EXHIBIT 10.1
EMPLOYMENT AGREEMENT
AGREEMENT made this 22nd day of April, 2005 by and among TBWA
WORLDWIDE INC., a Delaware corporation (the "Company"), XXXX-XXXXX XXX (the
"Executive") and OMNICOM GROUP INC., a New York corporation ("Omnicom").
W I T N E S S E T H:
WHEREAS, the Executive is currently party to (a) a certain
Employment Agreement dated as of April 1, 1998 by and between the Executive and
Omnicom (the "Master Employment Agreement") and (b) a certain Employment
Agreement dated September 1, 1999 by and between the Executive and the Company
(the "U.S. Employment Agreement");
WHEREAS, the Executive, Omnicom and the Company desire to terminate
the Master Employment Agreement and the U.S. Employment Agreement in their
entirety and to enter into this Agreement embodying any agreements and
understandings between the Executive and Omnicom;
WHEREAS, the Executive is currently party to a certain (a) Agreement
dated as of April 1, 1998 with BDDP Worldwide S.A. a French societe anonyme, (b)
Agreement dated as of April 1, 1998 with Advertising U.S. Holdings Inc., a
Delaware corporation, and (c) Agreement dated as of April 1, 1998 with BDDP GGT
Ltd., a United Kingdom company, (collectively, the "Existing Non-Solicitation
Agreements"), all of which shall remain in full force and effect in accordance
with their respective terms; and
WHEREAS, the Company wishes to employ the Executive and the
Executive wishes to accept such employment, upon 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(a), and the Executive agrees to accept such employment, upon the
terms and conditions hereinafter set forth.
2. Term; Termination of Master and U.S. Employment Agreements
(a) Subject to the provisions contained in paragraphs 6 and 7, the
Executive's employment by the Company shall be for an indefinite term (the
"Term").
(b) Omnicom, the Company and the Executive hereby mutually agree
that the Master Employment Agreement and the U.S. Employment Agreement are
terminated effective
as of January 1, 2002. In consideration of the payments and other benefits
provided in this Agreement and other good and valuable consideration, the
Executive hereby irrevocably and unconditionally releases Omnicom, the Company
and their respective affiliates, and each of their respective employees, agents,
officers, directors, attorneys, representatives, successors and assigns
(collectively, the "Releasees"), from any and all causes of action, suits,
agreements, promises, damages, disputes, controversies, contentions,
differences, judgments, claims and demands of any kind whatsoever which the
Executive or his heirs, executors, administrators, successors and assigns ever
had or now have against any of the Releasees, whether known or unknown to the
Executive, by reason of the mutual termination of the Master Employment
Agreement, the U.S. Employment Agreement or otherwise involving facts which have
occurred on or prior to the date that the Executive has signed this Agreement;
provided, however, that the foregoing release shall not apply to or release any
of the Executive's rights arising or reserved under the terms of this Agreement.
(c) The parties hereto acknowledge and agree that the Existing
Non-Solicitation Agreements shall remain in full force and effect in accordance
with their respective terms.
3. Duties and Responsibilities
(a) During the Term, the Executive shall have the positions of
President and Chief Executive Officer of the Company. The Executive shall report
directly to the Chief Executive Officer of Omnicom (the "Omnicom CEO"),
currently Xxxx Xxxx, at such times and in such detail as he shall reasonably
require.
(b) The Executive shall perform such executive and managerial duties
and responsibilities customary to his offices and as are reasonably necessary to
the operations of the Company and as may be assigned to him from time to time by
or under authority of the Omnicom CEO, consistent with his positions as
designated in paragraph 3(a).
