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EXHIBIT 10.26
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") made effective as of
the 12th day of April, 2000, by and between Xxxx Xxxxx Xxxxxx Corporation, a
Delaware corporation (the "Corporation"), and Xxxxx X. Xxxxx (the "Executive").
WHEREAS, the Corporation has offered to the Executive the
position of President and Chief Operating Officer, and the Executive wishes to
accept such position; and
WHEREAS, the Corporation and the Executive wish to enter into
an employment agreement effective as of the date hereof;
NOW, THEREFORE, intending to be bound the parties hereby agree
as follows with effect from the date first above written.
1. Employment/Prior Agreement. The Corporation hereby agrees
to employ the Executive, and the Executive hereby agrees to serve the
Corporation, on the terms and conditions set forth herein. From and after the
date hereof, the terms of this Agreement shall supersede in all respects the
terms of any prior arrangement or agreement, if any, dealing with the matters
herein.
2. Term. The employment of the Executive by the Corporation as
provided in Section 1 pursuant to this Agreement will be effective on the date
hereof. The term of the Executive's employment under this Employment Agreement
shall continue until the close of business of the fifth anniversary of the date
of this Agreement, subject to earlier termination in accordance with the terms
of this Agreement (the "Term"). The Term shall be automatically extended for
successive one year periods thereafter unless either party notifies the other in
writing of its intention not to so extend the Term at least 180 days prior to
the commencement of the next scheduled one year extension (a "NonExtension
Notice").
3. Position and Duties. The Executive shall serve as President
and Chief Operating Officer. The Executive shall report to the Chairman and
Chief Executive Officer of the Corporation and the executive Vice Chairman of
the Corporation, and shall have responsibilities and duties for the oversight of
the Corporation's retail operations and corporate finance administration,
corporate acquisitions and human resources, and such other responsibilities and
duties, that are not inconsistent with the usual duties of a president and chief
operating officer of an enterprise such as the Corporation, as may be assigned
to Executive from time to time. The Executive shall devote all of Executive's
working time and efforts to the business and affairs of the Corporation;
provided, however, that the Executive may serve on the board of Venator Group,
Inc. through December 31, 2000 and such other boards of directors as he may be
asked to serve on from time to time, with the Corporation's approval. It is
further understood and agreed that nothing herein shall prevent the Executive
from managing his personal investments so long as such activities do not
interfere in more than an insignificant manner with the Executive's performance
of his duties hereunder and do not conflict with the provisions of Section
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8. Within 12 months of the execution of this Agreement, the Corporation shall
take whatever commercially reasonable steps it is empowered to take that may be
necessary to cause the Executive to be nominated for a seat on the Board of
Directors of the Corporation.
4. Compensation and Related Matters.
(a) Salary and Incentive Bonus
(i) Salary. During the Term, Executive's
annual salary shall be at the rate of $900,000. Such salary shall be paid in
substantially equal installments on a basis consistent with the Corporation's
payroll practices and shall be subject to annual increases, if any, as may be
determined in the sole discretion of the Corporation. Executive's salary as in
effect from time to time is hereinafter referred to as the "Salary".
(ii) Incentive Bonus. Executive shall
participate in the Corporation's Executive Incentive Plan (the "EIP"), and any
substitute therefor, and be eligible to earn an annual cash bonus for each
fiscal year during the term of this Agreement (the "Annual Incentive Bonus").
