EXHIBIT 10.7f
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 1st day of April, 1998, by and between OMNICOM
GROUP INC., a New York corporation, (the "Company"), and XXXXXXX XXXXXX
XXXXXXXXX (the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive was employed by GGT Group plc., whose name has been
changed to The GGT Group Limited ("GGT"), an indirectly held subsidiary of the
Company, pursuant to a Service Agreement dated May 1, 1991, as thereafter
amended (the "Service Agreement"); and
WHEREAS, the Company desires to employ the Executive, terminate the
Service Agreement and enter an agreement embodying the terms of such employment
(this "Agreement"), and the Executive desires to terminate the Service Agreement
and enter into this Agreement and to accept such employment, subject to the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Employment
The Company agrees to employ the Executive during the Term specified in
paragraph 2, and the Executive agrees to accept such employment, upon the terms
and conditions hereinafter set forth.
2. Term
Subject to paragraphs 6 and 7 below and the other terms and conditions of
this Agreement, the Executive's employment by the Company pursuant to the terms
of this Agreement, shall be for a term commencing as of March 31, 1998 and
expiring on Xxxxx 00, 0000 (xxx "Xxxxxxx Xxxx"); provided, however, the term of
the Executive's employment by the Company shall continue for an indefinite
period thereafter unless and until either (x) the Company shall give to the
Executive one year's advance written notice of expiration of the term, or (y)
the Executive shall give to the Company six months' advance written notice of
expiration of the term (both such notices being referred to as a "Notice of
Termination"). (The Initial Term and the period, if any, thereafter, during
which the Executive's employment shall continue are collectively referred to as
the "Term"). Any Notice of Termination given under this paragraph 2, shall
specify the date of expiration (which may not be earlier than the close of
business on March 31, 2003) and may be given at any time on or after March 31,
2002 in the case of the Company, or on or after September 30, 2002 in the case
of the Executive. The Company shall have the right at any time during such one
year or six month notice period, as the case may be, to relieve the Executive of
his offices, duties and responsibilities and to place him
on a paid leave-of-absence status, provided that during such notice period the
Executive shall remain a full-time employee of the Company and shall continue to
receive his salary compensation and other benefits as provided in this
Agreement. The effective date of the termination of the Executive's employment
with the Company, regardless of the reason therefor, is referred to in this
Agreement as the "Date of Termination".
3. Duties and Responsibilities
(a) (i) During the Term, the Executive shall hold the position of
President and Chief Executive Officer of the TBWA Worldwide group of companies
as constituted from time to time and including any successor (the "Group"). The
Executive shall report directly to the Chief Executive Officer of the Company
(the "Company CEO") at such times and in such detail as the Company CEO shall
reasonably require.
(ii) The Company CEO shall recommend to the Board of Directors of the
Company (the "Board") that the Executive be duly elected to the Board no later
than January 31, 2000. Thereafter, during the Term, the Company CEO shall
recommend to the Board that the Executive be duly nominated for reelection at
each subsequent Annual Meeting of Shareholders upon which his then term of
directorship expires. The Executive agrees to serve on the Board if so elected;
his compensation, if any, for serving as such shall be determined by the Board.
(b) The Executive shall perform such executive and managerial duties and
responsibilities customary to the office of President and Chief Executive
Officer of the Group and as are reasonably necessary to the operations of the
Group and such additional duties as may be assigned to him from time to time by
or under authority of the Company CEO consistent with his position as designated
in paragraph 3(a) above. In furtherance of the foregoing, the Executive shall
have primary responsibility and authority (subject to the terms of this
Agreement, the "Omnicom Grant of Authority" as from time to time in effect and
the authority of the Company CEO) (i) for the general management,
administration, day-to-day operations and long-term planning of the Group, which
shall include authority to determine operating budgets and profit plans for the
Group, (ii) for the determination of the reporting requirements and
relationships, and the review and evaluation, of the key Group personnel who are
employed by companies operating within the Group, and (iii) subject to the
approved operating budget of the Group, for the determination of the
compensation for the key Group personnel.
(c) The Executive will use his reasonable best efforts to (i) perform his
duties and responsibilities in a manner consistent with the policies set forth
in the "Omnicom Grant of Authority" and the parameters of the Group's then
current profit plan and capital expenditure budget, (ii) ensure that the Group
as a whole and each member of the Group comply on a timely basis with all
budgetary and reporting requirements reasonably requested by the Company, (iii)
not incur obligations on behalf of any member of the Group other than in the
ordinary course of business nor enter into any transaction on behalf of any
member of the Group other than in the ordinary course of business, without
obtaining appropriate approvals to the extent required by the Omnicom "Grant of
Authority", and (iv) not knowingly take any action to prevent any member
2
of the Group from participating in the Company's cash management program or
abiding by the Company's dividend, management fee and corporate policies as from
time to time in effect.
(d) During the Term, the Executive's employment by the Company shall be
full-time and exclusive, and the Executive agrees that he will, in carrying out
his duties hereunder, devote all of his business time and attention, his best
efforts, and all of his skill and ability to promote the interests of the
Company and the Group. Notwithstanding the foregoing, the Executive shall be
permitted to engage in charitable and civic activities and manage his personal
investments, provided that such investments are not in a company which the
Executive knows or has reason to believe transacts business with any member of
the Group, or which engages in business competitive with that conducted by any
member of the Group (or, if such company does transact business with a member of
the Group or does engage in a competitive business, it is a publicly held
corporation of which the Executive owns less than 1/4 of 1% of its outstanding
shares), and further provided that such activities (individually or
collectively) do not materially interfere with the performance of his duties or
responsibilities under this Agreement.
(e) During the Term, the Executive's services hereunder shall be performed
at the offices of the Group in New York, New York, subject to necessary travel
requirements of his positions and duties hereunder.
4. Compensation
(a) As compensation for his services hereunder and in consideration of his
non-solicitation/non-servicing and non-disclosure covenants as set forth in
paragraph 8 below, during the Term the Company shall pay, or cause a member of
the Group to pay, the Executive in accordance with its normal payroll practices,
direct salary compensation at the annual rate of at least $860,000. The annual
direct salary compensation shall be reviewed by the Company CEO not less
frequently than every 24 months. The first such review shall be completed by
such date as shall be necessary to permit any salary increase to be effective as
of January 1, 2000.
(b) During the Term, the Executive shall be eligible to participate in the
Company's 1998 Incentive Compensation Plan or any successor plan (the "Incentive
Plan") and to receive awards of stock options, cash bonuses, restricted stock
and other awards thereunder. During the Term, the awards under the Incentive
Plan granted to the Executive by the Compensation Committee of the Board (the
"Compensation Committee") shall be commensurate with the awards granted to the
chief executive officers of the other worldwide advertising agency networks
owned by the Company (together with the Executive, the "Agency CEO's"), taking
into account the relative size and profitability of such advertising agency
networks and such other factors as the Compensation Committee shall deem
reasonable and appropriate. The bonus formula applicable to Executive's bonus in
respect of 1999 is attached as Annex A. The Executive's bonus for calendar year
1998 was $900,000.
5. Expenses; Fringe Benefits
(a) The Company agrees to pay or to reimburse, or cause a member of the
Group to pay or to reimburse, the Executive for all reasonable, ordinary and
necessary vouchered
3
business or entertainment expenses incurred during the Term in the performance
of his services hereunder in accordance with the policy of the Company and the
Group as from time to time in effect. The Executive, as a condition precedent to
obtaining such payment or reimbursement, shall provide to the Company or such
member of the Group designated to pay or reimburse the Executive, any and all
statements, bills or receipts evidencing the travel or out-of-pocket expenses
for which the Executive seeks payment or reimbursement, and any other
information or materials, as the Company or such designated member of the Group
may from time to time reasonably require.
(b) During the Term, the Executive and, to the extent eligible, his
dependents, shall be entitled to participate in and receive all benefits under
any welfare benefit plans and programs made available generally to the Group's
senior level executives based in the United States or (without duplication) to
its employees based in the United States generally (including without
limitation, medical, hospitalization, disability and life insurance programs,
accidental death and dismemberment protection and business travel insurance),
subject, however, to the generally applicable eligibility and other provisions
of the various plans and programs in effect from time to time. In addition,
during the Term, (x) the Company shall provide the Executive with $1,000,000 of
life insurance coverage under the Company's Executive Life Insurance Program and
(y) the Company shall pay or reimburse the Executive, or cause a member of the
Group to pay or to reimburse the Executive, up to $2,000 annually for the
premium costs payments in respect of the Life Assurance policy maintained for
the Executive during his employment period with GGT, which policy currently
provides for an insurance benefit of four times salary (death for any cause) and
of five times salary (death by accident only).
(c) During the Term, the Executive shall be entitled to participate in all
retirement plans and programs (including without limitation any profit
sharing/401(k) plan) made available generally to the Group's senior level
executives based in the United States or (without duplication) to its employees
based in the United States generally, subject, however, to the generally
applicable eligibility and other provisions of the various plans and programs In
effect from time to time. In addition, during the Term, the Executive shall be
entitled to receive fringe benefits and perquisites in accordance with the
plans, practices, programs and policies of the Group from time to time in effect
which are made available generally to the Group's senior level executives based
in the United States or (without duplication) to its employees based in the
United States generally. Such benefits and perquisites as of the date hereof
shall include the following:
(i) for each whole and any partial calendar year included in the
Term, financial planning and tax preparation assistance in an amount not
to exceed $15,000 annually (pro-rated for any partial calendar year);
(ii) health club dues;
(iii) first class travel accommodations; and
(iv) annual membership dues at Anglebrook Golf Club.