(c) The Executive (i) will use his best efforts to ensure that the
Company and each company operating within the TBWA worldwide group of companies
(the "TBWA Group") comply on a timely basis with all budgetary and reporting
requirements reasonably requested by the Omnicom CEO and/or management of the
Company, (ii) will, at all times, use his best efforts to perform his duties and
responsibilities in a manner consistent with the policies set forth in the
Omnicom Grant of Authority, as from time to time in effect (the "Grant of
Authority"), the Omnicom Code of Business Conduct, as from time to time in
effect (the "Omnicom Code of Business Conduct"), and the TBWA Code of Business
Conduct, as from time to time in effect (the "TBWA Code of Business Conduct",
and together with the Grant of Authority and the Omnicom Code of Business
Conduct, collectively the "Business Conduct Policies"), which written Business
Conduct Policies have been provided to the Executive prior to the date hereof,
and the parameters of the then current profit plan and capital expenditure
budget of the Company as approved by the Chief Financial Officer of the Company,
(iii) will not take any action to prevent the Company or any company operating
within the TBWA Group from participating in Omnicom's cash management program,
from time to time in effect (iv) except as permitted by the Business Conduct
Policies or authorized by Omnicom CEO, will not incur
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obligations on behalf of the Company or any other member of the TBWA Group other
than in the ordinary course of business or enter into any transaction on behalf
of the Company or any other member of the TBWA Group not in the ordinary course
of business, and (v) will not take any action to prevent the Company or any
other member of the TBWA Group from abiding by the dividend, management fee and
other corporate policies of Omnicom or the Company, as from time to time in
effect.
(d) The Executive's employment by the Company shall be full-time and
exclusive, and during the Term, the Executive agrees that he will (i) devote all
of his business time and attention, his best efforts, and all his skill and
ability to promote the interests of the Company and the TBWA Group, (ii) carry
out his duties in a competent and professional manner and serve the Company and
members of the TBWA Group faithfully and diligently under the direction of the
Omnicom CEO; and (iii) work with other employees of the Company and its
subsidiaries and other members of the TBWA Group in a competent and professional
manner. Notwithstanding the foregoing, the Executive shall be permitted to
engage in charitable and civic activities and manage his personal passive
investments, provided that such passive investments are not in a company which
transacts business with the Company or any other member of the TBWA Group or
engages in business competitive with that conducted by the Company or any other
member of the TBWA Group (or, if such company does transact business with the
Company or any other member of the TBWA Group, or does engage in a competitive
business, it is a publicly held corporation and the Executive's participation is
limited to owning 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 partially at the offices of the Company in New York, New York and
partially at the offices of the Company in Paris, France, as reasonably
determined by the Executive with the approval of the Omnicom CEO, and, as a
result of the duties and responsibilities of his positions hereunder and to
enable him to render services to the Company and other members of the TBWA
Group, he will travel frequently to locations in which the Company and such
other members of the TBWA Group conduct their operations.
4. Compensation
(a) As salary compensation for his services hereunder, from and
after the date hereof through the remainder of the Term, (i) the Company shall
pay the Executive in accordance with its normal payroll practices, an annualized
base salary of $725,000 and (ii) the Company will pay, or cause TBWA Europe S.A.
or another member of the TBWA Group to pay the Executive in accordance with its
normal payroll practices, an annualized base salary of Euros 225,000; provided,
however, the then annual rate of direct salary compensation shall be reviewed
periodically by or under the authority of the Omnicom CEO not less frequently
than every 24 months. Any increase in the Executive's direct salary compensation
resulting from such review shall be in accordance with the then salary review
policy of the Company and within the guidelines and budgetary procedures of the
Company. Notwithstanding anything contained
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herein to the contrary, the parties hereto acknowledge and agree that (i) from
January 1, 2002 through March 31, 2003, the Company paid the Executive in
accordance with its normal payroll practices, an annualized base salary of
$625,000, (ii) from April 1, 2004 through the date hereof, the Company paid the
Executive in accordance with its normal payroll practices, an annualized base
salary of $725,000, and (iii) from January 1, 2002 through the date hereof, the
Company paid, or caused TBWA Europe S.A. or another member of the TBWA Group to
pay the Executive in accordance with its normal payroll practices, an annualized
base salary of Euros 225,000.
(b) During the Term, the Executive shall be eligible to participate
in Omnicom's Equity Incentive Plan or any successor plan (the "Incentive Plan").
