EXHIBIT 10.5
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
WHEREAS, BRAND SERVICES, INC., a Delaware corporation (the "Company")
and Xxxxx X. Xxxxx ("Executive") previously entered into an employment agreement
dated as of April 1, 2001 (as subsequently amended or modified, the
"Agreement"); and
WHEREAS, the parties desire to amend, restate and continue the
Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
hereto agree that the Agreement is hereby amended, restated and continued as
follows, all effective as of the Effective Date as described below:
1. EFFECTIVE DATE. For purposes of this Agreement, the "Effective Date"
shall be the date on which the Effective Time occurs (as defined in that certain
Agreement and Plan of Merger among Brand Holdings, LLC, Brand Acquisition Corp.,
DLJ Brand Holdings, Inc. and various sellers dated as of August 9, 2002 (the
"Merger Agreement")). Notwithstanding the foregoing or any other provision of
this Agreement, this Agreement shall become effective only upon the occurrence
of the Effective Time, and if the Effective Time does not occur by December 31,
2002 this Agreement shall be of no force and effect and shall terminate
automatically without any further actions of the parties.
2. AGREEMENT TERM. Executive's continued employment by the Company
shall commence on the Effective Date, and shall, unless extended as set forth
below, terminate on the second anniversary of the Effective Date (the
"Expiration Date"). Executive's employment shall be automatically extended on a
year to year basis following the Expiration Date, unless a written notice to
terminate is given by the Company to Executive not less than thirty (30), nor
more than sixty (60), days prior to the scheduled Expiration Date. The period
commencing on the Effective Date and ending on the Expiration Date, as the same
may be extended from time to time hereunder, is hereinafter referred to as the
"Employment Term". Notwithstanding the foregoing, the Employment Term shall
terminate in any and all events upon the termination of Executive's employment
hereunder as hereinafter provided.
3. POSITIONS. During the Employment Term, executive shall serve as Vice
President, Operations-Northern Region. Executive shall report directly to the
President and Chief Executive Officer of the Company (the "CEO") and shall have
such duties and authority commensurate with such position as shall be determined
from time to time by the CEO. Executive shall devote substantially all of his
business time and best efforts to the performance of his duties hereunder and
shall not engage in any other business, profession or occupation for
compensation or otherwise.
4. BASE SALARY. During the Employment Term, the Company shall pay
Executive a base salary (the "Base Salary") at the annual rate of not less than
$152,999, payable bi-weekly in arrears, in accordance with the usual payment
practices of the Company. Executive's Base Salary shall be subject to periodic
review by the CEO and the Compensation Committee of the Board of Directors of
the Company (the "Compensation Committee"), not less frequently than annually,
beginning January 1, 2003.
5. BONUS.
(a) With respect to each fiscal year in the Employment Term,
Executive shall be eligible for a bonus of up to 120% of his Base Salary (the
"Annual Bonus") to be determined annually in accordance with the Company's
annual bonus plan, as earned through the achievement of certain profitability
and performance objectives which are annually developed by the CEO and as
reviewed and approved by the Compensation Committee (the "Bonus Plan"). The
Bonus Plan shall have terms (including the terms of calculating bonuses)
consistent with the terms of the Company's 2002 bonus plan, a copy of which is
annexed hereto as Annex I.
(b) Any bonus payable hereunder shall be paid at or about the
same time bonuses are paid to the Company's other senior executives and, in the
case of the Annual Bonus, in accordance with the terms of the Bonus Plan.
6. EMPLOYEE BENEFITS.
(a) During the Employment Term, Executive shall be entitled to
participate on a basis no less favorable than other similarly-situated senior
executives of the Company in all retirement, welfare benefit, incentive
compensation, perquisite and other plans and arrangements of the Company
applicable to senior executives of the Company, as in effect from time to time.
(b) The Company shall establish a nonqualified deferred
compensation plan ("Deferred Compensation Plan") which shall have a term of five
(5) years and, for each year of the Employment Term or thereafter during which
the Executive is employed by the Company, the Company shall provide Executive
with an annual contribution to such plan in an amount equal to the 15 percent of
Executive's Base Salary for such year (pro rated to reflect any period of less
than 12 months). Executive's rights with respect to his benefits under the
Deferred Compensation Plan shall be exclusively as described in the Deferred
Compensation Plan. Amounts contributed by the Company to the Deferred
Compensation Plan shall not be taken into account for any purpose under any
other plan, program, policy or arrangement of the Company or its affiliates.
7. BUSINESS EXPENSES. During the Employment Term, the Company shall
reimburse such of Executive's travel, entertainment and other business expenses
as are reasonably and necessarily incurred by Executive during the Employment
Term in the performance of his duties hereunder, in accordance with the
Company's policies as in effect from time to time.
8. TERMINATION. The Employment Term may be terminated prior to its
scheduled expiration for any of the reasons set forth in this Section 8 or
Section 9. Upon a termination or expiration of the Employment Term, Executive
shall be entitled to the payments, if any, described in this Section 8 or
Section 9, whichever is applicable.
(a) FOR CAUSE BY THE COMPANY, OR TERMINATION BY EXECUTIVE FOR
ANY REASON. The Employment Term may be terminated prior to its scheduled
expiration by the Company for Cause (as defined below). In addition, the
Employment Term may be terminated prior to its scheduled expiration by Executive
for any reason. If, prior to the Expiration Date, the Employment Term is
terminated by the Company for Cause, or by Executive for any reason, then
Executive shall be entitled to receive his Base Salary through the date of
termination, any
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Bonus that has been earned in accordance with Section 5 for a prior fiscal year
but not yet paid and any unreimbursed business expenses, payable promptly
following the later of the date of such termination and the date on which the
appropriate documentation is provided. All other benefits following termination
of the Employment Term pursuant to this Section 8(a) shall be determined in
accordance with the plans, policies and practices of the Company.
(b) DEATH OR DISABILITY. The Employment Term shall terminate
prior to its scheduled expiration upon Executive's death or, at the Company's
election, if Executive incurs a Disability (as hereinafter defined). If the
Employment Term is terminated prior to the Expiration Date by reason of
Executive's death or, at the Company's election, if Executive incurs a
Disability, Executive's estate or, in the case of Executive's Disability,
Executive (or such other person duly appointed by a court of competent
jurisdiction to manage Executive's affairs) shall receive (i) the amounts
described under Section 8(a), and subject to Executive's continued compliance
with the covenants set forth in Section 10 in the event of Executive's
Disability, (ii) continued payment of Base Salary through the first anniversary
of the date of death or the date of the Executive's termination of employment
due to Disability.
All other benefits following termination of the Employment
Term pursuant to this Section 8(b) shall be determined in accordance with the
plans, policies and practices of the Company.
(c) BY THE COMPANY WITHOUT CAUSE. The Employment Term may be
terminated prior to the Expiration Date by the Company without Cause. If the
Employment Term is terminated prior to the Expiration Date by the Company
without Cause, then subject to Executive's continued compliance with the
covenants set forth in Section 10, Executive shall receive (i) the amounts
described under Section 8(a); (ii) continued payment of Base Salary through the
last day of the 24th month following the date of termination (the "Severance
Period"); provided that, upon the written request of Executive, the payments of
Base Salary for the 13th through 24th months of the Severance Period shall be
accelerated and paid to Executive in a lump-sum payment, to the extent not
previously paid to Executive; (iii) continued coverage under the Company's
welfare benefit arrangements as in effect from time to time through the earlier
of (A) the end of the Severance Period, and (B) such time as Executive is
eligible to receive comparable welfare benefits from a subsequent employer. All
other benefits following termination of the Employment Term pursuant to this
Section 8(c) shall be determined in accordance with the plans, policies and
practices of the Company.
(d) UPON SCHEDULED EXPIRATION. The Employment Term shall
expire on the Expiration Date (after giving effect to any extensions set forth
in Section 2 hereof). In the event the Employment Term expires, then Executive
shall only be entitled to receive the amounts described in Section 8(a) above.
(e) DEFINITIONS. For purposes of this Section 8, the following
terms shall have the following meanings:
(i) "Cause" shall mean:
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(A) Executive's willful and continued
failure substantially to perform his duties under the
Agreement (other than as a result of total or partial
incapacity due to physical or mental illness);
(B) An act or acts on Executive's part
constituting a felony under the laws of the United
States or any other state thereof or any other
jurisdiction in which the Company conducts business;
(C) Executive's being under the influence of
illegal drugs or alcohol while performing his duties
hereunder;
(D) Any other act or omission which is
materially injurious to the financial condition or
business reputation of the Company or any of its
affiliates; or
(E) Executive's breach of the provisions of
Section 10.
For purposes of this definition, no act or failure to act
shall be deemed "willful" unless effected by Executive not in good
faith and without a reasonable belief that such action or failure to
act was in or not opposed to the Company's best interests.
(ii) "Disability" shall mean Executive's inability,
as a result of physical or mental illness, to perform the duties of the
position(s) specified in Section 3 for a period of 90 consecutive days
or for an aggregate of 90 days in any twelve consecutive month period.
Any question as to the existence of the Disability of Executive as to
which Executive and the Company cannot agree shall be determined in
writing by a qualified independent physician selected by the Company
and reasonably acceptable to Executive. The determination of Disability
made in writing to the Company and Executive shall be final and
conclusive for all purposes of the Agreement.
(f) NOTICE OF TERMINATION. Any purported termination of the
Employment Term prior to the Expiration Date by the Company or by Executive
shall be communicated by written notice of termination to the other party
hereto, which notice 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 under the provision so
indicated.
(g) RELEASE. Any payments by the Company to Executive under
this Section 8 or Section 9 below or in connection with any dispute arising
under or in connection with this Agreement or relating to Executive's employment
with the Company (including payments pursuant to arbitration as provided for in
Section 12(k) hereof) will be contingent upon the execution by Executive of a
release of any claims Executive may have against the Company, its affiliates or
any successor to the Company, such release to be in a form satisfactory to the
Company in its sole discretion.
