SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.1
SECOND
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
WHEREAS,
Brand Services, Inc., a Delaware corporation ("Company") and Xxxx X. Xxxxxx
("Executive") entered into an employment agreement dated June 1, 1999, as
subsequently amended or otherwise modified and restated, including pursuant
to
the First Amendment thereto dated June 30, 2000 and the Amended and Restated
Employment Agreement dated October 16, 2002 ("Prior Agreement");
and
WHEREAS,
the parties desire to amend and completely restate the Prior Agreement as
evidenced by this Agreement;
NOW,
THEREFORE, in consideration of the premises and mutual covenants contained
herein and for other good and valuable consideration, the parties hereto agree
that, effective January 1, 2005 ("Effective Date"), the Prior Agreement is
hereby amended and completely restated in accordance with the following:
1. Employment
Term.
Subject
to the terms and conditions of this Agreement, the Company shall continue to
employ the Executive for the employment term which shall be the period
commencing on the Effective Date and ending December 31, 2006, unless sooner
terminated in accordance with this Agreement ("Employment Term"). The Employment
Term may be extended for such period and subject to such terms as the parties
may mutually agree in writing.
2. Position.
Subject
to the terms and conditions of this Agreement, during the Employment Term,
the
Executive shall serve as the Vice Chairman of the Company, assist the Chief
Executive Officer, the Chairman, and the Board of Directors ("Board") of the
Company, as reasonably requested by the Board, and shall have such duties and
authority as
the
Board or the Chief Executive Officer may direct from time to time.
3. Base
Salary and Retainer.
During
the period beginning January 1, 2005 and ending December 31, 2005, the Company
shall pay the Executive a base salary ("Base Salary") at the annual rate of
not
less than $449,000. During the period beginning January 1, 2006 and ending
December 31, 2006, the Company shall pay the Executive a retainer ("Retainer")
at the annual rate of not less than $150,000. The Base Salary and the Retainer
shall be payable bi-weekly in arrears, in accordance with the usual payment
practices of the Company, and retroactively from the period January 1, 2005
until the date this Agreement is finally executed. The Executive’s Base Salary
and/or Retainer may be increased, but not decreased, by the Compensation
Committee of the Board upon periodic review not less frequently than annually,
beginning on the Effective Date.
4. Employee
Benefits.
(a) During
the Employment Term, the Executive shall be:
(i) entitled
to participate on a basis no less favorable than other senior executives of
the
Company in all employee benefit plans, programs and policies of the Company,
including, without limitation, any retirement, welfare benefit, perquisite,
fringe benefits and other plans and arrangements of the Company applicable
to
senior executives of the Company as in effect from time to time; provided,
however, that the Executive shall not be entitled to participate in incentive
compensation plans, programs and policies available to senior executives of
the
Company generally except as otherwise specifically described herein;
(ii) reimbursed
on a monthly basis for the lease of an automobile in an amount not to exceed
$775 per month; and
(iii) reimbursed
on a monthly basis for the then current monthly dues and assessments as charged
by such country club of which the Executive is a member in an amount not
exceeding $600 per month.
(b) In
addition to the Base Salary, the Company shall make a credit on the Executive’s
behalf to a nonqualified deferred compensation plan in an amount equal to 25
percent of the Executive’s Base Salary during the period beginning on the
Effective Date and ending on December 31, 2005. The Company shall ensure that
such nonqualified deferred compensation plan, and any obligations or benefits
thereunder with respect to the Executive, shall not be subject to a gross income
inclusion or interest or additional tax by reason of Section 409A of the
Internal Revenue Code of 1986, as amended ("Code").
(c) During
the period beginning on January 1, 2007 and ending on December 31, 2008, the
Executive shall be entitled to participate, on a basis no less favorable than
other senior executives of the Company (including, without limitation, with
respect to premiums, co-pays, deductibles and other costs), in such medical
plan
as may be maintained by the Company.
5. Business
and Legal Expenses.
The
Company shall reimburse such of the Executive’s travel,
entertainment,
home
DSL service, cell phone
and
other business (and
not
personal) expenses
as are reasonably and necessarily incurred by the Executive during the
Employment Term in the performance of his duties hereunder, as
approved by the Board or
the
Company’s Chief
Executive Officer.