During the Term, Executive's Annual Incentive Bonus opportunity shall range,
subject to achieving pre-established performance goals, from 115% of Executive's
Salary (the "Target Annual Incentive Bonus") at target performance to 230% of
Executive's Salary based upon the extent to which corporate or other performance
goals established by the Compensation Committee (the "Compensation Committee")
of the Corporation's Board of Directors (the "Board") are achieved. The Annual
Incentive Bonus, if any, payable to the Executive in respect of each fiscal year
will be paid at the same time that annual bonuses are paid to other executives
under the EIP. Notwithstanding any provision of this Agreement to the contrary,
the Executive's entitlement to payment of an Annual Incentive Bonus during any
period when the compensation payable to the Executive pursuant to this Agreement
is subject to the deduction limitations of section 162(m) of the Internal
Revenue Code of 1986, as amended (the "Code"), shall be subject to shareholder
approval of a plan or arrangement evidencing such Annual Incentive Bonus
opportunity that complies with the requirements of section 162(m) of the Code.
(iii) Additional Bonus. Executive shall be
entitled to an additional bonus (the "Additional Bonus") in the amount of
$180,000 per year with respect to each of the first five fiscal years occurring
during the Term, which shall be paid to the Executive in respect of each such
fiscal year of the Corporation at the same time that annual bonuses would be
paid under the EIP; provided, however, that if the Corporation reinstitutes or
adopts any plan for the deferral of executive compensation, any such Additional
Bonus may be deferred, at the election of the Executive, subject to such terms
and conditions as are set forth in such plan.
(b) Expenses. During the term of the Executive's
employment hereunder, the Executive shall be entitled to receive prompt
reimbursement for all reasonable and customary expenses incurred by the
Executive in performing services hereunder, including all expenses of travel and
living expenses while away from home on business or at the request of and in the
service of the
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Corporation; provided that such expenses are incurred and accounted for in
accordance with the policies and procedures established by the Corporation.
(c) Other Benefits. During the term of the
Executive's employment hereunder, the Executive shall be entitled to participate
in or receive benefits under any medical, pension, profit sharing or other
employee benefit plan or arrangement generally made available by the Corporation
now or in the future to its executives and key management employees (or to their
family members), subject to and on a basis consistent with the terms, conditions
and overall administration of such plans and arrangements. Moreover, during such
term, the Executive shall be entitled to a monthly car allowance of $1,500.
Nothing paid to the Executive under any plan or arrangement presently in effect
or made available in the future shall be deemed to be in lieu of the Salary,
Annual Incentive Bonuses or Additional Bonuses, payable to the Executive
pursuant to paragraph (a) of this Section.
(d) Vacations. The Executive shall be entitled to
reasonable vacations consistent with the Corporation's past practice.
(e) Restricted Stock. The Executive shall be granted
a number of restricted shares of the Corporation's Class A Common Stock with a
fair market value equal to $2 million as of the date hereof, based upon the mean
between the high and low sales price per share for such stock on the date hereof
as reported on the Composite tape for securities traded on the New York Stock
Exchange (the "Restricted Shares"); provided that any fractional share will be
paid to the Executive in cash. The Restricted Shares will vest with respect to
one fourth (1/4) of the aggregate number of Restricted Shares so granted on each
of the second, third, fourth and fifth anniversaries of the date hereof subject
to the Executive's continued employment through each vesting date, except as
otherwise provided herein.
(f) Options. As of the date hereof, the Executive
will also be granted options to purchase 250,000 shares of the Corporation's
Class A Common Stock pursuant to the terms of the Corporation's 1997 Long-Term
Stock Incentive Plan. The Executive will also be granted with effect from the
June 2000 grant additional options to purchase 100,000 shares. The Executive
shall thereafter be eligible to receive grants of additional options, the
determination whether to make such grants, individually and/or as a group, and
the amount thereof being in the sole discretion of the Compensation Committee.
Options granted to the Executive pursuant to the foregoing (hereinafter, the
"Options") will vest and become exercisable ratably over three (3) years on each
of the first three anniversaries of the date of grant, subject to the
Executive's continued employment through each vesting date, and will have an
exercise price equal to the fair market value per share as of the date of grant
based upon the mean between the high and low sales price per share for such
stock on the date of grant as reported on the Composite tape for securities
traded on the New York Stock Exchange.
