EXHIBIT 10.8
[LOGO OF TRUE NORTH COMMUNICATION APPEARS HERE]
TRUE NORTH COMMUNICATIONS INC.
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT dated as of January 14, 1997 between True North
Communications Inc., a Delaware corporation (the "Company"), and Xxxxxxxx X.
Xxxxx (the "Executive").
WHEREAS, the Company is a global communications holding company with
ownership interests in subsidiaries, affiliates and joint ventures that are
engaged in the advertising agency business, the multimedia production business,
the business of planning and buying of media time and space and related
businesses (the Company and the subsidiaries, affiliates and joint ventures in
which it from time to time has equity interests are hereinafter referred to
collectively as the "True North Group");
WHEREAS, the Executive currently serves the Company as President,
Associated Communications Companies and Corporate Operations; and
WHEREAS, the Company and the Executive desire to enter into this
Agreement to provide for the continued employment of the Executive by the
Company upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereby agree as follows:
1. EMPLOYMENT. The Company hereby employs the Executive and the
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Executive hereby agrees to be employed by the Company upon the terms and subject
to the conditions contained in this Agreement. The term of full-time employment
of the Executive by the Company pursuant to this Agreement (the "Full-Time
Employment Period") shall commence on the date hereof and shall end on December
31, 1999; provided that the Full-Time Employment Period may be extended by the
Company as of December 31, 1999 and each December 31 thereafter for one
additional year upon mutual consent of the Executive and the Company; and
further provided that the Full-Time Employment Period may be terminated as
contemplated in Section 4.
2. POSITION AND DUTIES. The Company shall employ the Executive
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during the Full-Time Employment Period, with the title of President, Associated
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Communications Companies and Corporate Operations (or such other title as may be
mutually agreed upon by the Executive and the Company). The Executive's duties
and responsibilities shall be those existing as of the date of this Agreement
and any other duties and responsibilities existing subsequent hereto if agreed
to in writing by the Executive. During the Full-Time Employment Period, the
Executive shall perform faithfully and loyally and to the best of the
Executive's abilities his duties hereunder, shall devote full business time,
attention and effort to the affairs of the True North Group and shall use
reasonable best efforts to promote the interests of the True North Group.
Notwithstanding the foregoing, the Executive may engage in charitable, civic or
community activities provided that they do not interfere with the performance of
the Executive's duties hereunder and, with the prior approval of the Board of
Directors of the Company (the "Board"), may serve as a director of any business
corporation provided that such service does not violate the terms of any of the
covenants contained in Section 7.
3. COMPENSATION.
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(a) Annual Base Salary. With respect to the Full-Time Employment
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Period, the Company shall pay to the Executive an annual salary not less than
the rate of $325,000 in accordance with the Company's regular payroll practices.
The annual base salary shall be reviewed periodically in accordance with
guidelines applicable to the Company's senior executives generally.
(b) Incentive Compensation. During the Full-Time Employment Period,
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the Executive shall participate in the VIC, DVIC and VISO components of the
Company's Performance Program, pursuant to the terms of such plans as they may
be amended from time to time.
(c) Other Benefits. During the Full-Time Employment Period, the
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Executive shall be entitled to participate in the Company's employee benefit
plans generally available to senior executives of the Company, including
medical, dental, salary continuance, short-term disability, long-term
disability, employee life, group life, travel accident insurance plans, pension,
profit sharing, stock purchase and nonqualified deferred compensation and
retirement plans and the plans or programs for the allowance for or the
reimbursement of automobile expenses, financial planning expenses and club dues
and any other plans of general application to employees on the date hereof and
such plans and programs adopted hereafter for the benefit of senior executives
of the Company (all such benefits being hereinafter referred to as the "Employee
Benefits"), in the case of plans or programs in effect on the date hereof on
terms no less favorable than their terms on the date hereof, subject to
modifications of general application to senior executives or all other
employees. The Executive shall be entitled to take time off for vacation or
illness in accordance with the Company's policy for senior executives and to
receive all other fringe benefits as are from time to time made generally
available to senior executives of the Company.
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(d) Expense Reimbursement. During the Full-Time Employment Period,
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the Company shall reimburse the Executive for all proper expenses incurred by
him in the performance of his duties hereunder in accordance with the Company's
policies and procedures.