4
(d) During each calendar year of the Term, the Executive shall be entitled
to four weeks paid vacation (on a non-cumulative basis), to be taken at such
time(s) as shall not, in the reasonable judgment of the Company CEO, materially
interfere with the Executives fulfillment of his duties hereunder, and shall be
entitled to as many holidays, sick days and personal days as are in accordance
with the Company's policy then in effect generally for its senior level
executives.
(e) The Executive acknowledges that he is a party to a Company Executive
Salary Continuation Agreement ("ESCA") with a 50% salary limitation and a March
31, 1998 first commencement of service date.
(f) During the Term, the Company shall provide, or cause a member of the
Group to provide, the Executive with an automobile allowance of $2,350, per
month to cover his costs of using, maintaining, insuring and garaging his car in
connection with the business of the Group. The Company shall provide the
Executive with the use of a chauffeur in connection with the business of the
Group.
(g) The Executive acknowledges that (i) in March 1998 under the Incentive
Plan, the Company made an initial stock option grant covering 50,000 shares of
the Company's common stock and 10,000 shares of restricted Company common stock;
(ii) in March 1998, $2,000,000 was paid into the Executive's UK pension fund in
full satisfaction of the Company's agreement to remedy the underfunding of the
Executive's Pension Scheme; and (iii) February 1999 under the Incentive Plan the
Executive was awarded a grant of 60,000 shares of the Company's common stock and
10,000 shares of restricted Company common stock in March 1999.
(h) It is intended that the Executive will relocate his family to the New
York area during calendar 2000. At the time of such relocation, the Company
shall pay or cause a member of the Group to pay for the reasonable and ordinary
costs incurred by the Executive related to such move. Until the time Executive
establishes a new residence in the New York City metropolitan area, but not
beyond December 31, 1999, the Company shall provide the Executive with an
appropriate furnished apartment/hotel accommodation in New York City, reasonably
acceptable to Executive. In connection with Executive's purchase of a residence
in the New York City metropolitan area, the Company will, within 14 days of
Executive's written request, advance to Executive (or at the Company's option,
arrange for a third party loan) on or about the date on which title of such new
residence is expected to close, a loan (the "Home Loan") of up to $3,000,000.
$1,000,000 of the Home Loan shall be payable in six months, together with
accrued interest thereon, at the interest rate set forth in clause (y) below.
The remaining $2,000,000 of the Home Loan shall mature on the sooner of (x) one
year after the Date of Termination and (y) March 31, 2003 (the "Maturation
Date"), and shall bear simple interest at the average of the daily LIBOR
(one-year rate) rates published in The Wall Street Journal during the period of
the loan. Payments of principal and interest shall be made annually, on the last
day of March in each year, in arrears, based upon a 20-year amortization
schedule. The Executive shall execute a promissory note evidencing the Home Loan
prepared by the Company and reasonably satisfactory to the Executive. The Home
Loan shall be secured by a first mortgage on Executive's residence so purchased.
The Company shall have the right
5
to offset any payments to be made under the ESCA against any outstanding amounts
of principal and interest on the Home Loan, after notice to such effect..
(i) To the extent any plan, program, practice, policy, arrangement or
agreement providing compensation or benefits to the Executive takes into account
a participant's service with the Company or the Group, whether for the purposes
of determining eligibility, vesting, level of benefits or otherwise, the
Executive's service will include his whole and partial years of service with GGT
prior to its merger with and into the Company; provided, however, for purposes
of determining years of service under the ESCA, the Executive's commencement of
service date shall be March 31, 1998.
(j) The Company shall pay or reimburse the Executive, or cause a member of
the Group to pay or to reimburse the Executive, for the reasonable legal fees
and expenses incurred by the Executive in connection with the negotiation of
this Agreement, not to exceed $35,000.
6. Termination
(a) The Company, by direction of the Board or the Company CEO, shall be
entitled to terminate the Term and to discharge the Executive for "cause"
effective upon the giving of written notice. The term "cause" shall be limited
to the following grounds:
(i) the Executive's failure or refusal to materially perform his
material duties and responsibilities as set forth in paragraph 3 hereof
other than by reason of his disability (as defined in paragraph 7 below),
or the failure of the Executive to devote his attention exclusively to the
business and affairs of the Group in accordance with the terms hereof
(other than by reason of his disability), in each case if such failure or
refusal is not cured (if curable) within 20 days after written notice
thereof to the Executive by the Company;
(ii) the willful misappropriation of the funds or property of the
Company or any member of the Group;
(iii) use of alcohol or illegal drugs, materially interfering with
the performance of the Executive's obligations under this Agreement,
continuing after written warning;
(iv) conviction in a court of law of, or entering a plea of guilty
or no contest to, any felony or any crime involving moral turpitude, fraud
or theft;
(v) the material nonconformance with the standard business practices
and policies of the Company or the Group, including without limitation,
policies against racial or sexual discrimination or harassment made known
to the Executive, which nonconformance is not cured (if curable) within 10
days after written notice to the Executive by the Company;
6
(vi) the willful commission in bad faith by the Executive of any act
which materially injures or could reasonably be expected to materially
injure the reputation, business or business relationships of the Company
or any member of the Group;
(vii) any material breach (not covered by any of the clauses (i)
through (vi) above) of any material term, provision or condition of this
Agreement, if such breach is not cured (if curable) within 20 days after
written notice thereof to the Executive by the Company;
(viii) a voluntary resignation by the Executive other than pursuant
to a Notice of Termination given under paragraph 2 above or for "Good
Reason" (as defined in paragraph 6(b) below); and
(ix) the gross misconduct or gross negligence by the Executive in
the performance of his duties continuing after written warning.
Prior to the effectiveness of any notice to Executive terminating the Executive
for cause hereunder, the Company will provide the Executive with a prompt,
in-person hearing before the Board, at which hearing the Executive may be
accompanied by counsel. Any notice required to be given by the Company pursuant
clause (i), (iii), (v), (vii) or (ix) above shall specify the specific nature of
the claimed breach and the manner in which the Company believes such breach
should be cured (if curable). In the event that the Executive is purportedly
terminated for cause and the arbitrator appointed pursuant to paragraph 19 below
determines that cause as defined herein was not present, then such purported
termination for cause shall be deemed a termination by the Company "without
cause" pursuant to paragraph 6(d) below and the Executive's rights and remedies
will be governed by paragraph 6(d) below in full satisfaction and in lieu of any
and all other or further remedies the Executive may have.
(b) The Executive shall be entitled to terminate this Agreement and the
Term hereunder for "Good Reason" at any time during the Term by written notice
to the Company given not more than 30 days after the occurrence of the event or
if Good Reason occurs by virtue of a series of events, the last occurring event
constituting such Good Reason. "Good Reason" shall be limited to (i) a material
reduction of the Executive's duties or responsibilities or the assignment of
duties which are materially inconsistent with his position as President and
Chief Executive Officer of the Group; which action is not reversed within 20
days after written notice of the breach from the Executive to the Company; and
(ii) the failure of the Board to elect the Executive as a Director of the
Company on or prior to January 31, 2000; or (iii) a material breach (not covered
by clause (i) or (ii) above) by the Company of a material term, provision or
condition of this Agreement, which breach remains uncured for a period of 20
days after written notice of such breach from the Executive to the Company. Any
notice required to be given by the Executive pursuant to this paragraph 6(b)
shall specify the specific nature of the claimed breach and the manner in which
the Executive believes such breach should be cured (if curable).
(c) In the event of the termination of the employment of the Executive
with the Company for any reason (including without limitation, a termination
pursuant to a Notice of
7
Termination under paragraph 2 above) other than by virtue of a termination by
the Company "without cause" or a termination by the Executive for "Good Reason",
the Executive shall be entitled to the following payments and benefits, subject
to any appropriate offsets, as permitted by applicable law, for debts or money
due to the Company or an affiliate thereof (collectively, "Offsets"):
(i) unpaid salary compensation and any unused accrued vacation only
through, and any unpaid reimbursable expenses outstanding as of, the Date
of Termination; and
(ii) all benefits, if any, that had accrued to the Executive through
the Date of Termination under the plans and programs described in
paragraphs 4 and 5 above, or any other applicable compensation and benefit
plans and programs in which he participated as an employee of the Company,
the Group or GGT, in the manner and in accordance with the terms of such
plans and programs;
(iii) any earned but unpaid bonus for the year prior to the year in
which the Date of Termination occurs; and
(iv) in the event the Executive's employment terminated by reason of
his death or disability, or pursuant to a Notice of Termination, without
duplication of any bonus that may be payable under the Incentive Plan, a
bonus for the year in which the Date of Termination occurs, based on the
factors used by the Compensation Committee, that he would have earned had
he remained an employee through the end of such year, prorated based on
the ratio of (A) the number of months, and parts thereof, in the year in
which the Date of Termination occurs, prior to the Date of Termination, to
(B) 12 months.
In the event of the termination of the Executive's employment other than by
virtue of a termination by the Company "without cause" or a termination by the
Executive for "Good Reason", except as provided in this paragraph 6(c) and as
otherwise required by applicable law, the Company shall have no further
liability to the Executive or the Executive's heirs, beneficiaries or estate for
damages, compensation, benefits, severance or other amounts of whatever nature,
directly or indirectly, arising out of or otherwise related to this Agreement
and the Executive's employment or cessation of employment with the Company.
