Exhibit 10.13
EMPLOYMENT AGREEMENT
AGREEMENT (this "Agreement") between THE XXXXX XXXXXX COMPANIES INC., a
Delaware corporation (the "Company"), and XXXXXXX XXXXXXXX-XXXXXXXX, currently a
resident of Paris, France (the "Executive").
W I T N E S S E T H :
WHEREAS, the Company and its subsidiaries are principally engaged in
the business of manufacturing and marketing prestige skin care, makeup and
fragrance products (the "Business"); and
WHEREAS, the Company desires to retain the services of the Executive in
the capacity of President of Xxxxx Xxxxxx International, Inc. ("ELII"), a
subsidiary of the Company, and the Executive desires to provide such services in
such capacity to the Company, upon the terms and subject to the conditions
hereinafter set forth;
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 in its employ, and the Executive
hereby agrees to enter into such employment, as President of ELII for an initial
period commencing on the date that Executive notifies the Company that his
undertaking such employment shall neither violate nor conflict with the terms of
any agreement then enforceable regarding Executive's employment (the "Effective
Date"), and ending on June 30, 2001 unless terminated sooner pursuant to Section
5 hereof (the "Term of Employment"). In no event shall the Effective Date be
later than October 20 , 1998. The Term of Employment shall automatically
continue for successive twelve (12) month periods commencing on July 1, 2001 and
each July 1 thereafter unless, prior to December 31, 2000 or each December 31
thereafter one party shall provide to the other written notice of its election
to terminate this Agreement, in which case the Term of Employment shall
terminate as of the next succeeding June 30. The period commencing with the
Effective Date and ending June 30, 1999 shall be the "First Contract Year"
hereunder, and subsequent twelve-month periods shall be subsequent "Contract
Years" hereunder.
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2. Duties and Extent of Services.
(a) During the Term of Employment, the Executive shall serve
as the President of ELII, a subsidiary of the Company, and, in such capacity,
shall render such managerial, administrative and other 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 position;
(b) The Executive shall hold such other positions and
executive 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 President of ELII. 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 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 perform
faithfully, competently and diligently to the best of his ability all of the
duties required of him as President of ELII, and in the other positions or
offices of the Company or its 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 not-for-profit or profit-making organizations)
as the Board of Directors or Chief Executive Officer of the Company shall
approve.
3. Compensation.
(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 $ 900,000
For the Second Contract Year $ 950,000
For the Third Contract Year $ 1,000,000
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Base Salary for subsequent Contract Years, if any, shall be determined by
further agreement between the parties provided, however, that the Base Salary
for any Contract Year shall not be less than the Base Salary established for the
preceeding Contract Year. 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 Bonus Compensation: During the Term of
Employment, the Executive shall participate in the Company's Annual Incentive
Plan (the "Bonus Plan") or in any successor incentive bonus plans or programs
hereafter adopted which provide for the rendering of incentive compensation to
senior officers. During the Term of Employment hereunder, the Executive's target
award under the Bonus Plan (i.e., the maximum bonus which may be awarded) shall
be established as follows:
- For the period from the Effective Date through the end of the First
Contract Year, the target bonus award shall be $600,000;
- For the Second Contract Year, the target bonus award shall be
$700,000, and
- For the Third Contract Year, the target bonus award shall be
$800,000.
Target bonus awards for subsequent Contract Years, if any, shall be determined
by further agreement between the parties provided, however, that the target
bonus award for any Contract Year shall not be less than the target bonus award
established for the preceeding Contract Year. The amount of the actual bonus
award to the Executive shall be calculated with reference to the attainment by
the Company and by the Executive of performance goals for the relevant Contract
Year, which goals shall be established by the Board of Directors of the Company
upon the recommendation of the Compensation Committee thereof and after
consultation with the Executive; provided, however, in the event that the actual
award for the period from the Effective Date through the end of the First
Contract Year shall be less than $500,000, the amount by which such award shall
be less than $500,000 shall be added to the target award for the Second Contract
Year as set out above.