During the Term, any awards granted to the Executive by the Compensation
Committee of the Board of Directors of Omnicom (the "Compensation Committee")
shall be based on the overall financial performance of the TBWA Group and
Omnicom and such other factors as the Compensation Committee shall deem
reasonable and appropriate. The Executive shall also be eligible to receive an
annual discretionary cash bonus as recommended by the Omnicom CEO and determined
by the Compensation Committee, based upon the overall financial performance of
the TBWA Group and Omnicom and such individual performance goals as from time to
time established for the Executive; provided, however, that in the event the
Executive remains in the continuous employ of the Company from and after the
date hereof, through and including April 30, 2008, the amount of the Executive's
bonus on such date shall be equal to $6,000,000 less the sum of all cash bonuses
paid with respect to calendar years 2005 and 2006 (such April 30, 2008 bonus, if
any, being referred to herein as the "Special Bonus"). Except as otherwise set
forth in paragraph 6(e) below, the Executive shall only be eligible to receive
such bonuses if he is employed by the Company on the date such bonus is normally
paid.
(c) If the Executive is eligible to receive restricted shares of
Omnicom common stock, par value $0.15 per share ("Omnicom Restricted Stock")
pursuant to the Incentive Plan, the award of such shares shall be conditioned
upon the execution and delivery by the Executive of Omnicom's then current
standard form of Restricted Stock Agreement.
5. Expenses; Fringe Benefits
(a) The Company agrees to pay or to reimburse the Executive for all
reasonable, ordinary, necessary and documented business or entertainment
expenses incurred during the Term in the performance of his services hereunder
in accordance with the policy of the Company as from time to time in effect. The
Executive, as a condition precedent to obtaining such payment or reimbursement,
shall provide to the Company 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
may from time to time reasonably require.
(b) During the Term, the Executive and, to the extent eligible, his
dependents, shall be eligible to participate in and receive all benefits under
any welfare benefit plans and programs (including without limitation, medical,
disability, group life (including accidental death and dismemberment) and
business travel insurance plans and programs) provided by the
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Company to its senior executives and, without duplication, its employees
generally, subject, however, to the generally applicable eligibility and other
provisions of the various plans and programs in effect from time to time.
(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) provided by the Company to its senior executives and,
without duplication, its employees 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 Company from time to time in
effect which are made available to the senior executives of the Company
generally and, without duplication, to its employees 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 (gross) annually (pro-rated for any partial calendar year); and
(ii) annual membership dues at Anglebrook Golf Club.
(d) During the Term, the Company shall provide or cause one of its
affiliates to provide the Executive with $1,000,000 of life insurance coverage
under Omnicom's Executive Life Insurance Program.
(e) During the Term, the Company will provide the Executive with a
car or car allowance, not to exceed an annual cost of Euros 15,000 (gross);
provided, however, the parties hereto acknowledge and agree that from January 1,
2002 through and including July 1, 2004, the Company provided the Executive with
a driver in New York for use in the business of the Company.
(f) From and after the date hereof through the remainder of the
Term, the Company will provide the Executive with a monthly allowance not to
exceed $5,000 (gross) to cover the costs of renting an apartment in the New York
metropolitan area.
(g) The Executive shall be entitled to four weeks paid vacation
annually (with no right of carry over) to be taken at such times as shall not,
in the reasonable judgment of the Omnicom CEO, materially interfere with the
Executive's 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 employees.
(h) Any business travel arrangements made by or for the Executive
shall be subject to the general travel guidelines, policies and procedures of
the Company and the TBWA Group as from time to time in effect.
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(i) The Executive acknowledges that he is party to an Omnicom
Executive Salary Continuation Agreement with a 50% salary limitation and a April
1, 1998 first commencement of service date.
(j) From and after the date hereof through the remainder of the
Term, the Company will provide the Executive with an annual allowance not to
exceed $30,000 (gross) to cover the costs of family travel for the Executive and
his wife between New York and Paris; provided, however, the parties hereto
acknowledge and agree that (i) from January 1, 2002 through December 31, 2004,
the Company agreed to reimburse the Executive for the cost of three annual
personal round trip airline tickets for each of the Executive and his wife from
New York and Paris, and (ii) from January 1, 2005 through the date hereof, the
Company provided the Executive with an annual allowance not to exceed $30,000
(gross) to cover the costs of family travel for the Executive and his wife
between New York and Paris.
