Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement"), dated as of July 1, 1998, between THE
XXXXX XXXXXX COMPANIES INC., a Delaware corporation (the "Company"), and XXXXXXX
X. XXXXXX, a resident of New York, New York (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company and its divisions, subsidiaries and affiliates are
principally engaged in the business of manufacturing and marketing skin care,
makeup and fragrance products (the "Business"); and
WHEREAS, the Company desires to continue to retain the services of the
Executive, and to appoint him to the capacity of President, Clinique
Laboratories, Inc., a division of the Company, and the Executive desires to
provide services in such capacity to the Company, upon the terms and subject to
the conditions hereinafter set forth; and
WHEREAS, the Compensation Committee of the Board of Directors of the
Company (the "Compensation Committee") has approved the terms of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and obligations hereinafter set forth, the parties hereto, intending
to be legally bound, hereby agree as follows:
1. Employment Term.
The Company hereby agrees to employ the Executive, and the Executive
hereby agrees to enter into employment, as President, Clinique Laboratories,
Inc. for the period commencing on July 1, 1998 and ending on June 30, 2001
unless terminated sooner pursuant to Section 5 hereof (the "Term of
Employment"). The twelve-month period commencing on July 1, 1998 shall be the
"First Contract Year" hereunder, and subsequent twelve-month periods shall be
subsequent Contract Years.
2. Duties and Extent of Services.
(a) During the Term of Employment, the Executive shall serve as
President, Clinique Laboraatories, Inc. and, in such capacity, shall render such
executive, managerial, administrative and other services as customarily are
associated with and incident to such position and as the Company may, from time
to time, reasonably require of him consistent with such position.
(b) The Executive shall also hold such other positions and executive
offices of the Company and/or of any of the Company's divisions, subsidiaries or
affiliates as may from time to time be authorized by the Board of Directors of
the Company, provided that each such position shall be commensurate with the
Executive's standing in the business community as President, Clinique
Laboratories, Inc. The Executive shall not be entitled to any compensation other
than the compensation provided for herein for serving during the Term of
Employment in any other office or position of the Company or any of its
divisions, subsidiaries or affiliates, unless the Board of Directors of the
Company shall have specifically approved such additional compensation.
(c) The Executive shall be a full time employee of the Company and
shall exclusively devote all his business time and efforts to faithfully,
competently and diligently perform to the best of his ability all of the duties
required of him as President, Clinique Laboratories, Inc. and in the other
positions or offices of the Company or its divisions, subsidiaries or affiliates
required of him hereunder. Notwithstanding the foregoing provisions of this
Section 2(c), the Executive may serve as a non-management director of such
business corporations (or in a like capacity in other for-profit or
not-for-profit organizations) as the Board of Directors or Chief Executive
Officer of the Company may approve.
3. (a) Base Salary. As compensation for all services to be rendered
pursuant to this Agreement and as payment for the rights and interests granted
by Executive hereunder, the Company shall pay or cause any of its subsidiaries
to pay the Executive a base salary (the "Base Salary") during the Term of
Employment as follows:
For the First Contract Year: $79,166.67 ($950,000, if annualized)
For the Second Contract Year: $79,166.67 ($950,000, if annualized)
For the Third Contract Year: $79,166.67 ($950,000, if annualized)
All amounts of Base Salary provided for hereunder shall be payable in accordance
with the regular payroll policies of the Company in effect from time to time.
(b) Incentive Compensation. In addition to the Base Salary set out at
Section 3(a) hereof, the Executive shall participate in the Company's Executive
Annual Incentive Compensation Plan ("Incentive Plan"). The bonus opportunity for
the Executive for each Contract Year during the Term of Employment shall be as
follows:
For the First Contract Year: $750,000
For the Second Contract Year: $850,000
For the Third Contract Year: $950,000
Pursuant to the terms of the Incentive Plan, the actual bonus award, if any,
made to the Executive in respect of any Contract year shall be calculated with
reference to the accomplishment by the Company and the Executive of performance
goals established by the senior corporate management of the Company and the
Executive and approved by the Compensation Committee of the Board of Directors
of the Company.