9. CHANGE OF TITLE, JOB RESPONSIBILITIES, WORK LOCATION, BASE SALARY
AND/OR BONUS OPPORTUNITY. Notwithstanding the provisions of Section 8(a) to the
contrary, if, within 24 months following a Change in Control (as defined below),
Executive's title, job
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responsibilities, and/or work location are changed from those described in
Section 3 of this Agreement, or if Executive's Base Salary is reduced or if
Executive's opportunity to earn an annual bonus up to 120% of Base Salary as set
forth in Section 5 is eliminated, Executive shall have the option for a period
equal to the earlier of (i) 24 months after the date of the Change in Control,
and (ii) the scheduled expiration of Employment Term, to terminate his
employment with the Company and, subject to Executive's continued compliance
with the covenants set forth in Section 10, to receive (i) the amounts described
under Section 8(a); (ii) continued payment of Base Salary through the last day
of the 24th month following the date of termination (the "Change Severance
Period"); (iii) continued coverage under the Company's welfare benefit
arrangements as in effect from time to time through the earlier of (A) the end
of the Change Severance Period, and (B) such time as Executive is eligible to
receive comparable welfare benefits from a subsequent employer. All other
benefits following termination of the Employment Term pursuant to this Section 9
shall be determined in accordance with the plans, policies and practices of the
Company. For purposes of this Agreement, the term "Change in Control" means a
change of control of more than fifty percent (50%) of the common stock of the
Company or the common equity units Brand Holdings, LLC (other than through a
sale into the public markets) occurring at any time after the Effective Date.
10. NON-COMPETITION/CONFIDENTIAL INFORMATION.
(a) Executive acknowledges and recognizes the highly
competitive nature of the businesses of the Company and its affiliates and
accordingly agrees that during the Employment Term and through the later of the
Severance Period or twenty-four (24) months following the date of termination of
employment:
(i) Executive will not directly or indirectly engage
in any business which is in competition with any line of business
conducted by the Company or its affiliates (including without
limitation by performing or soliciting the performance of services for
any person who is a customer or client of the Company or any of its
affiliates) whether such engagement is as an officer, director,
proprietor, employee, partner, investor (other than as holder of less
than 1% of the outstanding capital stock of a publicly traded
corporation), consultant, advisor, agent, sales representative or other
participant, in any geographic area in which the Company or any of its
affiliates conducted any such competing line of business.
(ii) Executive will not directly or indirectly assist
others in engaging in any of the activities in which Executive is
prohibited from engaging in by clause (i) above.
(b) Executive will not directly or indirectly induce any
employee of the Company or any of its affiliates to engage in any activity in
which Executive is prohibited to engage by paragraph (a) above or to terminate
his employment with the Company or any of its affiliates, and will not directly
or indirectly employ or offer employment to any person who was employed by the
Company or any of its affiliates unless such person shall have ceased to be
employed by the Company or any of its affiliates for a period of at least 12
months.
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(c) Executive will not at any time (whether during or after
his employment with the Company) disclose or use for his own benefit or purposes
or the benefit or purposes of any other person, firm, partnership, joint
venture, association, corporation or other business organization, entity or
enterprise other than the Company and 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 Company generally
or of any subsidiary or affiliate of the Company, provided that the foregoing
shall not apply to information which is not unique to the Company or which is
generally known to the industry or the public other than as a result of
Executive's breach of this covenant. Executive agrees that upon termination of
his employment with the Company for any reason, he will return to the Company
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 Company and its affiliates, except that he may retain personal notes,
notebooks and diaries. Executive further agrees that he will not retain or use
for his account at any time any trade names, trademark or other proprietary
business designation used or owned in connection with the business of the
Company or its affiliates.
11. SPECIFIC PERFORMANCE AND OTHER REMEDIES. Executive acknowledges and
agrees that the Company has no adequate remedy at law for a breach or threatened
breach of any of the provisions of Section 10 and, in recognition of this fact,
Executive agrees that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the Company, without posting any bond and
without notice to Executive, shall be entitled to obtain equitable relief in the
form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be available.
Nothing in this Agreement shall be construed as prohibiting the Company from
pursuing any other remedies at law or in equity that it may have or any other
rights that it may have under any other agreement.
12. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Missouri without reference
to principles of conflict of laws.
(b) ENTIRE AGREEMENT/AMENDMENTS. This Agreement contains the
entire understanding of the parties with respect to the subject matter hereof
and supersedes any prior agreements between the Company and Executive. There are
no restrictions, agreements, promises, warranties, covenants or undertakings
between the parties with respect to the subject matter herein other than those
expressly set forth herein and therein. No provision in this Agreement may be
amended unless such amendment is agreed to in writing.
(c) NO WAIVER. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party's rights or deprive such party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement.
No waiver by either party of any breach by the other party of any condition or
provision contained in this Agreement to be performed by such other party shall
be deemed a waiver of a similar or dissimilar condition or provision at the same
or any prior or
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subsequent time. Any waiver must be in writing and signed by Executive or the
Company, as the case may be.
(d) SEVERABILITY. It is expressly understood and agreed that
although Executive and the Company consider the restrictions contained in
Section 10 to be reasonable, if a final judicial determination is made by a
court of competent jurisdiction that the time or territory restriction in
Section 10 or any other restriction contained in Section 10 is an unenforceable
restriction against Executive, such provision shall not be rendered void but
shall be deemed amended to apply to such maximum time and territory, if
applicable, or otherwise to such maximum extent as such court may judicially
determine or indicate to be enforceable. Alternatively, if any court of
competent jurisdiction finds that any restriction contained in Section 10 is
unenforceable, and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein. In the event that any one or more of the
other provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
(e) ASSIGNMENT. This Agreement shall not be assignable by
either party without the consent of the other party.
(f) SUCCESSORS. This Agreement shall inure to the benefit of
and be binding upon the personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees of the
parties hereto. Executive shall be entitled to select (and change, to the extent
permitted under any applicable law) a beneficiary or beneficiaries to receive
any compensation or benefit payable hereunder following Executive's death by
giving the Company written notice thereof. In the event of Executive's death or
a judicial determination of his incompetence, reference in this Agreement to
Executive shall be deemed, where appropriate, to refer to his beneficiary,
estate or other legal representative.
(g) COMMUNICATIONS. For the purpose of this Agreement, notices
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when faxed or delivered or two
business days after being mailed by United States registered or certified mail,
return receipt requested, postage prepaid, addressed (i) to Executive at his
address then appearing in the personnel records of the Company and; (ii) to the
Company at the Company's then current headquarters, with a copy to Brand
Holdings, LLC, c/o X.X. Xxxxxx Partners, LLC, 1221 Avenue of the Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxxxxxx Xxxxxxx; or (iii) to such
other address as either party may have furnished to the other in writing in
accordance herewith, with such notice of change of address being effective only
upon receipt.
(h) WITHHOLDING TAXES. The Company may withhold from any and
all amounts payable under this Agreement such Federal, state, local and any
other applicable taxes as may be required to be withheld pursuant to any
applicable law or regulation.
(i) SURVIVORSHIP. The respective rights and obligations of the
parties hereunder shall survive any termination of Executive's employment to the
extent necessary to assure the agreed preservation of such rights and
obligations.
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(j) REPRESENTATIONS. Each party represents and warrants to the
other that he or it is fully authorized and empowered to enter into this
Agreement and that the performance of his or its obligations under this
Agreement will not violate any agreement between him or it and any other person
or entity.
(k) ARBITRATION. The parties agree that all disputes arising
under or in connection with this Agreement, and any and all claims by Executive
relating to his employment with the Company, including any claims of
discrimination arising under Title VII of the Civil Rights Act of 1964, as
amended, the Age Discrimination in Employment Act, the Americans with
Disabilities Act or any similar federal, state or local law will be submitted to
arbitration in the County of St. Louis of the State of Missouri to the American
Arbitration Association ("AAA") under its rules then prevailing for the type of
claim in issue. The parties each hereby specifically submit to the personal
jurisdiction of any federal or state court located in the County of St. Louis
and the State of Missouri for any such action and further agree that service of
process may be made within or without the State of Missouri by giving notice in
the manner provided herein.
In any action or proceeding relating to this Agreement, the
parties agree that no damages other than compensatory damages shall be sought or
claimed by either party and each party waives any claim, right or entitlement to
punitive, exemplary, statutory or consequential damages, or any other damages,
and each relevant arbitration panel is specifically divested of any power to
award any damages in the nature of punitive, exemplary, statutory or
consequential damages, or any other damages of any kind or nature in excess of
compensatory damages.
(l) FEES AND EXPENSES. In the event of a dispute by the
Company or Executive as to the validity or enforceability of, or liability
under, any provision of this Agreement and with respect to any claims arising in
connection with Executive's employment with the Company, each party shall pay
its own legal fees and expenses incurred in connection with such dispute or
claim; provided, however, and notwithstanding the foregoing, in the event of a
breach of this Agreement by the Company at any time after a Change of Control,
whether or not litigation is commenced, then the Company shall pay to Executive,
in addition to any damages incurred by Executive, the costs and expenses
incurred by Executive in connection with any such breach (including, without
limitation, all court costs and reasonable attorneys' fees and costs).
(m) COUNTERPARTS. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
(n) HEADINGS. The headings of the sections contained in this
Agreement are for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement. Any reference to
Executive in the masculine gender herein is for convenience and is not intended
to express any preference by the Company for executives of any gender.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amended and Restated Employment Agreement as of the Effective Date.
-----------------------------------------
[EXECUTIVE]
"Executive"
[The Executive acknowledges that this
agreement contains an arbitration
provision which may be enforced by either
party hereto]
BRAND SERVICES, INC.