6. Termination
(a) The Company may terminate the Term and the Executive's
employment at any time "without cause" by giving the Executive six months prior
written notice of termination. The Executive may terminate the Term and his
employment at any time "without Good Reason" by giving the Company six months
prior written notice of termination. The Company shall have the right at any
time during such six month notice period, 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 date on which
the Executive ceases to be employed by the Company, regardless of the reason
therefore is referred to in this Agreement as the "Date of Termination".
(b) The Company, by direction of the Omnicom 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 duties and responsibilities as set forth in paragraph 3 hereof
or abide by the reasonable directives of the Omnicom CEO, or the
failure of the Executive to devote all of his business time and
attention exclusively to the business and affairs of the Company and
the TBWA Group in accordance with the terms hereof, 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 other member of the TBWA Group;
(iii) the use of alcohol or illegal drugs, interfering with
the performance of the Executive's obligations under this Agreement;
(iv) the conviction in a court of law of, or entering a plea
of guilty or
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no contest to, any felony or any crime involving moral turpitude,
dishonesty or theft;
(v) the material nonconformance with the standard business
practices and policies of the Company or the TBWA Group, including
without limitation, policies against racial or sexual discrimination
or harassment, which nonconformance is not cured (if curable) within
10 days after written notice to the Executive by the Company;
(vi) the 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 other member of the TBWA Group;
(vii) the resignation by the Executive on his own initiative
other than pursuant to a termination by the Executive for "Good
Reason" (as defined in paragraph 6(c) hereof) or pursuant to a
notice of termination given by the Executive under paragraph 6(a);
(viii) the gross or habitual misconduct or gross or habitual
negligence by the Executive in the performance of his duties; and
(ix) any breach (not covered by any of the clauses (i) through
(viii) above) of any material provision of this Agreement, if such
breach is not cured (if curable) within 20 days after written notice
thereof to the Executive by the Company.
Any notice required to be given by the Company pursuant to clause (i), (v) or
(ix) above shall specify the nature of the claimed breach and the manner in
which the Company requires such breach to be cured (if curable). In the event
that the Executive is purportedly terminated for cause and the arbitrator
appointed pursuant to paragraph 19 determines that "cause" as defined herein was
not present, then such purported termination for cause shall be deemed a
termination "without cause" pursuant to paragraph 6(a) and the Executive's
rights and remedies will be governed by paragraph 6(e), in full satisfaction and
in lieu of any and all other or further remedies the Executive may have.
(c) Provided that the Executive is not then otherwise in breach of
this Agreement, 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 not more than 30 days after the occurrence of the event
constituting such Good Reason. "Good Reason" shall be limited to a breach by the
Company of a material provision of this Agreement, which breach remains uncured
(if curable) for a period of 20 days after written notice of such breach from
the Executive to the Company (such notice to specify the nature of the claimed
breach and the manner in which the Executive requires such breach to be cured).
In the event that the Executive purportedly terminates his employment for "Good
Reason" and the arbitrator appointed pursuant to paragraph 19 determines that
"Good Reason" as defined herein was not present, then such
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purported termination for "Good Reason" shall be deemed a termination for
"cause" pursuant to paragraph 6(a)(vii) and the Executive's rights and remedies
will be governed by paragraph 6(d), in full satisfaction and in lieu of any and
all other or further remedies the Executive may have.
(d) In the event of the termination of the employment of the
Executive with the Company for any reason other than 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 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(b), 5(b) and (c) above, or any other
applicable plans and programs in which he participated as an
employee of the Company, in the manner and in accordance with the
terms of such plans and programs. it being understood that any and
all rights that the Executive may have to severance payments by the
Company shall be determined and solely based on the terms and
conditions of this Agreement and not based on the Company's
severance policy then in effect.
In the event of the termination of the Executive's employment other than a
termination by the Company "without cause" or a termination by the Executive for
"Good Reason", except as provided in this paragraph 6(d), the Company shall have
no further liability to the Executive or the Executive's heirs, beneficiaries or
estate for damages, compensation, benefits, severance, indemnities 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.