5. Termination.
(a) Termination by Corporation. The Executive's
employment hereunder may be terminated at any time with or without Cause.
(b) Termination by the Executive. The Executive may
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terminate his employment hereunder with or without Good Reason. For purposes of
this Agreement, "Good Reason" shall mean (A) a material diminution in or adverse
alteration to the Executive's title or duties as set forth in Section 3 herein,
(B) a reduction in the Executive's Salary or Annual Incentive Bonus or
Additional Bonus opportunities from those provided herein or the Corporation's
electing to eliminate the EIP without substituting therefor a plan which
provides for a reasonably comparable Annual Incentive Bonus opportunity or the
Executive's ceasing to be entitled to the payment of an Annual Incentive Bonus
as a result of the failure of the Corporation's shareholders to approve a plan
or arrangement evidencing such Annual Incentive Bonus in a manner that complies
with the requirements of section 162(m) of the Code, (C) the relocation of the
Executive's principal office outside of the area which comprises a fifty (50)
mile radius from New York City or (D) a failure of the Corporation to comply
with any material provision of this Agreement; provided that the events
described in clauses (A), (B), (C) and (D) above shall not constitute Good
Reason unless and until such diminution, change, reduction or failure (as
applicable) has not been cured within thirty (30) days after notice of such
noncompliance has been given by the Executive to the Corporation.
(c) Any termination of the Executive's employment by
the Corporation or by the Executive (other than termination pursuant to Section
6(d)(i) hereof) shall be communicated by written Notice of Termination to the
other party hereto in accordance with Section 10 hereof. A "Notice of
Termination" shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated.
6. Compensation Upon Termination. The provisions of this
Section 6 shall exclusively govern the Executive's rights upon termination of
employment with the Corporation and its affiliates. Upon termination of the
Executive's employment for any reason, the Executive agrees to resign, as of the
date of such termination of employment, from the Board and any committees of the
Corporation or its affiliates on which he serves.
(a) If the Corporation shall terminate the
Executive's employment for any reason other than an Enumerated Reason as set
forth in Section 6(d) hereof and other than due to the Corporation's election
not to extend the Term of this Agreement by delivery of a NonExtension Notice as
contemplated by Section 2, or if the Executive resigns for Good Reason pursuant
to Section 5(b) hereof, subject to the provisions of Section 8 hereof, the
Executive shall be entitled to the following:
(i) an amount equal to the sum of (I) two
(2) times the Executive's Salary at the rate in effect on such date
(unless employment is terminated by the Executive for Good Reason
pursuant to Section 5(b) hereof as a result of a Salary reduction, in
which case, at the rate in effect prior to such reduction), plus (II)
two (2) times the amount of the Target Annual Incentive Bonus described
herein; plus (III) a pro rata Annual Incentive Bonus for the year of
termination (equal to the Target Annual Incentive Bonus times the
percentage of the calendar year in which such termination occurs that
shall have elapsed through the date of termination (a "Pro Rata Annual
Incentive Bonus"));
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Any amounts paid pursuant to this subsection (i)
shall be paid in equal monthly installments from the
date of termination for a period of two (2) years (such period hereinafter
referred to as the "Severance Period"), except that the Pro Rata Annual
Incentive Bonus shall be paid in a lump sum in cash within thirty (30) days
following the date of the Executive's termination of employment.
(ii) Executive shall be entitled to exercise
any vested Options during the remaining Term (determined without regard
to any earlier termination or further extensions hereunder) or during
the one-year period commencing on the date of such termination,
whichever period is longer.
(iii) If such termination occurs before any
of the Restricted Shares shall have vested, the Executive shall vest in
twenty-five percent (25%) of the Restricted Shares.