4. TERMINATION OF FULL-TIME EMPLOYMENT PERIOD; SUSPENSION.
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(a) Qualifying Termination. For purposes of this Agreement,
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"Qualifying Termination" means (i) termination of the Executive's employment by
the Company without Cause, (ii) termination by the Company on account of the
Executive having become unable (as determined by the Company in good faith) to
regularly perform his duties hereunder by reason of illness or incapacity for a
period of more than six consecutive months ("Termination for Disability"), (iii)
termination on account of the Executive's death or (iv) termination by the
Executive due to the occurrence, without the Executive's express written
consent, of any of the following events:
(1) any of (i) the assignment to the Executive of any duties
inconsistent in any material respect with the Executive's position(s), duties,
responsibilities or status with the Company at the date of this Agreement (or
subsequent hereto if such new position(s), duties, responsibilities or status
were agreed to in writing by the Executive), (ii) an adverse change in the
Executive's reporting responsibilities, titles or offices with the Company, or
(iii) any removal or involuntary termination of the Executive from the Company
otherwise than as expressly permitted by this Agreement or any failure to re-
elect or re-appoint the Executive to any position with the Company held by the
Executive at the date of this Agreement (or subsequent hereto if held pursuant
to the written agreement of the Executive);
(2) a reduction by the Company in the Executive's rate of annual base
salary in effect at the date of this Agreement, or, if greater, in effect at any
time subsequent hereto;
(3) any requirement of the Company that the Executive (i) be based
anywhere other than at the facility where the Executive is located at the date
of this Agreement (or subsequent hereto if agreed to by the Executive in
writing) or (ii) travel on Company business to an extent substantially more
burdensome than the extent of the Executive's travel during the twelve months
ending on the date of this Agreement;
(4) the failure of the Company to (i) continue in effect any employee
benefit plan, compensation plan or employee agreement (inclusive of this
Agreement) in which the Executive is participating, unless the Executive is
permitted to participate in other plans providing the Executive with
substantially comparable benefits, or the taking of any action by the Company
which would adversely affect the Executive's participation in or materially
reduce the Executive's
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benefits under any such plan or agreement, (ii) provide the Executive and the
Executive's dependents welfare benefits including, without limitation, medical,
dental, disability, salary continuance, employee life, group life, and travel
accident insurance plans and programs in accordance with the most favorable
plans, practices, programs and policies of the True North Group in effect for
the Executive at the date of this Agreement or, if more favorable to the
Executive, as in effect generally at any time hereafter with respect to peer
executives of the True North Group, (iii) provide fringe benefits in accordance
with the most favorable plans, practices, programs and policies of the True
North Group in effect for the Executive at the date of this Agreement or, if
more favorable to the Executive, as in effect generally at any time hereafter
with respect to peer executives of the True North Group, (iv) provide an office
or offices of a size and with furnishings and other appointments, together with
exclusive personal secretarial and other assistance, at least equal to the most
favorable of the foregoing provided to the Executive at the date of this
Agreement by the True North Group or, if more favorable to the Executive, as
provided generally at any time hereafter with respect to peer executives of the
True North Group, (v) provide the Executive with paid vacation in accordance
with the most favorable plans, policies, programs and practices of the True
North Group in effect for the Executive at the date of this Agreement or, if
more favorable to the Executive, as in effect generally at any time hereafter
with respect to peer executives of the True North Group, or (vi) reimburse the
Executive promptly for all reasonable employment expenses incurred by the
Executive in accordance with the most favorable policies, practices and
procedures of the True North Group in effect for the Executive at the date of
this Agreement or, if more favorable to the Executive, as in effect generally at
any time hereafter with respect to peer executives of the True North Group; or
(5) the failure of the Company to obtain an assumption agreement from
any successor or permitted assign as contemplated in Section 15.
For purposes of this Agreement, (i) expiration of this Agreement at
the end of its stated term or any mutually consented to extension thereof shall
not constitute a Qualifying Termination and (ii) any good faith determination of
a Qualifying Termination made by the Executive shall be conclusive; provided,
however, that an isolated, insubstantial and inadvertent action taken by the
Company in good faith and which is remedied by the Company promptly (the later
of 60 days or as soon as reasonably practicable) after receipt of written notice
thereof given by the Executive shall not constitute a basis for a Qualifying
Termination.
(b) Nonqualifying Termination. For purposes of this Agreement,
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"Nonqualifying Termination" means a termination of the Executive's employment
(i) by the Company for Cause, or (ii) by the Executive for any reason other than
for a Qualifying Termination.