In
addition, the Company shall reimburse the Executive the amount of reasonable
expenses, including attorneys’ fees, incurred by the Executive in connection
with the drafting and negotiation of this Agreement,
which
amount shall not exceed $15,000.
6. Termination.
Upon a
termination of the Executive’s employment, the Executive shall be entitled to
the payments described in this Section 6.
(a) For
Cause by the Company; Termination by the Executive.
The
Employment Term may be terminated prior to December 31, 2006 ("Expiration Date")
either (i) by the Company for Cause (as defined below) or (ii) by the Executive
for any reason.
If,
prior
to the Expiration Date, the Employment Term is terminated by the Company for
Cause or by the Executive for any reason, the Executive shall be entitled to
receive his Base Salary or Retainer, as applicable, through the date of
termination, any nonqualified deferred compensation plan contribution that
has
been earned but not yet credited and any unreimbursed business expenses, payable
no later than 30 days following the date of termination, and the Executive
shall
be entitled to receive the Severance Benefits payable at such times and in
such
manner as described in Section 6(f) hereof; except that, if the Employment
Term
is terminated prior to December 31, 2005
by the
Executive for any reason and Severance Benefits have not already begun as of
the
date of such termination, Severance Benefits shall begin immediately following
termination of employment, payable over a period of thirty-six months in the
amount provided in Section 6(f)(i) for a period of twenty-four months and
thereafter, in the amount provided in Section 6(f)(ii) for a period of twelve
months.
The
Executive shall be entitled to such other compensation and benefits following
such termination under applicable plans, policies and practices of the Company,
in accordance with their terms.
Notwithstanding
the foregoing, in the event that the Executive is a specified employee, as
determined under Section 409A of the Code, to the extent Severance Benefits
have
not already begun before the date of termination, any payment of Severance
Benefits contemplated by this subsection (a) shall be made or begin, as
applicable, on the date which is six (6) months after the date of his separation
from service, as determined under Section 409A of the Code and the regulations
and other guidance issued thereunder, and the Executive shall receive
retroactive payments for such six-month period on
the
date which is six (6) months after the date of his separation from service,
to
the extent required to avoid adverse tax consequences under Section 409A of
the
Code and the regulations and other guidance issued thereunder.
(b) Death.
The
Employment Term shall terminate prior to the Expiration Date upon the
Executive’s death. If the Employment Term is terminated prior to the Expiration
Date by reason of the Executive’s death, the Executive’s beneficiary designated
in writing to the Company, or if none at such time, the Executive’s estate shall
receive all amounts otherwise payable under Sections 3, 4(b) and 6(f) of this
Agreement at such times as provided herein, as though the Employment Term had
continued until the Expiration Date and the Executive were still living. The
Executive’s beneficiary or estate, as applicable, shall be entitled to such
other compensation and benefits following such death under applicable plans,
policies and practices of the Company, in accordance with their terms.
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(c) Disability;
by the Company without Cause.
The
Employment Term shall terminate prior to the Expiration Date, at the Company’s
election, if the Executive incurs a Disability (as defined below). In addition,
the Employment Term may be terminated prior to the Expiration Date by the
Company without Cause.
If
the
Employment Term is terminated prior to the Expiration Date by reason of the
Executive’s Disability or by the Company without Cause, subject to the
Executive’s continued compliance with the covenants set forth in Section 9, the
Executive shall continue to participate in all employee benefits and receive
all
amounts otherwise payable under this Agreement at such times as provided herein,
as though the Employment Term had continued until the Expiration Date.
Notwithstanding the foregoing, in the event that the Executive is a specified
employee, as determined under Section 409A of the Code, any payment contemplated
by this subsection (c) shall be made or begin, as applicable, on the date which
is six (6) months after the date of his separation from service, as determined
under Section 409A of the Code and the regulations and other guidance issued
thereunder, and the Executive shall receive retroactive payments for such
six-month period on the date which is six (6) months after the date of his
separation from service, to the extent required to avoid adverse tax
consequences under Section 409A of the Code and the regulations and other
guidance issued thereunder.