(iv) Continued participation in the
Corporation's health benefit plans during the Severance Period;
provided that if the Executive is provided with coverage by a successor
employer, any such coverage by the Corporation shall cease;
(v) Continued payment of Executive's
automobile allowance until expiration of the Severance Period or until
Executive secures new employment, whichever first occurs;
(vi) If a Change of Control shall have
occurred prior to the date of termination, subject to Section 6(h)
below, the Executive shall (A) be entitled at his option, exercisable
in writing within fifteen days of the date of termination, to receive
the equivalent of the Salary and Annual Incentive Bonus payments
pursuant to subsection (i) above in two equal lump sum installments,
the first payable within 30 days of the date of termination and the
second on the first anniversary of the date of termination; and (B)
immediately be 100% vested in all Options and Restricted Shares awarded
to the Executive whether pursuant to this Agreement or other agreement
and such Options shall be exercisable during the remaining Term
(determined without regard to any earlier termination or further
extensions hereunder) or during the one-year period commencing on the
date of such Change of Control, whichever period is longer. As used
herein, the term "Change of Control" shall mean Xxxxx Xxxxxx or members
of his family (or trusts or entities created for their benefit) no
longer control 50% or more of the voting power of the then outstanding
securities of the Corporation entitled to vote for the election of the
Corporation's directors; and
(vii) Except as provided in this Section
6(a), the Corporation will have no further obligations to the Executive
under this Agreement following the Executive's termination of
employment under the circumstances described in this Section 6(a). The
Corporation anticipates that health benefits made available pursuant to
clause (iv) above will be provided in accordance with applicable COBRA
provisions. The Corporation shall waive or pay for any COBRA premiums
otherwise payable by the
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Executive. In the event COBRA coverage expires, the Corporation shall
in lieu of such coverage either provide alternative coverage or
reimburse the Executive for the actual costs incurred by the Executive
for alternative coverage, for the remaining portion of the Severance
Period during which the Executive would otherwise be entitled to
continued health benefits.
(b) If the Executive's employment is
terminated by his death or by the Corporation due to the Executive's Disability
(as defined below), the Corporation shall pay any amounts due to the Executive
through the date of his death or the date of his termination due to Disability,
including a Pro Rata Annual Incentive Bonus for the year of termination. Except
as provided in this Section 6(b), the Corporation will have no further
obligations to the Executive under this Agreement following the Executive's
termination of employment under the circumstances described in this Section
6(b).
(c) If the Executive's employment shall be
terminated by the Corporation pursuant to Section 6(d)(iii) for Cause or by the
Executive for other than (x) Good Reason or (y) the occurrence of a "Succession
Event" (as defined in Section 6(f) below), the Corporation shall pay the
Executive his full Salary through the date of termination at the rate in effect
prior to such termination and except as provided in this Section 6(c), the
Corporation will have no further obligations to the Executive under this
Agreement following the Executive's termination of employment under the
circumstances described in this Section 6(c).
(d) The term "Enumerated Reason" with
respect to termination by the Corporation of the Executive's employment shall
mean any one of the following reasons:
(i) Death. The Executive's employment
hereunder shall terminate upon his death.
(ii) Disability. If, as a result of the
Executive's incapacity due to physical or mental illness, the Executive
shall have been absent from his duties hereunder on a full-time basis
for the entire period of six consecutive months, and within thirty (30)
days after written Notice of Termination is given (which Notice of
Termination may be given before or after the end of such six month
period; provided that the termination would not be effective until the
end of such six month period) shall not have returned to the
performance of his duties hereunder on a full-time basis (a
"Disability"), the Corporation may terminate the Executive's employment
hereunder.
(iii) Cause. The Corporation shall have
"Cause" to terminate the Executive's employment hereunder upon (1) the
willful and continued failure by the Executive to substantially perform
his duties hereunder after demand for substantial performance is
delivered to him by the Corporation that specifically identifies the
manner in which the Corporation believes the Executive has not
substantially performed his duties, or (2) Executive's conviction of,
or plea of nolo contendere to, a crime (whether or not involving the
Corporation) constituting any felony or (3) the willful engaging by the
Executive in gross misconduct relating to the Executive's
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employment that is materially injurious to the Corporation, monetarily
or otherwise (including, but not limited to, conduct that constitutes
competitive activity, in violation of Section 8) or which subjects, or
if generally known would subject, the Corporation to public ridicule.