(c) Deferral. The Executive may elect to defer payment of all or any
part of his bonus incentive compensation payable in accordance with Section 3(b)
hereof in respect of any Contract Year, by giving to the Company written notice
thereof, on or before March 31 of such Contract Year. Additionally, in the event
that in respect of any fiscal year of the Company any amount of Base Salary, any
amount payable under the Incentive Plan or any other amount payable to the
Executive hereunder or otherwise shall, either alone or in combination with
other amounts payable hereunder or otherwise, result in the payment by the
Company of any amount that shall not be currently deductible by it pursuant to
the provisions of Section 162(m) of the Internal Revenue Code of 1986, as
amended (the "Code"), or like or successor provisions (a "Non-Deductible
Amount"), the Company may elect to defer the payment of the Non-Deductible
Amount. Any amounts, so deferred, either by election of the Executive or by
election of the Company shall be credited to a bookkeeping account in the name
of the Executive as of the date scheduled for payment hereunder. Such amounts
shall be credited with interest as of each June 30 during the term of deferral,
compounded annually, at a rate per annum equal to the annual rate of interest
announced by Citibank, N.A. in New York, New York as its base rate in effect on
such June 30, but in no event shall such rate exceed 9%. The entire amount
credited to such bookkeeping account shall be paid to the Executive on a date to
be chosen by the Company, but in no event later than 90 days after the
termination of the Executive from employment with the Company.
(d). Share Incentive Plan. As of the effective date hereof, the
Compensation Committee has awarded to the Executive 50,000 options to purchase
shares of Class A Common Stock of the Company ("Common Stock") under the terms
of the Company's Fiscal 1996 Share Incentive Plan ("Share Incentive Plan").
Additionally, senior management shall recommend to the Compensation Committee
that the Executive be awarded not fewer than 50,000 options to purchase shares
of Common Stock as of each July 1 during the Term of Employment under the terms
of the Share Incentive Plan or such successor plan of similar import as shall
then exist.
4. Benefits
(a) Standard Benefits. During the Term of Employment, the Executive
shall be entitled to (i) participate in any and all benefit programs and
arrangements now in effect and hereinafter adopted and made generally available
by the Company to its senior officers, including but not limited to the Xxxxx
Xxxxxx Inc. Retirement Growth Account Plan (the "Qualified Plan"), the related
Xxxxx Xxxxxx Inc. Benefit Restoration Plan (the "Non-Qualified" Plan), and
disability, medical, dental, prescription drug and life insurance plans for
which the Executive shall be eligible, or may become eligible during the Term of
Employment; (ii) participate in the Company's executive automobile program now
in effect and hereinafter adopted and generally made available by the Company to
its senior-most officers; and (iii) paid vacations during each year of the Term
of Employment in accordance with the policies and procedures of the Company as
in effect from time to time for its senior-most officers.
(b). Perquisite Reimbursement . The Company shall reimburse to the
executive the actual expense incurred by him in connection with his professional
standing, in accordance with the guidelines set out in the Company's executive
perquisite program. In no event shall the gross amount of such reimbursements be
greater than $15,000 in respect of any calendar year during the Term of
Employment.
(c). Expenses. The Company agrees to reimburse the Executive for all
reasonable and necessary travel (including first class air fare), business
entertainment and other business out-of-pocket expenses incurred or expended by
him in connection with the performance of his duties hereunder upon presentation
of proper expense statements or vouchers or such other supporting information as
the Company may reasonably require of the Executive.