(e) 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 liquidated damages, his then applicable salary
compensation when otherwise payable through the Date of Termination;
provided, however, that, notwithstanding anything contained herein
to the contrary, solely in the event of a termination "without
cause" on or prior to April 30, 2008, the Executive shall also be
entitled to the Special Bonus, if any, when such Special Bonus would
have been payable had the Executive continued to be employed by the
Company through April 30, 2008; provided, further, however that if
this arrangement is a "nonqualified deferred compensation plan"
described in Section 409A(d)(1) of the Internal Revenue Code of
1986, as amended (the "Code"), and the Executive is a "specified
employee" for purposes of Section 409A(a)(2)(B)(i) of the Code, then
any payments to the Executive shall not be made prior to the date
that is 6 months after the Date of Termination;
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(ii) any unpaid reimbursable expenses outstanding 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, 5(b) and (c) above, or any other applicable
benefit plans and programs in which he participated as an employee
of the Company, in the manner and in accordance with the terms of
such plans and programs, it being understood that any and all rights
that the Executive may have to severance payments by the Company
shall be determined and solely based on the terms and conditions of
this Agreement and not based on the Company's severance policy then
in effect.; and
(iv) continued participation on the same basis (including
without limitation, cost contributions) as the other senior
executives of the Company in all, medical, dental, disability and
life insurance coverage (such benefits collectively called 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 (x) the end of the period that
he receives payments under clause (i) of this paragraph 6(e) or (y)
the date, or dates, he is eligible to receive coverage and benefits
under the same type of plan of a subsequent employer; provided,
however, if the Executive is precluded from continuing his
participation in any Continued Plan, then the Company will be
obligated to pay him the economic equivalent of the benefits
provided under the Continued Plan in which he is unable to
participate, for the period specified above, plus an amount equal to
the tax, if any, payable by him thereon, it being understood that
the economic equivalent of a benefit foregone shall be deemed the
lowest cost in State of New York that would be incurred by the
Executive in obtaining such benefit himself on an individual basis.
In connection with a termination by the Company "without cause" or a termination
by the Executive for "Good Reason", except as provided in this paragraph 6(e) or
in the Omnicom Executive Salary Continuation Agreement, the Company shall have
no further liability to the Executive or the Executive's heirs, beneficiaries or
estate for damages, compensation, benefits, severance, indemnities 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. The making of any payments and providing the other
benefits as provided in this paragraph 6(e) is conditioned upon the Executive
signing and not revoking a separation agreement (the "Separation Agreement")
prepared by the Company which includes a general release of the Company and its
affiliates, and its and their respective successors and assigns, officers
directors, employees, agents, attorneys and representatives, of any claims
(including claims of discrimination) relating to the Executive's employment with
the Company or the termination thereof. In the event the Executive breaches any
provisions of the Separation Agreement 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 payments and
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providing the other benefits provided for in this paragraph 6(e), without
affecting its rights under this Agreement or the Separation Agreement.
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 the Executive's death. In the event the Company
terminates the Executive pursuant to this paragraph 7, the Executive, or in the
case of his death, his heirs, beneficiaries or estate, shall be entitled to
receive the entitlements set forth in paragraph 6(d) of this Agreement.