(c) Definition of Cause. For purposes of this Agreement, "Cause"
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means (i) a material breach by an Executive of the duties and responsibilities
of the
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Executive hereunder (other than as a result of incapacity due to physical or
mental illness), which is demonstrably willful and deliberate on the Executive's
part, which is committed in bad faith or without reasonable belief that such
breach is in the best interests of the Company and which is not remedied within
30 days (or sooner, as specified in such written notice, if the Company, in its
good faith judgment, determines that the period must be shorter to avoid harm to
the Company) after receipt of written notice from the Company specifying such
breach or (ii) the commission by the Executive of a felony involving moral
turpitude.
(d) Suspension. If the Company shall conclude that the Executive has
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committed any act or acts which constitute Cause and shall notify the Executive
thereof in writing and if the Executive shall deny that he committed such act or
acts or that such act or acts constitute Cause and shall notify the Company of
such denial in writing within seven days following the Company's written notice
to the Executive, the Board may, in its sole and absolute discretion, suspend
the Executive with full compensation and benefits during the pendency of any
investigation by the Company or arbitration with respect thereto.
5. CONSEQUENCES OF TERMINATION OF FULL-TIME EMPLOYMENT PERIOD.
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(a) Qualifying Termination, except for Death or Disability. If the
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Full-Time Employment Period terminates for a reason set forth in clause (i) or
(iv) of Section 4(a):
(i) the Executive shall be entitled to receive (1) all salary
payable with respect to the period through the term of this Agreement
as specified in Section 1 and any mutually consented to extension
thereof or, if longer, the period of twelve months following such
termination (hereinafter referred to as the "Severance Period"), in
accordance with the Company's regular payroll practices, and (2)
within 30 days after the amount in question is reasonably
determinable, (A) unpaid VIC and DVIC and VISO awarded, but not yet
granted, for the prior calendar year, (B) the larger amount of (x) or
(y) determined as follows: (x) VIC and DVIC for the then current
calendar year, prorated through the date of such termination based on
actual results of operations for such full calendar year or (y) a cash
incentive compensation payment equivalent to the average of the three
prior years' combined VIC and DVIC amounts, and (C) reimbursement of
proper expenses incurred through the date of such termination;
(ii) each stock option granted to the Executive by the Company
then held by the Executive shall on the date of such termination be
100% vested, and shall thereafter be exercisable in full by the
Executive for up to three years after the date of termination, but in
no case beyond a date 10 years following the date of grant of such
option. The Company covenants that the Compensation Committee of the
Board
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shall take such actions as necessary so that upon the termination of
the Executive's employment as provided in the introduction to this
Section 5(a), all current and future stock awards are fully
exercisable for the three-year period, or if shorter until a date 10
years following the date of grant of such option;
(iii) the Executive shall be entitled to receive all vested and
unvested amounts, including all credited interest, in the Executive's
DVIC account. Such payment shall be made under the terms of the
Executive's DVIC Agreement and shall commence at the conclusion of the
Severance Period. The Company covenants that the Compensation
Committee of the Board shall take such action as necessary so that
upon termination of the Executive's employment as provided in the
introduction to this Section 5(a), all current and future DVIC awards
are fully vested.
(iv) during the Severance Period, the Executive shall be
entitled to participate in life insurance, medical and dental benefits
on terms no less favorable than on the termination date, subject to
modifications of general application to all similarly situated
employees.
(v) after expiration of the Severance Period, the Executive
shall be entitled to compensation and benefits payable under the
Directors Part-Time Employment Agreement, with all age and service
requirements deemed to have been satisfied. Service credit under the
Directors Part-Time Employment Agreement shall be calculated as if the
Executive were a Director and shall include the Severance Period.
(vi) the Executive shall be entitled to participate in all
other applicable benefit plans or programs in accordance with the
provisions thereof applicable to terminated employees.