5. Termination.
(a) Permanent Disability. In the event of the "permanent disability"
(as hereinafter defined) of the Executive during the Term of Employment, the
Company shall have the right, upon written notice to the Executive, to terminate
the Executive's employment hereunder, effective upon the giving of such notice
(or such later date as shall be specified in such notice). In the event of such
termination, the Company shall have no further obligations hereunder, except
that the Executive shall be entitled (i) to receive any amounts or benefits to
which the Executive may otherwise have been entitled prior to the effective date
of termination; (ii) to be paid his Base Salary under Section 3(a) hereof for a
period of one (1) year from the effective date of termination; provided,
however, that the Company shall only be required to pay that amount of the
Executive's Base Salary which shall not be covered by Company provided long-term
disability payments, if any, to the Executive; and (iii) to receive any unpaid
bonus compensation earned under Section 3(b) hereof that relates to any Contract
Year ending prior to the date of permanent disability. In addition, upon
termination for permanent disability, the Executive shall continue to
participate in any and all pension, insurance and other benefit plans and
programs of the Company during the period the Executive is continuing to receive
his Base Salary in accordance with this Section 5(a). Thereafter, the
Executive's rights to participate in such programs and plans, or to receive
similar coverage, if any, shall be as determined under such programs; provided,
however, that, except as otherwise provided in this Section 5(a), the Company
will have no further obligations under Sections 3(b) and (d) hereof. For
purposes of this paragraph, "permanent disability" means any physical or mental
disability or incapacity that renders the Executive incapable of performing the
services required of him in accordance with his obligations under Section 2
hereof for a period of six (6) consecutive months or for shorter periods
aggregating six (6) months during any twelve-month period.
(b) Death. In the event of the death of the Executive during the Term
of
Employment, this Agreement shall automatically terminate. In the event of such
termination the Company shall have no further obligations hereunder, except to
pay, for a period of one (1) year from the date of his death, the Executive's
beneficiary or legal representative (i) the Executive's Base Salary as
established under Section 3(a) hereof as of the date of his death; (ii) bonus
compensation earned under Section 3(b) hereof that relates to any Contract Year
ending prior to the date of his death; and (iii) any other amounts to which the
Executive otherwise would have been entitled to hereunder prior to the date of
his death; provided, however, that, except as otherwise provided in this Section
5(b), the Company will have no further obligations under Sections 3(b) and (d)
hereof.
(c) Termination Without Cause. The Company shall have the right, upon
sixty (60) days' written notice given to the Executive, to terminate this
Agreement for any reason whatsoever. In the event of such termination, for a
period of one (1) year from the effective date of termination, the Executive
shall be entitled as damages to (i) receive his Base Salary as established under
Section 3(a) hereof as of the effective date of such termination; (ii) receive
bonus compensation equal to fifty percent (50%) of the average of incentive
compensation bonuses previously paid or payable to the Executive under Section
3(b) hereof during the term of employment (or, if no such bonuses have been paid
or are payable as of the date of such termination, fifty percent (50%) of the
target bonus established under Section 3(b) hereof in respect of the Contract
Year in which occurs the date of such termination; and (iii) participate in all
pension, insurance and other benefit plans, programs or arrangements, on terms
identical to those applicable to full term senior officers of the Company;
provided, however, that, except as otherwise provided in this Section 5(c), the
Company will have no further obligations under Sections 3(b) and (d) hereof. In
the event of termination pursuant to this Section 5(c), the Executive shall not
be required to mitigate his damages hereunder.
(d) Cause. The Company shall have the right, upon written notice to the
Executive, to terminate the Executive's employment under this Agreement for
"Cause" (as hereinafter defined), effective upon the giving of such notice (or
such later date as shall be specified in such notice), and the Company shall
have no further obligations hereunder, except to pay the Executive any amounts
otherwise payable pursuant to Section 3(a) hereof and provide the Executive any
benefits to which the Executive may have been otherwise entitled prorated to the
effective date of termination. The Executive's right to participate in any of
the Company's retirement, insurance and other benefit plans and programs shall
be as determined under such plans and programs; provided, however, that, except
as otherwise provided in this Section 5(d), the Company will have no further
obligations under Sections 3(b) and (d) hereof.
