exhibit (e)(7)
AGREEMENT
This AGREEMENT (this "Agreement") made as of [__________], 2002 by and
between [______________], a Delaware corporation (the "Company"), and
[______________] ("Executive").
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment. The Company shall continue to employ Executive, and
Executive accepts continued employment with the Company, upon the terms and
conditions set forth in this Agreement, for the period beginning on the date
hereof and ending upon his or her Separation pursuant to Section 1(c) hereof
(the "Employment Period").
(a) Position and Duties.
(i) During the Employment Period, Executive shall occupy the positions
and have the title with the Company that are in effect for Executive on the
date hereof (the "Current Position") and shall have the normal duties,
responsibilities and authority of an executive serving in such position,
subject to the power of the Company's Chief Executive Officer and Board of
Directors (the "Board") to expand or limit such duties, responsibilities
and authority, either generally or in specific instances, and to override
actions of Executive.
(ii) Executive shall devote his or her best efforts and his or her
full business time and attention to the business and affairs of the Company
and its subsidiaries. Anything herein to the contrary notwithstanding,
nothing shall preclude Executive from engaging in charitable activities and
community affairs and managing his or her personal investments and affairs,
provided that such activities do not materially interfere with the proper
performance of his or her duties and responsibilities as contemplated by
this Agreement. Executive shall perform his or her duties and
responsibilities to the best of his or her abilities in a diligent,
trustworthy, businesslike and efficient manner and shall exercise the
highest degree of loyalty and the highest standards of care in the
performance of his or her duties.
(b) Salary, Bonus and Benefits.
(i) During the Employment Period, the Company will pay Executive a
base salary (the "Annual Base Salary") of at least the amount specified on
the signature page attached hereto, subject to any increase as determined
by the Board from time to time; provided however that the Annual Base
Salary may be reduced, including below the amount of the Annual Base Salary
on the date hereof, if base salaries for all other similarly situated
executives are proportionately reduced. The Annual Base Salary shall be
payable in accordance with the regular payroll practices of the Company
but, in any event, no less frequently than monthly.
(ii) During the Employment Period, Executive shall be entitled to
participate in the Company's Annual Incentive Plan, as in effect from time
to time, at a level determined by the Compensation Committee of the Board
or its successor. The Company hereby confirms that the Compensation
Committee of the Board has determined that for fiscal year 2003,
Executive's target performance level for purposes of the Company's Annual
Incentive Plan shall be equal to the percentage of the Annual Base Salary
specified on the signature page attached hereto. In addition, the Board or
the Compensation Committee of the Board may award a special or additional
bonus to Executive in its sole discretion from time to time.
(iii) The Company shall reimburse Executive for all reasonable
expenses incurred by him or her in the course of performing his or her
duties under this Agreement which are consistent with its policies in
effect from time to time with respect to travel, entertainment and other
business expenses, subject to the Company's requirements with respect to
reporting and documentation of such expenses.
(iv) During the Employment Period, Executive shall be entitled to
participate in all employee pension and welfare benefit plans and programs
made available to the Company's senior level executives or to its employees
generally, as such plans or programs may be in effect from time to time,
including, without limitation, pension, profit sharing, savings and other
retirement plans or programs, medical, dental, hospitalization, short-term
and long-term disability and life insurance plans, accidental death and
dismemberment protection, travel accident insurance, and any other pension
or retirement plans or programs and any other employee welfare benefit
plans or programs that may be sponsored by the Company from time to time,
including plans that supplement the above-listed types of plans or
programs, whether funded or unfunded.
(v) During the Employment Period, Executive shall participate in all
benefits and perquisites available from time to time to senior executives
of the Company at levels, and on terms and conditions, that are
commensurate with his or her positions and responsibilities at the Company,
and shall receive such additional benefits and perquisites as the Board or
the Compensation Committee thereof may, in its sole discretion, from time
to time provide.