(d) Definitions.
For
purposes of this Section 6, the following terms shall have the following
meanings:
(i) "Cause"
shall mean:
(A) The
Executive’s willful and continued failure substantially to perform his duties
under the Agreement (other than as a result of total or partial incapacity
due
to physical or mental illness);
(B) An
act or
acts on the Executive’s part constituting a felony under the laws of the United
States or any state thereof or any other jurisdiction in which the Company
conducts business;
(C) The
Executive’s being under the influence of illegal drugs or alcohol while
performing his duties hereunder;
(D) Any
other
act or omission which is materially injurious to the financial condition or
business reputation of the Company or any of its affiliates; or
(E) The
Executive’s breach of the provisions of Section 9.
For
purposes of this definition, no act or failure to act shall be deemed "willful"
unless effected by the Executive not in good faith and without a reasonable
belief that such action or failure to act was in or not opposed to the Company’s
best interests.
(ii) "Disability"
shall mean the Executive’s inability, as a result of physical or mental illness,
to perform the duties of the position(s) specified in Section 2 for a period
of
90 consecutive days or for an aggregate of 90 days in any twelve consecutive
month period. Any question as to the existence of the Disability of the
Executive as to which the Executive and the Company cannot agree shall be
determined in writing by a qualified independent physician selected by the
Company and acceptable to the Executive. The determination of Disability made
in
writing to the Company and the Executive shall be final and conclusive for
all
purposes of the Agreement.
(e) Notice
of Termination.
Any
purported termination of the Employment Term prior to the Expiration Date by
the
Company or by the Executive shall be communicated by written notice of
termination to the other party hereto, which notice shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination under the provision so indicated.
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(f) Additional Severance
Benefits.
The
Executive shall be entitled to receive total cash payments of $1,347,338
("Severance Benefits") payable monthly over a period of thirty-six months as
follows:
(i) During
the period beginning January 1, 2006 and ending December 31, 2007, the Company
shall pay to the Executive a monthly payment in the amount of $37,056; and
(ii) During
the period beginning January 1, 2008 and ending December 31, 2008, the Company
shall pay to the Executive a monthly payment in the amount of
$38,167.
(g) Release.
Any
payments by the Company to the Executive under this Section 6 or in connection
with any dispute arising under or in connection with this Agreement or relating
to the Executive’s employment with the Company (including payments pursuant to
arbitration as provided for in Section 12(l) hereof) will be contingent upon
the
execution by the Executive of a release of any claims the Executive may have
against the Company, its affiliates or any successor to the Company, such
release to be in a form satisfactory to the Company in its sole discretion;
provided, however, that such release shall not include any claims to future
benefits or payments due under this Agreement or otherwise or any claims that
may otherwise arise in the future.
(h) Deferred
Compensation Plan.
Notwithstanding anything herein to the contrary, the parties agree that any
payment due Executive under the Company’s deferred compensation plan shall not
begin until October 16, 2007, notwithstanding prior
termination of employment,
and the
Company shall cause such plan documents as may be necessary to be amended to
reflect the timing of such payment and shall provide Executive with such form,
if any, as may be necessary for Executive to make any payment elections to
reflect the intent of this paragraph, all before December 31, 2005; provided,
however, that the parties hereby agree to amend this paragraph before December
31, 2005 if necessary to avoid adverse tax consequences under Section 409A
of
the Code and the regulations and other guidance issued thereunder.
7. Equity
Rights and Loan.
(a) Executive
was previously granted 696,889 Performance Based Class C Units
of Brand
Holdings, LLC. Of that amount, Brand
Holdings, LLC will convert 173,644 of these Class C Units into 173,644
Performance Based Class C-1 Units,
which
shall be subject to performance-based vesting in accordance with the terms
of
Exhibit A to this Agreement.
The
balance of the Performance Based Class C Units shall lapse and be forfeited
as
of the Effective Date of this Agreement.
(b)
In
addition, Executive
was previously granted 113,447
Time Based
Class C
Units.
90,758
Time
Based Class C
Units
shall vest on December 31, 2005, notwithstanding
the Executive’s prior termination. The balance of the Time Based Class C Units
granted to the Executive shall lapse and be forfeited as of the Effective Date
of this Agreement.