For purposes of this Agreement, "Cause" means:
(i) fraud, embezzlement or gross insubordination on the part of
the Executive or material breach by the Executive of his obligations under
Section 6 or 7 hereof;
(ii) conviction of or the entry of a plea of nolo contendere by
the Executive for any felony;
(iii) a material breach of, or the willful failure or refusal by
the Executive to perform and discharge, his duties, responsibilities or
obligations under this Agreement (other than under Sections 6 and 7 hereof,
which shall be governed by clause (i) above, and other than by reason of
disability or death) that is not corrected within thirty (30) days following
written notice thereof to the Executive by the Company, such notice to state
with specificity the nature of the breach, failure or refusal; provided that if
such breach, failure or refusal cannot reasonably be corrected within thirty
(30) days of written notice thereof, correction shall be commenced by the
Executive within such period and may be corrected within a reasonable period
thereafter; or
(iv) any act of moral turpitude or willful misconduct by the
Executive which (A) is intended to result in substantial personal enrichment of
the Executive at the expense of the Company or any of its subsidiaries or
affiliates or (B) has a material adverse impact on the business or reputation of
the Company or any of its subsidiaries or affiliates (such determination to be
made by the Company's Board of Directors in its reasonable judgment).
(e) Termination by Executive. The Executive shall have the right,
exercisable at
any time during the Term of Employment, to terminate this agreement for any
reason whatsoever, upon six (6) months written notice to the Company. In such
event, the Company shall have no further obligations hereunder, except that, for
a period of six (6) months after the effective date of such termination, the
Company shall pay to the Executive (i) his Base Salary as established under
Section 3(a) hereof; and (ii) bonus compensation equal to twenty-five percent
(25%) of the Base Salary paid pursuant to clause (i) above, such bonus
compensation to be paid simultaneously with the last Base Salary payment for the
applicable fiscal year; provided, however, that, except as otherwise provided in
this Section 5(e), the Company will have no further obligations under Sections
3(b) and (d) hereof.
(f) Termination by Executive for Material Breach. The Executive shall
have the right, exercisable by notice to the Company, to terminate his
employment effective thirty (30) days after the giving of such notice, if, at
any time during the Term of Employment, the Company shall be in material breach
of its obligations hereunder; provided, however, that such notice must be
provided to the Company within thirty (30) days of the occurrence of such
material breach; and provided further, that such termination will not become
effective if within such thirty (30) day period the Company shall have cured all
such material breaches of its obligations hereunder. For purposes of this
Section 5(f), a material breach shall include, but not be limited to, a material
reduction in the Executive's authority, functions, duties or responsibilities
provided in Section 2 hereof or the Company's failure to cause the Executive to
serve in the position set forth in Section 1 hereof for any time period in which
he is entitled to so serve. Such termination shall be deemed to be a termination
without cause and shall be controlled by the provisions of Section 5(c) hereof.
(g) Certain Limitations. Notwithstanding anything to the contrary
contained herein, in the event that any payment received or to be received by
the Executive pursuant to Section 5 hereof or otherwise (a "Severance Payment")
would be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of
the Code (in whole or part), the Severance Payment shall be reduced so that the
total of all amounts treated as "parachute payments" under Section 280G of the
Code shall not exceed 2.99 times the Executive's "base amount" (as defined under
Section 280G of the Code).
(h) Effect of Termination. Upon the termination of the Executive's
employment hereunder for any reason, the Company shall have no further
obligations hereunder, except as otherwise provided herein. The Executive,
however, shall continue to have the obligations provided for in Sections 6 and 7
hereof. Furthermore, upon such termination, the Executive shall be deemed to
have resigned immediately from all offices and directorships held by [him/her]
in the Company or any of its subsidiaries.
6. Confidentiality; Ownership.
(a) The Executive agrees that he shall forever keep secret and retain
in strictest confidence and not divulge, disclose, discuss, copy or otherwise
use or suffer to be used in any manner, except in connection with the Business
of the Company and the businesses of any of its subsidiaries or affiliates, any
"Protected Information" in any "Unauthorized" manner or for any Unauthorized
purpose (as such terms are hereinafter defined).
(i) "Protected Information" means trade secrets, confidential or
proprietary information and all other knowledge, know-how, information,
documents or materials owned, developed or possessed by the Company or any of
its subsidiaries or affiliates, whether in tangible or intangible form,
pertaining to the Business of the Company or the businesses of any of its
subsidiaries or affiliates, including, but not limited to, research and
development operations, systems, data bases, computer programs and software,
designs, models, operating procedures, knowledge of the organization, products
(including prices, costs, sales or content), processes, formulas, techniques,
machinery, contracts, financial information or measures, business methods,
business plans, details of consultant contracts, new personnel acquisition
plans, business acquisition plans, customer lists, business relationships and
other information owned, developed or possessed by the Company or its
subsidiaries or affiliates, except as required in the course of performing
duties hereunder; provided that Protected Information shall not include
information that becomes generally known to the public or the trade without
violation of this Section 6.
(ii) "Unauthorized" means: (A) in contravention of the policies
orprocedures of the Company or any of its subsidiaries or affiliates; (B)
otherwise inconsistent with
the measures taken by the Company or any of its subsidiaries or affiliates to
protect their interests in any Protected Information; (C) in contravention of
any lawful instruction or directive, either written or oral, of an employee of
the Company or any of its subsidiaries or affiliates empowered to issue such
instruction or directive; or (D) in contravention of any duty existing under law
or contract. Notwithstanding anything to the contrary contained in this Section
6, the Executive may disclose any Protected Information to the extent required
by court order or decree or by the rules and regulations of a governmental
agency or as otherwise required by law; provided that the Executive shall
provide the Company with prompt notice of such required disclosure in advance
thereof so that the Company may seek an appropriate protective order in respect
of such required disclosure.
(b) The Executive acknowledges that all developments, including,
without limitation, inventions (patentable or otherwise), discoveries, formulas,
improvements, patents, trade secrets, designs, reports, computer software, flow
charts and diagrams, procedures, data, documentation, ideas and writings and
applications thereof relating to the Business or planned business of the Company
or any of its subsidiaries or affiliates that, alone or jointly with others, the
Executive may conceive, create, make, develop, reduce to practice or acquire
during the Term of Employment (collectively, the "Developments") are works made
for hire and shall remain the sole and exclusive property of the Company and the
Executive hereby assigns to the Company, in consideration of the payments set
forth in Section 3(a) hereof, all of his right, title and interest in and to all
such Developments. The Executive shall promptly and fully disclose all future
material Developments to the Board of Directors of the Company and, at any time
upon request and at the expense of the Company, shall execute, acknowledge and
deliver to the Company all instruments that the Company shall prepare, give
evidence and take all other actions that are necessary or desirable in the
reasonable opinion of the Company to enable the Company to file and prosecute
applications for and to acquire, maintain and enforce all letters, patent and
trademark registrations or copyrights covering the Developments in all countries
in which the same are deemed necessary by the Company. All memoranda, notes,
lists, drawings, records, files, computer tapes, programs, software, source and
programming narratives and other documentation (and all copies thereof) made or
compiled by the Executive or made available to the Executive concerning the
Developments or otherwise concerning the Business or planned business of the
Company or any of its subsidiaries or affiliates shall be the property of the
Company or such subsidiaries or affiliates and shall be delivered to the Company
or such subsidiaries or affiliates promptly upon the expiration or termination
of the Term of Employment.
(c) The provisions of this Section 6 shall, without any limitation as
to time, survive the expiration or termination of the Executive's employment
hereunder, irrespective of the reason for any termination.
7. Covenant Not to Compete. Subject to the last sentence of this
Section 7, the Executive agrees that during the Term of Employment and for a
period of one (1) year commencing upon the expiration or termination of the
Executive's employment hereunder (the "Non-Compete Period"), the Executive shall
not, directly or indirectly, without the prior written consent of the Company:
(a) solicit, entice, persuade or induce any employee, consultant, agent
or independent contractor of the Company or of any of its subsidiaries or
affiliates to terminate his or her employment with the Company or such division,
subsidiary or affiliate, to become employed by any person, firm or corporation
other than the Company or such subsidiary or affiliate or approach any such
employee, consultant, agent or independent contractor for any of the foregoing
purposes, or authorize or assist in the taking of any such actions by any third
party (for purposes of this Section 7(a), the terms "employee," "consultant,"
"agent" and "independent contractor" shall include any persons with such status
at any time during the six (6) months preceding any solicitation in question);
or
(b) directly or indirectly engage, participate, or make any financial
investment in, or become employed by or render consulting, advisory or other
services to or for any person, firm, corporation or other business enterprise,
wherever located, which is engaged, directly or indirectly, in competition with
the Company's Business or the businesses of its subsidiaries or affiliates as
conducted or any business proposed to be conducted at the time of the expiration
or termination of the Executive's employment hereunder; provided, however, that
nothing in this Section 7(b) shall be construed to preclude the Executive from
making any investments in the securities of any business enterprise whether or
not engaged in competition with the Company or any of its subsidiaries or
affiliates, to the extent that such securities are actively traded on a national
securities exchange or in the over-the-counter market in the United States or on
any foreign securities exchange and represent, at the time of acquisition, not
more than 1% of the aggregate voting power of such business enterprise.
Notwithstanding the foregoing, the Executive shall not be subject to
the terms and provisions of paragraph (b) of this Section 7 if the Term of
Employment is terminated pursuant to Section 5(c) or 5(f) hereof.
8. Specific Performance. The Executive acknowledges that the services
to be rendered by the Executive are of a special, unique and extraordinary
character and, in connection with such services, the Executive will have access
to confidential information vital to the Company's Business and the businesses
of its subsidiaries and affiliates. By reason of this, the Executive consents
and agrees that if the Executive violates any of the provisions of Sections 6 or
7 hereof, the Company and its subsidiaries and affiliates would sustain
irreparable injury and that monetary damages would not provide adequate remedy
to the Company and that the Company shall be entitled to have Section 6 or 7
hereof specifically enforced by any court having equity jurisdiction. Nothing
contained herein shall be construed as prohibiting the Company or any of its
subsidiaries or affiliates from pursuing any other remedies available to it for
such breach or threatened breach, including the recovery of damages from the
Executive.
9. Deductions and Withholding. The Executive agrees that the Company or
its divisions, subsidiaries or affiliates, as applicable, shall withhold from
any and all compensation paid to and required to be paid to the Executive
pursuant to this Agreement, all Federal, state, local and/or other taxes which
the Company determines are required to be withheld in accordance with applicable
statutes or regulations from time to time in effect and all amounts required to
be deducted in respect of the Executive's coverage under applicable employee
benefit plans. For purposes of this Agreement and calculations hereunder, all
such deductions and withholdings shall be deemed to have been paid to and
received by the Executive.
10. Entire Agreement. This Agreement embodies the entire agreement of
the parties with respect to the Executive's employment, compensation,
perquisites and related items and supersedes any other prior oral or written
agreements, arrangements or understandings between the Executive and the Company
or any of its divisions, subsidiaries or affiliates, and any such prior
agreements, arrangements or understandings are hereby terminated and of no
further effect. This Agreement may not be changed or terminated orally but only
by an agreement in writing signed by the parties hereto.
11. Waiver. The waiver by the Company of a breach of any provision of
this Agreement by the Executive shall not operate or be construed as a waiver of
any subsequent breach by him. The waiver by the Executive of a breach of any
provision of this Agreement by the Company shall not operate or be construed as
a waiver of any subsequent breach by the Company.
12. Governing Law; Jurisdiction.
(a) This Agreement shall be subject to, and governed by, the laws of
the State of New York applicable to contracts made and to be performed therein.