(b) Qualifying Termination Due to Death or Disability. If the Full-
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Time Employment Period terminates for a reason set forth in clause (ii) or (iii)
of Section 4(a):
(i) the Executive or the Executive's executor, administrator
or other legal representative, as the case may be, shall be entitled
to receive within 30 days after the amount in question is reasonably
determinable (1) all salary payable through the date of such
termination, (2) unpaid VIC and DVIC and VISO awarded, but not yet
granted, for the prior calendar year, (3) VIC and DVIC and VISO for
the then current calendar year, prorated through the date of such
termination based on actual results of operations for such full
calendar year, and (4) reimbursement of proper expenses incurred
through the date of such termination;
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(ii) each stock option granted to the Executive by the Company
then held by the Executive shall be exercisable to the extent it is
vested at the date of termination by the Executive or the Executive's
executor, administrator or other legal representative, as the case may
be, for up to three years after the date of termination, but in no
case beyond a date 10 years following the date of grant of such
option. The Company covenants that the Compensation Committee of the
Board shall take such actions as necessary so that upon the
termination of the Executive's employment as provided in the
introduction to this Section 5(b), all current and future stock awards
are exercisable to such extent for the three-year period, or if
shorter until a date 10 years following the date of grant of such
option;
(iii) the Executive or the Executive's executor, administrator
or other legal representative, as the case may be, shall be entitled
to receive all vested and unvested amounts, including all credited
interest, in the Executive's DVIC account. Such payment shall be made
under the terms of the Executive's DVIC Agreement. The Company
covenants that the Compensation Committee of the Board shall take such
actions as necessary so that upon the termination of the Executive's
employment as provided in the introduction to this Section 5(b), all
current and future DVIC awards are fully vested.
(iv) the Executive (or the Executive's qualified dependents, as
the case may be), shall be entitled to participate in all other
applicable benefit plans or programs in accordance with the provisions
thereof applicable to terminated employees (or their qualified
dependents, as the case may be).
(c) Nonqualifying Termination. If the Full-Time Employment Period
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terminates for a reason set forth in Section 4(b):
(i) the Executive shall be entitled to receive within 30 days
after the amount in question is reasonably determinable (1) all salary
payable through the date of such termination, (2) unpaid VIC and DVIC
and VISO awarded, but not yet granted, for the prior calendar year,
and (3) reimbursement of proper expenses incurred through the date of
such termination;
(ii) each stock option granted to the Executive by the Company
then held by the Executive shall be exercisable pursuant to the terms
of such option in accordance with the applicable stock option
agreement in effect at the time of such termination.
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(iii) the Executive shall be entitled to receive the vested
portion of the amounts in the Executive's DVIC account. Such payments
will be made in accordance with the terms of the Executive's DVIC
Agreement.
(iv) the Executive shall be entitled to participate in all
other applicable benefit plans or programs in accordance with the
provisions thereof applicable to terminated employees.
(d) Termination after a Change in Control. In the event of a
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Qualifying Termination, as defined in the Company's Asset Protection Plan, the
Executive shall be entitled to payments in accordance with the Company's Asset
Protection Plan. The Asset Protection Plan shall supersede this Agreement, and
no payments shall be made under this Agreement, if termination occurs after a
Change in Control, as defined in the Company's Asset Protection Plan, and
payments are made pursuant to the terms of the Asset Protection Plan; it being
expressly understood, however, that the Executive's rights independent of this
Agreement under the VIC and DVIC components of the Company's Performance Program
and under stock options held by the Executive shall not be affected.
6. FEDERAL AND STATE WITHHOLDING. The Company shall deduct from the
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amounts payable to the Executive pursuant to this Agreement the amount of all
required federal and state withholding taxes in accordance with the Executive's
Form W-4 on file with the Company and all applicable social security taxes.
7. NONCOMPETITION; NONSOLICITATION; CONFIDENTIALITY. (a) Covenant
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Not to Compete. During the Full-Time Employment Period and for any applicable
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additional period specified in (2) and (3) below, except with the prior written
consent of the Board:
(1) the Executive shall not engage in any activities whether as
employer, proprietor, partner, stockholder (other than the holder of less than
5% of the stock of a corporation the securities of which are traded on a
national securities exchange or in the over-the-counter market), director,
officer, employee or otherwise, in competition with (i) the businesses conducted
at the date hereof by the True North Group, or (ii) any business in which the
True North Group is substantially engaged at any time during the Full-Time
Employment Period;
(2) during the Severance Period and during any time the Executive is
receiving payments under the Company's Directors Part-Time Employment Agreement,
the Executive shall not solicit, directly or indirectly, any existing business
relationship of clients of the True North Group existing at the end of the Full-
Time Employment Period in which the True North Group is substantially engaged at
any time during the Full-Time Employment Period, the Severance Period or the
period during which the Executive is receiving payments under the Directors
Part-Time Employment Agreement; and
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(3) during the Severance Period and during any time the Executive is
receiving payments under the Company's Directors Part-Time Employment Agreement,
the Executive shall not induce or attempt to persuade any employee of the True
North Group to terminate the employment relationship with any of the True North
Group.