By:
--------------------------------------
Title:
-----------------------------------
the "Company"
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AMENDED AND RESTATED EMPLOYMENT AGREEMENT
WHEREAS, BRAND SERVICES, INC., a Delaware corporation (the "Company")
and Xxxxxxx X. Xxxxxxx ("Executive") previously entered into an employment
agreement dated as of April 1, 2001 (as subsequently amended or modified, the
"Agreement"); and
WHEREAS, the parties desire to amend, restate and continue the
Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
hereto agree that the Agreement is hereby amended, restated and continued as
follows, all effective as of the Effective Date as described below:
1. EFFECTIVE DATE. For purposes of this Agreement, the "Effective Date"
shall be the date on which the Effective Time occurs (as defined in that certain
Agreement and Plan of Merger among Brand Holdings, LLC, Brand Acquisition Corp.,
DLJ Brand Holdings, Inc. and various sellers dated as of August 9, 2002 (the
"Merger Agreement")). Notwithstanding the foregoing or any other provision of
this Agreement, this Agreement shall become effective only upon the occurrence
of the Effective Time, and if the Effective Time does not occur by December 31,
2002 this Agreement shall be of no force and effect and shall terminate
automatically without any further actions of the parties.
2. AGREEMENT TERM. Executive's continued employment by the Company
shall commence on the Effective Date, and shall, unless extended as set forth
below, terminate on the second anniversary of the Effective Date (the
"Expiration Date"). Executive's employment shall be automatically extended on a
year to year basis following the Expiration Date, unless a written notice to
terminate is given by the Company to Executive not less than thirty (30), nor
more than sixty (60), days prior to the scheduled Expiration Date. The period
commencing on the Effective Date and ending on the Expiration Date, as the same
may be extended from time to time hereunder, is hereinafter referred to as the
"Employment Term". Notwithstanding the foregoing, the Employment Term shall
terminate in any and all events upon the termination of Executive's employment
hereunder as hereinafter provided.
3. POSITIONS. During the Employment Term, executive shall serve as Vice
President, Administration and Secretary. Executive shall report directly to the
President and Chief Executive Officer of the Company (the "CEO") and shall have
such duties and authority commensurate with such position as shall be determined
from time to time by the CEO. Executive shall devote substantially all of his
business time and best efforts to the performance of his duties hereunder and
shall not engage in any other business, profession or occupation for
compensation or otherwise.
4. BASE SALARY. During the Employment Term, the Company shall pay
Executive a base salary (the "Base Salary") at the annual rate of not less than
$163,152, payable bi-weekly in arrears, in accordance with the usual payment
practices of the Company. Executive's Base Salary shall be subject to periodic
review by the CEO and the Compensation Committee of the Board of Directors of
the Company (the "Compensation Committee"), not less frequently than annually,
beginning January 1, 2003.
5. BONUS.
(a) With respect to each fiscal year in the Employment Term,
Executive shall be eligible for a bonus of up to 120% of his Base Salary (the
"Annual Bonus") to be determined annually in accordance with the Company's
annual bonus plan, as earned through the achievement of certain profitability
and performance objectives which are annually developed by the CEO and as
reviewed and approved by the Compensation Committee (the "Bonus Plan"). The
Bonus Plan shall have terms (including the terms of calculating bonuses)
consistent with the terms of the Company's 2002 bonus plan, a copy of which is
annexed hereto as Annex I.
(b) Any bonus payable hereunder shall be paid at or about the
same time bonuses are paid to the Company's other senior executives and, in the
case of the Annual Bonus, in accordance with the terms of the Bonus Plan.
6. EMPLOYEE BENEFITS.
(a) During the Employment Term, Executive shall be entitled to
participate on a basis no less favorable than other similarly-situated senior
executives of the Company in all retirement, welfare benefit, incentive
compensation, perquisite and other plans and arrangements of the Company
applicable to senior executives of the Company, as in effect from time to time.
(b) The Company shall establish a nonqualified deferred
compensation plan ("Deferred Compensation Plan") which shall have a term of five
(5) years and, for each year of the Employment Term or thereafter during which
the Executive is employed by the Company, the Company shall provide Executive
with an annual contribution to such plan in an amount equal to the 15 percent of
Executive's Base Salary for such year (pro rated to reflect any period of less
than 12 months). Executive's rights with respect to his benefits under the
Deferred Compensation Plan shall be exclusively as described in the Deferred
Compensation Plan. Amounts contributed by the Company to the Deferred
Compensation Plan shall not be taken into account for any purpose under any
other plan, program, policy or arrangement of the Company or its affiliates.
7. BUSINESS EXPENSES. During the Employment Term, the Company shall
reimburse such of Executive's travel, entertainment and other business expenses
as are reasonably and necessarily incurred by Executive during the Employment
Term in the performance of his duties hereunder, in accordance with the
Company's policies as in effect from time to time.
8. TERMINATION. The Employment Term may be terminated prior to its
scheduled expiration for any of the reasons set forth in this Section 8 or
Section 9. Upon a termination or expiration of the Employment Term, Executive
shall be entitled to the payments, if any, described in this Section 8 or
Section 9, whichever is applicable.
(a) FOR CAUSE BY THE COMPANY, OR TERMINATION BY EXECUTIVE FOR
ANY REASON. The Employment Term may be terminated prior to its scheduled
expiration by the Company for Cause (as defined below). In addition, the
Employment Term may be terminated prior to its scheduled expiration by Executive
for any reason. If, prior to the Expiration Date, the Employment Term is
terminated by the Company for Cause, or by Executive for any reason, then
Executive shall be entitled to receive his Base Salary through the date of
termination, any
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Bonus that has been earned in accordance with Section 5 for a prior fiscal year
but not yet paid and any unreimbursed business expenses, payable promptly
following the later of the date of such termination and the date on which the
appropriate documentation is provided. All other benefits following termination
of the Employment Term pursuant to this Section 8(a) shall be determined in
accordance with the plans, policies and practices of the Company.
(b) DEATH OR DISABILITY. The Employment Term shall terminate
prior to its scheduled expiration upon Executive's death or, at the Company's
election, if Executive incurs a Disability (as hereinafter defined). If the
Employment Term is terminated prior to the Expiration Date by reason of
Executive's death or, at the Company's election, if Executive incurs a
Disability, Executive's estate or, in the case of Executive's Disability,
Executive (or such other person duly appointed by a court of competent
jurisdiction to manage Executive's affairs) shall receive (i) the amounts
described under Section 8(a), and subject to Executive's continued compliance
with the covenants set forth in Section 10 in the event of Executive's
Disability, (ii) continued payment of Base Salary through the first anniversary
of the date of death or the date of the Executive's termination of employment
due to Disability.
All other benefits following termination of the Employment
Term pursuant to this Section 8(b) shall be determined in accordance with the
plans, policies and practices of the Company.
(c) BY THE COMPANY WITHOUT CAUSE. The Employment Term may be
terminated prior to the Expiration Date by the Company without Cause. If the
Employment Term is terminated prior to the Expiration Date by the Company
without Cause, then subject to Executive's continued compliance with the
covenants set forth in Section 10, Executive shall receive (i) the amounts
described under Section 8(a); (ii) continued payment of Base Salary through the
last day of the 24th month following the date of termination (the "Severance
Period"); provided that, upon the written request of Executive, the payments of
Base Salary for the 13th through 24th months of the Severance Period shall be
accelerated and paid to Executive in a lump-sum payment, to the extent not
previously paid to Executive; (iii) continued coverage under the Company's
welfare benefit arrangements as in effect from time to time through the earlier
of (A) the end of the Severance Period, and (B) such time as Executive is
eligible to receive comparable welfare benefits from a subsequent employer. All
other benefits following termination of the Employment Term pursuant to this
Section 8(c) shall be determined in accordance with the plans, policies and
practices of the Company.
(d) UPON SCHEDULED EXPIRATION. The Employment Term shall
expire on the Expiration Date (after giving effect to any extensions set forth
in Section 2 hereof). In the event the Employment Term expires, then Executive
shall only be entitled to receive the amounts described in Section 8(a) above.
(e) DEFINITIONS. For purposes of this Section 8, the following
terms shall have the following meanings:
(i) "Cause" shall mean:
3
(A) Executive's willful and continued
failure substantially to perform his duties under the
Agreement (other than as a result of total or partial
incapacity due to physical or mental illness);
(B) An act or acts on Executive's part
constituting a felony under the laws of the United
States or any other state thereof or any other
jurisdiction in which the Company conducts business;
(C) Executive's being under the influence of
illegal drugs or alcohol while performing his duties
hereunder;
(D) Any other act or omission which is
materially injurious to the financial condition or
business reputation of the Company or any of its
affiliates; or
(E) Executive's breach of the provisions of
Section 10.
For purposes of this definition, no act or failure to act
shall be deemed "willful" unless effected by Executive not in good
faith and without a reasonable belief that such action or failure to
act was in or not opposed to the Company's best interests.
(ii) "Disability" shall mean Executive's inability,
as a result of physical or mental illness, to perform the duties of the
position(s) specified in Section 3 for a period of 90 consecutive days
or for an aggregate of 90 days in any twelve consecutive month period.
Any question as to the existence of the Disability of Executive as to
which Executive and the Company cannot agree shall be determined in
writing by a qualified independent physician selected by the Company
and reasonably acceptable to Executive. The determination of Disability
made in writing to the Company and Executive shall be final and
conclusive for all purposes of the Agreement.
(f) NOTICE OF TERMINATION. Any purported termination of the
Employment Term prior to the Expiration Date by the Company or by Executive
shall be communicated by written notice of termination to the other party
hereto, which notice 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 under the provision so
indicated.