8. Non-Solicitation/Non-Servicing Agreement and Protection of
Confidential Information
(a) The Executive acknowledges (i) that the business and the
industry in which the Company competes is highly competitive; (ii) that as a key
executive of the Company he will participate in the servicing of current clients
and/or the solicitation of prospective clients, through which, among other
things, the Executive will obtain knowledge of the "know-how" and business
practices of the Company, in which matters the Company has 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 Company places him in a
position of confidence and trust with the clients and employees of the Company;
and (iv) that his rendering of services to the clients of the Company
necessarily requires the disclosure to the Executive of confidential information
(as defined in paragraph 8(b) hereof) of the Company. In the course of the
Executive's employment with the Company, the Executive will develop a personal
relationship with the clients of the Company and a knowledge of those clients'
affairs and requirements, and the relationship of the Company with its
established clientele will therefore be placed in the Executive's hands in
confidence and trust. The Executive consequently agrees that it is a legitimate
interest of the Company, and reasonable and necessary for the protection of the
confidential information, goodwill and business of the Company, which is
valuable to the Company, 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 for the two year period thereafter (such period being referred
to as the "Restricted Period"), he shall not, as an individual, employee,
consultant, independent contractor, 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:
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(i) attempt in any manner to solicit or accept from any client
business of the type performed by the Company 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 the Company, whether or not the relationship between the
Company and such client was originally established in whole or in
part through the Executive's efforts; or
(ii) employ as an employee or retain as a consultant any
person, firm or entity who is then or at any time during the
preceding twelve months was an employee of or exclusive consultant
to the Company, or persuade or attempt to persuade any employee of
or exclusive consultant to the Company to leave the employ of the
Company or to become employed as an employee or retained as a
consultant by any person, firm or entity other than the Company; or
(iii) render to or for any client any services of the type
which are rendered by the Company.
As used in this paragraph 8, the term "Company" shall include the Company and
its subsidiaries and any other company operating within the TBWA Group, and the
term "client" shall mean (1) anyone who is a client of the Company or is a
client of another member of the TBWA 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 the Company or was a client of another
member of the TBWA Group at any time during the one year period immediately
preceding the Determination Date; (3) any prospective client to whom the Company
or another member of the TBWA Group had made a new business presentation (or
similar offering of services) at any time during the one year period immediately
preceding the Date of Termination; and (4) any prospective client to whom the
Company or another member of the TBWA 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 initial discussions between the Company or another
member of the TBWA 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 supervised such discussions or the preparation therefore).
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, "client" shall also
include any clients of other Omnicom companies to whom the Executive rendered
services (including supervisory services). In addition, if the client is part of
a group of companies which conducts business through more than 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 or significant influence
with respect to contracting for services of the type rendered by the Company.
(b) In the course of the Executive's employment with the Company he
will acquire and have access to confidential or proprietary information about
the Company and/or its clients, including but not limited to, trade secrets,
methods, models, passwords, access to
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computer files, financial information and records, computer software programs,
agreements and/or contracts between the Company and its clients, client
contacts, creative policies and ideas, advertising campaigns, public relations
campaigns, presentation materials, web site design, multimedia and enhanced
power point presentations, budgets, practices, concepts, strategies, methods of
operation, financial or business projections of the Company, and information
about or received from clients and other companies with which the Company does
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 also agrees that
he will not at any time (whether during the Term or after termination of this
Agreement), disclose to anyone (other than his counsel in the course of a
dispute arising from the alleged disclosure of confidential information or as
required by law) any confidential information, or utilize such confidential
information for his own benefit, or for the benefit of third parties. The
Executive agrees that the foregoing restrictions shall apply whether or not any
such information is marked "confidential" and regardless of the form of the
information. The term "confidential information" does not include information
which (i) is or becomes generally available to the public other than by breach
of this provision or (ii) the Executive learns from a third party who is not
under an obligation of confidence to the Company or a client of the Company. In
the event that the Executive becomes legally required to disclose any
confidential information, he will provide the Company with prompt notice thereof
so that the Company 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 cooperate with the
efforts of the Company 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 (whether or not the material constitutes or contains confidential
information), and in connection with the performance of his duties hereunder,
shall be the property of the Company and shall be delivered to the Company on
the termination of the Executive's employment with the Company or at any other
time upon request. 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.
(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), the Company 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 that money damages will not provide an
adequate remedy to the Company. In addition, the Company may take all such other
actions and remedies available to it under law or in equity and shall be
entitled to such damages as it can show it has sustained by reason of such
breach.