(c) In addition to the amounts of base salary and bonus set
out at subparagraphs 3(a) and 3(b), above, the Company shall pay to Executive a
one time signing
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bonus, in the gross amount of $200,000. Such amount shall be paid as soon as
practicable after the Effective Date, but in no event later than thirty days
after the Effective Date.
(d) The Company shall loan to the Executive the principal
amount of $1,000,000, as soon as practicable after the Effective Date. Such loan
shall bear interest at the Intermediate Term Applicable Federal Rate as
established as of the date of such loan. Such interest shall be capitalized and
not paid currently. Such loan shall be forgiven in five approximately equal
annual installments, each installment consisting of a portion of principal and
capitalized interest outstanding, plus an amount equal to the federal, state and
local income tax incurred by the executive in connection with each such event of
forgiveness. The first such forgiveness shall be effective as of the last day of
the First Contract Year, and an additional forgiveness shall occur as of the
last day of each of the four successive Contract Years provided that the
Executive shall remain in the continuous employ of the Company during the
entirety of such five year period. Amounts not forgiven shall be repayable by
the Executive as of the date of termination of his employment with the Company.
(e) 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 during the Term of
Employment, by giving 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
Bonus 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, 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
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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 the first anniversary of the termination of the Executive from employment
with the Company. Any amount of bonus deferred by election of the Executive or
the Company pursuant to this paragraph 3(e) (but not interest credits thereon)
shall be considered pensionable compensation in connection with the calculation
of the Executive's benefit, if any, under the Company's Retirement Growth
Account plan and Benefits Restoration Plan (the "Pension Plans") or successor
plans of similar import.
(f) Share Incentive Plan: The Executive shall participate in
the Company's Share Incentive Plan according to the terms thereof. The Company
shall recommend to the Compensation Committee of the Board of Directors that the
Executive be awarded 75,000 options to purchase shares of Class A Common Stock
of the Company as of the Effective Date,under the terms of such Plan.
Thereafter, the Company shall recommend to the Compensation Committee of the
Board of Directors that Executive be awarded no fewer than 50,000 of such
options as of July 1, 1999 (in respect of the Second Contract Year) and 50,000
of such options as of July 1, 2000 (in respect of the Third Contract Year).
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,
Pension Plans, incentive savings (i.e., "401(k)) plans, 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; and (ii) 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 officers. The prior service of the Executive with the Company shall be
recognized for all purposes related to the employee benefit plans of the
Company, in accordance with the provisions of each such plan.
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(b) Additional Insurance. The Company shall provide Executive,
subject to usual underwriting considerations, additional executive life
insurance in the amount of $1,000,000. Executive acknowledges that this
coverage, if issued, will result in the receipt by him of additional taxable
income.
(c) Perquisites; Financial Counselling. Executive will
participate in the Executive Perquisite program of the Company, and will be
reimbursed amounts up during to $15,000 in respect of each full calendar year
the Term of Employment for expenses qualifying under the terms of such program.
Additionally, the Executive will be provided financial consulting services
through a firm chosen by the Company. Executive acknowledges that participation
in such programs will result in the receipt by him of additional taxable income.
(d) Executive Auto. The Executive will participate in the
Executive Automobile program of the Company, and may elect to be provided an
automobile having an acquisition value of up to $30,000. Executive acknowledges
that participation in this program will result in the receipt by him of
additional taxable income.
(e) Parking Company shall provide to Executive, at its cost,
parking facilities in the General Motors Building.
(f) 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.
(g) Spousal Travel and Home Leave. The Executive will
participate in the Spousal Travel program of the Company under the terms
thereof, and additionally will be provided two round trip airfares from New York
City to Paris, France for himself and his immediate family members during each
full year of the Term of Employment.
(h) Certain Social Security Accounts. To the extent permitted
by applicable law and regulation, the Company shall, at its expense, maintain
contributions to the Executive's French Social Security Account, up to the
generally applied limit on annual contribution amounts.