For purposes of this paragraph, no act, or failure to act, on the
Executive's part shall be considered "willful" unless done, or omitted
to be done, by him not in good faith and without reasonable belief that
his action or omission was in the best interest of the Corporation.
Notwithstanding the foregoing, the Executive's employment may be
terminated for Cause only by act of the Board of Directors of the
Corporation and, in any event, the Executive's employment shall not be
deemed to have been terminated for Cause without (x) reasonable written
notice to the Executive setting forth the reasons for the Corporation's
intention to terminate for Cause, (y) the opportunity to cure (if
curable) within 30 days of such written notice of the event(s) giving
rise to such notice, and (z) an opportunity for the Executive, together
with his counsel, to be heard by the Board of Directors of the
Corporation.
(e) If the Executive's employment with the
Corporation shall terminate due to either the Corporation's or Executive's
election not to extend the Term of this Agreement by delivery of a NonExtension
Notice as contemplated by Section 2, then Executive shall be entitled to receive
his full Salary through the date of termination plus the Annual Incentive Bonus,
if any, that Executive would have been entitled to receive had he remained in
the Corporation's employment through the end of its fiscal year, prorated to the
date of termination. Such prorated Annual Incentive Bonus shall be payable at
the same time as the Corporation pays annual bonuses to other executives under
the EIP. In addition, if the Corporation was the party that so elected not to
extend the Term of this Agreement as described above, then the Executive shall
also be entitled to receive an amount, payable in equal monthly installments
over a one year period, equal to the sum of (x) one times his Salary, plus (y)
one times the Target Annual Incentive Bonus. Except as provided in this Section
6(e), the Corporation shall have no further obligations to the Executive under
this Agreement following the Executive's termination of employment under the
circumstances described in this Section 6(e).
(f) If the Executive's employment with the
Corporation shall terminate due to Executive's resignation within 30 days
following a Succession Event, then the Executive shall receive an amount equal
to the sum of (x) one (1) times the Executive's Salary and (ii) one (1) times
the Target Annual Incentive Bonus. Such amount shall be paid in two equal
payments, one on the date of such termination and the second on the first
anniversary of the date of termination. For purposes of this Agreement,
"Succession Event" shall mean the appointment of a person other than Xxxxx
Xxxxxx, Xxxxx Xxxxx or the Executive to the position of chief executive officer
of the Corporation. Except as provided in this Section 6(f), the Corporation
will have no further obligations to the Executive under this Agreement following
the Executive's resignation under the circumstances described in this Section
6(f).
(g) As a condition precedent to receipt of
the payments provided for Sections 6(a), 6(e) and 6(f), Executive shall be
required to execute a general release in favor of the Corporation, excluding
only the payments remaining to be made pursuant to such Sections.
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(h) Notwithstanding the foregoing, (A) in
the event the Corporation (or its successor) and the Executive both determine,
based upon the advice of the independent public accountants for the Corporation,
that part or all of the consideration, compensation or benefits to be paid to
the Executive under this Agreement constitute "parachute payments" under Section
280G(b)(2) of the Internal Revenue Code of 1986, as amended, then, if the
aggregate present value of such parachute payments, singularly or together with
the aggregate present value of any consideration, compensation or benefits to be
paid to the Executive under any other plan, arrangement or agreement which
constitute "parachute payments" (collectively, the "Parachute Amount") exceeds
2.99 times the Executive's "base amount", as defined in Section 280G(b)(3) of
the Code (the "Executive Base Amount"), the amounts constituting "parachute
payments" which would otherwise be payable to or for the benefit of the
Executive shall be reduced to the extent necessary so that the Parachute Amount
is equal to 2.99 times the Executive Base Amount (the "Reduced Amount");
provided that such amounts shall not be so reduced if the Executive determines,
based upon the advice of an independent nationally recognized public accounting
firm (which may, but need not be the independent public accountants of the
Corporation), that without such reduction the Executive would be entitled to
receive and retain, on a net after tax basis (including, without limitation, any
excise taxes payable under Section 4999 of the Code), an amount which is greater
than the amount, on a net after tax basis, that the Executive would be entitled
to retain upon his receipt of the Reduced Amount.