(d) The Company shall have the right at any time during the Term to
terminate the employment of the Executive "without cause" by giving written
notice to the Executive setting forth a Date of Termination. In the event of a
termination by the Company "without cause" or a termination by the Executive for
"Good Reason", the Executive shall be entitled to the following payments and
benefits, subject to any Offsets:
(i) as severance compensation, his then applicable direct salary
compensation when otherwise payable for the following period (the
"Severance Period") (x) from the Date of Termination through March 31,
2003 if the Date of
8
Termination occurs on or prior to March 31, 2002 or (y) one year from the Date
of Termination, if the Date of Termination occurs after March 31, 2002;
(ii) any unpaid reimbursable expenses outstanding, and any unused accrued
vacation, as of the Date of Termination;
(iii) all benefits, if any, that had accrued to the Executive through the
Date of Termination under the plans and programs described in paragraphs 4 and 5
above, or any other applicable compensation and benefit plans and programs in
which he participated as an employee of the Company, the Group or GGT, in the
manner and in accordance with the terms of such plans and programs;
(iv) continued participation on the same basis (including without
limitation, cost contributions) as the other senior executives of the Company in
all medical, dental, hospitalization, disability and life insurance coverage
(the "Continued Plans") in which he was participating on the Date of Termination
(as such Continued Plans are from time to time in effect at the Company) until
the earlier of (A) the end of the period that he receives severance compensation
payments under clause (i) of this paragraph 6(d) or (B) the date, or dates, he
is entitled to receive coverage and benefits under the same type of plan of a
subsequent employer; provided, however, (1) if the Executive is precluded from
continuing his participation in any Continued Plan, he shall be provided with
the after-tax economic equivalent of the benefits provided under the Continued
Plan in which he is unable to participate, for the period specified above, (2)
the economic equivalent of a benefit foregone shall be deemed a reasonable cost
in the State of New York that would be incurred by the Executive in obtaining
such benefit himself on an individual basis, and (3) payment of such after-tax
economic equivalent shall be made quarterly in advance;
(v) any earned but unpaid bonus for the year prior to the year in which
the Date of Termination occurs;
(vi) without duplication of any bonus that may be payable under the
Incentive Plan, a bonus for the year in which the Date of Termination occurs,
based on the factors used by the Compensation Committee, that he would have
earned had he remained an employee through the end of such year, prorated based
on the ratio of (A) the number of months, and pans thereof, in the year in which
the Date of Termination occurs, prior to the Date of Termination, to (B) 12
months; and
(vii) for purposes of determining "Years of Service" under the ESCA, the
Executive's employment with the Employer Group (as defined in the ESCA) shall be
deemed to have terminated on March 31, 2003; provided, however, nothing is this
clause (vii) is intended to limit the conditions of Section V of the ESCA to the
extent the Executive violates any condition between the actual Date of
Termination hereunder and March 31, 2003.
9
In connection with a termination "without cause" or for "Good Reason", except as
provided in this paragraph 6(d) or as otherwise required by applicable law, (x)
the Company shall have no further liability to the Executive or the Executive's
heirs, beneficiaries or estate for damages, compensation, benefits, severance or
other amounts of whatever nature, directly or indirectly, arising out of or
otherwise related to this Agreement and the Executive's employment or cessation
of employment with the Company, and (y) the Executive shall be under no
obligation to mitigate his damages or to seek other employment and if the
Executive obtains other employment, any compensation earned by the Executive
therefrom shall not reduce the Company's severance obligations under this
paragraph 6(d). The making of any severance payments and providing the other
benefits as provided in this paragraph 6(d) is conditioned upon the Executive
signing a general release (the "Release") of the Company and its subsidiaries
and affiliates, and its and their respective successors and assigns, officers,
directors, employees, agents, attorneys and representatives, of any claims
(including, without limitation, claims of discrimination, but excluding any
rights and benefits provided to him under this paragraph 6(d)) relating to the
Executive's employment with the Company or the termination thereof. In the event
the Executive breaches any provisions of the Release or the provisions of
paragraph 8 of this Agreement, in addition to any other remedies at law or in
equity available to it, the Company may cease making any further severance
payments and providing the other benefits provided for herein, without affecting
its rights under this Agreement or the Release.
7. Disability; Death
In the event the Executive shall be unable to perform his duties hereunder
by virtue of illness or physical or mental incapacity or disability (from any
cause or causes whatsoever) in substantially the manner and to the extent
required hereunder prior to the commencement of such disability (all such causes
being herein referred to as "disability") and the Executive shall fail to
perform such duties for periods aggregating 180 days, whether or not continuous,
in any continuous period of 270 days, the Company shall have the right to
terminate the Executive's employment hereunder as at the end of any calendar
month during the continuance of such disability upon at least 30 days' prior
written notice to him. In the event of the Executive's death, the Date of
Termination shall be the date of such death.
8. Non-Solicitation/Non-Servicing Agreement and Protection of Confidential
Information
(a) The Executive acknowledges (i) the highly competitive nature of the
business of the Group and the industry in which the Group competes; (ii) that as
the President and Chief Executive Officer of the Group and his prior position as
Chief Executive Officer of GGT, the Executive has obtained and will continue to
obtain knowledge of the "know-how" and business practices of Group, in which
matters members of the Group have a substantial proprietary interest; (iii) that
his employment hereunder requires the performance of services which are special,
unique, extraordinary and intellectual in character, and his position with the
Group places him in a position of confidence and trust with the clients and
employees of members of the Group; and (iv) that his rendering of services to
the Group necessarily requires the disclosure to the Executive of confidential
information (as defined in paragraph 8(b) below) of the members of the Group. In
the course of the Executive's employment with the Company
10
and GGT, the Executive has and will continue to develop a personal relationship
with clients of members of the Group and a knowledge of those clients' affairs
and requirements, and that the relationship of members of the Group with their
established clientele will therefore be placed in the Executive's hands in
confidence and trust. The Executive consequently agrees that it is reasonable
and necessary for the protection of the confidential information, goodwill and
business of the Group that the Executive make the covenants contained herein and
that the Company would not have entered into this Agreement unless the covenants
set forth in this paragraph 8 were contained in this Agreement. Accordingly, the
Executive agrees that during the period that he is employed by the Company and
thereafter through the longer of: (x) the Severance Period and (y) two years
after the Date of Termination he shall not, as an individual, consultant,
partner, shareholder, or in association with any other person, business or
enterprise, except on behalf of the Company, directly or indirectly, and
regardless of the reason for his ceasing to be employed by the Company:
(i) attempt in any manner to solicit or accept from any client
business of the type performed by members of the Group or to persuade any
client to cease to do business or to reduce the amount of business which
any such client has customarily done or is reasonably expected to do with
any member of the Group, whether or not the relationship between such
member of the Group and such client was originally established in whole or
in part through his efforts; or
(ii) employ as an employee or retain as a consultant any person who
is then or at any time during the preceding twelve months was an employee
of or exclusive consultant to a member of the Group, or persuade or
attempt to persuade any employee of or exclusive consultant to a member of
the Group to leave the employ of such member or to become employed as an
employee or retained as a consultant by anyone other than another member
of the Group; or
(iii) render to or for any client any services of the type rendered
by members of the Group.
As used in this paragraph 8, the term "client" shall mean (1) anyone who is a
client of any member of the Group on the Date of Termination or, if the
Executive's employment shall not have terminated, at the time of the alleged
prohibited conduct (any such applicable date being called the "Determination
Date"); (2) anyone who was a client of any member of the Group at any time
during the one year period immediately preceding the Determination Date; (3) any
prospective client to whom any member of the Group had made a new business
presentation (or similar offering of services) at any time during the one year
period immediately preceding the Determination Date; and (4) any prospective
client to whom any member of the Group made a new business presentation (or
similar offering of services) at any time within six months after the Date of
Termination (but only if the initial discussions between such member of the
Group and such prospective client relating to the rendering of services occurred
prior to the Date of Termination, and only if the Executive participated in or
directly supervised such discussions). For purposes of this clause it is agreed
that a general mailing or an incidental contact shall not be deemed a "new
business presentation or similar offering of services or a "discussion". In
addition, if the client is part of a group of companies which conducts business
through more than
11
one entity, division or operating unit, whether or not separately incorporated
(a "Client Group"), the term "client" as used herein shall also include each
entity, division and operating unit of the Client Group where the same
management group of the Client Group has the decision making authority with
respect to contracting for services of the type rendered by members of the
Group.
(b) In the course of the Executive's rendering services to the Group he
has acquired and will continue to acquire and have access to confidential or
proprietary information about the Group and members of the Group and/or their
clients, including but not limited to, trade secrets, methods, models,
passwords, access to computer files, financial information and records, computer
software programs, agreements and/or contracts between members of the Group and
their clients, client contacts, marketing and/or creative policies and ideas,
advertising campaigns, media plans and budgets, practices, concepts, strategies,
and methods of operations, financial or business projections of the Group as a
whole and members of the Group individually, acquisition strategies and
candidates, and information about or received from clients and other companies
with which members of the Group do business. The foregoing shall be collectively
referred to as "confidential information". The Executive is aware that the
confidential information is not readily available to the public and accordingly,
the Executive agrees that he will not at any time (whether during the Term or
after termination of this Agreement), disclose to anyone any confidential
information, or utilize such confidential information for his own benefit, or
for the benefit of third parties except in furtherance of his duties hereunder.
