Exhibit 99 (d)(7)
MUTUAL NON-DISPARAGEMENT AND RELEASE AGREEMENT
THIS MUTUAL NON-DISPARAGEMENT AND RELEASE AGREEMENT (the "Agreement") is entered
into as of April 30, 2004 by and among Gucci America, Inc., a Delaware
corporation ("GAI"), Gucci Group N.V., a Dutch company and the sole shareholder
of GAI ("Gucci"), Pinault Printemps-Redoute, a French company and, the
controlling shareholder of Gucci ("PPR" and together with GAI and Gucci the
"Companies"), and _____________________ (the "Executive").
WHEREAS, each of the Companies, on the one hand, and the Executive, on the other
hand, derive significant benefit from their reputations in the fashion industry
and the financial markets; and
WHEREAS, each of the Companies, on the one hand, and the Executive, on the other
hand, have worked together for a period of years and the result of that work is
a common interest in preserving the integrity and image of the Companies, on the
one hand, and the Executive on the other hand; and
WHEREAS, the Companies and the Executive have an important and common interest
in ensuring that their respective reputations remain intact following the
resignation of the Executive effective May 1, 2004 and following the completion
of the offer by PPR to acquire all of the Gucci shares which it does not
beneficially own (the "PPR Offer").
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. AGREEMENT TO TENDER GUCCI SHARES INTO THE PPR OFFER AND TO SURRENDER
ALL OTHER EQUITY INTERESTS UPON COMPLETION OF THE PPR OFFER
The Executive agrees that, to the extent he is the beneficial owner of
shares of Gucci common stock or options exercisable into shares of Gucci common
stock on the last day of the offer period (or subsequent offer period, if any)
with respect to the PPR Offer, he will tender any shares of Gucci common stock
then owned by him into the PPR Offer, and upon completion of the PPR Offer, will
surrender for no monetary value all options exercisable into shares of Gucci
common stock and all other equity interests in Gucci then held by him. The
Executive hereby waives any equity entitlement or interest he may have in Gucci
following the completion of the PPR Offer, except the right to receive payments
for such stock as contemplated by the PPR Offer.
2. MUTUAL NON-DISPARAGEMENT
(a) The Executive agrees to refrain from making any public statements (or
authorizing any statements to be reported as being attributed to the Executive)
that are critical, derogatory or which may tend to injure the reputation or
business of the Companies.
(b) The Companies will not make, and agree to use their best efforts to
cause the officers, directors and spokespersons of the Companies and/or of any
person directly or indirectly controlling, controlled by or under common control
with any of the Companies ("Affiliates") to refrain from making, any public
statements (or authorizing any statements to be reported as being attributed to
the Companies), that are critical, derogatory or which may tend to injure the
reputation or business of the Executive, and the Companies shall instruct such
officers, directors and spokespersons to refrain from making such statements.
(c) It is understood and agreed that the Companies on the one hand, and
the Executive on the other hand, if and to the extent they are a non-breaching
party under the Agreement, may respond to any detrimental, disparaging or
generally negative statement by the other, or by officers, directors and
spokespersons of the Companies and their Affiliates, by publicly providing
accurate information, and any such response will not be deemed to be a breach of
this agreement.
(d) Each party hereto acknowledges and agrees that each other party
hereto will be irreparably harmed and that there may be no adequate remedy at
law for a violation of any of the covenants set forth in this Section 2.
Therefore, in addition to and without limiting any other remedies that may be
available to any party hereto, upon any such violation or threatened violation,
such party shall have the right to enforce such covenants by specific
performance, injunctive relief or by any other means available to such party or
law at in equity under this Agreement without having to post a bond. Any such
action shall be subject to arbitration as provided in Section 4(k) below.
(e) Notwithstanding any breach or threatened breach of this Section 2,
the remaining sections of this Agreement shall remain in full force and effect,
including the releases set forth in Section 3 below.