(b) Any action to enforce any of the provisions of this Agreement shall
be brought in a court of the State of New York located in the Borough of
Manhattan of the City of New York or in a Federal court located within the
Southern District of New York. The parties consent to the jurisdiction of such
courts and to the service of process in any manner provided by New York law.
Each party irrevocably waives any objection which it may now or hereafter have
to the laying of the venue of any such suit, action or proceeding brought in
such court and any claim that such suit, action or proceeding brought in such
court has been brought in an inconvenient forum and agrees that service of
process in accordance with the foregoing sentences shall be deemed in every
respect effective and valid personal service of process upon such party.
13. Assignability. The obligations of the Executive may not be
delegated and, except with respect to the designation of beneficiaries in
connection with any of the benefits payable to the Executive hereunder, the
Executive may not, without the Company's written consent thereto, assign,
transfer, convey, pledge, encumber, hypothecate or otherwise dispose of this
Agreement or any interest herein. Any such attempted delegation or disposition
shall be null and void and without effect. The Company and the Executive agree
that this Agreement and all of the Company's rights and obligations hereunder
may be assigned or transferred by the Company to and shall be assumed by and be
binding upon any successor to the Company. The term "successor" means, with
respect to the Company or any of its subsidiaries, any corporation or other
business entity which, by merger, consolidation, purchase of the assets or
otherwise acquires all or a material part of the assets of the Company.
14. Severability. If any provision of this Agreement or any part
thereof, including, without limitation, Sections 6 and 7 hereof, as applied to
either party or to any circumstances shall be adjudged by a court of competent
jurisdiction to be void or unenforceable, the same shall in no way affect any
other provision of this Agreement or remaining part thereof, which shall be
given full effect without regard to the invalid or unenforceable part thereof,
or the validity or enforceability of this Agreement.
If any court construes any of the provisions of Section 6 or 7 hereof,
or any part thereof, to be unreasonable because of the duration of such
provision or the geographic scope thereof, such court may reduce the duration or
restrict or redefine the geographic scope of such provision and enforce such
provision as so reduced, restricted or redefined.
15. Notices. All notices to the Company or the Executive permitted or
required hereunder shall be in writing and shall be delivered personally, by
telecopier or by courier service providing for next-day delivery or sent by
registered or certified mail, return receipt requested, to the following
addresses:
The Company:
The Xxxxx Xxxxxx Companies Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Executive Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
The Executive:
with a copy to:
Xxxxx Xxxxxxxx Xxxxxxxxx, Esq.
Winthrop, Stimsom, Xxxxxx & Xxxxxxx
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Either party may change the address to which notices shall be sent by sending
written notice of such change of address to the other party. Any such notice
shall be deemed given, if delivered personally, upon receipt; if telecopied,
when telecopied; if sent by courier service providing for next-day delivery, the
next business day following deposit with such courier service; and if sent by
certified or registered mail, three days after deposit (postage prepaid) with
the U.S. mail service.
16. No Conflicts. The Executive hereby represents and warrants to the
Company that his execution, delivery and performance of this Agreement and any
other agreement to be delivered pursuant to this Agreement will not (i) require
the consent, approval or action of any other person or (ii) violate, conflict
with or result in the breach of any of the terms of, or constitute (or with
notice or lapse of time or both, constitute) a default under, any agreement,
arrangement or understanding with respect to the Executive's employment to which
the Executive is a party or by which the Executive is bound or subject. The
Executive hereby agrees to indemnify and hold harmless the Company and its
directors, officers, employees, agents, representatives and affiliates (and such
affiliates' directors, officers, employees, agents and representatives) from and
against any and all losses, liabilities or claims (including, interest,
penalties and reasonable attorneys' fees, disbursements and related charges)
based upon or arising out of the Executive's breach of any of the foregoing
representations and warranties.
17. Effective Date. This Agreement shall be effective as of July 1,
1998.
18. Paragraph Headings. The paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
19. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
THE XXXXX XXXXXX COMPANIES INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Senior Vice President
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Date: 5/6/99
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