(g) RELEASE. Any payments by the Company to Executive under
this Section 8 or Section 9 below or in connection with any dispute arising
under or in connection with this Agreement or relating to Executive's employment
with the Company (including payments pursuant to arbitration as provided for in
Section 12(k) hereof) will be contingent upon the execution by Executive of a
release of any claims Executive may have against the Company, its affiliates or
any successor to the Company, such release to be in a form satisfactory to the
Company in its sole discretion.
9. CHANGE OF TITLE, JOB RESPONSIBILITIES, WORK LOCATION, BASE SALARY
AND/OR BONUS OPPORTUNITY. Notwithstanding the provisions of Section 8(a) to the
contrary, if, within 24 months following a Change in Control (as defined below),
Executive's title, job
4
responsibilities, and/or work location are changed from those described in
Section 3 of this Agreement, or if Executive's Base Salary is reduced or if
Executive's opportunity to earn an annual bonus up to 120% of Base Salary as set
forth in Section 5 is eliminated, Executive shall have the option for a period
equal to the earlier of (i) 24 months after the date of the Change in Control,
and (ii) the scheduled expiration of Employment Term, to terminate his
employment with the Company and, subject to Executive's continued compliance
with the covenants set forth in Section 10, to receive (i) the amounts described
under Section 8(a); (ii) continued payment of Base Salary through the last day
of the 24th month following the date of termination (the "Change Severance
Period"); (iii) continued coverage under the Company's welfare benefit
arrangements as in effect from time to time through the earlier of (A) the end
of the Change Severance Period, and (B) such time as Executive is eligible to
receive comparable welfare benefits from a subsequent employer. All other
benefits following termination of the Employment Term pursuant to this Section 9
shall be determined in accordance with the plans, policies and practices of the
Company. For purposes of this Agreement, the term "Change in Control" means a
change of control of more than fifty percent (50%) of the common stock of the
Company or the common equity units Brand Holdings, LLC (other than through a
sale into the public markets) occurring at any time after the Effective Date.
10. NON-COMPETITION/CONFIDENTIAL INFORMATION.
(a) Executive acknowledges and recognizes the highly
competitive nature of the businesses of the Company and its affiliates and
accordingly agrees that during the Employment Term and through the later of the
Severance Period or twenty-four (24) months following the date of termination of
employment:
(i) Executive will not directly or indirectly engage
in any business which is in competition with any line of business
conducted by the Company or its affiliates (including without
limitation by performing or soliciting the performance of services for
any person who is a customer or client of the Company or any of its
affiliates) whether such engagement is as an officer, director,
proprietor, employee, partner, investor (other than as holder of less
than 1% of the outstanding capital stock of a publicly traded
corporation), consultant, advisor, agent, sales representative or other
participant, in any geographic area in which the Company or any of its
affiliates conducted any such competing line of business.
(ii) Executive will not directly or indirectly assist
others in engaging in any of the activities in which Executive is
prohibited from engaging in by clause (i) above.
(b) Executive will not directly or indirectly induce any
employee of the Company or any of its affiliates to engage in any activity in
which Executive is prohibited to engage by paragraph (a) above or to terminate
his employment with the Company or any of its affiliates, and will not directly
or indirectly employ or offer employment to any person who was employed by the
Company or any of its affiliates unless such person shall have ceased to be
employed by the Company or any of its affiliates for a period of at least 12
months.
5
(c) Executive will not at any time (whether during or after
his employment with the Company) disclose or use for his own benefit or purposes
or the benefit or purposes of any other person, firm, partnership, joint
venture, association, corporation or other business organization, entity or
enterprise other than the Company and 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 Company generally
or of any subsidiary or affiliate of the Company, provided that the foregoing
shall not apply to information which is not unique to the Company or which is
generally known to the industry or the public other than as a result of
Executive's breach of this covenant. Executive agrees that upon termination of
his employment with the Company for any reason, he will return to the Company
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 Company and its affiliates, except that he may retain personal notes,
notebooks and diaries. Executive further agrees that he will not retain or use
for his account at any time any trade names, trademark or other proprietary
business designation used or owned in connection with the business of the
Company or its affiliates.
11. SPECIFIC PERFORMANCE AND OTHER REMEDIES. Executive acknowledges and
agrees that the Company has no adequate remedy at law for a breach or threatened
breach of any of the provisions of Section 10 and, in recognition of this fact,
Executive agrees that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the Company, without posting any bond and
without notice to Executive, shall be entitled to obtain equitable relief in the
form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be available.
Nothing in this Agreement shall be construed as prohibiting the Company from
pursuing any other remedies at law or in equity that it may have or any other
rights that it may have under any other agreement.
12. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Missouri without reference
to principles of conflict of laws.
(b) ENTIRE AGREEMENT/AMENDMENTS. This Agreement contains the
entire understanding of the parties with respect to the subject matter hereof
and supersedes any prior agreements between the Company and Executive. There are
no restrictions, agreements, promises, warranties, covenants or undertakings
between the parties with respect to the subject matter herein other than those
expressly set forth herein and therein. No provision in this Agreement may be
amended unless such amendment is agreed to in writing.
(c) NO WAIVER. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party's rights or deprive such party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement.
No waiver by either party of any breach by the other party of any condition or
provision contained in this Agreement to be performed by such other party shall
be deemed a waiver of a similar or dissimilar condition or provision at the same
or any prior or
6
subsequent time. Any waiver must be in writing and signed by Executive or the
Company, as the case may be.
(d) SEVERABILITY. It is expressly understood and agreed that
although Executive and the Company consider the restrictions contained in
Section 10 to be reasonable, if a final judicial determination is made by a
court of competent jurisdiction that the time or territory restriction in
Section 10 or any other restriction contained in Section 10 is an unenforceable
restriction against Executive, such provision shall not be rendered void but
shall be deemed amended to apply to such maximum time and territory, if
applicable, or otherwise to such maximum extent as such court may judicially
determine or indicate to be enforceable. Alternatively, if any court of
competent jurisdiction finds that any restriction contained in Section 10 is
unenforceable, and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein. In the event that any one or more of the
other provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
(e) ASSIGNMENT. This Agreement shall not be assignable by
either party without the consent of the other party.
(f) SUCCESSORS. This Agreement shall inure to the benefit of
and be binding upon the personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees of the
parties hereto. Executive shall be entitled to select (and change, to the extent
permitted under any applicable law) a beneficiary or beneficiaries to receive
any compensation or benefit payable hereunder following Executive's death by
giving the Company written notice thereof. In the event of Executive's death or
a judicial determination of his incompetence, reference in this Agreement to
Executive shall be deemed, where appropriate, to refer to his beneficiary,
estate or other legal representative.
(g) COMMUNICATIONS. For the purpose of this Agreement, notices
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when faxed or delivered or two
business days after being mailed by United States registered or certified mail,
return receipt requested, postage prepaid, addressed (i) to Executive at his
address then appearing in the personnel records of the Company and; (ii) to the
Company at the Company's then current headquarters, with a copy to Brand
Holdings, LLC, c/o X.X. Xxxxxx Partners, LLC, 1221 Avenue of the Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxxxxxx Xxxxxxx; or (iii) to such
other address as either party may have furnished to the other in writing in
accordance herewith, with such notice of change of address being effective only
upon receipt.
(h) WITHHOLDING TAXES. The Company may withhold from any and
all amounts payable under this Agreement such Federal, state, local and any
other applicable taxes as may be required to be withheld pursuant to any
applicable law or regulation.
(i) SURVIVORSHIP. The respective rights and obligations of the
parties hereunder shall survive any termination of Executive's employment to the
extent necessary to assure the agreed preservation of such rights and
obligations.
7
(j) REPRESENTATIONS. Each party represents and warrants to the
other that he or it is fully authorized and empowered to enter into this
Agreement and that the performance of his or its obligations under this
Agreement will not violate any agreement between him or it and any other person
or entity.
(k) ARBITRATION. The parties agree that all disputes arising
under or in connection with this Agreement, and any and all claims by Executive
relating to his employment with the Company, including any claims of
discrimination arising under Title VII of the Civil Rights Act of 1964, as
amended, the Age Discrimination in Employment Act, the Americans with
Disabilities Act or any similar federal, state or local law will be submitted to
arbitration in the County of St. Louis of the State of Missouri to the American
Arbitration Association ("AAA") under its rules then prevailing for the type of
claim in issue. The parties each hereby specifically submit to the personal
jurisdiction of any federal or state court located in the County of St. Louis
and the State of Missouri for any such action and further agree that service of
process may be made within or without the State of Missouri by giving notice in
the manner provided herein.
In any action or proceeding relating to this Agreement, the
parties agree that no damages other than compensatory damages shall be sought or
claimed by either party and each party waives any claim, right or entitlement to
punitive, exemplary, statutory or consequential damages, or any other damages,
and each relevant arbitration panel is specifically divested of any power to
award any damages in the nature of punitive, exemplary, statutory or
consequential damages, or any other damages of any kind or nature in excess of
compensatory damages.
(l) FEES AND EXPENSES. In the event of a dispute by the
Company or Executive as to the validity or enforceability of, or liability
under, any provision of this Agreement and with respect to any claims arising in
connection with Executive's employment with the Company, each party shall pay
its own legal fees and expenses incurred in connection with such dispute or
claim; provided, however, and notwithstanding the foregoing, in the event of a
breach of this Agreement by the Company at any time after a Change of Control,
whether or not litigation is commenced, then the Company shall pay to Executive,
in addition to any damages incurred by Executive, the costs and expenses
incurred by Executive in connection with any such breach (including, without
limitation, all court costs and reasonable attorneys' fees and costs).
(m) COUNTERPARTS. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
(n) HEADINGS. The headings of the sections contained in this
Agreement are for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement. Any reference to
Executive in the masculine gender herein is for convenience and is not intended
to express any preference by the Company for executives of any gender.
8
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amended and Restated Employment Agreement as of the Effective Date.