The Executive agrees that the foregoing restrictions shall apply whether or not
any such information is marked "confidential". The term "confidential
information" does not include information which (i) becomes generally available
to the public or the trade other than by the Executive's breach of this
provision, (ii) the Executive learns from a third party who is not under an
obligation of confidence to the Company or any member of the Group, or (iii) the
Executive learns from a subsequent employer. In the event that the Executive
becomes, on the advice of his counsel, legally required to disclose any
confidential information, he will provide the Company with prompt notice thereof
so that the Company or a member of the Group designated by it may seek a
protective order or other appropriate remedy and/or waive compliance with the
provisions of this paragraph 8(b) to permit a particular disclosure. In the
event that such protective order or other remedy is not obtained, or that the
Company waives compliance with the provisions of this paragraph 8(b) to permit a
particular disclosure, the Executive will furnish only that portion of the
confidential information which he is legally required to disclose and, at the
Company's expense, will, in the absence of a direct conflict of interest,
cooperate with the efforts of the Company or the designated member of the Group
to obtain a protective order or other reliable assurance that confidential
treatment will be accorded the confidential information. The Executive further
agrees that all memoranda, disks, files, notes, records or other documents,
whether in electronic form or hard copy (collectively, the "material") compiled
by him or made available to him during his employment with the Company and/or
GGT (whether or not the material contains confidential information) shall be the
property of the Company or the appropriate member of the Group, as the case may
be, and shall be delivered to the Company, or such appropriate member of the
Group, on the termination of the Executive's employment with the Company or at
any other time upon request by the Company. Except in connection with the
Executive's employment with the Company, the Executive agrees that he will not
make or retain copies or excerpts of the material.
12
(c) If the Executive commits a breach or is about to commit a breach, of
any of the provisions of paragraphs 8(a) or (b) above, the Company and other
members of the Group shall have the right to have the provisions of this
Agreement specifically enforced by the arbitrator appointed under paragraph 19
or by any court having equity jurisdiction without being required to post bond
or other security and without having to prove the inadequacy of the available
remedies at law, it being acknowledged and agreed that any such breach or
threatened breach will cause irreparable injury to the Company and members of
the Group and that money damages will not provide an adequate remedy to the
Company and other members of the Group. In addition, the Company and other
members of the Group may, subject to the provisions of paragraph 19 hereof, take
all such other actions and remedies available to each of them under law or in
equity and shall be entitled to such damages as they can show they have
sustained by reason of such breach.
(d) The parties acknowledge that (i) the type and periods of restriction
imposed in the provisions of paragraphs 8(a) and (b) above are fair and
reasonable and are reasonably required in order to protect and maintain the
proprietary interests of the Company and the Group described above, other
legitimate business interests of the Company and the Group and the goodwill
associated with the business of the Company and the Group, (ii) that the
business of the Group extends throughout the world and that the Executive will
engage in such business pursuant to the terms of this Agreement throughout the
world and (iii) that the time, scope and other provisions of this paragraph 8
have been specifically negotiated by sophisticated commercial parties. It is
further understood and agreed that the clients of the members of the Group may
be serviced from any location and accordingly it is reasonable that the
covenants set forth herein are not limited by narrow geographic area but
generally by the location of such clients and potential clients. The Executive
specifically acknowledges that his being restricted from soliciting and
servicing clients as contemplated by this Agreement will not prevent him from
being employed or earning a livelihood in the type of business conducted by
members of the Group. If any of the covenants contained in paragraphs 8(a) or
(b), or any part thereof, is held to be unenforceable by reason of its extending
for too great a period of time or over too great a geographic area or by reason
of its being too extensive in any other respect, the parties agree (x) such
covenant shall be interpreted to extend only over the maximum period of time for
which it may be enforceable and/or over the maximum geographic areas as to which
it may be enforceable and/or over the maximum extent in all other respects as to
which it may be enforceable, all as determined by the court or arbitration panel
making such determination and (y) in its reduced form, such covenant shall then
be enforceable.
9. Intellectual Property
During the Term, the Executive will disclose to members of the Group all
ideas, inventions and business plans developed by him during such period which
relate directly or indirectly to the business of the Group, including without
limitation, any design, logo, slogan, advertising campaign or any process,
operation, product or improvement which may be patentable or copyrightable. The
Executive agrees that all patents, licenses, copyrights, tradenames, trademarks,
service marks, planning, marketing and/or creative policies, advertising
campaigns, media campaigns, and budgets, practices, concepts, strategies, and
methods of operations, financial or business projections, designs, logos,
slogans and business plans
13
developed or created by the Executive in the course of his employment hereunder,
either individually or in collaboration with others, will be deemed works for
hire and the sole and absolute property of the Company or the member of the
Group for which the same was developed or created. The Executive agrees, that at
the request and expense of the Company or a member of the Group, he will take
all steps necessary to secure the rights thereto to the Company or such other
member of the Group by patent, copyright or otherwise.
10. Enforceability
The Executive acknowledges that certain of the provisions contained in
this Agreement, including but not limited to those contained in paragraph 8
above, are intended to protect each member of the Group, and accordingly each
such Group member shall be deemed a third party beneficiary with respect to such
provisions and shall have the right to enforce such provisions as appropriate.
The failure of any party at any time to require performance by another party of
any provision hereunder shall in no way affect the right of that party
thereafter to enforce the same, nor shall it affect any other party's right to
enforce the same, or to enforce any of the other provisions in this Agreement;
nor shall the waiver by any party of the breach of any provision hereof be taken
or held to be a waiver of any subsequent breach of such provision or as a waiver
of the provision itself.
11. Assignment
This Agreement is a personal contract and the Executive's rights and
obligations hereunder may not be sold, transferred, assigned, pledged or
hypothecated by the Executive. The rights and obligations of the Company
hereunder shall be binding upon and run in favor of the successors and assigns
of the Company.
14
12. Modification
This Agreement may not be orally canceled, changed, modified or amended,
and no cancellation, change, modification or amendment shall be effective or
binding, unless in writing and signed by the parties to this Agreement.
13. Severability; Survival
In the event any provision or portion of this Agreement is determined to
be invalid or unenforceable for any reason, in whole or in part, the remaining
provisions of this Agreement shall nevertheless be binding upon the parties with
the same effect as though the invalid or unenforceable part had been severed and
deleted. The respective rights and obligations of the parties hereunder shall
survive the termination of the Executive's employment to the extent necessary to
the intended preservation of such rights and obligations.
14. Life Insurance
The Executive agrees that, during the Term, and, in the event insurance is
used to fund any deferred compensation for the Executive, until such time as
such deferred compensation is paid, the Company or a member of the Group
designated by it shall have the right to obtain reasonable amounts of life
insurance on the Executive's life, at the sole expense of the Company or such
designee, as the case may be, and with the Company or such other member of the
Group as the sole beneficiary thereof. The Executive shall (a) cooperate fully
in obtaining such life insurance, (b) sign any necessary consents, applications
and other related forms or documents and (c) at the expense of the Company or
designated member of the Group, take any reasonably required medical
examinations.
15. Notice
Any notice, request, instruction or other document to be given hereunder
by any party hereto to another party shall be in writing and shall be deemed
effective (a) upon personal delivery, if delivered by hand, or (b) three days
after the date of deposit in the mails, postage prepaid if mailed by certified
or registered mail, or (c) on the next business day, if sent by facsimile
transmission (if electronically confirmed) or prepaid overnight courier service,
and in each case, addressed as follows:
15
If to the Executive:
Xxxxxxx Xxxxxx Xxxxxxxxx
TBWA Worldwide
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
with a copy to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Fax: (000)000-0000
If to the Company:
Omnicom Group Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary
Fax: (000)000-0000
with a copy to:
Xxxxx & Xxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
Any party may change the address to which notices are to be sent by giving
notice of such change of address to the other party in the manner herein
provided for giving notice.
16. Applicable Law
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without application of conflict of law provisions
applicable therein.
16
17. No Conflict
The Executive represents and warrants that he is not subject to any
agreement, instrument, order, judgment or decree of any kind, or any other
restrictive agreement of any character, which would prevent him from entering
into this Agreement or which would be breached by the Executive upon his
performance of his duties pursuant to this Agreement.
18. Entire Agreement
This Agreement represent the entire agreement between the Company and the
Executive with respect to the subject matter hereof, and all prior agreements,
plans and arrangements relating to the employment of the Executive by the
Company or any affiliate thereof are nullified and superseded hereby, including
without limitation the Service Agreement. The Executive acknowledges that GGT
has satisfied all obligations to him under the Service Agreement.
19. Arbitration
(a) If any dispute arises between the Executive and the Company that the
parties cannot resolve themselves, including any dispute over the application,
validity, construction, or interpretation of this Agreement, arbitration in
accordance with the then-applicable rules of the American Arbitration
Association with respect to employment disputes shall provide the exclusive
remedy for resolving any such dispute, regardless of its nature; provided,
however, that the Company and any other aggrieved member of the Group may
enforce Executive's obligations under paragraph 8 hereof and the obligations of
the Executive with respect to the notice provision under paragraph (2) above, by
an action for injunctive relief in a court of competent jurisdiction at any time
prior or subsequent to the commencement of an arbitration proceeding as herein
provided.
(b) Except with respect to injunctions provided for under paragraph (a)
above, this paragraph 19 shall apply to all disputes arising under or in
connection with this Agreement. This paragraph 19 shall apply to claims arising
under state and federal statutes, local ordinances, and the common law. The
arbitrator shall apply the same substantive law that a court with jurisdiction
over the parties and their dispute would apply under the terms of this
Agreement. The arbitrator's remedial authority shall equal the remedial power
that a court with jurisdiction over the parties and their dispute would have.
The arbitrator shall, upon an appropriate motion, dismiss any claim brought in
arbitration if he or she determines that the claim could not properly have been
pursued through court litigation. If the then-applicable rules of the American
Arbitration Association conflict with the procedures of this paragraph 19(b),
the latter shall apply.