(B) If the determination made pursuant
to clause (A) above results in a reduction of the payments that would otherwise
be paid to the Executive except for the application of this Section 6(h), then
the Executive may then elect, in his sole discretion, which and how much of any
particular entitlement shall be eliminated or reduced and shall advise the
Corporation in writing of his election within ten days of the determination of
the reduction in payments. If no such election is made by the Executive within
such ten-day period, the Corporation may elect which and how much of any
entitlement shall be eliminated or reduced and shall notify the Executive
promptly of such election. Within ten days following such determination and the
elections hereunder, the Corporation shall pay or distribute to or for the
benefit of the Executive such amounts as are then due to the Executive under
this Agreement and shall promptly pay or distribute to or for the benefit of the
Executive in the future such amounts as become due to the Executive under this
Agreement.
(C) As a result of the uncertainty in
the application of Section 280G of the Code at the time of a determination
hereunder, it is possible that payments will be made by the Corporation which
should not have been made under clause (A) of this Section 6(h) ("Overpayment")
or that additional payments which are not made by the Corporation pursuant to
clause (A) of this Section 6(h) should have been made ("Underpayment"). In the
event that there is a final determination by the Internal Revenue Service, a
final determination by a court of competent jurisdiction or a change in the
provisions of the Code or regulations pursuant to which an Overpayment arises,
any such Overpayment shall be treated for all purposes as a loan to the
Executive which the Executive shall repay to the Corporation together with
interest at the applicable Federal rate provided for in Section 7872(f)(2) of
the Code. In the event that there is a final determination by the
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Internal Revenue Service, a final determination by a court of competent
jurisdiction or a change in the provisions of the Code or regulations pursuant
to which an Underpayment arises under this Agreement, any such Underpayment
shall be promptly paid by the Corporation to or for the benefit of the
Executive, together with interest at the applicable Federal rate provided for in
Section 7872(f)(2) of the Code.
7. Mitigation. The Executive shall have no duty to mitigate
the payments provided for in Section 6 by seeking other employment or otherwise
and such payment shall not be subject to reduction for any compensation received
by the Executive from employment in any capacity following the termination of
the Executive's employment with the Corporation.
8. Noncompetition.
(a) The Executive agrees that for the duration of his
employment and for a period two (2) years from the date of termination thereof
and during any Severance Period, he will not, on his own behalf or on behalf of
any other person or entity, hire, solicit, or encourage to leave the employ of
the Corporation or its subsidiaries, affiliates or licensees any person who is
an employee of any of such companies.
(b) The Executive agrees that for the duration of his
employment and for a period of two (2) years from the date of termination
thereof and during any Severance Period, the Executive will take no action which
is intended, or would reasonably be expected, to harm (e.g. making public
derogatory statements or misusing confidential Corporation information, it being
acknowledged that the Executive's employment with a competitor in and of itself
shall not be deemed to be harmful to the Corporation for purposes of this
Section 8(b)) the Corporation or any of its subsidiaries, affiliates or
licensees or their reputation.