(vi) Executive shall be entitled to receive a payment in the amount
specified on the signature page attached hereto (the "Retention Bonus") if
Executive remains continuously employed by the Company after a Sale of the
Company through the first anniversary of the Sale of the Company; provided
that Executive shall be entitled to the Retention Bonus as contemplated
hereby in the event that he or she is terminated without Cause, resigns
with Good Reason, dies or becomes Disabled after the occurrence of the Sale
of the Company and prior to or on such anniversary date. The Company shall
pay the Retention Bonus to Executive as soon as practicable following the
first anniversary of the Sale of the Company; provided that if Executive is
terminated without Cause, resigns with Good Reason, dies or becomes
Disabled after a Sale of the Company but prior to such anniversary date,
the Retention Bonus shall be paid to Executive as soon as practicable after
such termination. For purposes hereof, a "Sale of the Company" shall be
deemed to occur only upon (i) a sale of the business of the Company
substantially as
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an entirety to any person or group, whether by means of an asset sale, a
stock sale, a merger or otherwise, or (ii) the beneficial ownership by any
person or group other than Xxxx Xxxxx (the "Controlling Stockholder"), any
family member, descendant or affiliate of the Controlling Stockholder and
any trust or estate for his or their benefit (collectively, the "Xxxxx
Group") of an amount of the Company's common stock that is both (A) more
than 35% of the Company's common stock and (B) a greater percentage of the
Company's common stock than is at that time beneficially owned by the Xxxxx
Group; provided, however that a transfer of stock between or among members
of the Xxxxx Group shall not be deemed to constitute a "Sale of the
Company"; provided further that, notwithstanding the foregoing, with
respect to any transaction that contemplates the acquisition of 100% of the
outstanding common stock of the Company by means of a tender offer followed
by a merger, (i) the consummation of such tender offer shall not constitute
a "Sale of the Company" hereunder, (ii) the consummation of such merger
shall constitute a "Sale of the Company" hereunder, and (iii) any amounts
that would become payable by the Company in respect of the consummation of
such tender offer shall instead be paid upon the consummation of such
merger.
(vii) During the Employment Period, Executive shall be eligible to
participate in any long-term incentive plans of the Company and its
affiliates, as in effect from time to time, in which other senior
executives of the Company are eligible to participate, on substantially the
same basis as such other executives, but taking into account the seniority
and rank of Executive.
(c) Separation.
(i) Except as hereinafter provided, the Employment Period shall
continue until, and shall end upon, the second anniversary of the date
hereof; provided that the Employment Period shall be automatically extended
for additional one-year periods unless written notice of intent not to
renew is delivered by either party to the other party at least 6 months
prior to the end of the Employment Period; provided further that upon a
Sale of the Company, the Employment Period shall be automatically extended
until the second anniversary of the Sale of the Company but not beyond.
Notwithstanding the foregoing, the Employment Period shall end early upon
Executive's death, Disability or resignation or at such time as the Board
determines to terminate Executive's employment (a "Separation"). A
Separation, other than a resignation by Executive for Good Reason or a
termination by the Company for Cause, death or Disability, shall only be
effective upon 30 days notice by Executive or the Company, as applicable.
(ii) If Executive's employment is terminated by the Company for Cause,
by Executive without Good Reason or upon the expiration of the Employment
Period other than as a result of a Separation, Executive shall thereupon
cease to have any rights to salary, benefits or incentive awards (including
without limitation any incentive award for the fiscal year in which the
Separation occurs or otherwise), other than: (A) salary at an annual rate
equal to his or her Annual Base Salary through the date of Separation, (B)
any bonus earned by Executive under the Company's Annual Incentive Plan
with respect to the previous fiscal year, but which has not theretofore
been paid, (C) all other rights and
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benefits in which Executive is vested or entitled to by law as of the
Separation and (D) payment with respect to unused vacation time in
accordance with the Company's policy.
(iii) If Executive's employment is terminated as a result of
Executive's death or Disability, Executive or his or her estate or
beneficiaries (as the case may be) shall be entitled to (A) the payments
and benefits described in Section 1(c)(ii) hereof and (B) within 30 days
after the date of Separation, the payment of a pro rata portion (based on
the actual number of days served in the respective fiscal year as compared
to the total number of days in such fiscal year) of (A) 140% of the Target
Bonus for fiscal year 2003 or (B) 100% of the Target Bonus for any
subsequent fiscal year "Target Bonus" shall mean an amount equal to 100% of
Executive's target performance level (as established by the Compensation
Committee or its successor at the beginning of such fiscal year) under the
Company's Annual Incentive Plan for the fiscal year in which the Separation
occurs.