-----------------------------------------
[EXECUTIVE]
"Executive"
[The Executive acknowledges that this
agreement contains an arbitration
provision which may be enforced by either
party hereto]
BRAND SERVICES, INC.
By:
--------------------------------------
Title:
-----------------------------------
the "Company"
9
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
WHEREAS, BRAND SERVICES, INC., a Delaware corporation (the "Company")
and Xxx X. Xxxxxx ("Executive") previously entered into an employment agreement
dated as of April 1, 2001 (as subsequently amended or modified, the
"Agreement"); and
WHEREAS, the parties desire to amend, restate and continue the
Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
hereto agree that the Agreement is hereby amended, restated and continued as
follows, all effective as of the Effective Date as described below:
1. EFFECTIVE DATE. For purposes of this Agreement, the "Effective Date"
shall be the date on which the Effective Time occurs (as defined in that certain
Agreement and Plan of Merger among Brand Holdings, LLC, Brand Acquisition Corp.,
DLJ Brand Holdings, Inc. and various sellers dated as of August 9, 2002 (the
"Merger Agreement")). Notwithstanding the foregoing or any other provision of
this Agreement, this Agreement shall become effective only upon the occurrence
of the Effective Time, and if the Effective Time does not occur by December 31,
2002 this Agreement shall be of no force and effect and shall terminate
automatically without any further actions of the parties.
2. AGREEMENT TERM. Executive's continued employment by the Company
shall commence on the Effective Date, and shall, unless extended as set forth
below, terminate on the second anniversary of the Effective Date (the
"Expiration Date"). Executive's employment shall be automatically extended on a
year to year basis following the Expiration Date, unless a written notice to
terminate is given by the Company to Executive not less than thirty (30), nor
more than sixty (60), days prior to the scheduled Expiration Date. The period
commencing on the Effective Date and ending on the Expiration Date, as the same
may be extended from time to time hereunder, is hereinafter referred to as the
"Employment Term". Notwithstanding the foregoing, the Employment Term shall
terminate in any and all events upon the termination of Executive's employment
hereunder as hereinafter provided.
3. POSITIONS. During the Employment Term, executive shall serve as Vice
President, Resource Management. Executive shall report directly to the President
and Chief Executive Officer of the Company (the "CEO") and shall have such
duties and authority commensurate with such position as shall be determined from
time to time by the CEO. Executive shall devote substantially all of his
business time and best efforts to the performance of his duties hereunder and
shall not engage in any other business, profession or occupation for
compensation or otherwise.
4. BASE SALARY. During the Employment Term, the Company shall pay
Executive a base salary (the "Base Salary") at the annual rate of not less than
$153,545, payable bi-weekly in arrears, in accordance with the usual payment
practices of the Company. Executive's Base Salary shall be subject to periodic
review by the CEO and the Compensation Committee of the Board of Directors of
the Company (the "Compensation Committee"), not less frequently than annually,
beginning January 1, 2003.
5. BONUS.
(a) With respect to each fiscal year in the Employment Term,
Executive shall be eligible for a bonus of up to 120% of his Base Salary (the
"Annual Bonus") to be determined annually in accordance with the Company's
annual bonus plan, as earned through the achievement of certain profitability
and performance objectives which are annually developed by the CEO and as
reviewed and approved by the Compensation Committee (the "Bonus Plan"). The
Bonus Plan shall have terms (including the terms of calculating bonuses)
consistent with the terms of the Company's 2002 bonus plan, a copy of which is
annexed hereto as Annex I.
(b) Any bonus payable hereunder shall be paid at or about the
same time bonuses are paid to the Company's other senior executives and, in the
case of the Annual Bonus, in accordance with the terms of the Bonus Plan.
6. EMPLOYEE BENEFITS.
(a) During the Employment Term, Executive shall be entitled to
participate on a basis no less favorable than other similarly-situated senior
executives of the Company in all retirement, welfare benefit, incentive
compensation, perquisite and other plans and arrangements of the Company
applicable to senior executives of the Company, as in effect from time to time.
(b) The Company shall establish a nonqualified deferred
compensation plan ("Deferred Compensation Plan") which shall have a term of five
(5) years and, for each year of the Employment Term or thereafter during which
the Executive is employed by the Company, the Company shall provide Executive
with an annual contribution to such plan in an amount equal to the 15 percent of
Executive's Base Salary for such year (pro rated to reflect any period of less
than 12 months). Executive's rights with respect to his benefits under the
Deferred Compensation Plan shall be exclusively as described in the Deferred
Compensation Plan. Amounts contributed by the Company to the Deferred
Compensation Plan shall not be taken into account for any purpose under any
other plan, program, policy or arrangement of the Company or its affiliates.
7. BUSINESS EXPENSES. During the Employment Term, the Company shall
reimburse such of Executive's travel, entertainment and other business expenses
as are reasonably and necessarily incurred by Executive during the Employment
Term in the performance of his duties hereunder, in accordance with the
Company's policies as in effect from time to time.
8. TERMINATION. The Employment Term may be terminated prior to its
scheduled expiration for any of the reasons set forth in this Section 8 or
Section 9. Upon a termination or expiration of the Employment Term, Executive
shall be entitled to the payments, if any, described in this Section 8 or
Section 9, whichever is applicable.
(a) FOR CAUSE BY THE COMPANY, OR TERMINATION BY EXECUTIVE FOR
ANY REASON. The Employment Term may be terminated prior to its scheduled
expiration by the Company for Cause (as defined below). In addition, the
Employment Term may be terminated prior to its scheduled expiration by Executive
for any reason. If, prior to the Expiration Date, the Employment Term is
terminated by the Company for Cause, or by Executive for any reason, then
Executive shall be entitled to receive his Base Salary through the date of
termination, any
2
Bonus that has been earned in accordance with Section 5 for a prior fiscal year
but not yet paid and any unreimbursed business expenses, payable promptly
following the later of the date of such termination and the date on which the
appropriate documentation is provided. All other benefits following termination
of the Employment Term pursuant to this Section 8(a) shall be determined in
accordance with the plans, policies and practices of the Company.
(b) DEATH OR DISABILITY. The Employment Term shall terminate
prior to its scheduled expiration upon Executive's death or, at the Company's
election, if Executive incurs a Disability (as hereinafter defined). If the
Employment Term is terminated prior to the Expiration Date by reason of
Executive's death or, at the Company's election, if Executive incurs a
Disability, Executive's estate or, in the case of Executive's Disability,
Executive (or such other person duly appointed by a court of competent
jurisdiction to manage Executive's affairs) shall receive (i) the amounts
described under Section 8(a), and subject to Executive's continued compliance
with the covenants set forth in Section 10 in the event of Executive's
Disability, (ii) continued payment of Base Salary through the first anniversary
of the date of death or the date of the Executive's termination of employment
due to Disability.
All other benefits following termination of the Employment
Term pursuant to this Section 8(b) shall be determined in accordance with the
plans, policies and practices of the Company.
(c) BY THE COMPANY WITHOUT CAUSE. The Employment Term may be
terminated prior to the Expiration Date by the Company without Cause. If the
Employment Term is terminated prior to the Expiration Date by the Company
without Cause, then subject to Executive's continued compliance with the
covenants set forth in Section 10, Executive shall receive (i) the amounts
described under Section 8(a); (ii) continued payment of Base Salary through the
last day of the 24th month following the date of termination (the "Severance
Period"); provided that, upon the written request of Executive, the payments of
Base Salary for the 13th through 24th months of the Severance Period shall be
accelerated and paid to Executive in a lump-sum payment, to the extent not
previously paid to Executive; (iii) continued coverage under the Company's
welfare benefit arrangements as in effect from time to time through the earlier
of (A) the end of the Severance Period, and (B) such time as Executive is
eligible to receive comparable welfare benefits from a subsequent employer. All
other benefits following termination of the Employment Term pursuant to this
Section 8(c) shall be determined in accordance with the plans, policies and
practices of the Company.
(d) UPON SCHEDULED EXPIRATION. The Employment Term shall
expire on the Expiration Date (after giving effect to any extensions set forth
in Section 2 hereof). In the event the Employment Term expires, then Executive
shall only be entitled to receive the amounts described in Section 8(a) above.
(e) DEFINITIONS. For purposes of this Section 8, the following
terms shall have the following meanings:
(i) "Cause" shall mean:
3
(A) Executive's willful and continued
failure substantially to perform his duties under the
Agreement (other than as a result of total or partial
incapacity due to physical or mental illness);
(B) An act or acts on Executive's part
constituting a felony under the laws of the United
States or any other state thereof or any other
jurisdiction in which the Company conducts business;
(C) Executive's being under the influence of
illegal drugs or alcohol while performing his duties
hereunder;
(D) Any other act or omission which is
materially injurious to the financial condition or
business reputation of the Company or any of its
affiliates; or
(E) Executive's breach of the provisions of
Section 10.
For purposes of this definition, no act or failure to act
shall be deemed "willful" unless effected by Executive not in good
faith and without a reasonable belief that such action or failure to
act was in or not opposed to the Company's best interests.
(ii) "Disability" shall mean Executive's inability,
as a result of physical or mental illness, to perform the duties of the
position(s) specified in Section 3 for a period of 90 consecutive days
or for an aggregate of 90 days in any twelve consecutive month period.
Any question as to the existence of the Disability of Executive as to
which Executive and the Company cannot agree shall be determined in
writing by a qualified independent physician selected by the Company
and reasonably acceptable to Executive. The determination of Disability
made in writing to the Company and Executive shall be final and
conclusive for all purposes of the Agreement.
(f) NOTICE OF TERMINATION. Any purported termination of the
Employment Term prior to the Expiration Date by the Company or by Executive
shall be communicated by written notice of termination to the other party
hereto, which notice 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 under the provision so
indicated.