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(i) Relocation Assistance. The Company shall reimburse to
the Executive the reasonable actual cost of freightage (including customs
imposts, if any) of household goods from Paris, France to New York City, and the
actual cost of air transport for the Executive and his family undertaken in
connection with his relocation to New York. Additionally, the Company shall
provide temporary living expenses for the Executive and his family in the New
York area for a period not to exceed three (3) months. Other than as set out in
this subparagraph 4(h), the Company shall have no obligation to Executive with
respect to his relocation, or his acquisition of a principal residence in the
New York area.
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 Executive shall be entitled (i) to receive
any amounts or benefits to which the Executive may otherwise have been entitled
but for the Executive's permanent disability prior to the effective date of
termination, (ii) to be paid his Base Salary as established 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 long-term disability
payments, if any, to the Executive; and (iii) to any and all bonus compensation
under Section 3(b) hereof prorated to the date of termination. 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. 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 that
renders the Executive incapable of performing the services required of him in
accordance with his obligations under Section 2 hereof
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for a period of six (6) consecutive months or for shorter periods aggregating
six (6) months during any twelve-month period.
(a) Death. In the event of the death of the Executive during
the Term of Employment, this Agreement shall automatically terminate and the
Company shall have no further obligations hereunder, except to pay the
Executive's beneficiary or legal representative (i) the Executive's Base Salary
as established under Section 3(a) hereof to the day on which his death occurs;
(ii) any and all bonus compensation under Section 3(b) hereof prorated to the
date of death; and (iii) any other amounts to which the Executive otherwise
would have been entitled but for his death.
(b) 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 termination pursuant
to this Section 5(c) during the First Contract Year or the Second Contract Year,
for a period of two (2) years from the date of such termination, the Executive
shall be entitled as damages to (i) receive his Base Salary as established under
Section 3(a) hereof; (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 Base Salary as in effect on such date of
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. In the event of termination pursuant to
this Section 5(c) at any time thereafter, for a period of one (1) year from the
date of such termination , the Executive shall be entitled as damages to (i)
receive his Base Salary as established under Section 3(a) hereof; (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
Base Salary as in effect on such date of 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.
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In the event of termination pursuant to this Section 5(c), the Executive shall
not be required to mitigate his damages hereunder.
(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 amounts otherwise payable pursuant to Section 3 hereof and provide the
Executive any benefits to which the Executive may otherwise have been 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 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 Company's Board of Directors in its reasonable judgment).
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(e) Termination by Executive for Material Breach. The
Executive may elect to terminate his employment after a "material breach" (as
defined below) of this Agreement by the Company effective thirty (30) days after
the Executive gives the Company notice of such material breach; provided,
however, that such notice must be provided to the Company within five (5) 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(e), a material breach shall include,
but not be limited to, (i) a material reduction in the Executive's authority,
functions, duties or responsibilities provided in Section 2 hereof, or (ii) 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.
(f) 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 (but not below zero) until no portion of such payments would be
subject to Excise Tax.
(g) 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 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).
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(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 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
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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 next to 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 her
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or his 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 3% of the aggregate voting power of such business enterprise. During the
Non-Compete Period, the Company may, at its election, pay or cause to be paid to
the Executive his Base Salary under Section 3(a) hereof for that portion of the
Non-Compete Period during which the Executive is required to comply and does
comply with the provisions of this Section 7.
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
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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 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 and supersedes any other prior oral or
written agreements, arrangements or understandings between the Executive and the
Company, 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.
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. 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
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Xxxxxxxx Xxxxxxxx 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,
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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
Tel: (000) 000-0000
Fax: (212) 000- 0000
Attn: Senior Vice President - Human Resources
The Executive:
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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 represents and warrants to the Company that his execution
and delivery of this Agreement as of the date hereof, and his performance of
services under this Agreement and any other agreement to be delivered pursuant
to this Agreement from and after the Effective Date hereof, 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. 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.
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18. 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
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President -
Corporate Human Resources
/s/ Xxxxxxx Xxxxxxxx-Xxxxxxxx
---------------------------------------
Xxxxxxx Xxxxxxxx-Xxxxxxxx
Date: September 1, 1998
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