(b) Confidential Information and Trade Secrets. The Executive shall
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not, at any time during the Full-Time Employment Period or thereafter, make use
of any bidding information (or computer programs thereof) of any of the True
North Group, nor divulge any trade secrets or other confidential information of
any of the True North Group, except to the extent that such information becomes
a matter of public record, is published in a newspaper, magazine or other
periodical available to the general public or as the Company may so authorize in
writing; and when the Executive shall cease to be employed by the Company, the
Executive shall surrender to the Company all records and other documents
obtained by him or entrusted to him during the course of his employment
hereunder (together with all copies thereof) which pertain specifically to any
of the businesses covered by the covenants in Section 7(a)(1) or which were paid
for by any of the True North Group; provided, however, that the Executive may
retain copies of such documents as necessary for the Executive's personal
records for federal income tax purposes.
(c) Scope of Covenants; Remedies. The following provisions shall
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apply to the covenants of the Executive contained in this Section:
(1) the covenants covered in Section 7(a)(1) and 7(a)(2) shall apply
within all territories in which any of the True North Group is actively engaged
in the conduct of business during the Employment Period, including, without
limitation, the territories in which customers are then being solicited;
(2) without limiting the right of the Company to pursue all other
legal and equitable remedies available for violation by the Executive of the
covenants contained in Sections 7(a) and 7(b), including the cessation and
recovery of payments and benefits paid and provided under this Agreement, it is
expressly agreed that such other remedies cannot fully compensate the Company
for any such violation and that the Company shall be entitled to injunctive
relief to prevent any such violation or any continuing violation thereof;
(3) each party intends and agrees that if in any action before any
court or agency legally empowered to enforce the covenants contained in Sections
7(a) and 7(b) any term, restriction, covenant or promise contained therein is
found to be unreasonable and accordingly unenforceable, then such term,
restriction, covenant or promise shall be deemed modified to the extent
necessary to make it enforceable by such court or agency; and
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(4) the covenants contained in Sections 7(a) and 7(b) shall survive
the conclusion of the Executive's employment by the Company.
8. NONDISPARAGEMENT; COOPERATION. (a) The Executive shall not, at
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any time during the Full-Time Employment Period or the Severance Period or the
duration of the Company's Directors Part-Time Employment Agreement or
thereafter, make any statement, publicly or privately, which would disparage and
of the True North Group, any of their respective business or any director or
officer of any of them or would have a deleterious effect upon the interests of
any of such businesses or the stockholders or other owners of any of them;
provided, however, that the Executive shall not be in breach of this restriction
if such statements consist solely of (i) private statements made to any
officers, directors or employees of any of the True North Group by the Executive
in the course of carrying out his duties pursuant to this Agreement or, to the
extent applicable, his duties as a director or officer of any of the True North
Group or (ii) private statements made to persons other than clients or
competitors of any of the True North Group (or their representatives) or members
of the press or the financial community that do not have a material adverse
effect upon any of the True North Group; and provided further that nothing
contained in this Section 8(a) or in any other provision of this Agreement shall
preclude the Executive from making any statement in good faith which is required
by law, regulation or order of any court or regulatory commission, department or
agency.
(b) The Company shall not, at any time during the Full-Time
Employment Period or the Severance Period or the duration of the Company's
Directors Part-Time Employment Agreement or thereafter, authorize any person to
make or allow, nor shall the Company condone the making of, any statement,
publicly or privately, which would disparage the Executive; provided, however,
that the Company shall not be in breach of this restriction if such statements
consist solely of (i) private statements made to any officers, directors or
employees of any of the True North Group or (ii) private statements made to
persons other than clients or competitors of any of the True North Group (or
their representatives) or members of the press or the financial community that
do not have a materially adverse effect upon the Executive; and provided further
that nothing contained in this Section 8(b) or in any other provision of this
Agreement shall preclude any officer, director, employee, agent or other
representative of any of the True North Group from making any statement in good
faith which is required by any law, regulation or order of any court or
regulatory commission, department or agency.