(c)
In
addition, Executive, an individual retirement account established by Executive,
and certain trusts established for Executive’s family members hold Class A and
Class B Units of Brand Holdings, LLC. Notwithstanding anything to the contrary
in the Limited Liability Company Agreement of Brand Holdings, LLC ("LLC
Agreement"), the Company shall not have the option to purchase the Executive’s
Class A Units, Class B Units, Class C Units, or Class C-1 Units (whether held
in
the Executive’s name and/or the names of his individual retirement account, his
spouse, his children and/or trusts established on their behalf) with respect
to
or on account of termination of the Executive’s employment for any reason,
including for Cause, by the Executive for any reason, or termination of the
Executive without Cause or due to death or disability, whether such Units are
granted under this Agreement or otherwise. For
purposes of this Section
7,
"Company" shall include Brand Holdings, LLC. The Company shall cause such
documents and agreements, as necessary, to be drafted or amended to reflect
the
intent of the foregoing, including without limitation, an amendment to Section
8.9 of the LLC Agreement.
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(d) The
Executive’s employment termination shall not be considered an event of default
under the $1,000,000 Note between the Executive and Brand Holdings, LLC dated
April 15, 2003, and such Note shall not become due and payable at that time,
but, instead, shall continue to become due as otherwise provided therein as
though there were not a termination of employment. The Company shall cause
such
documents and agreements, as necessary, to be drafted or amended to reflect
the
intent of this paragraph, including without limitation, an amendment to the
Note.
8. Change
of Control.
In the
event of a Change of Control, as defined in the LLC Agreement ("Change of
Control") after the Effective Date, the Executive shall receive the following:
(a) The
Base
Salary that has not yet been paid to the Executive for the period beginning
on
the Effective Date and ending December 31, 2005;
(b) To
the
extent the same has not been made, a credit on the Executive’s behalf to a
nonqualified deferred compensation plan in an amount equal to 25 percent of
the
Executive’s Base Salary during the period beginning on the Effective Date and
ending on December 31, 2005, in accordance with Section 4(b);
(c) The
Retainer that has not yet been paid to the Executive for the period beginning
January 1, 2006 and ending December 31, 2006;
(d) The
amount of the car allowance that has not yet been paid to the Executive under
Section 4 for the period beginning on the Effective Date and ending December
31,
2006;
(e) The
amount of the country club reimbursement that has not yet been paid to the
Executive under Section 4 for the period beginning on the Effective Date and
ending December 31, 2006;
(f) The
employee benefits described in subsection 4(a)(i) (or, if such benefits are
not
available to the Executive or have been materially modified after the Change
of
Control, benefits and coverages that are comparable to those the Executive
participated in immediately before the Change of Control) through December
31,
2006, and coverage comparable to the medical coverage provided by the Company
to
the Executive immediately before the Change of Control through December 31,
2008; and
(g)
The
Severance Benefits that have not yet been paid to the Executive.
All
payments contemplated by this Section 8 shall be made within 30 days after
a
Change of Control in a lump sum cash payment, other than the coverages described
in subsection 8(f) hereof, which shall be provided over the coverage period
described therein. Notwithstanding the foregoing, to the extent necessary to
avoid adverse tax consequences under Section 409A of the Code, such payments
shall not be accelerated as a result of a Change of Control, but instead shall
be made at the time they would otherwise have been payable
hereunder.
9. Non-Competition/Confidential
Information.
(a) The
Executive acknowledges and recognizes the highly competitive nature of the
businesses of the Company and its affiliates and accordingly agrees that during
the Employment Term, and thereafter, through the twenty fourth (24th)
month
following the Executive’s termination date:
(i) The
Executive will not directly or indirectly engage in any business which is in
competition with any line of business conducted by the Company or its affiliates
(including without limitation by performing or soliciting the performance of
services for any person who is a customer or client of the Company or any of
its
affiliates) whether such engagement is as an officer, director, proprietor,
employee, partner, investor (other than as holder of less than 1% of the
outstanding capital stock of a publicly traded corporation), consultant,
advisor, agent, sales representative or other participant, in any geographic
area in which the Company or any of its affiliates conducted any such competing
line of business.