(g) RELEASE. Any payments by the Company to Executive under
this Section 8 or Section 9 below or in connection with any dispute arising
under or in connection with this Agreement or relating to Executive's employment
with the Company (including payments pursuant to arbitration as provided for in
Section 12(k) hereof) will be contingent upon the execution by Executive of a
release of any claims Executive may have against the Company, its affiliates or
any successor to the Company, such release to be in a form satisfactory to the
Company in its sole discretion.
9. CHANGE OF TITLE, JOB RESPONSIBILITIES, WORK LOCATION, BASE SALARY
AND/OR BONUS OPPORTUNITY. Notwithstanding the provisions of Section 8(a) to the
contrary, if, within 24 months following a Change in Control (as defined below),
Executive's title, job
4
responsibilities, and/or work location are changed from those described in
Section 3 of this Agreement, or if Executive's Base Salary is reduced or if
Executive's opportunity to earn an annual bonus up to 120% of Base Salary as set
forth in Section 5 is eliminated, Executive shall have the option for a period
equal to the earlier of (i) 24 months after the date of the Change in Control,
and (ii) the scheduled expiration of Employment Term, to terminate his
employment with the Company and, subject to Executive's continued compliance
with the covenants set forth in Section 10, to receive (i) the amounts described
under Section 8(a); (ii) continued payment of Base Salary through the last day
of the 24th month following the date of termination (the "Change Severance
Period"); (iii) continued coverage under the Company's welfare benefit
arrangements as in effect from time to time through the earlier of (A) the end
of the Change Severance Period, and (B) such time as Executive is eligible to
receive comparable welfare benefits from a subsequent employer. All other
benefits following termination of the Employment Term pursuant to this Section 9
shall be determined in accordance with the plans, policies and practices of the
Company. For purposes of this Agreement, the term "Change in Control" means a
change of control of more than fifty percent (50%) of the common stock of the
Company or the common equity units Brand Holdings, LLC (other than through a
sale into the public markets) occurring at any time after the Effective Date.
10. NON-COMPETITION/CONFIDENTIAL INFORMATION.
(a) Executive acknowledges and recognizes the highly
competitive nature of the businesses of the Company and its affiliates and
accordingly agrees that during the Employment Term and through the later of the
Severance Period or twenty-four (24) months following the date of termination of
employment:
(i) Executive will not directly or indirectly engage
in any business which is in competition with any line of business
conducted by the Company or its affiliates (including without
limitation by performing or soliciting the performance of services for
any person who is a customer or client of the Company or any of its
affiliates) whether such engagement is as an officer, director,
proprietor, employee, partner, investor (other than as holder of less
than 1% of the outstanding capital stock of a publicly traded
corporation), consultant, advisor, agent, sales representative or other
participant, in any geographic area in which the Company or any of its
affiliates conducted any such competing line of business.
(ii) Executive will not directly or indirectly assist
others in engaging in any of the activities in which Executive is
prohibited from engaging in by clause (i) above.
(b) Executive will not directly or indirectly induce any
employee of the Company or any of its affiliates to engage in any activity in
which Executive is prohibited to engage by paragraph (a) above or to terminate
his employment with the Company or any of its affiliates, and will not directly
or indirectly employ or offer employment to any person who was employed by the
Company or any of its affiliates unless such person shall have ceased to be
employed by the Company or any of its affiliates for a period of at least 12
months.
5
(c) Executive will not at any time (whether during or after
his employment with the Company) disclose or use for his own benefit or purposes
or the benefit or purposes of any other person, firm, partnership, joint
venture, association, corporation or other business organization, entity or
enterprise other than the Company and 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 Company generally
or of any subsidiary or affiliate of the Company, provided that the foregoing
shall not apply to information which is not unique to the Company or which is
generally known to the industry or the public other than as a result of
Executive's breach of this covenant. Executive agrees that upon termination of
his employment with the Company for any reason, he will return to the Company
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 Company and its affiliates, except that he may retain personal notes,
notebooks and diaries. Executive further agrees that he will not retain or use
for his account at any time any trade names, trademark or other proprietary
business designation used or owned in connection with the business of the
Company or its affiliates.
11. SPECIFIC PERFORMANCE AND OTHER REMEDIES. Executive acknowledges and
agrees that the Company has no adequate remedy at law for a breach or threatened
breach of any of the provisions of Section 10 and, in recognition of this fact,
Executive agrees that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the Company, without posting any bond and
without notice to Executive, shall be entitled to obtain equitable relief in the
form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be available.
Nothing in this Agreement shall be construed as prohibiting the Company from
pursuing any other remedies at law or in equity that it may have or any other
rights that it may have under any other agreement.
12. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Missouri without reference
to principles of conflict of laws.
(b) ENTIRE AGREEMENT/AMENDMENTS. This Agreement contains the
entire understanding of the parties with respect to the subject matter hereof
and supersedes any prior agreements between the Company and Executive. There are
no restrictions, agreements, promises, warranties, covenants or undertakings
between the parties with respect to the subject matter herein other than those
expressly set forth herein and therein. No provision in this Agreement may be
amended unless such amendment is agreed to in writing.
(c) NO WAIVER. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party's rights or deprive such party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement.
No waiver by either party of any breach by the other party of any condition or
provision contained in this Agreement to be performed by such other party shall
be deemed a waiver of a similar or dissimilar condition or provision at the same
or any prior or
6
subsequent time. Any waiver must be in writing and signed by Executive or the
Company, as the case may be.
(d) SEVERABILITY. It is expressly understood and agreed that
although Executive and the Company consider the restrictions contained in
Section 10 to be reasonable, if a final judicial determination is made by a
court of competent jurisdiction that the time or territory restriction in
Section 10 or any other restriction contained in Section 10 is an unenforceable
restriction against Executive, such provision shall not be rendered void but
shall be deemed amended to apply to such maximum time and territory, if
applicable, or otherwise to such maximum extent as such court may judicially
determine or indicate to be enforceable. Alternatively, if any court of
competent jurisdiction finds that any restriction contained in Section 10 is
unenforceable, and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein. In the event that any one or more of the
other provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
(e) ASSIGNMENT. This Agreement shall not be assignable by
either party without the consent of the other party.
(f) SUCCESSORS. This Agreement shall inure to the benefit of
and be binding upon the personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees of the
parties hereto. Executive shall be entitled to select (and change, to the extent
permitted under any applicable law) a beneficiary or beneficiaries to receive
any compensation or benefit payable hereunder following Executive's death by
giving the Company written notice thereof. In the event of Executive's death or
a judicial determination of his incompetence, reference in this Agreement to
Executive shall be deemed, where appropriate, to refer to his beneficiary,
estate or other legal representative.
(g) COMMUNICATIONS. For the purpose of this Agreement, notices
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when faxed or delivered or two
business days after being mailed by United States registered or certified mail,
return receipt requested, postage prepaid, addressed (i) to Executive at his
address then appearing in the personnel records of the Company and; (ii) to the
Company at the Company's then current headquarters, with a copy to Brand
Holdings, LLC, c/o X.X. Xxxxxx Partners, LLC, 1221 Avenue of the Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxxxxxx Xxxxxxx; or (iii) to such
other address as either party may have furnished to the other in writing in
accordance herewith, with such notice of change of address being effective only
upon receipt.
(h) WITHHOLDING TAXES. The Company may withhold from any and
all amounts payable under this Agreement such Federal, state, local and any
other applicable taxes as may be required to be withheld pursuant to any
applicable law or regulation.
(i) SURVIVORSHIP. The respective rights and obligations of the
parties hereunder shall survive any termination of Executive's employment to the
extent necessary to assure the agreed preservation of such rights and
obligations.
7
(j) REPRESENTATIONS. Each party represents and warrants to the
other that he or it is fully authorized and empowered to enter into this
Agreement and that the performance of his or its obligations under this
Agreement will not violate any agreement between him or it and any other person
or entity.
(k) ARBITRATION. The parties agree that all disputes arising
under or in connection with this Agreement, and any and all claims by Executive
relating to his employment with the Company, including any claims of
discrimination arising under Title VII of the Civil Rights Act of 1964, as
amended, the Age Discrimination in Employment Act, the Americans with
Disabilities Act or any similar federal, state or local law will be submitted to
arbitration in the County of St. Louis of the State of Missouri to the American
Arbitration Association ("AAA") under its rules then prevailing for the type of
claim in issue. The parties each hereby specifically submit to the personal
jurisdiction of any federal or state court located in the County of St. Louis
and the State of Missouri for any such action and further agree that service of
process may be made within or without the State of Missouri by giving notice in
the manner provided herein.
In any action or proceeding relating to this Agreement, the
parties agree that no damages other than compensatory damages shall be sought or
claimed by either party and each party waives any claim, right or entitlement to
punitive, exemplary, statutory or consequential damages, or any other damages,
and each relevant arbitration panel is specifically divested of any power to
award any damages in the nature of punitive, exemplary, statutory or
consequential damages, or any other damages of any kind or nature in excess of
compensatory damages.
(l) FEES AND EXPENSES. In the event of a dispute by the
Company or Executive as to the validity or enforceability of, or liability
under, any provision of this Agreement and with respect to any claims arising in
connection with Executive's employment with the Company, each party shall pay
its own legal fees and expenses incurred in connection with such dispute or
claim; provided, however, and notwithstanding the foregoing, in the event of a
breach of this Agreement by the Company at any time after a Change of Control,
whether or not litigation is commenced, then the Company shall pay to Executive,
in addition to any damages incurred by Executive, the costs and expenses
incurred by Executive in connection with any such breach (including, without
limitation, all court costs and reasonable attorneys' fees and costs).
(m) COUNTERPARTS. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
(n) HEADINGS. The headings of the sections contained in this
Agreement are for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement. Any reference to
Executive in the masculine gender herein is for convenience and is not intended
to express any preference by the Company for executives of any gender.