(c) If the parties cannot agree upon an arbitrator, the parties shall
select a single arbitrator from a list of seven arbitrators provided by the New
York City, New York office of the American Arbitration Association. All seven
listed arbitrators shall be retired judges experienced in employment law and/or
persons actively involved in hearing private cases. If the parties cannot agree
on selecting an arbitrator from that list, then the parties shall alternately
17
strike names from the list, with the first party to strike being determined by
lot. After each party has used three strikes, the remaining name on the list
shall be the arbitrator, unless subject to objection by reason of conflict, bias
or similar bona fide grounds.
(d) Each party may be represented by counsel or by another representative
of the party's choice, and each party shall pay the costs and fees of its
counsel or other representative and its own filing or administrative fees. The
arbitrator shall have the right to award the prevailing party in any dispute its
or his reasonable attorneys' fees and cost, as the case may be, incurred in
connection with such arbitration proceeding.
(e) The arbitrator shall render an award and opinion in the form typical
of those rendered in labor arbitrations, and that award shall be final and
binding and non-appealable, except to the extent otherwise provided under
applicable law. To the extent that any part of this paragraph 19 is found to be
legally unenforceable for any reason, that part shall be modified or deleted in
such a manner as to render this paragraph 19 (or the remainder of this
paragraph) legally enforceable and as to ensure that except as provided in
paragraph 19(a), all conflicts between the Company and the Executive shall be
resolved by neutral, binding arbitration. The remainder of this paragraph 19
shall not be affected by any such modification or deletion but shall be
construed as severable and independent. If a court finds that the arbitration
procedures of this paragraph 19 are not absolutely binding, then the parties
intend any arbitration decision to be fully admissible in evidence, given great
weight by any finder of fact, and treated as determinative to the maximum extent
permitted by law.
(f) Unless the parties agree otherwise, any arbitration shall take place
in the New York City, New York in such location as agreed to by the Company and
the Executive. If the parties cannot agree upon a location for the arbitration,
the arbitrator shall determine the location within New York City, New York.
(g) The Executive has read and understands this paragraph 19 which
discusses arbitration. The Executive understands that by signing this Agreement,
the Executive agrees to submit any claims arising out of, relating to, or in
connection with this Agreement, or the interpretation, validity, construction,
performance, breach or termination thereof, or his employment or the termination
thereof, to binding arbitration, and that this arbitration provision constitutes
a waiver of the Executive's right to a jury trial and relates to the resolution
of all disputes relating to all aspects of the employer/employee relationship,
including but not limited to the following:
(i) Any and all claims for wrongful discharge of employment, breach
of contract, both express and implied; breach of the covenant of good
faith and fair dealing, both express and implied; negligent or intentional
infliction of emotional distress; negligent or intentional
misrepresentation; negligent or intentional interference with contract or
prospective economic advantage; and defamation;
(ii) Any and all claims for violation of any federal, state or
municipal statute, including, without limitation, Title VII of the Civil
Rights
18
Act of 1964, as amended, the Civil Rights Act of 1991, the Equal Pay Act,
the Employee Retirement Income Security Act of 1974, as amended, the Age
Discrimination in Employment Act of 1967, the Americans with Disabilities
Act of 1990, the Family and Medical Leave Act of 1993, the Fair Labor
Standards Act and the New York Human Rights Law; and
(iii) Any and all claims arising out of any other federal, state or
local laws or regulations relating to employment or employment
discrimination.
20. Indemnification.
The Company shall provide Executive with the benefits of all
indemnification provisions contained in the Certificate of Incorporation and
By-laws of the Company, to the fullest extent permitted by applicable law at the
time of the assertion of any liability against Executive. The Executive will be
covered by any Directors' and Officers' Insurance Policy which the Company may
from time to time have in effect, and shall provide Executive with such other
indemnification and/or contribution benefits as the Company may at any time
during the Term hereof provide to the other Agency CEO's generally.
21. Headings
The headings contained in this Agreement are for reference purposes only,
and shall not affect the meaning or interpretation of this Agreement.
22. Miscellaneous
The Company may withhold from any amounts payable under this Agreement
such federal, state or local taxes as shall be required to be withheld pursuant
to any applicable law or regulation.
19
IN WITNESS WHEREOF, the parties have executed this Agreement on
___________ ___, 1999 as of the day and year first above written.
OMNICOM GROUP INC.
/s/ Xxxxx X. Xxxxxx
By: ------------------------------------
Name: Xxxxx X. Xxxxxx
Title: General Counsel and Secretary
/s/ Xxxxxxx Xxxxxx Xxxxxxxxx
------------------------------------
Xxxxxxx Xxxxxx Xxxxxxxxx
20
Annex A
1999 Performance Compensation
Xxxx Xxxxxxxxx
Xx. Xxxxxxxxx' Cash Bonus and Restricted Stock award value in respect of
1999 ("Performance Compensation") shall be based on TBWA International
B.V. ("TBWA") Performance Criteria, with a weight of 80% of all criteria
measured, and Omnicom Group Inc. ("0MC") Performance Criteria, with a
weight of 20% of all criteria measured.
Xx. Xxxxxxxxx' Performance Compensation in respect to the 1999 TBWA
Performance shall be based on the following criteria, by order of
importance:
A. If TBWA's 1999 pretax profit margin is less than its 1998 pretax profit
margin, the Committee may make a downward adjustment to the amount of
Performance Compensation Xx. Xxxxxxxxx should otherwise be entitled to
receive under the table below. The pretax profit margin shall be
determined by dividing TBWA's pretax profit by its commissions and fees.
B. TBWA 1999 Net Profit vs. 1998 Net Profit
Performance Targets 80% Performance
1999 vs. 1998 Net Profit Compensation (Maximum)
More than 120.0% 1,650,000 (125% of 80% of'98 Perf. Comp.)
115.1% - 120.0% 1,585,000 (120% of 80% of'98 Perf Comp.)
110.1% - 115.0% 1,450,000 (110% of 80% of '98 Perf. Comp.)
105.1% - 110.0% 1,320,000 (100% of 80% of'98 Perf Comp.)
100.1% - 105.0% 1,190,000 ( 90% of 80% of'98 Perf. Comp.)
95.0% - 100.0% 1,055,000 ( 80% of 80% of'98 Perf. Comp.)
(Amounts rounded to the closest $5,000)
C. If TBWA's 1999 revenue growth (including revenue growth from acquisitions)
is less than 10%, the Compensation Committee of the Board may make a
downward adjustment to the amount of Performance Compensation Xx.
Xxxxxxxxx should otherwise be entitled to received under the above table.
Xx. Xxxxxxxxx Performance Compensation in respect to the 1999 OMC
Performance shall be based on the following criteria, by order of
importance:
A. Omnicom Group Inc. ("0MC") earnings per share fully diluted before special
charges, extraordinary items and the effect of any changes in accounting
principles ("EPS") for 1999 evaluated relative to OMC's EPS for 1999.
21
1999 EPS vs. 1998 EPS
Performance Targets 20% Performance
1999 EPS vs. 1998 EPS Compensation (Maximum)
More than 120.0% 415,000 (125% of 20% of'98 Perf Comp.)
115.1% - 120.0% 395,000 (120% of 20% of '98 Perf. Comp.)
110.1% - 115.0% 365,000 (110% of 20% of '98 Perf. Comp.)
105.1% - 110.0% 330,000 (100% of 20% of '98 Perf Comp.)
100.1% - 105.0% 295,000 (90% of 20% of '98 Perf Comp.)
95.0% - 100.0% 265,000 (80% of 20% of '98 Perf Comp.)
(Amounts rounded to the closest $5,000)
If OMC's 1999 EPS is less than 95% of its 1998 EPS, the Compensation Committee
of the Board ("Committee") may make further downward adjustments to the
Performance Compensation.
B. If OMCs 1999 operating margin is less than its 1999 operating margin, the
Compensation Committee of the Board ("Committee") may make a downward
adjustment to the amount of Performance Compensation Xx. Xxxxxxxxx should
otherwise be entitled to received under the above table. The
operating margin shall be determined by dividing the sum of OMC's income
before tax plus its net interest expense by its commissions and fees.
Income before tax shall exclude special charges, extraordinary items and
the effect of any changes in accounting principles.
C. If OMC's 1999 revenue growth is less than the average revenue growth of
its three largest competitors (WPP, IPG, CIDA), the Compensation Committee
of the Board may make a downward adjustment to the amount of Performance
Compensation Xx. Xxxxxxxxx should otherwise be entitled to receive under
the above table. If full-year 1999 revenues are not available for all
three competitors, the Committee will rely on revenues of the most recent
coincident 12-month period.
The Committee retains the overall discretion to reduce the Performance
Compensation Xx. Xxxxxxxxx may otherwise be entitled to receive hereunder.
22
NOTE
October 23, 0000 Xxxxxxxxx, Xxxxxxxxxxx
00 Xxxxxxxxx Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000
(Property Address)
1. Borrower's Promise to Pay
In return for a loan that I have received, I promise to pay U.S. $2
MILLION (Two Million Dollars) (this amount is called "principal"), plus
interest, to the order of the Lender. The Lender is Omnicom Finance Inc. I
understand that the Lender may transfer the Note. The Lender or anyone who takes
this Note by transfer and who is entitled to receive payments under this note is
called the "Note Holder."
2. Interest
Interest will be charged on unpaid principal until the full amount of
principal has been paid. I will pay interest at the average of the daily LIBOR
(one-year rate) rates published in The Wall Street Journal during the period of
the loan.
