The parties shall commence arbitration proceedings within
thirty (30) days following the selection of the final arbitrator. The
presentation of evidence shall be governed by the Federal Rules of Evidence.
Discovery shall be controlled by the arbitrator/panel. The arbitrator/panel
shall have the right to employ experts to assist in any proceeding.
(ii) Each party shall have the right to file pre-hearing
dispositive motions with the arbitrator/panel, pursuant to which the
arbitrator/panel may render a final, binding determination and issue an award,
if any.
(iii) The arbitrator(s) shall be and remain at all times
wholly independent and neutral.
(iv) If a party to an arbitration proceeding refuses to
provide any evidence or documentation that the arbitrator(s) order(s) produced,
such party shall be precluded from referring to such evidence or documentation
in the course of asserting any claim or defense in such proceeding.
33
(v) The award shall be made on an expedited basis within
thirty (30) days of the final hearing or, if there is not a hearing, within
thirty (30) days of the submission of all papers.
(vi) Any party may be represented by counsel or any person
whom such party designates at any stage of the arbitration process. A party who
intends to be represented shall notify the other party and the AAA of the name
and address of the representative at least ten (10) days prior to the date set
for the hearing or conference at which the person is first to appear.
(g) Arbitration Award. Unless the parties to the arbitration agree
otherwise, any arbitration award made shall:
(i) be reduced to writing and, if requested by any party, set
forth the arbitrator's/panel's findings of fact and conclusions of law;
(ii) afford any such remedy as is within the scope of the
Agreement, provided, however, that multiple, special, exemplary, consequential
or punitive damages shall not be awarded except in connection with a finding of
fraud or willful misconduct or except for damages of such nature as may be owing
by the prevailing party to third persons where the arbitration relates to a
claim for indemnity by such party for such damages;
(iii) be made on an expedited basis to the extent feasible;
(iv) be final and binding upon the parties, without any right
of further appeal absent fraud or intentional malfeasance by the
arbitrator/panel, and may be entered for enforcement in any court of competent
jurisdiction, or an application may be made to any such court for a judicial
acceptance of such award and an order of enforcement, as the case may be. The
award shall set forth any damages awarded in U.S. dollars and shall be promptly
paid by the losing party to the prevailing party in U.S. dollars, free of
deduction or offset except as provided for in the award, with interest thereon
at the annual rate of 10% from the date of any breach or violation of this
Agreement, as determined as part of the award, until paid in full. In no event
shall any award require any party to pay the fees and expenses incurred by the
other party, provided, however, that, to the extent allowed by applicable law,
any losing party resisting enforcement of any such award shall also be
responsible for reimbursing the prevailing party for any fees and expenses
incurred by such prevailing party incident to the enforcement thereof.
(h) Confidentiality. Each party will participate in any such
arbitration in good faith and will (and will cause its representatives,
employees and affiliates to, and will request each participant in any ADR
mechanism and each arbitrator to) hold the existence, content and result of any
dispute in confidence except to the extent that disclosure of any such
information is required by law.
34
(i) No Default Award. The arbitration shall proceed in the absence
of a disputing party who, after due notice, fails to answer or appear. An award
shall not be made solely upon the default of any such party, but the
arbitrator/panel shall require each party that is present to submit such
evidence as the arbitrator/panel may determine is reasonably necessary to make
an award.
(j) Absence of Arbitrator. If an arbitrator, whether sole or part of
a panel, should die, withdraw or otherwise become incapable of serving, or
should such arbitrator refuse to serve, a successor arbitrator shall be selected
and appointed in the same manner as the original arbitrator and, subject to the
rules applicable to the ADR process or arbitration applicable in such
circumstances, the dispute resolution process shall continue.
(k) Defense to Actions. This dispute resolution policy shall be a
complete defense to any suit, action or proceeding instituted before any court
or agency with respect to any matter resolvable hereunder, provided, however,
that, notwithstanding this provision, any party may seek interim judicial relief
in aid of ADR or arbitration, to prevent a violation of this Agreement pending
ADR or arbitration or to enforce any ADR or arbitration award.
35