3. MUTUAL RELEASE
(a) Except as expressly set forth in the last sentence of this Section
3(a) and Section 3(d), the Executive knowingly and voluntarily agrees to remise,
release, acquit and discharge the Companies and their respective Affiliates, and
each of their respective principals, managing board members, supervisory board
members, directors, officers, employees, agents, servants, attorneys, heirs,
predecessors, successors and assigns (collectively, the "Releasees") from any
and all obligations, claims, charges, actions, causes of action, claims for
relief, demands, rights, damages and costs, attorneys' fees, compensatory or
punitive or exemplary damages, of any nature whatsoever, known or unknown,
suspected or unsuspected ("Claims"), which Executive or Executive's executors,
administrators, successors or assigns ever had, now have or hereafter claim to
have, in law or in equity, by reason of any matter, cause or thing whatsoever
arising in connection with or relating to the Executive's employment with any of
the Companies or of the Affiliates (whether as employee, officer, director or
otherwise), or the termination or resignation of such employment, on or before
the date of this Agreement. This release includes, but is not limited to, any
Claims relating in any way to the Executive's employment with GAI, or the
termination or resignation of such employment, or any
other positions or decision-making responsibilities for Gucci and its
Affiliates, and any rights or claims arising under any statute or regulation.
Notwithstanding this release, the Executive shall retain any and all rights he
has under this Agreement and to enforce the agreements and obtain the benefits
set forth on Schedule 3(a).
(b) Except as expressly set forth in the last sentence of this Section
3(b) and Section 3(d), the Companies (on behalf of themselves and their
respective Affiliates) knowingly and voluntarily agree to remise, release,
acquit and discharge the Executive of and from any and all Claims, which the
Companies or any of their Affiliates, individually or collectively, ever had,
now have or hereafter claim to have, in law or in equity, by reason of any
matter, cause or thing whatsoever arising in connection with or relating to the
Executive's employment with any of the Companies or of the Affiliates (whether
as employee, officer, director or otherwise), or the termination or resignation
of such employment, on or before the date of this Agreement. This release
includes, but is not limited to, any Claims relating in any way to the
Executive's employment with GAI, or the termination or resignation of such
employment, or any other positions or decision-making responsibilities for Gucci
and its Affiliates, and any rights or claims arising under any statute or
regulation. Notwithstanding this release, the Companies and their subsidiaries
and Affiliates shall retain any and all rights they have under this Agreement
and to enforce the agreements set forth on Schedule 3(a).
(c) Each of the Companies, on the one hand, and the Executive, on the
other hand, hereby agree, on behalf of themselves and their respective
Affiliates, not to seek personal recovery in any legal proceedings on the basis
of facts, events or circumstances underlying any Claims that are the subject of
this mutual release and occurring prior to the date hereof.
(d) Notwithstanding anything to the contrary in this Section 3, neither
the Companies, on the one hand, nor the Executive, on the other hand, shall
remise, release, acquit or discharge any Claim involving fraud or fraudulent
conduct.
4. MISCELLANEOUS
(a) SEVERABILITY. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
(b) BINDING EFFECT AND ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors, heirs and permitted assigns, but, except
as otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereby may be assigned by any of
the parties without the prior written consent of the parties.
(c) AMENDMENTS AND MODIFICATION. This Agreement may not be modified,
amended, altered or supplemented except by the execution and delivery of a
written agreement executed by the parties hereto.
(d) WAIVER. No waiver by any party hereto of any condition or of any
breach of any provision of this Agreement shall be effective unless in writing.
No failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
(e) NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by commercial
messenger or courier service, or mailed by registered or certified mail (return
receipt requested) or sent via facsimile (with acknowledgement of complete
transmission) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice), provided, however,
that notices sent by mail will not be deemed given until received:
If to the Companies:
To the addresses and facsimile numbers set forth on the
signature page hereof in each case with copies to:
Xxxxx X. Xxxx, Esq.
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
Facsimile number: 001 212 403 2000
and
Xxxxx X. Xxxxxxx, Esq.