3. Payments
I shall make payments of interest annually, on the last day of March in
each year, in arrears. The outstanding principal shall be repayable no later
than the last day of March 2003. Payments shall be made at: Xxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000.
4. Borrower's Right to Prepay
I have the right to make payments of principal at any time before they are
due. A payment of principal only is known as a "prepayment." When I make a
prepayment, I will tell the Note Holder in writing that I am doing so.
I may make a full prepayment or partial prepayments without paying any
prepayment charge. The Note Holder will use all of my prepayments to reduce the
amount of principal that I owe under this Note. If I make a partial prepayment,
there will be no changes in the due date or in the amount of my annual payment
unless the Note Holder agrees in writing to those changes.
5. Loan Charges
If a low, which applies to this loan and which sets maximum loan charges,
is finally interpreted so that the interest or other loan charges collected or
to be collect in connection with this loan exceed the permitted limits, the (i)
any such loan charge shall be reduced by the amount necessary to reduce the
charge to the permitted limit; and (ii) any such sums already collected from me
which exceeded permitted limits will be refunded to me. The Note Holder may
choose to make this refund by reducing the principal I owe under this Note or by
making a direct payment to me. If a refund reduces principal, the reduction will
be treated as a partial prepayment.
6. Borrower'S Failure to Pay as Required
(A) Late Charge for Overdue Payments
If the Note Holder has not received the full amount of any annual payment
by the end of 10 calendar days after the date it is due, I will pay a late
charge to the Note Holder. The amount of the charge will be 5% of my overdue
payment of principal and interest. I will pay this late charge promptly but only
once on each late payment.
(B) Default
If I do not pay the full amount of each payment on the date it is due, I
will be in default.
(C) Notice of Default
If I am in default, the Note Holder may send me a written notice
telling me that if I do not pay the overdue amount by a certain date, the Note
Holder may require me to pay immediately the full amount of principal which has
not been paid and the interest that I owe on that amount. That date must be at
least 30 days after the date on which the notice is delivered or mailed to me.
(D) No Waiver By Note Holder
Even if, at a time when I am in default, the Note Holder does not require
me to pay immediately in full as described above, the Note Holder will still
have the right to do so if I am in default at a later time.
(E) Payment of Note Holder's Costs and Expenses
If the Note Holder has required me to pay immediately in full as
described above, the Note Holder will have the right to be paid back by me for
all of its costs and expenses in enforcing this Note to the extent not
prohibited by applicable law. Those expenses include, for example, reasonable
attorneys' fees.
7. Giving of Notices
Unless applicable requires a different method, any notice that must be
given to me under this Note will be given by delivering it or by mailing it by
first class mail to me at the Property Address above or at a different address
if I give the Note Holder a notice of my different address.
Any notice that must be given to the Note Holder under this Note will be
given by mailing it by first class mail to the Note Holder at the address stated
in Section 3(A) above or at a different address if I am given a notice of that
different address.
8. Obligations of Persons Under this Note
If more than one person signs this Note, each person is fully and
personally obligated to keep all of the promises made in this Note, including
the promise to pay the full amount owed. Any person who takes over these
obligations is also obligated to keep all of the promises made in this Note. The
Note Holder may enforce its rights under this Note against each person
individually or against all of us together. This means that any one of us maybe
required to pay all of the amounts owed under this Note.
9. Waivers
I and any other person who has obligations under this Note waive the
rights of presentment and notice of dishonor. "Presentment" means the right to
require the Note Holder to demand payment of amounts due. "Notice of dishonor"
means the right to require the Note Holder to give notice to other persons that
amounts due have not been paid.
10. Uniform Secured Note
This Note is a uniform instrument with limited variations in some
jurisdictions. In addition to the protections given to the Note Holder under
this Note, a Mortgage, Deed of Trust or Security Deed (the "Security
Instrument") dated the same date as this Note, protects the Note Holder from
possible losses which might result if I do not keep the promises which I make in
this Note. That Security Instrument describes how and under what conditions I
may be required to make immediate payment in full of amounts I owe under this
Note. Some of those conditions are paraphrased as follows:
Transfer of the Property or a Beneficial Interest in Borrower. If all or
any part of the Property or any interest in it is sold or transferred (of
if a beneficial interest in Borrower is sold or transferred and Borrower
is not a natural person) without Lender's prior written consent, Lender
may, at its option, require immediate payment in full of all sums secured
by this Security Instrument. However, this option shall not be exercised
by Lender if exercise is prohibited by federal law as of the date of this
Security Instrument.
If Lender exercises this option, Lender shall give Borrower notice of
acceleration. The notice shall provide a period of not less than 30 days
from the date the notice is delivered or mailed within which Borrower must
pay all sums secured by this Security Instrument. If Borrower fails to pay
these sums prior to the expiration of this period, Lender may invoke any
remedies permitted by this Security Instrument without further notice or
demand on Borrower.
Witness the Hand(s) and Seal(s) of the Undersigned
/s/ Xxxxxxx Xxxxxx Xxxxxxxxx
---------------------------- (Seal)
Xxxxxxx Xxxxxx Xxxxxxxxx Borrower
/s/ Xxxxx Xxxxx Xxxxxxxxx
---------------------------- (Seal)
Xxxxx Xxxxx Xxxxxxxxx Borrower
OMNICOM GROUP INC.
EXECUTIVE SALARY CONTINUATION PLAN AGREEMENT
Agreement made the 1st day of December, 1998 by and between Omnicom Group
Inc., a New York corporation, its place of business at 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, and Xxxxxxx Xxxxxxxxx ("Participant"), an employee of TBWA
Worldwide a subsidiary of Omnicom Group Inc.
I. Purpose of the Plan.
The purpose of the 1988 Executive Salary Continuation Plan (the "Plan") is
to further the growth of Omnicom Group Inc. by offering a benefit to
encourage experienced executives to enter the employ of Omnicom Group Inc.
or one of its Subsidiary companies, and to encourage key executives to
remain in the employ of Omnicom or a Subsidiary company.
II. Definitions.
The following terms shall have the meaning set forth below:
1. "Company" means Omnicom Group Inc.
2. "Subsidiary" means any company in which the Company holds, directly or
indirectly, fifty percent (50%) or more of its outstanding voting stock.
3. "Affiliate" means any company in which the Company holds, directly or
indirectly, not less than twenty percent (20%) but not more than forty nine
percent (49%) of its outstanding voting stock.
4. "Employer" means the Company or a Subsidiary.
5. "Employer Group" means the Company and all Subsidiaries.
2
6. "Committee" means the Compensation Committee of the Board of Directors
of the Company, or if there should be no Compensation Committee means a
committee of not less than three members of the Board of Directors of the
Company none of whom shall, while serving as a member of the committee, be
eligible to participate in the Plan.
7. "Participant" means an employee of the Employer recommended by the
Chief Executive Officer of the Company and approved by the Committee as a
participant in the Plan.
8. "Beneficiary" means any person, persons, entity or entities designated
in writing by the Participant to the Company to receive payment, if any, to be
made hereunder following the death of the Participant, and in the absence of
such designation, means (i) the Participant's surviving spouse, while living,
and (ii) if there be no surviving spouse or upon the death of the surviving
spouse, then to the estate of the Participant.
9. "Participation" means the highest percentage of the annual net profits
of the Company specified by the Company and communicated to the Participant in
writing by the President, Chief Financial Officer or the Secretary of the
Company.
10.(a) "Net profits of the Company" means the consolidated net profits of
the Company for a calendar year determined in accordance with its then current
accounting procedures and practices before deducting any United States income
tax applicable to its taxable income for such year. In determining net profits
of the Company, the following shall apply:
(i) dividends from Subsidiaries and Affiliates shall be excluded
from income;
(ii) the Company's interest in the net profit or loss of
Subsidiaries and Affiliates before deducting any United States or foreign
national income tax shall be included in income;
(iii) any liability to make payments or payments made under this
document or under like documents with others shall not be deducted as an
expense;
3
(iv) the premiums for and the proceeds of life insurance policies
payable to the Company and/or a Subsidiary shall not be deducted as an
expense or included in income, as the case may be;
(v) the aggregate amount, if any, by which employee compensation
(salary, bonus, service awards, stock awards and the like, but excluding
contributions to pension and/or deferred profit sharing plans) paid or
accrued in respect of a calendar year by the Company and its Subsidiaries
exceeds fifty-two (52%) percent of such year's consolidated gross income
of the Company (income from all sources except for dividends from
Subsidiaries and Affiliates, and before adjustments, if any, resulting
from efficiency incentive compensation arrangements with clients) shall
not be deducted as an expense; and
(vi) in respect of each calendar year commencing with calendar year
1989, the aggregate amount, if any, by which interest and other charges
for the borrowing of funds paid or accrued in respect of a calendar year
by the Company and its Subsidiaries ("Debt Service") exceeds the Allowable
Debt Service for the subject year shall not be deducted as an expense; for
purposes hereof "Allowable Debt Service" means (A) for calendar year 1988
the actual Debt Service for such year, (B) for calendar year 1989, the
Allowable Debt Service for calendar year 1988 increased by 20% or
increased by the percentage increase, if any, in the actual Debt Service
for 1989 over the actual Debt Service for 1988, whichever results in the
lower amount, and (C) for each calendar year subsequent to calendar year
1989, the Allowable Debt Service for the immediately preceding calendar
year increased by 20% or increased by the percentage increase, if any, in
the actual Debt Service for the subject calendar year over the actual Debt
Service for the immediately preceding calendar year, whichever results in
the lower amount.
(b) The Company, upon its own initiative may, or shall upon receipt of
written demand from the Participant or the Beneficiary, as the case
may, designate a firm of public accountants, which may or may not be
the firm of accountants regularly employed by the Company to verify
the Company's determination of net profits of the Company, and to
determine any question arising in the course of such verification
not herein specifically provided for. The determination by such firm
of public accountants shall be
4
binding and conclusive. In computing net profits of the Company, the
public accountants shall conform to the accounting procedures and
practices of the Company as modified by the provisions of
subparagraph (a) of this Section 10. A condition of the right to
demand verification as aforesaid is that the person requesting
verification shall reimburse the Company to the extent of one-half
of the cost of the services of such public accountants, and, at the
request of the Company and before the accountants shall have
commenced the verification work, shall pay to the Company one-half
of the cost of the services of the said accountants as estimated by
them.
11.(a) "Year of Service" means each consecutive period of 365 days the
Participant is in the continuous employ of a member or members of the Employer
Group. For purposes of this Section, "continuous employ of members of the
Employer Group" means consecutive employment by members of the Employer Group
without interruption by reason of self-employment or employment by a third party
employer, except as provided in Section 11 (b)(ii) below.
(b) A Participant shall be in the employ of the Employer regardless of
absences by reason of:
(i) sick leave, vacation leave, maternity leave or other special
leave approved by the Employer which does not exceed 6 months, provided
the Participant returns to work for the Employer not later than the
expiration date of the authorized leave of absence; and
(ii) time spent in the service of others at the request of, or with
the approval of, the Employer, provided the Participant returns to work
for the Employer within 15 days following cessation of work for such other
party.
12. "Salary" means the base salary paid by the Employer, excluding all
other forms of compensation, such as bonuses, special awards,
severance pay, contributions under benefit plans, and the
compensatory elements of stock awards. The payroll records of the
Employer shall be conclusive and binding on the Participant, the
Beneficiary and the Employer as to the salary of the Participant.
"One year's salary" shall mean the highest annual rate of salary at
which the Participant was
5
paid by the Employer at any time within five (5) years of the
termination of the Participant's employment giving rise to the
Company's obligation to make payments under Article IV hereof.
13. "Salary Limitation" means the highest percentage of one year's salary,
which may not exceed 50%, specified by the Company and communicated to the
Participant in writing by the President, Chief Financial Officer or the
Secretary of the Company.
14. "Disability" means the inability of the Participant, by reason of
physical condition, mental illness or accident, to perform substantially all of
the duties of the position at which he was employed by the Employer when such
disability commenced.
15. "Cause" means the Participant's misconduct involving willful
malfeasance, such as breach of trust, fraud or dishonesty.
All determinations as to "Disability" or "Cause" shall be made by the
Board of Directors of the Employer, after a hearing at which the Participant may
be present, and the determination by the Board of Directors shall be final and
conclusive.
III. Employment Is Unrestricted.
Nothing herein contained shall be deemed to give the Participant the right
to remain in the employ of the Employer or to interfere with the right of the
Employer to terminate the Participant's employment at any time, nor to give the
Employer the right to require the Participant to remain in its employ or to
interfere with the Participant's right to terminate employment at any time.
IV. Compensation.
1. In the event (a) the Participant dies while in the employ of the
Employer, (b) the Employer determines, in the manner provided in Article II,
Section 14 hereof, that the Participant is disabled and the employment of the
Participant is terminated by the Employer by reason of Disability, (c) the
6
Participant, after 5 Years of Service, terminates his or her employment with the
Employer for a reason other than to enter the employ of another member of the
Employer Group or (d) the employment of the Participant is terminated by the
Employer for a reason other than Cause, then upon the happening of any such
event the Company, subject to all the terms and conditions hereof, shall become
obligated to pay to the Participant, or to the Beneficiary if the obligation
arises under (a) above, each year, for the number of consecutive calendar years
determined in accordance with the schedule on page 8 hereof, an amount equal to
the lesser of (i) the Salary Limitation applied to one year's salary, or (ii)
the Participation applied to the net profits of the Company for the calendar
year immediately preceding the calendar year of payment, subject to adjustment
as provided in Sections 2, 3 and 4 of this Article.
2. If the employment of the Participant is terminated by reason of an
event occurring under (c) of Section 1 of this Article and at the effective date
of such termination the Participant has not accumulated 20 Years of Service, the
annual payment the Participant would have been entitled to receive under said
Section 1 ("Proposed Payment") shall be reduced to an amount resulting from
multiplying the Proposed Payment by a fraction the numerator of which is the
Participant's Years of Service at the effective date of such termination and the
denominator of which is 20. The Committee may, in its absolute discretion, waive
this provision or reduce the number of the denominator in said fraction if it
decides such action would be in the best interest of the Company and equitable
to the Participant or the Beneficiary.
3(a) In the event of the Participant's death after the occurrence of an
event described in (b), (c) or (d) of Section 1 of this Article and before the
Participant has received payment(s) in respect of the total number of calendar
years as to which the Company is obligated to make payment hereunder ("Payment
Period"), the Company shall thereafter be obligated to make an annual payment to
the Beneficiary during the Payment Period or the remainder thereof, as the case
may be, equal to seventy five (75%) percent of the amount which the Company
would have been obligated to pay to the Participant had the Participant lived to
receive all payments.
(b) In the event of the Participant's death while in the employ of the
Employer, the Company shall be obligated to make an annual payment to the
Beneficiary in the same manner and to the same extent as provided in (a) of this
Section 3.
7
(c) The Company may, at any time and from time to time, seek to fund, in whole
or in part, its obligation under this Section 3 by applying for insurance on the
life of the Participant. The Participant shall, if requested in writing by the
Company, undergo a physical examination for such purpose by medical examiners
designated by the Company, and if the Participant should fail or refuse to
undergo such physical examination the Company shall have the right to terminate
its obligation under this Section 3 by giving written notice of such termination
to the Participant.
4. If during any period of twenty-four consecutive months assets of the
Company are sold or otherwise disposed of having a value or aggregate value of
thirty (30%) percent or more of the total assets of the Company as at the
commencement date of said period ("Disposal Transaction"), then beginning with
the calendar year in which the Disposal Transaction occurs the amount of the
annual payments the Company may be obligated to make under the provisions of
Section 1 of this Article shall be the Salary Limitation applied to one year's
salary. If the asset sold or disposed of is stock of a Subsidiary, the value of
the total assets, not net assets, of the Subsidiary shall be used for purposes
of this Section 4.
5. The first calendar year of payment, if any, shall be the second
calendar year following the calendar year in which the event that gave rise to
the Company's obligation to pay occurred. If, however, such event is the death
of the participant while in the employ of the Employer, the first calendar year
of payment shall be the first calendar year following the calendar year in which
the Participant's death occurred. Payment shall be made by the Company in each
calendar year of payment during the first ninety (90) days of the subject
calendar year.
8
NUMBER OF YEARS OF PAYMENT
Years of Service
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Age at 30 1 1 1 2 2
Terminations 31 1 1 1 2 2 2
32 1 1 1 2 2 3
33 1 1 2 2 2 3 3
34 1 2 2 2 3 3 3 4
35 1 1 2 2 3 3 3 4 4 4
36 1 1 2 2 3 3 3 4 4 4 5
37 1 1 2 3 3 4 4 4 5 5 5 6
38 1 2 3 3 4 4 4 5 5 5 6 6 6
39 1 2 3 3 4 4 4 5 5 5 6 6 6 7
40 1 1 2 3 3 4 4 5 5 5 6 6 6 7 7 7
41 1 1 2 3 4 4 4 5 5 5 6 6 6 7 7 7 8
42 1 2 2 3 4 4 5 5 5 6 6 6 7 7 7 8 8 8
43 1 2 2 3 4 5 5 5 6 6 6 7 7 7 8 8 8 9 9
44 1 2 2 3 4 5 5 5 6 6 6 7 7 7 8 8 8 9 9 9
45 1 1 2 3 4 4 5 5 5 6 6 6 7 7 7 8 8 8 9 9 9 10
46 1 1 2 3 4 4 5 5 6 6 6 7 7 7 8 8 8 9 9 9 10
47 1 2 2 3 4 5 5 6 6 6 7 7 7 8 8 8 9 9 9 10
48 1 2 3 4 5 5 6 6 6 7 7 7 8 8 8 9 9 9 10
49 1 2 3 4 5 5 6 6 7 7 7 8 8 8 9 9 9 10
50 1 1 2 3 4 5 6 6 7 7 7 8 8 8 9 9 9 10
51 1 2 3 4 5 6 6 7 7 7 8 8 8 9 9 9 10
52 1 2 3 4 5 6 6 7 7 8 8 8 9 9 9 10
53 1 2 3 4 5 6 7 7 8 8 8 9 9 9 10
54 1 2 3 4 5 6 7 8 8 8 9 9 9 10
55 0 1 2 3 4 5 6 7 8 8 8 9 9 9 10
56 0 1 2 3 4 5 6 7 8 8 8 9 9 9 10
57 0 1 2 3 4 5 6 7 8 8 9 9 9 10
58 0 1 2 3 4 5 6 7 8 8 9 9 9 10
59 0 1 2 3 4 5 6 7 8 8 9 9 10
60 0 1 2 3 4 5 6 7 8 8 9 9 10
and up
9
6. The amount payable hereunder by the Company in respect of the Payment
Period shall be reduced by the value of payments to be made following cessation
of Participant's employment to the Participant, Beneficiary or other designee of
the Participant pursuant to any other agreement or arrangement between the
Participant and one or more members of the Employer Group ("Post-Employment
Payments"). For purposes hereof Post-Employment Payments shall not include
payments under (i) a pension, profit-sharing or savings plan which qualifies for
favorable tax treatment under the United States Internal Revenue Code, (ii) a
benefit plan for the payor's employees generally ("Employee Benefit Plan") (iii)
a plan for the payor's executive officers approved by the Company that augments
a benefit provided for in an Employee Benefit Plan, and (iv) an agreement
financed, in whole or in part, by the Participant to the extent the payments are
attributable to the financing provided by the Participant.