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(d) The parties acknowledge that (i) the type and periods of
restriction imposed in the provisions of paragraphs 8(a) and (b) are fair and
reasonable and are reasonably required in order to protect and maintain the
proprietary interests of the Company described above, other legitimate business
interests and the goodwill associated with the business of the Company; (ii) the
time, scope, geographic area and other provisions of this paragraph 8 have been
specifically negotiated by sophisticated commercial parties, represented by
legal counsel; and (iii) because of the nature of the business engaged in by the
Company and the fact that clients can be and are serviced by the Company
wherever they are located, it is impractical and unreasonable to place a
geographic limitation on the agreements made by the Executive herein. The
Executive specifically acknowledges that his being restricted from soliciting
and servicing clients and prospective clients as contemplated by this Agreement
will not prevent him from being employed or earning a livelihood in the type of
business conducted by the Company. If any of the covenants contained in
paragraphs 8(a) or (b), or any part thereof, is held to be unenforceable by
reason of it extending for too great a period of time or over too great a
geographic area or by reason of it 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, but such reduced
form of covenant shall only apply with respect to the operation of such covenant
in the particular jurisdiction in or for which such adjudication is made. Each
of the covenants and agreements contained in this paragraph 8 (collectively, the
"Protective Covenants") is separate, distinct and severable. All rights,
remedies and benefits expressly provided for in this Agreement are cumulative
and are not exclusive of any rights, remedies or benefits provided for by law or
in this Agreement, and the exercise of any remedy by a party hereto shall not be
deemed an election to the exclusion of any other remedy (any such claim by the
other party being hereby waived). The existence of any claim, demand, action or
cause of action of the Executive against the Company, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement by the
Company of each Protective Covenant. The unenforceability of any Protective
Covenant shall not affect the validity or enforceability of any other Protective
Covenant or any other provision or provisions of this Agreement. The temporal
duration of the non-solicitation/non-servicing covenants set forth in this
paragraph 8 shall not expire, and shall be tolled, during any period in which
Executive is in violation of any of the non-solicitation/non-servicing covenants
set forth in this paragraph 8; and all restrictions shall automatically be
extended by the period of Executive's violation of any such restrictions.
(e) Prior to accepting employment with any person, firm or entity
during the Restricted Period, the Executive shall notify the prospective
employer in writing of his obligations pursuant to this paragraph 8 and shall
simultaneously provide a copy to the Company.
9. Intellectual Property
During the Term, the Executive will disclose to the Company all
ideas, inventions and business plans developed by him during such period which
relate directly or indirectly to the
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business of the Company or such other member of the TBWA 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, creative policies and ideas,
advertising campaigns, public relations campaigns, presentation materials, web
site design, multimedia and enhanced power point presentations, budgets,
practices, concepts, strategies, methods of operation, financial or business
projections, designs, logos, slogans and business plans 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 any member of the TBWA Group for which the
same was developed or created. The Executive agrees, that at the request and
expense of the Company or another member of the TBWA Group, he will take all
steps necessary to secure the rights thereto to the Company or such other member
of the TBWA Group by patent, copyright or otherwise.
10. Enforceability
The Executive acknowledges that certain provisions contained in this
Agreement, including but not limited to those contained in paragraph 8, are
intended to protect the Company and other members of the TBWA Group, and
accordingly each such member of the TBWA Group 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
The Company, Omnicom and the Executive agree that the Company and
Omnicom shall have the right to assign this Agreement, and, accordingly, this
Agreement shall inure to the benefit of, and may be enforced by, any and all
successors and assigns of the Company or Omnicom, as the case may be, including,
without limitation, by asset assignment, stock sale, merger, consolidation or
other corporate reorganization. The Company, Omnicom and Executive agree that
Executive's rights and obligations under this Agreement are personal to the
Executive, and the Executive shall not have the right to assign or otherwise
transfer his rights or obligations under this Agreement, and any purported
assignment or transfer shall be void and ineffective. The rights and obligations
of the Company hereunder shall be binding upon and run in favor of the
successors and assigns of the Company. The rights and obligations of Omnicom
hereunder shall be binding upon and run in favor of the successors and assigns
of Omnicom.
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, and approved in writing by the Omnicom CEO.
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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 or reformed to be enforceable. 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 the Company shall have the right to obtain
life insurance on the Executive's life, at the sole expense of the Company, as
the case may be, and with the Company 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 Company's expense, 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
prepaid overnight courier service or facsimile transmission (if electronically
confirmed), and in each case, addressed as follows:
If to the Executive:
Xxxx-Xxxxx Xxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax:
If to the Company:
TBWA Worldwide Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Fax: (000) 000-0000
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and:
TBWA Worldwide Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
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
If to Omnicom:
Omnicom Group Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
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, enforced under, and construed
in accordance with the laws of the State of New York without application of
conflict of law provisions applicable therein.