(c) The Executive agrees that during the duration of his
employment and for twelve (12) months from the date of any termination of
employment, the Executive shall not, directly or indirectly, (A) engage in any
"Competitive Business" (as defined below) for his own account, (B) enter into
the employ of, or render any services to, any person engaged in a Competitive
Business, or (C) become interested in any entity engaged in a Competitive
Business, directly or indirectly as an individual, partner, shareholder,
officer, director, principal, agent, employee, trustee, consultant, or in any
other relationship or capacity; provided that the Executive may own, solely as
an investment, securities of any entity which are traded on a national
securities exchange if the Executive is not a controlling person of, or a member
of a group that controls such entity and does not, directly or indirectly, own
2% or more of any class of securities of such entity.
For purposes of this Agreement the term "Competitive Business"
shall mean a business which competes in any material respects with the
Corporation or its subsidiaries, affiliates or licensees, and shall include,
without limitation, those brands and companies that the Corporation and the
Executive have jointly designated in writing on the date hereof as being in
competition with the Corporation as of the date hereof. The term Competitive
Business is not intended to include the business of a competitor of a licensee
whose business does not involve or compete with the licensed businesses of the
Corporation or its subsidiaries and affiliates.
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(d) The Executive will not at any time (whether during or
after his employment with the Corporation) disclose or use for his own benefit
or purposes or the benefit or purposes of any other person, entity or
enterprise, other than the Corporation or any of its subsidiaries or affiliates,
any trade secrets, information, data, or other confidential information relating
to customers, development programs, costs, marketing, trading, investment, sales
activities, promotion, credit and financial data, manufacturing processes,
financing methods, plans or the business and affairs of the Corporation
generally, or any subsidiary, affiliate or licensee of the Corporation; provided
that the foregoing shall not apply to information which is not unique to the
Corporation or which is generally known to the industry or the public other than
as a result of the Executive's breach of this covenant. The Executive agrees
that upon termination of his employment with the Corporation for any reason, he
will return to the Corporation immediately all memoranda, books, papers, plans,
information, letters and other data, and all copies thereof or therefrom, in any
way relating to the business of the Corporation or its subsidiaries or
affiliates or licensees.
(e) If the Executive breaches, or threatens to commit a
breach of, any of the provisions of this Section 8 (the "Restrictive
Covenants"), the Corporation shall have the following rights and remedies, each
of which rights and remedies shall be independent of the other and severally
enforceable, and all of which rights and remedies shall be in addition to, and
not in lieu of, any other rights and remedies available to the Corporation under
law or equity:
(i) The right and remedy to have the Restrictive
Covenants specifically enforced by any court having equity
jurisdiction, it being acknowledged and agreed that any such breach or
threatened breach of such Restrictive Covenants will cause irreparable
injury to the Corporation and that money damages will not provide an
adequate remedy to the Corporation; and
(ii) The right to discontinue the payment of any
amounts owing to the Executive under the Agreement; provided that the
Corporation shall have secured a reasoned opinion of counsel that the
Executive's activities constitute a material breach of the Restrictive
Covenants and which shall have been provided to the Executive, the
delivery of which shall not be deemed to be a waiver of any applicable
privilege. To the extent Executive, by notice hereunder, disputes the
discontinuance of any payments hereunder, such payments shall be
segregated and deposited in an interest bearing account at a major
financial center bank in New York City pending resolution of the
dispute.
(f) If any court determines that any of the Restrictive
Covenants, or any part thereof, is invalid or unenforceable, the remainder of
the Restrictive Covenants shall not thereby be affected and shall be given full
effect, without regard to the invalid portion. In addition, if any court
construes any of the Restrictive Covenants, or any part thereof, to be
unenforceable because of the duration of such provision or the area covered
thereby, such court shall have the power to reduce the duration or area of such
provision and, in its reduced form, such provision shall then be enforceable and
shall be enforced.
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9. Successors; Binding Agreement.
(a) The Corporation will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Corporation to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Corporation would be required to perform it if no such
succession had taken place. As used in this Agreement, "Corporation" shall mean
the Corporation as hereinbefore defined and any successor to its business and/or
assets as aforesaid which executes and delivers the agreement provided for in
this Section 9 or which otherwise becomes bound by all the terms and provisions
of this Agreement by operation of law.