(iv) If Executive's employment is terminated by the Company without
Cause or Executive resigns with Good Reason, including after the occurrence
of a Sale of the Company:
(A) Executive shall be entitled to the payments and benefits
described in Section 1(c)(ii) hereof;
(B) The Company shall pay, within 30 days after the date of such
Separation, Executive a pro rata portion (based on the
actual number of days served in the fiscal year of
Separation as compared to the total number of days in such
fiscal year) of 140% of the Executive's Target Bonus if
separation occurs during fiscal year 2003 or 100% of Target
if separation occurs in a subsequent fiscal year; and
(C) The Company shall pay Executive as salary continuation, an
amount (the "Severance Payment") equal to the number
specified on the signature page attached hereto (the
"Multiple") times the sum of (i) Executive's then applicable
Annual Base Salary (before any reduction that resulted in a
resignation with Good Reason) plus (ii) 140% of the
Executive's Target Bonus if separation occurs during fiscal
year 2003 or 100% of Target if separation occurs in a
subsequent fiscal year. This amount will be paid out over a
number of months equal to 12 times the Multiple in
accordance with the normal payroll cycle of the Company but
in no case less frequently than monthly.
(v) In addition to the benefits set forth in subsection (iv) above, if
Executive's employment is terminated by the Company without Cause or
Executive resigns with Good Reason, in each case after the occurrence of a
Sale of the Company and during the Employment Period in effect at the time
of the Sale of the Company, giving effect to any extension thereof, until
the second anniversary of the Sale of the Company as provided in
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Section 1(c)(i) but not to any subsequent one-year extension thereof as
provided in Section 1(c)(i), the Company shall use its commercially
reasonable efforts so that, during the period of salary continuation,
Executive may participate, at the same cost and expense as other similarly
situated executives of the Company, in the Company's health and medical
insurance policies, as such may be in effect from time to time, with
benefits comparable to benefits provided to senior level executives of the
Company.
(vi) Notwithstanding the foregoing, the Board may remove Executive
from his or her Current Position at any time (it being understood that such
removal would constitute Good Reason).
(vii) For purposes hereof, "Cause" means:
(A) Executive is convicted of a felony;
(B) in the course of carrying out his or her duties to the
Company or its successor in the event of a Sale of the
Company, Executive engages in conduct that constitutes
willful dishonesty, moral turpitude, knowing violation of
law (other than any violation of law committed in good faith
by the Executive and in a manner he or she reasonably
believed to be in or not opposed to the best interests of
the Company and with respect to which he or she had
reasonable cause to believe his or her conduct was lawful at
the time the action was taken), willful refusal to carry out
reasonable lawful directions from the Executive's superiors,
gross neglect of duties or willful gross misconduct;
provided, in each case described in this clause (B), that
the CEO of the Company or its successor in the event of a
Sale of the Company determines in good faith that such
conduct has resulted or is likely to result in material harm
to the Company; or
(C) any other breach by Executive of this Agreement which is
material and which is not cured within 30 days after written
notice thereof to Executive from the Company.
There shall be no termination for Cause without Executive's first
being given written notice describing in detail the grounds on which the
proposed termination is based and a reasonable opportunity to be heard and, if
circumstances permit, to cure.
(viii) For purposes hereof, "Good Reason" means the occurrence of any
of the following events without the written consent of Executive:
(A) a material diminution of Executive's duties or the
assignment to him or her of duties that are inconsistent in
any substantial respect with the position, authority or
responsibilities associated with the Current Position, other
than any such authorities, duties or responsibilities
assigned at any time after the date hereof which are by
their nature, or which are identified at the time of
assignment,
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as being temporary or short-term; provided that the
occurrence of a Sale of the Company in and of itself and any
consequences that are a direct result thereof (including
without limitation, if applicable, the impact of the
cessation of the status of the Company as a public reporting
and NYSE listed company) shall not be deemed to constitute
"Good Reason" under this Clause (A);
(B) the Company's requiring Executive to be based at a location
which is 50 or more miles from the Executive's principal
office location on the date hereof, unless Executive
otherwise consents in writing; and
(C) a reduction by the Company in Executive's base compensation
or a material reduction in his or her employee benefits or
perquisites, other than any such reduction that is made in
connection with proportionate reductions for similarly
situated executives.
Executive shall give written notice to the Board of his or her
intention to terminate for Good Reason, such notice to describe in detail the
grounds on which the proposed termination is based. The Company shall have 30
days after the date that such written notice has been given to the Board in
which to cure such grounds. For purposes of this Agreement, either party's
giving notice of non-renewal as contemplated by the first sentence of Section
1(c)(i) hereof shall not constitute "Good Reason."