Skadden, Arps, slate, Xxxxxxx & Xxxx LLP
00 Xxxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Facsimile number: 00 44 207 519 7070
If to the Executive:
To the address for notice set forth on the signature page
hereof.
(f) GOVERNING LAW. This Agreement shall be governed exclusively by New
York law, without reference to its choice of law rules.
(g) ATTORNEY'S FEES AND EXPENSES. If any action or other proceeding
relating to the enforcement of any provision of this Agreement is brought by
either party, the prevailing party shall be entitled to recover reasonable
attorneys' fees, costs and disbursements (in addition to any other relief to
which the prevailing party may be entitled).
(h) ENTIRE AGREEMENT. This Agreement contains the entire understanding of
the parties in respect of the subject matter hereof, and supersedes all prior
negotiations and understandings between the parties with respect to such subject
matter, except for the agreements set forth on Schedule 3(a).
(i) COUNTERPARTS. This Agreement may be exercised in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
(j) EFFECT OF HEADINGS. The section headings herein are for convenience
only and shall not affect the construction or interpretation of this Agreement.
(k) ARBITRATION. Any dispute, controversy or claim between the parties
arising out of or relating to this Agreement, or the breach, termination or
validity thereof, shall be settled by arbitration administered by the American
Arbitration Association ("AAA") under its Commercial International Arbitration
Rules then in effect (the "Rules"); PROVIDED, HOWEVER, any party may seek
injunctive relief through the AAA's Optional Rules for Emergency Measures of
Protection. No party may seek relief hereunder from any court, including but not
limited to preliminary injunctive relief, except to compel arbitration or to
enforce the award of an emergency arbitrator or the arbitral tribunal. Any
arbitration proceeding brought under this Section 4(k) shall be conducted in New
York City and, except as otherwise provided by the Optional Rules for Emergency
Measures of Protection, shall be conducted before a panel of three arbitrators.
Each party shall select one arbitrator in accordance with the Rules and the two
arbitrators so selected shall select a third arbitrator, who shall serve as
chair of the arbitral tribunal, within thirty days of the appointment of the
second arbitrator. Any arbitrator not timely appointed shall, on the request of
any party be selected by the AAA. In addition to damages, the arbitrators may
award any type of relief provided for in this Agreement, including permanent
injunctive relief or specific performance of any provision of this Agreement.
Any arbitration conducted pursuant hereto shall be confidential. No party shall
disclose or authorize the disclosure of any information about the evidence
adduced or the documents produced by any other party in the arbitration
proceedings or about the existence, contents or results of the proceedings
except as may be required by a governmental authority or as required in an
action in aid of arbitration or for enforcement of an arbitral award. Before
making any disclosure permitted by the preceding sentence, the party intending
to make such disclosure shall give the other party reasonable written notice of
the intended disclosure and afford the other parties a reasonable opportunity to
protect their interests. In rendering an award, which shall be a reasoned award
stating the findings of fact and conclusions of law on which it is based, the
arbitrators shall be required to follow the law of the state jurisdiction
designated by the parties herein. Any judgment or enforcement of any award,
including an award providing for interim or permanent injunctive relief,
rendered by the arbitrators may be entered and, enforced or appealed from in any
court having jurisdiction thereof. Any arbitration proceedings, decision or
award rendered hereunder, and the validity, effect and interpretation of this
arbitration agreement, shall be governed by the Federal Arbitration Act, 9
X.X.X.xx. 1 et seq.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
GUCCI AMERICA, INC.
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By:
Its:
Address:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
XXX
GUCCI GROUP N.V.
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By:
Its:
Address:
Xxxxxxxxx Xxxxx Xxxxxxxxxxx 0
XX 0000 Xxxxxxxxx
Xxx Xxxxxxxxxxx
PINAULT-PRINTEMPS-REDOUTE S.A.
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By:
Its:
Address:
10 avenue Hoche
75381 Xxxxx XXXXX 00
Xxxxxx
EXECUTIVE
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Address:
