EMPLOYMENT AGREEMENT
AGREEMENT (this "Agreement"), dated as of July 1, 2000, between THE
XXXXX XXXXXX COMPANIES INC., a Delaware corporation (the "Company"), and
XXXXXX X. XXXXXX, a resident of New York, New York (the "Executive").
WITNESSETH:
WHEREAS, the Company and its subsidiaries are principally engaged in
the business of manufacturing, marketing and selling prestige skin care, makeup,
hair care and fragrance products and related services (the "Business"); and
WHEREAS, the Company desires to retain the services of the Executive in
the capacity of Chairman of the Board of Directors of each of Clinique
Laboratories, Inc., a Delaware corporation and an indirect subsidiary of the
Company ("CLI"), and Xxxxx Xxxxxx International, Inc., a Delaware corporation
and an indirect subsidiary of the Company ("ELII"), and the Executive desires to
provide such services in such capacities, 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 use its best efforts and powers to
sustain and continue the Executive's election as a Director and as Chairman
of the Board of Directors of each of CLI and ELII for the period commencing
on July 1, 2000 and ending on June 30, 2005 unless terminated sooner
pursuant to Section 5 hereof (the "Term of Employment").
2. Duties and Extent of Services.
(a) During the Term of Employment, the Executive shall serve as
Chairman of the Board of Directors of each of CLI and ELII, and, in such
capacities, shall render such services as customarily are associated with
and incident to such positions, and as the Company may, from time to time,
reasonably require of him consistent with such positions, all as consistent
with past practice.
(b) During the Term of Employment, the Company shall use its best
efforts and powers to cause each of the Company, CLI and ELII to nominate
the Executive as a management nominee for each of their Boards of
Directors. The Executive shall serve as a Director of the Company, CLI and
ELII if elected to such positions in accordance with law and hold such
other positions and executives offices of the Company and/or of any of the
Company's 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 a Director of the Company and Chairman of the Board of
Directors of each of CLI and ELII. The Executive shall not be entitled to
any compensation other than the compensation provided for herein for
serving during the Term of Employment as a Director of the Company, CLI or
ELII, or in any other office or position of the Company or any of its
subsidiaries or affiliates unless the Board of Directors of the Company
shall have specifically approved such additional compensation.
(c) The Executive shall devote such time and effort as is necessary
and appropriate to faithfully, competently and diligently perform to the
best of his ability all of the duties required of him as Chairman of the
Board of Directors of each of CLI and ELII, consistent with past practice.
(d) In connection with his employment hereunder, the Executive shall
be provided with a full-time secretary and the use of the office space set
forth on the floor plan attached hereto as Exhibit A and the furnishings
currently contained therein. If the Company shall relocate its executive
offices or base of operations, the Executive shall be provided with
comparable support services and office facilities, in terms of size and
location, to those provided for herein.
3. Compensation.
(a) Base Salary. As full compensation for all services to be rendered
pursuant to this Agreement and as payment for the rights and interests
granted by the Executive hereunder, during the Term of Employment, the
Company shall pay or cause any of its subsidiaries to pay the Executive a
salary of $400,000 per annum (the "Salary"), payable in accordance with the
regular payroll policies of the Company in effect from time to time.
(b) Share Incentive Plan; Stock Options. The Executive shall be
entitled to participate in the Company's Fiscal 1999 Share Incentive Plan
and any successor plan in which senior executive officers of the Company
are eligible to participate (the "Share Incentive Plan") on the terms set
forth therein. Any awards thereunder shall be at the discretion of the
Compensation Committee.
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4. Benefits.
(a) Standard Benefits. During the Term of Employment, the Executive
shall be entitled to (i) participate in any and all insurance, retirement
and health benefit programs and arrangements now in effect and hereinafter
adopted and made generally available by the Company to its senior executive
officers, including but not limited to The Xxxxx Xxxxxx Inc Incentive
Thrift Plan (the "Thrift Plan"), the Xxxxx Xxxxxx Retirement Growth Account
Plan (the "Qualified Plan"), the related Xxxxx Xxxxxx Inc. Benefit
Restoration Plan (the "Non-Qualified Plan"), contributory and
non-contributory Company welfare and benefit plans, disability plans, and
medical, death benefit 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 automobile program now in effect and
hereinafter adopted and generally made available by the Company to its
senior executive 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 executive officers.
(b) Expenses. The Corporation agrees to reimburse the Executive for
all reasonable and necessary travel (including first class airfare),
business entertainment, no-charge merchandise (consistent with prior years'
levels) and other out-of-pocket business 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 the Executive shall be entitled (i) to
receive any amounts or benefits to which the Executive may otherwise have
been entitled to hereunder prior to the effective date of termination; and
(ii) to be paid his Salary under Section 3(a) hereof for a period of two
(2) years from the effective date of termination; provided, however, that
the Company shall only be required to pay the amount of the Executive's
Salary which shall not be covered by pension benefits or long-term
disability payments, if any, to the Executive under any Company plans or
arrangements. In addition, upon termination for permanent disability, the
Executive's rights to participate in any and all pension, insurance and
other benefit plans and programs of the Company, or to receive similar
coverage, if any, shall be as determined under such programs. For purposes
of this paragraph, "permanent disability" means any disability as defined
under the Company's applicable disability insurance policy or, if no such
policy is available, any physical or mental disability or incapacity which
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.
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(b) Death. In the event of the death of the Executive during the Term
of Employment, the Company shall have no further obligations hereunder,
except to pay any amounts to which the Executive otherwise would have been
entitled to hereunder prior to the date of his death or which become
payable by reason of his death.
(c) 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 Salary otherwise payable pursuant to Section 3(a) hereof and
provide the Executive any benefits to which the Executive may otherwise
have been entitled hereunder, in each case, prior 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 programs and plans.
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 Board of Directors in its reasonable
judgment).
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(d) Termination Without Cause. The Company shall have the right, upon
sixty (60) days' written notice given to the Executive, to terminate
Executive's employment for any reason whatsoever. In the event of such
termination, for a period ending on the first to occur of a date three (3)
years from the effective date of termination or June 30, 2005, the
Executive shall be entitled as damages to (a) receive his Salary under
Section 3(a) hereof; and (ii) participate in all insurance, retirement and
health benefit plan programs or arrangements on terms identical to those
applicable to other senior officers of the Company. In the event of
termination pursuant to this Section 5(d), the Executive shall have no
obligation to mitigate his damages.
(e) Termination by Executive. The Executive shall have the right,
exercisable at any time during the Term of Employment, to terminate his
employment for any reason whatsoever, upon six (6) months written notice to
the Company. In such event, the Company shall have no further obligations
hereunder.
(f) 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. Furthermore, upon such termination, the Executive shall be deemed to
have resigned immediately from all directorships and offices held by him in
either the Company, CLI or ELII or any of their subsidiaries; provided,
however, that the Executive's directorship in the Company shall be
controlled by that certain Stockholders' Agreement, dated as of November
22, 1995, as amended, by and among the Company, the Executive, and the
other persons or entities party thereto, as it may be amended from time to
time (the "Stockholders' Agreement").
6. Confidential 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 terns are hereinafter defined).
Furthermore, the Executive acknowledges that he has no right to use the
"Lauder" name, or any variation, combination or derivation thereof, in the
fragrance, make-up, skin care or other personal care products businesses,
or in any such way that would likely cause confusion with the Company's or
any of its subsidiaries' products.
(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.
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(ii) "Unauthorized" means: (A) in contravention of the policies or
procedures 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.
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(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 two (2) years commencing upon the expiration or termination of
the Executive's employment hereunder, 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 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 30% 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(d) hereof.
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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 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 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. Except for the Stockholders' Agreement, the
Share Incentive Plan, outstanding stock option agreements, existing split
dollar life insurance and deferred compensation arrangements, and the
Thrift Plan, Qualified Plan, Non-Qualified Plan and the other benefit plans
referred to in Section 4 hereof, 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 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.
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(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 carts 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.
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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
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
The Executive:
Xxxxxx X. Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
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.
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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, 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 the date
and year first written above.
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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Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President - Global Human Resources
/s/Xxxxxx X. Xxxxxx
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XXXXXX X. XXXXXX