(ii) The
Executive will not directly or indirectly assist others in engaging in any
of
the activities in which the Executive is prohibited from engaging in by clause
(i) above.
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(b) The
Executive will not directly or indirectly induce any employee of the Company
or
any of its affiliates to engage in any activity in which the Executive is
prohibited to engage by paragraph (a) above or to terminate his employment
with
the Company or any of its affiliates, and will not directly or indirectly employ
or offer employment to any person who was employed by the Company or any of
its
affiliates unless such person shall have ceased to be employed by the Company
or
any of its affiliates for a period of at least 12 months.
(c) The
Executive will not at any time (whether during or after his employment with
the
Company) disclose or use for his own benefit or purposes or the benefit or
purposes of any other person, firm, partnership, joint venture, association,
corporation or other business organization, entity or enterprise other than
the
Company and any of its subsidiaries or affiliates, any trade secrets,
information, data, or other confidential information relating to customers,
development programs, costs, marketing, trading, investment, sales activities,
promotion, credit and financial data, manufacturing processes, financing
methods, plans, or the business and affairs of the Company generally or of
any
subsidiary or affiliate of the Company, provided that the foregoing shall not
apply to information which is not unique to the Company or which is generally
known to the industry or the public other than as a result of the Executive’s
breach of this covenant. The Executive agrees that upon termination of his
employment with the Company for any reason, he will return to the Company
immediately all memoranda, books, papers, plans, information, letters and other
data, and all copies thereof or therefrom, in any way relating to the business
of the Company and its affiliates, except that he may retain personal notes,
notebooks and diaries. The Executive further agrees that he will not retain
or
use for his account at any time any trade names, trademark or other proprietary
business designation used or owned in connection with the business of the
Company or its affiliates.
10. Specific
Performance and Other Remedies.
The
Executive acknowledges and agrees that the Company has no adequate remedy at
law
for a breach or threatened breach of any of the provisions of Section 9 and,
in
recognition of this fact, the Executive agrees that, in the event of such a
breach or threatened breach, in addition to any remedies at law, the Company,
without posting any bond and without notice to the Executive, shall be entitled
to obtain equitable relief in the form of specific performance, temporary
restraining order, temporary or permanent injunction or any other equitable
remedy which may then be available. Nothing in this Agreement shall be construed
as prohibiting the Company from pursuing any other remedies at law or in equity
that it may have or any other rights that it may have under any other agreement.
11. Excise
Tax Imposed on Executive as a Result of Change of Control.
If (i)
there occurs a Change of Control after the Effective Date, and (ii) the
Executive shall be liable for any tax imposed under Section 4999 of the Code
as
a result of payments under this Agreement, then not later than the due date
for
the payment of any such tax, the Company shall pay to the Executive (a) an
amount equal to such tax, plus (b) an amount equal to any additional taxes
incurred by the Executive as a result of the tax payments to the Executive
pursuant to clause (a), immediately preceding, and this clause (b).
12. Miscellaneous.
(a) Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York without reference to principles of conflict of
laws.
(b) Entire
Agreement/Amendments.
This
Agreement contains the entire understanding of the parties with respect to
the
employment of the Executive by the Company and supersedes any prior agreements
between the Company and the Executive. There are no restrictions, agreements,
promises, warranties, covenants or undertakings between the parties with respect
to the subject matter herein other than those expressly set forth herein and
therein. No provision in this Agreement may be amended unless such amendment
is
agreed to in writing.
(c) Continuation
of Employment.
Unless
the parties otherwise agree in writing, continuation of the Executive’s
employment with the Company beyond the Expiration Date shall be deemed an
employment at will and shall not be deemed to extend any of the provisions
of
this Agreement.
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(d) No
Waiver.
The
failure of a party to insist upon strict adherence to any term of this Agreement
on any occasion shall not be considered a waiver of such party’s rights or
deprive such party of the right thereafter to insist upon strict adherence
to
that term or any other term of this Agreement. No waiver by either party of
any
breach by the other party of any condition or provision contained in this
Agreement to be performed by such other shall be deemed a waiver of a similar
or
dissimilar condition or provision at the same or any prior or subsequent time.