17. No Conflict
Except for the Existing Non-Solicitation Agreements, 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
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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
Except for the Existing Non-Solicitation Agreements, this Agreement
represents the entire agreement among the Company, Omnicom and the Executive
with respect to the employment of the Executive by the Company and any
additional services provided by the Executive to the TBWA Group, and all prior
agreements, plans and arrangements relating to the employment of the Executive
by the Company or Omnicom are nullified and superseded hereby.
19. Arbitration
(a) The parties hereto agree that any dispute, controversy or claim
arising out of, relating to, or in connection with this Agreement (including,
without limitation, any claim regarding or related to the interpretation, scope,
effect, enforcement, termination, extension, breach, legality, remedies and
other aspects of this Agreement or the conduct and communications of the parties
regarding this Agreement and the subject matter of this Agreement) shall be
settled by arbitration at the offices of Judicial Arbitration and Mediation
Services, Inc. or successor organization for binding arbitration in New York,
New York by a single arbitrator. The arbitrator may grant injunctions or other
relief in such dispute or controversy. All awards of the arbitrator shall be
binding and non-appealable. Judgment upon the award of the arbitrator may be
entered in any court having jurisdiction. The arbitrator shall apply New York
law to the merits of any dispute or claims, without reference to the rules of
conflicts of law applicable therein. Suits to compel or enjoin arbitration or to
determine the applicability or legality of arbitration shall be brought in the
United States District Court for the Southern District of New York or if that
court lacks jurisdiction, in a state court located within the geographic
boundaries thereof. Notwithstanding the foregoing, no party to this Agreement
shall be precluded from applying to a proper court for injunctive relief by
reason of the prior or subsequent commencement of an arbitration proceeding as
herein provided. No party or arbitrator shall disclose in whole or in part to
any other person, firm or entity any confidential information submitted in
connection with the arbitration proceedings, except to the extent reasonably
necessary to assist counsel in the arbitration or preparation for arbitration of
the dispute. Confidential Information may be disclosed to (i) attorneys, (ii)
parties, and (iii) outside experts requested by either party's counsel to
furnish technical or expert services or to give testimony at the arbitration
proceedings, subject, in the case of such experts, to execution of a legally
binding written statement that such expert is fully familiar with the terms of
this provision, agree to comply with the confidentiality terms of this
provision, and will not use any confidential information disclosed to such
expert for personal or business advantage.
(b) The Executive has read and understands this paragraph 19. 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
17
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 Act of 1964, as amended, the Civil Rights Act of 1991,
the Equal Pay Act, the Employee Retirement Income Security Act, 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, 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.
(c) 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
19) legally enforceable and as to ensure that except as otherwise provided in
clause (a) of this paragraph 19, 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 hereto 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.
20. Headings
The headings contained in this Agreement are for reference purposes
only, and shall not affect the meaning or interpretation of this Agreement.
21. Withholdings
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.
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22. Counterparts
This Agreement may be executed in two counterparts, both of which
taken together shall constitute one instrument.
23. No Strict Construction
The language used in this Agreement will be deemed to be the
language chosen by the Company and the Executive to express their mutual intent,
and no rule of law or contract interpretation that provides that in the case of
ambiguity or uncertainty a provision should be construed against the draftsman
will be applied against any party hereto.
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IN WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the day and year first above written.
OMNICOM GROUP INC.
By: /s/ Xxxxxxx X'Xxxxx
---------------------------------------
Xxxxxxx X'Xxxxx
Senior Vice President, General Counsel
and Secretary
/s/ Xxxx-Xxxxx Xxx
---------------------------------------
Xxxx-Xxxxx Dru
TBWA WORLDWIDE INC.
By: /s/ Xxxxxxxx Xxxxxxx
---------------------------------------
Xxxxxxxx Xxxxxxx
Chief Financial Officer
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