8
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amended and Restated Employment Agreement as of the Effective Date.
-----------------------------------------
[EXECUTIVE]
"Executive"
[The Executive acknowledges that this
agreement contains an arbitration
provision which may be enforced by either
party hereto]
BRAND SERVICES, INC.
By:
--------------------------------------
Title:
-----------------------------------
the "Company"
9
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
WHEREAS, BRAND SERVICES, INC., a Delaware corporation (the "Company")
and Xxxxx "Xxxxx" XxXxx ("Executive") previously entered into an employment
agreement dated as of April 1, 2001 (as subsequently amended or modified, the
"Agreement"); and
WHEREAS, the parties desire to amend, restate and continue the
Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
hereto agree that the Agreement is hereby amended, restated and continued as
follows, all effective as of the Effective Date as described below:
1. EFFECTIVE DATE. For purposes of this Agreement, the "Effective Date"
shall be the date on which the Effective Time occurs (as defined in that certain
Agreement and Plan of Merger among Brand Holdings, LLC, Brand Acquisition Corp.,
DLJ Brand Holdings, Inc. and various sellers dated as of August 9, 2002 (the
"Merger Agreement")). Notwithstanding the foregoing or any other provision of
this Agreement, this Agreement shall become effective only upon the occurrence
of the Effective Time, and if the Effective Time does not occur by December 31,
2002 this Agreement shall be of no force and effect and shall terminate
automatically without any further actions of the parties.
2. AGREEMENT TERM. Executive's continued employment by the Company
shall commence on the Effective Date, and shall, unless extended as set forth
below, terminate on the second anniversary of the Effective Date (the
"Expiration Date"). Executive's employment shall be automatically extended on a
year to year basis following the Expiration Date, unless a written notice to
terminate is given by the Company to Executive not less than thirty (30), nor
more than sixty (60), days prior to the scheduled Expiration Date. The period
commencing on the Effective Date and ending on the Expiration Date, as the same
may be extended from time to time hereunder, is hereinafter referred to as the
"Employment Term". Notwithstanding the foregoing, the Employment Term shall
terminate in any and all events upon the termination of Executive's employment
hereunder as hereinafter provided.
3. POSITIONS. During the Employment Term, executive shall serve as Vice
President, Operations-Southeast Region. Executive shall report directly to the
President and Chief Executive Officer of the Company (the "CEO") and shall have
such duties and authority commensurate with such position as shall be determined
from time to time by the CEO. Executive shall devote substantially all of his
business time and best efforts to the performance of his duties hereunder and
shall not engage in any other business, profession or occupation for
compensation or otherwise.
4. BASE SALARY. During the Employment Term, the Company shall pay
Executive a base salary (the "Base Salary") at the annual rate of not less than
$155,825, payable bi-weekly in arrears, in accordance with the usual payment
practices of the Company. Executive's Base Salary shall be subject to periodic
review by the CEO and the Compensation Committee of the Board of Directors of
the Company (the "Compensation Committee"), not less frequently than annually,
beginning January 1, 2003.
5. BONUS.
(a) With respect to each fiscal year in the Employment Term,
Executive shall be eligible for a bonus of up to 120% of his Base Salary (the
"Annual Bonus") to be determined annually in accordance with the Company's
annual bonus plan, as earned through the achievement of certain profitability
and performance objectives which are annually developed by the CEO and as
reviewed and approved by the Compensation Committee (the "Bonus Plan"). The
Bonus Plan shall have terms (including the terms of calculating bonuses)
consistent with the terms of the Company's 2002 bonus plan, a copy of which is
annexed hereto as Annex I.
(b) Any bonus payable hereunder shall be paid at or about the
same time bonuses are paid to the Company's other senior executives and, in the
case of the Annual Bonus, in accordance with the terms of the Bonus Plan.
6. EMPLOYEE BENEFITS.
(a) During the Employment Term, Executive shall be entitled to
participate on a basis no less favorable than other similarly-situated senior
executives of the Company in all retirement, welfare benefit, incentive
compensation, perquisite and other plans and arrangements of the Company
applicable to senior executives of the Company, as in effect from time to time.
(b) The Company shall establish a nonqualified deferred
compensation plan ("Deferred Compensation Plan") which shall have a term of five
(5) years and, for each year of the Employment Term or thereafter during which
the Executive is employed by the Company, the Company shall provide Executive
with an annual contribution to such plan in an amount equal to the 15 percent of
Executive's Base Salary for such year (pro rated to reflect any period of less
than 12 months). Executive's rights with respect to his benefits under the
Deferred Compensation Plan shall be exclusively as described in the Deferred
Compensation Plan. Amounts contributed by the Company to the Deferred
Compensation Plan shall not be taken into account for any purpose under any
other plan, program, policy or arrangement of the Company or its affiliates.
7. BUSINESS EXPENSES. During the Employment Term, the Company shall
reimburse such of Executive's travel, entertainment and other business expenses
as are reasonably and necessarily incurred by Executive during the Employment
Term in the performance of his duties hereunder, in accordance with the
Company's policies as in effect from time to time.
8. TERMINATION. The Employment Term may be terminated prior to its
scheduled expiration for any of the reasons set forth in this Section 8 or
Section 9. Upon a termination or expiration of the Employment Term, Executive
shall be entitled to the payments, if any, described in this Section 8 or
Section 9, whichever is applicable.
(a) FOR CAUSE BY THE COMPANY, OR TERMINATION BY EXECUTIVE FOR
ANY REASON. The Employment Term may be terminated prior to its scheduled
expiration by the Company for Cause (as defined below). In addition, the
Employment Term may be terminated prior to its scheduled expiration by Executive
for any reason. If, prior to the Expiration Date, the Employment Term is
terminated by the Company for Cause, or by Executive for any reason, then
Executive shall be entitled to receive his Base Salary through the date of
termination, any
2
Bonus that has been earned in accordance with Section 5 for a prior fiscal year
but not yet paid and any unreimbursed business expenses, payable promptly
following the later of the date of such termination and the date on which the
appropriate documentation is provided. All other benefits following termination
of the Employment Term pursuant to this Section 8(a) shall be determined in
accordance with the plans, policies and practices of the Company.
(b) DEATH OR DISABILITY. The Employment Term shall terminate
prior to its scheduled expiration upon Executive's death or, at the Company's
election, if Executive incurs a Disability (as hereinafter defined). If the
Employment Term is terminated prior to the Expiration Date by reason of
Executive's death or, at the Company's election, if Executive incurs a
Disability, Executive's estate or, in the case of Executive's Disability,
Executive (or such other person duly appointed by a court of competent
jurisdiction to manage Executive's affairs) shall receive (i) the amounts
described under Section 8(a), and subject to Executive's continued compliance
with the covenants set forth in Section 10 in the event of Executive's
Disability, (ii) continued payment of Base Salary through the first anniversary
of the date of death or the date of the Executive's termination of employment
due to Disability.
All other benefits following termination of the Employment
Term pursuant to this Section 8(b) shall be determined in accordance with the
plans, policies and practices of the Company.
(c) BY THE COMPANY WITHOUT CAUSE. The Employment Term may be
terminated prior to the Expiration Date by the Company without Cause. If the
Employment Term is terminated prior to the Expiration Date by the Company
without Cause, then subject to Executive's continued compliance with the
covenants set forth in Section 10, Executive shall receive (i) the amounts
described under Section 8(a); (ii) continued payment of Base Salary through the
last day of the 24th month following the date of termination (the "Severance
Period"); provided that, upon the written request of Executive, the payments of
Base Salary for the 13th through 24th months of the Severance Period shall be
accelerated and paid to Executive in a lump-sum payment, to the extent not
previously paid to Executive; (iii) continued coverage under the Company's
welfare benefit arrangements as in effect from time to time through the earlier
of (A) the end of the Severance Period, and (B) such time as Executive is
eligible to receive comparable welfare benefits from a subsequent employer. All
other benefits following termination of the Employment Term pursuant to this
Section 8(c) shall be determined in accordance with the plans, policies and
practices of the Company.
(d) UPON SCHEDULED EXPIRATION. The Employment Term shall
expire on the Expiration Date (after giving effect to any extensions set forth
in Section 2 hereof). In the event the Employment Term expires, then Executive
shall only be entitled to receive the amounts described in Section 8(a) above.
(e) DEFINITIONS. For purposes of this Section 8, the following
terms shall have the following meanings:
(i) "Cause" shall mean:
3
(A) Executive's willful and continued
failure substantially to perform his duties under the
Agreement (other than as a result of total or partial
incapacity due to physical or mental illness);
(B) An act or acts on Executive's part
constituting a felony under the laws of the United
States or any other state thereof or any other
jurisdiction in which the Company conducts business;
(C) Executive's being under the influence of
illegal drugs or alcohol while performing his duties
hereunder;
(D) Any other act or omission which is
materially injurious to the financial condition or
business reputation of the Company or any of its
affiliates; or
(E) Executive's breach of the provisions of
Section 10.
For purposes of this definition, no act or failure to act
shall be deemed "willful" unless effected by Executive not in good
faith and without a reasonable belief that such action or failure to
act was in or not opposed to the Company's best interests.
(ii) "Disability" shall mean Executive's inability,
as a result of physical or mental illness, to perform the duties of the
position(s) specified in Section 3 for a period of 90 consecutive days
or for an aggregate of 90 days in any twelve consecutive month period.
Any question as to the existence of the Disability of Executive as to
which Executive and the Company cannot agree shall be determined in
writing by a qualified independent physician selected by the Company
and reasonably acceptable to Executive. The determination of Disability
made in writing to the Company and Executive shall be final and
conclusive for all purposes of the Agreement.
(f) NOTICE OF TERMINATION. Any purported termination of the
Employment Term prior to the Expiration Date by the Company or by Executive
shall be communicated by written notice of termination to the other party
hereto, which notice 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 under the provision so
indicated.