(ix) For purposes hereof, "Disability" means Executive's inability,
due to disease, injury or mental disorder to perform with reasonable
continuity his or her duties and responsibilities under this Agreement (i)
for a period of 180 consecutive days, as determined in good faith by the
Board, or (ii) for a period of 90 consecutive days in the event that a
medical doctor selected by the Board determines that such Disability would
continue for an additional 90 days. If Executive disagrees with such
determination by the Board or such medical doctor, Executive shall deliver
written notice to the Company of such disagreement within ten days after
the receipt by Executive of notice of such determination of Disability.
Upon delivery of such notice, the Company and Executive shall jointly
select a medical doctor to review such determination and determine whether
Executive has a Disability. If the Company and Executive cannot agree
jointly on a medical doctor, each party shall select a medical doctor and
the two doctors shall select a third medical doctor who shall determine
Executive's Disability hereunder.
(d) No Mitigation; No Offset. In the event of any termination of
employment under Section 1(c) hereof, Executive shall be under no obligation to
seek other employment and there shall be no offset against amounts due the
Executive under this Agreement on account of any remuneration attributable to
any subsequent employment that he or she may obtain.
(e) Nature of Payments. Any amounts due under Section 1(c) hereof are
in the nature of severance payments considered to be reasonable by the Company
and are not in the nature of a penalty.
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2. Inventions and Other Intellectual Property. Executive agrees that
all inventions, innovations, improvements, developments, methods, designs,
analyses, drawings, reports, trademarks, slogans, product or other designs,
advertising or marketing programs, and all similar or related information which
relate to the Company's or any of its subsidiaries' or affiliates' actual or
anticipated business, research and development or existing or future products or
services and which are (or were prior to the date of this Agreement) conceived,
developed or made by Executive, whether alone or jointly with others, while
employed by the Company or any such subsidiary or affiliate or any predecessor
thereof ("Work Product") belong to the Company or such subsidiary or affiliate.
Executive will promptly disclose such Work Product to the Board and perform all
actions reasonably requested by the Board (whether during or after the
Employment Period) to establish and confirm such ownership (including, without
limitation, assignments, consents, powers of attorney and other instruments).
3. Limitation. Section 2 of this Agreement regarding the ownership of
inventions and other intellectual property does not apply to the extent
application thereof is prohibited by any law the benefits of which cannot be
waived by Executive. Executive hereby waives the benefits of any such law to the
maximum extent permitted by law.
4. Confidential Information. Executive acknowledges that the
information, observations and data obtained by him or her during the course of
his or her employment with the Company concerning the business and affairs of
the Company and its affiliates, including information concerning acquisition
opportunities in or reasonably related to the Company's business or industry of
which Executive becomes aware during his or her employment with the Company are
the property of the Company. Therefore, Executive agrees that he or she will not
disclose to any unauthorized person or use for his or her own account any of
such information, observations or data without the Board's written consent,
unless and to the extent that (x) he or she is required to do so by law or by a
court, governmental agency, legislative body, or other person with jurisdiction
to order him to divulge, disclose or make accessible such information, or (y)
the aforementioned matters become generally known to and available for use by
the public other than as a result of Executive's acts or omissions to act.
Executive agrees to deliver to the Company at a Separation, or at any other time
the Company may request in writing, all memoranda, notes, plans, records,
reports and other documents (and copies thereof) relating to the business of the
Company and its affiliates (including, without limitation, all acquisition
prospects, lists and contact information) which he or she may then possess or
have under his or her control.
5. Non-Compete, Non-Solicitation.
(a) Executive acknowledges that in the course of his or her employment
with the Company he or she has become and will become familiar with trade
secrets and customer lists of and other confidential information concerning the
Company and its subsidiaries and affiliates and predecessors thereof and that
his or her services have been and will be of special, unique and extraordinary
value to the Company.