(b) This Agreement and all rights of the Executive
hereunder shall inure to the benefit of and be enforceable by the Executive's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any
amounts are payable to him hereunder all such amounts unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to the
Executive's devisee, legatee, or other designee or, if there be no such
designee, to the Executive's estate.
10. Notice. For the purposes of this Agreement, notices,
demands and all other communications provided for in this Agreement shall be in
writing and shall be deemed to have been duly given when personally delivered
with receipt acknowledged or five business days after having been mailed by
United States certified or registered mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive:
Xxxxx Xxxxx
00 Xxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
with a copy to:
Xxxx X. Xxxxxxx, Esq.
Xxxxxx Xxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
If to the Corporation:
Xxxx Xxxxx Lauren Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only
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upon receipt.
11. Miscellaneous. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the Executive and such officer of the Corporation
as may be specifically designated by the Board. No waiver by either party hereto
at any time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of New York without regard to its conflicts of law principles.
12. Validity. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
13. 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 together will constitute one and the same instrument.
14. Arbitration. Any dispute or controversy arising under or
in connection with this Agreement and its enforcement shall be settled
exclusively by arbitration in the City of New York before a single arbitrator
who shall be a retired federal judge having sat in the United States District
Court for the Southern District of New York in accordance with the then
obtaining National Rules for the Resolution of Employment Disputes or, if such
rules are no longer in effect the then obtaining employment rules of the
American Arbitration Association. The arbitrator shall be required to permit
reasonable discovery, including document production, deposition, contention
interrogatories, damages interrogatories, and requests to admit. Judgment may be
entered on the arbitrator's award in any New York court; provided, however, that
the Corporation shall be entitled to seek a restraining order or injunction in
arbitration or in any court of competent jurisdiction to prevent any
continuation of any violation of the provisions of Section 8 of this Agreement
and the Executive hereby consents that such restraining order or injunction be
granted without the necessity of the Corporation's posting any bond; and
provided, further that, notwithstanding Section 8(e)(ii), the Executive shall be
entitled to seek specific performance in arbitration or in any court of
competent jurisdiction of his right to be paid during the pendency of any
dispute or controversy arising under or in connection with this Agreement. Fees
and expenses payable to the American Arbitration Association and the arbitrator
shall be shared equally by the Corporation and by the Executive, but the parties
shall otherwise bear their own costs in connection with the arbitration;
provided that the arbitrator must determine who is the prevailing party and
include as part of the award to the prevailing party the reasonable legal fees
and expenses incurred by such party.
15. Withholding. The Corporation may withhold from any amounts
payable under this Agreement such federal, state and local taxes as may be
required to be withheld pursuant to applicable law or regulation.
16. Entire Agreement. This Agreement sets forth the entire
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agreement of the parties hereto in respect of the subject matter contained
herein and supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto; and any prior agreement
of the parties hereto in respect of the subject matter contained herein is
hereby terminated and cancelled.
17. Executive Representation. The Executive hereby represents
to the Corporation that the execution and delivery of this Agreement by the
Executive and the Corporation and the performance by the Executive of his duties
hereunder shall not constitute a breach of, or otherwise contravene, the terms
of any employment agreement or other agreement or policy to which Executive is a
party or otherwise bound.
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IN WITNESS WHEREOF, the Corporation has caused this Agreement
to be duly executed and the Executive has hereunto set his hand, effective as of
the first day written above.
XXXX XXXXX XXXXXX CORPORATION
By: /s/ Xxxxx Lauren
---------------------------
Name: Xxxxx Xxxxxx
Title: Chairman and CEO
Date: April 12, 2000
/s/ Xxxxx X. Xxxxx
---------------------------
Executive: XXXXX X. XXXXX
Date: April 12, 2000
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