Any waiver must be in writing and signed by the Executive or the Company, as
the
case may be.
(e) Severability.
It is
expressly understood and agreed that although the Executive and the Company
consider the restrictions contained in Section 9 to be reasonable, if a final
judicial determination is made by a court of competent jurisdiction that the
time or territory restriction in Section 9 or any other restriction contained
in
Section 9 is an unenforceable restriction against the Executive, such provision
shall not be rendered void but shall be deemed amended to apply to such maximum
time and territory, if applicable, or otherwise to such maximum extent as such
court may judicially determine or indicate to be enforceable. Alternatively,
if
any court of competent jurisdiction finds that any restriction contained in
Section 9 is unenforceable, and such restriction cannot be amended so as to
make
it enforceable, such finding shall not affect the enforceability of any of
the
other restrictions contained herein. In the event that any one or more of the
other provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the
remaining provisions of this Agreement shall not be affected
thereby.
(f) Assignment.
This
Agreement shall not be assignable by either party without the consent of the
other party.
(g) Successors.
This
Agreement shall inure to the benefit of and be binding upon the personal or
legal representatives, executors, administrators, successors, heirs,
distributes, devisees and legatees of the parties hereto. The Executive shall
be
entitled to select (and change, to the extent permitted under any applicable
law) a beneficiary or beneficiaries to receive any compensation or benefit
payable hereunder following the Executive’s death by giving the Company written
notice thereof. In the event of the Executive’s death or a judicial
determination of his incompetence, reference in this Agreement to the Executive
shall be deemed, where appropriate, to refer to his beneficiary, estate or
other
legal representative.
(h) Communications.
For the
purpose of this Agreement, notices and all other communications provided for
in
this Agreement shall be in writing and shall be deemed to have been duly given
when faxed or delivered or two business days after being mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed (i) to the Executive at his address then appearing in the personnel
records of the Company; and (ii) to the Company at the Company’s then current
headquarters, with a copy to Brand Holdings, LLC, c/o X.X. Xxxxxx Partners,
LLC,
1221 Avenue of the Xxxxxxxx, 00xx
Xxxxx,
Xxx Xxxx, XX 00000, Attention: Xxxxxxxxxxx Xxxxxxx; or (iii) to such other
address as either party may have furnished to the other in writing in accordance
herewith, with such notice of change of address being effective only upon
receipt.
(i) Withholding
Taxes.
The
Company may withhold from any and all amounts payable under this Agreement
such
Federal, state, local and any other applicable taxes as may be required to
be
withheld pursuant to any applicable law or regulation.
(j) Survivorship.
The
respective rights and obligations of the parties hereunder shall survive any
termination of the Executive’s employment to the extent necessary to assure the
agreed preservation of such rights and obligations.
(k) Representations.
Each
party represents and warrants to the other that he or it is fully authorized
and
empowered to enter into this Agreement and that the performance of his or its
obligations under this Agreement will not violate any agreement between him
or
it and any other person or entity.
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(l) Arbitration.
The
parties agree that all disputes arising under or in connection with this
Agreement, and any and all claims by the Executive relating to his employment
with the Company, including any claims of discrimination arising under Title
VII
of the Civil Rights Act of 1964, as amended, the Age Discrimination in
Employment Act, the Americans with Disabilities Act or any similar federal,
state or local law will be submitted to arbitration in the County of St. Louis
in the State of Missouri to the American Arbitration Association ("AAA") under
its rules then prevailing for the type of claim in issue. The parties each
hereby specifically submit to the personal jurisdiction of any federal or state
court located in the County of St. Louis in the State of Missouri for any such
action and further agree that service of process may be made within or without
the State of Missouri by giving notice in the manner provided herein.
In
any
action or proceeding relating to this Agreement, the parties agree that no
damages other than compensatory damages shall be sought or claimed by either
party and each party waives any claim, right or entitlement to punitive,
exemplary, statutory or consequential damages, or any other damages, and each
relevant arbitral panel is specifically divested of any power to award any
damages in the nature of punitive, exemplary, statutory or consequential
damages, or any other damages of any kind or nature in excess of compensatory
damages.