V. Company's Payment Obligation Conditional on Participant's Refraining from
Competitive and Harmful Activities After Severance of Employment.
It is a condition of the Company's obligation to make payments hereunder
that from the date of the occurrence of an event described in (b), (c) or (d) of
Section 1 of Article IV hereof that shall have given rise to the obligation to
pay and until the close of the last calendar year in respect of which the
Participant may become entitled to receive payments hereunder:
(a) that the Participant shall not, directly or indirectly, engage in, nor
become employed by or otherwise associated with any persons or entities engaged
in, business of the same nature as or competitive with the business engaged in,
at the time of Participant's severance of employment, by the Participant's
Employer ("Protected Business") in (i) the United States and (ii) any other
country in which at the time of Participant's severance of employment the
Employer holds, directly or indirectly, more than fifty percent (50%) of the
voting stock or its equivalent of an entity engaged in the same or a related
business as that of the Employer; and the Participant shall not make any
financial investment, direct or indirect, in any sole proprietorship or entity
engaged in the same business as that of the Employer at the time of
Participant's severance of employment ("Protected
10
investment"), provided nothing herein shall prohibit the purchase of less than a
controlling interest in publicly traded securities of any such entity for bona
fide investment only;
(b) that the Participant shall not willfully engage in any activity which
is harmful to the interest of the Company.
The determination of (i) whether a business is of the same nature as,
competitive with, or related to that of the Employer, (ii) whether any activity
of a Participant is harmful to the interest of the Company, and (iii) whether
the Participant has willfully engaged in such harmful activity, shall be made by
the Board of Directors of the Company after a hearing at which the Participant
shall be entitled to be present, and the determination by the Board of Directors
shall be final and conclusive; and
(c) Nothing herein prohibits or restricts the Participant from engaging in
Protected Business in the related areas described in Subsection (a) above,
making a Protected Investment, or willfully engaging in activity harmful to the
interest of the Company (collectively "Activities"), and in the event the
Participant chooses to engage in any of such Activities the Company's obligation
to make payments hereunder shall forthwith terminate as to payments which might
otherwise have become payable to the Participant in respect of the calendar year
in which such Activity occurred and to the Participant or the Beneficiary in
respect of all calendar years thereafter, but the Participant shall not be
obligated to refund to the Company any payments theretofore paid to Participant
hereunder. If requested in writing by the Company, the Participant shall, within
30 days after receipt of such request, advise the Company in writing whether the
Participant has or has not engaged in such Activities for a specified calendar
year, and the Company shall have no obligation to make a payment in respect of
such calendar year until the Company has received such written advice from the
Participant.
VI. Company's Payment Obligation Conditional On Participant's Availability for
Advisory and Consultative Services after Severance of Employment.
(a) It is a further condition of the Company's obligation to make payments
hereunder that from the date of the occurrence of an event
11
described in (b), (c) or (d) of Section 1 of Article IV hereof that shall have
given rise to the obligation to pay and until the close of the last calendar
year in respect of which the Participant may become entitled to receive payments
hereunder, that the Participant, if not physically or mentally disabled, shall,
as an independent contractor and upon not less than thirty (30) days prior
written notice from the Company, make his or her services available to the
Company for such periods of time as may be specified in the notice, as an
advisor and consultant with respect to activities of the department or unit of
the Employer's business to which the Participant was last assigned, provided,
however, that the Participant shall not be obligated to make his or her services
available (i) for more than sixty (60) days in the aggregate and for more than
twenty (20) consecutive days in any one calendar year, and (ii) during the
period December 15 through January 15. The Company shall reimburse the
Participant for reasonable traveling, transportation and living expenses
necessarily incurred by the Participant while away from his or her regular place
of residence in the performance of such advisory and consultative services for
the Company.
(b) In the event the Participant chooses not to render advisory and
consultative services when requested by the Company as provided in Subsection
(a) above, the Company's obligation to make payments hereunder shall forthwith
terminate as to payments which might otherwise have become payable to the
Participant in respect of the calendar year in which such event occurred and to
the Participant or the Beneficiary in respect of all calendar years thereafter,
but the Participant shall not be obligated to refund to the Company any payments
theretofore paid to Participant hereunder.
VII. Prepayments.
Following the occurrence of an event described in Section 1 of Article IV
hereof the Company may, at any time and from time to time, make a prepayment, in
whole or in part, of its obligation hereunder in respect of any one or more
calendar years and any such prepayment shall be irrevocable and non-refundable.
12
VIII. Participant's and Beneficiary's Rights Hereunder Are Personal,
Nonassignable and Nontransferable.
1. The right of the Participant or Beneficiary to receive payments
hereunder is personal, non-assignable and non-transferable by operation of law
or otherwise. The word "otherwise" in the preceding sentence shall include,
without limitation, any execution, levy, garnishment, attachment or seizure by
any other legal process.
2. If at the time the Company is to make a payment to the Participant or a
Beneficiary hereunder the Participant or Beneficiary is not entitled to receive
such payment by reason of non-compliance with the provisions of Section 1 of
this Article, the obligation of the Company to make such payment shall forthwith
terminate.
IX. Designation and Identity of Beneficiary.
1. The Participant may designate a Beneficiary by signing, dating and
filing with the Secretary of the Company a written instrument setting forth the
name(s) and address(es) of the Beneficiary, and if the Beneficiary be more than
one person or entity, describing the allocation of the payment benefit among
them. The Participant may change his or her designation of a Beneficiary and
thereby revoke a prior designation of a Beneficiary at any time and from time to
time by filing a new such written instrument with the Secretary. The Beneficiary
named in the last unrevoked designation of Beneficiary so filed by the
Participant prior to his or her death shall be the Beneficiary for purposes of
this Agreement. In the absence of a designation of Beneficiary by the
Participant, or in the event the last written designation of Beneficiary on file
with the Secretary has been revoked by the Participant, the Beneficiary shall be
as described in Section 8 of Article II of this Agreement.
2. It is a condition of the Company's obligation to make payments to the
Beneficiary hereunder that (a) in making payments the Company may, in its sole
and absolute discretion, rely upon signed, written declarations, verifying the
identity of a Beneficiary filed with the Secretary of the Company by a person or
entity claiming to be such Beneficiary; (b) any payment made by the Company in
good faith to any claimant, whether or not such declarations shall have been
filed with the Company, shall pro
13
tanto, discharge any obligation the Company might otherwise have to make payment
to any and all other actual or possible claimants; (c) any person or entity
claiming to be entitled to receive payments hereunder following the death of the
Participant shall have recourse only against the person or entity to whom the
Company shall have made payment in good faith; and (d) in the event the Company,
on advice of counsel, delays payment of any sums becoming due to a Beneficiary
by reason of a dispute as to the legitimacy of the claim of such Beneficiary, no
interest, penalty or damage shall accrue, become payable by or be assessed
against the Company by reason of such delay in payment.
X. Payment to Minors.
Any payment to be made by the Company to a person under the age of
twenty-one (21) years may be made to such person or to a guardian of the
property of such person or to a parent of such person as the Company may, in its
sole and absolute discretion, determine. As to any payment becoming due or
payable to a person under the age of twenty-one (21) years, the Company may
defer such payment until the Company has received notice of the appointment and
qualification of a guardian of the property of such person, and no interest,
penalty or damage shall accrue, become payable by or be assessed against the
Company by reason of such delay in payment.
XI. Miscellaneous Provisions.
1. An act or determination by the Board of Directors of the Company or the
Employer may be made by a committee of directors, number not less than three,
appointed by the Board for such purpose.
2. Notices shall be sent by registered or certified mail, return receipt
requested, to the Participant at the Participant's last address on file with his
or her Employer or to such other address as may hereafter be designated by the
Participant to the Company, and to the Beneficiary at the address listed in the
latest written designation of beneficiary filed with the Company by the
Participant or to such other address as may hereafter be designated by the
Beneficiary to the Company subsequent to the death of the Participant.
3. The failure of any party to insist upon strict adherence to any term of
this Agreement on any occasion shall not be considered a waiver of
14
any right hereunder, nor shall it deprive that party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement.
Any waiver must be in writing.
4. This Agreement sets forth the entire understanding of the parties in
respect of the subject matter hereof, superseding, and evidencing and confirming
the termination of, any and all prior agreements, arrangements or understandings
between the parties relating to such subject matter, and neither party has
relied on any representations of the other party except as expressly set forth
herein. This Agreement may be amended only by a written instrument signed by
both parties.
5. This Agreement shall be construed and interpreted in accordance with
the laws of the State of New York, and is subject to all applicable federal,
state and municipal laws and regulations now or hereafter in force.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first above written.
/s/ Xxxxxxx Xxxxxxxxx
--------------------------
Xxxxxxx Xxxxxxxxx
Omnicom Group Inc.
By /s/ Xxxx Xxxx
-----------------------------
President and
Chief Executive Officer
Name of Participant: Xxxxxxx Xxxxxxxxx
-----------------
Date of Birth: 16 February 1947
----------------
Date First Commenced Service: 1 March 1998
------------
Name of Employer: TBWA Worldwide
--------------