(b) Executive agrees that during the Employment Period and for a
period of six months thereafter he or she shall not in any manner, directly or
indirectly, through any person, firm or corporation, alone or as a member of a
partnership or as an officer, director,
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stockholder, investor, employee or consultant of or in any other corporation or
enterprise or otherwise, engage or be engaged in, or assist any other person,
firm, corporation or enterprise in engaging or being engaged in, (1) the direct
merchandising of clothing and associated products for men, women and children
through selling channels consisting of mailings of catalogs directly to consumer
and corporate and non-profit businesses as well as similar offerings through the
Internet, (2) the direct merchandising of home textile products for bedrooms and
bathrooms through selling channels consisting of mailings of catalogs directly
to consumers as well as similar offerings through the Internet, (3) the
operation of off-price liquidation outlet stores which have historically
liquidated clothing and associated products below cost and are not intended to
be a retail channel for profit, or (4) the collection, analysis and exchange of
customer data relating to the business activities described in (1), (2) and (3)
above, in any case, in any geographic area in which the Company or any of its
subsidiaries or affiliates conducted such business at any time prior to the
cessation of the Employment Period (whether through merchandising, creative or
other catalog retailing activities, manufacturing or production, marketing to or
soliciting customers or prospective customers or otherwise) (a "Competitive
Activity"). Notwithstanding the foregoing, Executive may serve as an officer,
employee or otherwise provide services to an entity that engages in Competitive
Activities so long as (i) such entity also engages in activities that are not
Competitive Activities, (ii) Executive does not provide, in any manner, whether
directly or indirectly, any services in connection with any Competitive
Activity, (iii) Executive's duties, responsibilities and authority do not relate
to any Competitive Activity, and (iv) Executive has no control, directly or
indirectly, over any employee, officer or other person who engages in any manner
in any Competitive Activity and no employee, officer or other person who engages
in a Competitive Activity reports directly or indirectly to Executive.
(c) Executive further agrees that during the Employment Period and for
two years thereafter he or she shall not in any manner, directly or indirectly,
solicit any full time employee of the Company or of any of its subsidiaries to
quit or abandon his or her employ with the Company, or any Customer of the
Company or of any of its subsidiaries to quit or abandon its relationship, for
any purpose whatsoever. For purposes of this Section 5(c), "Customer" shall mean
any customer of the Company or its subsidiaries who purchased at least $25,000
of goods or services from the Company and its subsidiaries during the two years
prior to Executive's termination.
(d) Nothing in this Section 5 shall prohibit Executive from being: (i)
a stockholder in a mutual fund or a diversified investment company or (ii) a
passive owner of not more than 2 percent of the outstanding stock of any class
of a corporation which is publicly traded, so long as Executive has no active
participation in the business of such corporation.
(e) To the extent permitted by law, if, at the time of enforcement of
this Section, a court holds that the restrictions stated herein are unreasonable
under circumstances then existing, the parties hereto agree that the maximum
period, scope or geographical area reasonable under such circumstances shall be
substituted for the stated period, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum period,
scope and area permitted by law.
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6. Executive Representations. Executive represents and warrants to the
Company that (i) the execution, delivery and performance of this Agreement by
Executive does not and will not conflict with, breach, violate or cause a
default under any contract, agreement, instrument, order, judgment or decree to
which Executive is a party or by which he or she is bound, (ii) Executive is not
a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity other than the Company
and (iii) upon the execution and delivery of this Agreement by the Company, this
Agreement shall be the valid and binding obligation of Executive, enforceable in
accordance with its terms.
7. Notices. Any notice provided for in this Agreement must be in
writing and must be either personally delivered, mailed by first class mail
(postage prepaid and return receipt requested) or sent by reputable overnight
courier service (charges prepaid) to the recipient at the address below
indicated:
Notices to Executive:
As specified on the signature page attached hereto
Notices to the Company:
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with a copy (which shall not constitute notice) to:
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or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or sent or, if mailed, five days after deposit in the U.S. mail.
8. Tax Matters. In the event Executive incurs (through withholding or
otherwise) any excise tax ("Excise Tax") under Section 4999 of the Internal
Revenue Code of 1986, as amended (the "Code"), on "excess parachute payments"
made by the Company in connection with the consummation of a change in control
transaction, the Company shall pay Executive, prior to the time any such Excise
Tax is payable, an additional amount (the "Gross Up Amount") which, after the
imposition of all income and excise taxes thereon, is sufficient to
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put Executive in the same after-tax position as Executive would have been had
Executive not been subject to any such Excise Tax; provided however, that if
Executive would receive parachute payments (as defined in Section 280G of the
Code) in connection with the consummation of a change in control transaction,
and the net after-tax benefit of receiving such parachute payments plus the
Gross Up Amount would be less than 125% of the net-after-tax benefit that
Executive would receive if the amount of such parachute payments were reduced so
that no Excise Tax were owing, then no Gross Up Amount shall be paid to the
Executive and the cash portion of any parachute payments made to Executive shall
be reduced so that no Excise Tax shall be owed. For purposes of this Section,
the net-after-tax benefit of payments shall be determined by assuming that
Executive is subject to the highest federal marginal tax rate, the highest
marginal rate of taxation in the state and locality of Executive's primary place
of business and by assuming that state and local tax payments are deductible by
Executive for federal income tax purposes at the highest marginal rate. In the
event the Internal Revenue Service adjusts the computation of the Company under
this Section 8, the Company shall reimburse the Executive or the Executive shall
return payment to the Company to the extent necessary to achieve the purpose of
this Section 8.