(m) Fees
and Expenses.
Notwithstanding any provision herein to the contrary, in the event of a breach
of this Agreement by
the
Company
at any
time, whether or not litigation is commenced, then, the Company
shall pay to the Executive,
in
addition to any damages incurred by the Executive,
the
costs and expenses incurred by the Executive
in
connection with such breach (including, without limitation, all court costs
and
reasonable attorneys’ fees and costs).
(n) Counterparts.
This
Agreement may be signed in counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same
instrument.
(o) Headings.
The
headings of the sections contained in this Agreement are for convenience only
and shall not be deemed to control or affect the meaning or construction of
any
provision of this Agreement.
IN
WITNESS WHEREOF, the parties have executed this Second Amended and Restated
Employment Agreement as of June 20, 2005.
| |
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| By: | /s/ Xxxx X. Xxxxxx | |
|
Xxxx X. Xxxxxx |
||
The
Executive acknowledges that this Agreement contains an arbitration provision
which may be enforced by either party hereto.
| BRAND SERVICES, INC. | ||
| |
|
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| By: | /s/ Xxxx X. Xxxx | |
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Xxxx X. Xxxx |
||
| Chief Executive Officer | ||
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SCHEDULE
A
Calculation
of Performance Vesting Percentage in Respect of Class C-1
Units
Capitalized
terms used but not defined herein shall have the meanings given them in that
certain Amended and Restated Limited Liability Company Agreement of Brand
Holdings, LLC dated as of January 1, 2005.
(1)
Calculation
of Performance Vesting Percentage.
If
a
Distribution Event is consummated on or before December 31, 2009, the
Performance Vesting Percentage (as defined below) shall be determined by
reference to the Net
Consideration
Per
Common Unit in respect of the Distribution Event measured against the scale
of
putative per Common Unit performance target values (the "Performance
Targets")
set
forth in the table below. If a Distribution Event is not consummated on or
before December 31, 2009, the Performance Vesting Percentage shall be determined
as if the Company were sold at its Formula Value per Common Unit (as defined
in
the LLC Agreement) on such date.
The
"Performance
Vesting Percentage" in
any
such case shall mean the percentage (from 0-100%) under the heading "Performance
Vesting Percentage" in the table below that corresponds to the Net
Consideration
Per
Common Unit or the Formula Value per Common Unit, as the case may be, as
measured against such Performance Targets.
|
Performance
Targets (Per Common Unit)
|
|||||
|
Net
Consideration Per Common Unit or
Formula
Value Per Common Unit
|
|||||
|
Performance
Vesting
Percentage
|
Year
Ending December 31, 2005
|
Year
Ending December 31, 2006
|
Year
Ending
December
31, 2007
|
Year
Ending
December
31, 2008
|
Year
Ending
December
31, 2009
|
|
100%
|
≥$6.30
|
≥11.20
|
≥$18.90
|
≥$24.85
|
≥$30.80
|
|
83.3%
|
≥$5.40
but <$6.30
|
≥$9.60
but <$11.20
|
≥$16.20
but <$18.90
|
≥$21.30
but <$24.85
|
≥$26.40
but <$30.80
|
|
50%
|
≥$4.50
but <$5.40
|
≥$8.00
but <$9.60
|
≥$13.50
but <$16.20
|
≥$17.75
but <$21.30
|
≥$22.00
but <$26.40
|
|
16.7%
|
≥$3.60
but <$4.50
|
≥$6.40
but <$8.00
|
≥$10.80
but <$13.50
|
≥$14.20
but <$17.75
|
≥$17.60
but <$22.00
|
|
0%
|
<$3.60
|
<$6.40
|
<$10.80
|
<$14.20
|
<$17.60
|
(2)
Calculation
of Number of Performance Vested Class C Units.
The
number of "Performance
Vested Class C-1 Units" held
by
any Person at any time for purpose of the Agreement shall equal the Performance
Vesting Percentage (as determined above in this Schedule
A,
and
expressed as a decimal (e.g., 83.3% would be 0.83)) multiplied
by the
total number of Performance Based Class C-1 Units held by such
Person.