9. ENFORCEMENT. The parties hereto agree that the Company would be
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damaged irreparably in the event that any provision of Section 7 or 8 of this
Agreement were not performed in accordance with its terms or were otherwise
breached and that money damages would be an inadequate remedy for any such
nonperformance or breach. Accordingly, the Company and its successors or
permitted assigns shall be entitled, in addition to other rights and remedies
existing in their favor, to an injunction or injunctions to prevent any breach
or threatened
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breach of any of such provisions and to enforce such provisions specifically
(without posting a bond or other security). Each of the parties agrees that he
or it will submit himself or itself to the personal jurisdiction of the courts
of the State of Illinois in any action by the other party to enforce an
arbitration award against him or it or to obtain interim injunctive or other
relief pending an arbitration decision.
10. SURVIVAL. Sections 7, 8 and 9 of this Agreement shall survive
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and continue in full force and effect in accordance with their respective terms,
notwithstanding any termination of the Full-Time Employment Period.
11. ARBITRATION; CERTAIN COSTS. Any dispute or controversy between
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the Company and the Executive, whether arising out of or relating to this
Agreement, the breach of this Agreement, or otherwise, shall be settled by
arbitration administered by the American Arbitration Association in accordance
with its Commercial Rules then in effect and judgment on the award rendered by
the arbitrator may be entered in any court having jurisdiction thereof. The
arbitrator shall have the authority to award any remedy or relief that a court
of competent jurisdiction could order or grant, including, without limitation,
the issuance of an injunction. However, either party may, without inconsistency
with this arbitration provision, apply to any court having jurisdiction over
such dispute or controversy and seek interim provisional, injunctive or other
equitable relief until the arbitration award is rendered or the controversy is
otherwise resolved. The Company shall reimburse the Executive, upon demand, for
all costs and expenses (including without limitation attorneys' fees) reasonably
incurred by the Executive in connection with any such application undertaken by
the Executive in good faith, as well as for all such costs and expenses
reasonably incurred by the Executive in connection with entering and/or
enforcing the award rendered by the arbitrator. Except as necessary in court
proceedings to enforce this arbitration provision or an award rendered
hereunder, or to obtain interim relief, neither a party nor an arbitrator may
disclose the existence, content or results of any arbitration hereunder without
the prior written consent of the Company and the Executive. The Company and the
Executive acknowledge that this Agreement evidences a transaction involving
interstate commerce. Notwithstanding any choice of law provision included in
this Agreement, the United State Federal Arbitration Act shall govern the
interpretation and enforcement of this arbitration provision.
12. NOTICE. All notices and other communications required or
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permitted hereunder shall be in writing and shall be deemed to have been duly
given when personally delivered or five days after deposit in the United States
mail, certified and return receipt requested, postage prepaid, addressed (1) if
to the Executive, to the most recent address then shown on the employment
records of the Company, and if to the Company, to True North Communications
Inc., 000 Xxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Secretary,
or (2) to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
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13. SEVERABILITY. Whenever possible, each provision of this
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Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is determined to be
invalid, illegal or unenforceable in any respect under applicable law or rule in
any jurisdiction, such invalidity, illegality or unenforceability shall not
affect the validity, legality or enforceability of any other provision of this
Agreement or the validity, legality or enforceability of such provision in any
other jurisdiction, but this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
14. ENTIRE AGREEMENT. This Agreement constitutes the entire
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agreement and understanding between the parties with respect to the subject
matter hereof and supersedes and preempts any prior understanding, agreements or
representations by or between the parties, written or oral, which may have
related in any manner to the subject matter hereof.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be enforceable by
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the Executive and the Executive's heirs, executors, administrators and legal
representatives, and by the Company and its successors and permitted assigns.
Any successor or permitted assign of the Company shall assume by instrument
delivered to the Executive the liabilities of the Company hereunder. This
Agreement shall not be assigned by the Company other than to a successor
pursuant to a merger, consolidation or transfer of all or substantially all of
the capital stock or assets of the Company.
16. GOVERNING LAW. This Agreement shall be governed by and construed
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and enforced in accordance with the internal laws of the State of Illinois
without regard to principles of conflict of laws.
17. AMENDMENT AND WAIVER. The provisions of this Agreement may be
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amended or waived only by the written agreement of the Company and the
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement.
18. COUNTERPARTS. This Agreement may be executed in two
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counterparts, each of which shall be deemed to be an original and both of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
TRUE NORTH COMMUNICATIONS INC.
By: XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx
Chairman of the Compensation
Committee of the Board of Directors
XXXXXXXX X. XXXXX
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Xxxxxxxx X. Xxxxx
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