9. General Provisions.
(a) Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(b) Complete Agreement. This Agreement embodies the complete agreement
and understanding among the parties and supersedes and preempts any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way,
including without limitation any prior employment agreements or letter
agreements between Executive and the Company relating to the subject matter
hereof.
(c) Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
(d) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors, heirs (in
the case of Executive) and assigns. No rights or obligations of the Company
under this Agreement may be assigned or transferred by the Company except that
such rights or obligations may be assigned or transferred pursuant to a merger
or consolidation, or the sale or liquidation of all or substantially all of the
assets of the Company, provided in either case that the successor, assignee or
transferee is the successor to all or substantially all of the assets of the
Company and such successor, assignee or transferee assumes the liabilities,
obligations and duties of the Company, as contained in this Agreement, either
contractually or as a matter of law. The Company further agrees that, in the
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event of a sale of assets or liquidation as described in the preceding sentence,
it shall take whatever action it legally can in order to cause such assignee or
transferee to expressly assume the liabilities, obligations and duties of the
Company hereunder. No rights or obligations of Executive under this Agreement
may be assigned or transferred by Executive other than his or her rights to
compensation and benefits, which may be transferred only by will or operation of
law.
(e) Tax Withholding. The Company may withhold from any benefits
payable under this Agreement all federal, state, city, or other taxes as may be
required pursuant to any law or governmental regulation or ruling.
(f) Choice of Law. All questions concerning the construction, validity
and interpretation of this Agreement and the exhibits hereto will be governed by
and construed in accordance with the internal laws of the State of Wisconsin,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Wisconsin or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Wisconsin.
(g) Interpretation. Nothing in this Agreement shall affect the terms
of any option to purchase stock of the Company held by Executive.
(h) Remedies. Each of the parties to this Agreement will be entitled
to enforce its rights under this Agreement specifically, to recover damages and
costs (including attorney's fees) caused by any breach of any provision of this
Agreement and to exercise all other rights existing in its favor; provided that
the Company shall reimburse Executive for all reasonable attorney's fees
incurred by Executive should Executive prevail. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or deposit) for specific performance and/or other injunctive relief in
order to enforce or prevent any violations of the provisions of this Agreement.
(i) Amendment and Waiver. No provision in this Agreement may be
amended unless such amendment is agreed to in writing and signed by Executive
and an authorized officer of the Company. No waiver by either party of any
breach by the other party of any condition or provision contained in this
Agreement to be performed by such other party shall be deemed a waiver of a
similar or dissimilar condition or provision at the same or any prior or
subsequent time. Any waiver must be in writing and signed by Executive or an
authorized officer of the Company, as the case may be.
(j) Business Days. If any time period for giving notice or taking
action hereunder expires on a day which is a Saturday, Sunday or holiday in the
state in which the Company's chief executive office is located, the time period
shall be automatically extended to the business day immediately following such
Saturday, Sunday or holiday.
(k) Representation. The Company represents and warrants that it is
fully authorized and empowered to enter into this Agreement and that the
performance of its
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obligations under this Agreement will not violate any agreement between it and
any other person, firm or organization.
(l) Survival. The respective rights and obligations of the parties
hereunder shall survive any termination of Executive's employment to the extent
necessary to the intended preservation of such rights and obligations.
(m) Resolution of Disputes. Any disputes arising under or in
connection with this Agreement shall, at the election of either party, be
resolved by binding arbitration, to be held on a confidential basis in Madison,
Wisconsin, in accordance with rules and procedures of the American Arbitration
Association (it being understood that the parties will not disclose to any third
party any aspect of such arbitration).
(n) Contractual Rights and Obligations. This Agreement establishes
contractual rights and obligations of Executive and the Company. Nothing herein
shall be deemed to require the Company to segregate, earmark or otherwise set
aside any funds or other assets, in trust or otherwise, for any payments that
may be required hereunder.
* * * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first written above.
[COMPANY]
By:
-----------------------------
Name:
Its:
---------------------------------
[EXECUTIVE]
Address:
---------------------------------
---------------------------------
---------------------------------
---------------------------------
Annual Base Salary, per annum:
$
------------------
Target Performance Level:
%
---
Retention Bonus:
$
------------------
Multiple:
------
13