(g) RELEASE. Any payments by the Company to Executive under
this Section 8 or Section 9 below or in connection with any dispute arising
under or in connection with this Agreement or relating to Executive's employment
with the Company (including payments pursuant to arbitration as provided for in
Section 12(k) hereof) will be contingent upon the execution by Executive of a
release of any claims Executive may have against the Company, its affiliates or
any successor to the Company, such release to be in a form satisfactory to the
Company in its sole discretion.
9. CHANGE OF TITLE, JOB RESPONSIBILITIES, WORK LOCATION, BASE SALARY
AND/OR BONUS OPPORTUNITY. Notwithstanding the provisions of Section 8(a) to the
contrary, if, within 24 months following a Change in Control (as defined below),
Executive's title, job
4
responsibilities, and/or work location are changed from those described in
Section 3 of this Agreement, or if Executive's Base Salary is reduced or if
Executive's opportunity to earn an annual bonus up to 120% of Base Salary as set
forth in Section 5 is eliminated, Executive shall have the option for a period
equal to the earlier of (i) 24 months after the date of the Change in Control,
and (ii) the scheduled expiration of Employment Term, to terminate his
employment with the Company and, subject to Executive's continued compliance
with the covenants set forth in Section 10, to receive (i) the amounts described
under Section 8(a); (ii) continued payment of Base Salary through the last day
of the 24th month following the date of termination (the "Change Severance
Period"); (iii) continued coverage under the Company's welfare benefit
arrangements as in effect from time to time through the earlier of (A) the end
of the Change Severance Period, and (B) such time as Executive is eligible to
receive comparable welfare benefits from a subsequent employer. All other
benefits following termination of the Employment Term pursuant to this Section 9
shall be determined in accordance with the plans, policies and practices of the
Company. For purposes of this Agreement, the term "Change in Control" means a
change of control of more than fifty percent (50%) of the common stock of the
Company or the common equity units Brand Holdings, LLC (other than through a
sale into the public markets) occurring at any time after the Effective Date.
10. NON-COMPETITION/CONFIDENTIAL INFORMATION.
(a) Executive acknowledges and recognizes the highly
competitive nature of the businesses of the Company and its affiliates and
accordingly agrees that during the Employment Term and through the later of the
Severance Period or twenty-four (24) months following the date of termination of
employment:
(i) Executive will not directly or indirectly engage
in any business which is in competition with any line of business
conducted by the Company or its affiliates (including without
limitation by performing or soliciting the performance of services for
any person who is a customer or client of the Company or any of its
affiliates) whether such engagement is as an officer, director,
proprietor, employee, partner, investor (other than as holder of less
than 1% of the outstanding capital stock of a publicly traded
corporation), consultant, advisor, agent, sales representative or other
participant, in any geographic area in which the Company or any of its
affiliates conducted any such competing line of business.
(ii) Executive will not directly or indirectly assist
others in engaging in any of the activities in which Executive is
prohibited from engaging in by clause (i) above.
(b) Executive will not directly or indirectly induce any
employee of the Company or any of its affiliates to engage in any activity in
which Executive is prohibited to engage by paragraph (a) above or to terminate
his employment with the Company or any of its affiliates, and will not directly
or indirectly employ or offer employment to any person who was employed by the
Company or any of its affiliates unless such person shall have ceased to be
employed by the Company or any of its affiliates for a period of at least 12
months.
5
(c) Executive will not at any time (whether during or after
his employment with the Company) disclose or use for his own benefit or purposes
or the benefit or purposes of any other person, firm, partnership, joint
venture, association, corporation or other business organization, entity or
enterprise other than the Company and 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 Company generally
or of any subsidiary or affiliate of the Company, provided that the foregoing
shall not apply to information which is not unique to the Company or which is
generally known to the industry or the public other than as a result of
Executive's breach of this covenant. Executive agrees that upon termination of
his employment with the Company for any reason, he will return to the Company
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 Company and its affiliates, except that he may retain personal notes,
notebooks and diaries. Executive further agrees that he will not retain or use
for his account at any time any trade names, trademark or other proprietary
business designation used or owned in connection with the business of the
Company or its affiliates.
11. SPECIFIC PERFORMANCE AND OTHER REMEDIES. Executive acknowledges and
agrees that the Company has no adequate remedy at law for a breach or threatened
breach of any of the provisions of Section 10 and, in recognition of this fact,
Executive agrees that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the Company, without posting any bond and
without notice to Executive, shall be entitled to obtain equitable relief in the
form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be available.
Nothing in this Agreement shall be construed as prohibiting the Company from
pursuing any other remedies at law or in equity that it may have or any other
rights that it may have under any other agreement.
12. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Missouri without reference
to principles of conflict of laws.
(b) ENTIRE AGREEMENT/AMENDMENTS. This Agreement contains the
entire understanding of the parties with respect to the subject matter hereof
and supersedes any prior agreements between the Company and Executive. There are
no restrictions, agreements, promises, warranties, covenants or undertakings
between the parties with respect to the subject matter herein other than those
expressly set forth herein and therein. No provision in this Agreement may be
amended unless such amendment is agreed to in writing.
(c) NO WAIVER. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party's rights or deprive such party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement.
No waiver by either party of any breach by the other party of any condition or
provision contained in this Agreement to be performed by such other party shall
be deemed a waiver of a similar or dissimilar condition or provision at the same
or any prior or
6
subsequent time. Any waiver must be in writing and signed by Executive or the
Company, as the case may be.
(d) SEVERABILITY. It is expressly understood and agreed that
although Executive and the Company consider the restrictions contained in
Section 10 to be reasonable, if a final judicial determination is made by a
court of competent jurisdiction that the time or territory restriction in
Section 10 or any other restriction contained in Section 10 is an unenforceable
restriction against Executive, such provision shall not be rendered void but
shall be deemed amended to apply to such maximum time and territory, if
applicable, or otherwise to such maximum extent as such court may judicially
determine or indicate to be enforceable. Alternatively, if any court of
competent jurisdiction finds that any restriction contained in Section 10 is
unenforceable, and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein. In the event that any one or more of the
other provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
(e) ASSIGNMENT. This Agreement shall not be assignable by
either party without the consent of the other party.
(f) SUCCESSORS. This Agreement shall inure to the benefit of
and be binding upon the personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees of the
parties hereto. Executive shall be entitled to select (and change, to the extent
permitted under any applicable law) a beneficiary or beneficiaries to receive
any compensation or benefit payable hereunder following Executive's death by
giving the Company written notice thereof. In the event of Executive's death or
a judicial determination of his incompetence, reference in this Agreement to
Executive shall be deemed, where appropriate, to refer to his beneficiary,
estate or other legal representative.
(g) COMMUNICATIONS. For the purpose of this Agreement, notices
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when faxed or delivered or two
business days after being mailed by United States registered or certified mail,
return receipt requested, postage prepaid, addressed (i) to Executive at his
address then appearing in the personnel records of the Company and; (ii) to the
Company at the Company's then current headquarters, with a copy to Brand
Holdings, LLC, c/o X.X. Xxxxxx Partners, LLC, 1221 Avenue of the Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxxxxxx Xxxxxxx; or (iii) to such
other address as either party may have furnished to the other in writing in
accordance herewith, with such notice of change of address being effective only
upon receipt.
(h) WITHHOLDING TAXES. The Company may withhold from any and
all amounts payable under this Agreement such Federal, state, local and any
other applicable taxes as may be required to be withheld pursuant to any
applicable law or regulation.
(i) SURVIVORSHIP. The respective rights and obligations of the
parties hereunder shall survive any termination of Executive's employment to the
extent necessary to assure the agreed preservation of such rights and
obligations.
7
(j) REPRESENTATIONS. Each party represents and warrants to the
other that he or it is fully authorized and empowered to enter into this
Agreement and that the performance of his or its obligations under this
Agreement will not violate any agreement between him or it and any other person
or entity.
(k) ARBITRATION. The parties agree that all disputes arising
under or in connection with this Agreement, and any and all claims by Executive
relating to his employment with the Company, including any claims of
discrimination arising under Title VII of the Civil Rights Act of 1964, as
amended, the Age Discrimination in Employment Act, the Americans with
Disabilities Act or any similar federal, state or local law will be submitted to
arbitration in the County of St. Louis of the State of Missouri to the American
Arbitration Association ("AAA") under its rules then prevailing for the type of
claim in issue. The parties each hereby specifically submit to the personal
jurisdiction of any federal or state court located in the County of St. Louis
and the State of Missouri for any such action and further agree that service of
process may be made within or without the State of Missouri by giving notice in
the manner provided herein.
In any action or proceeding relating to this Agreement, the
parties agree that no damages other than compensatory damages shall be sought or
claimed by either party and each party waives any claim, right or entitlement to
punitive, exemplary, statutory or consequential damages, or any other damages,
and each relevant arbitration panel is specifically divested of any power to
award any damages in the nature of punitive, exemplary, statutory or
consequential damages, or any other damages of any kind or nature in excess of
compensatory damages.
(l) FEES AND EXPENSES. In the event of a dispute by the
Company or Executive as to the validity or enforceability of, or liability
under, any provision of this Agreement and with respect to any claims arising in
connection with Executive's employment with the Company, each party shall pay
its own legal fees and expenses incurred in connection with such dispute or
claim; provided, however, and notwithstanding the foregoing, in the event of a
breach of this Agreement by the Company at any time after a Change of Control,
whether or not litigation is commenced, then the Company shall pay to Executive,
in addition to any damages incurred by Executive, the costs and expenses
incurred by Executive in connection with any such breach (including, without
limitation, all court costs and reasonable attorneys' fees and costs).
(m) COUNTERPARTS. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
(n) HEADINGS. The headings of the sections contained in this
Agreement are for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement. Any reference to
Executive in the masculine gender herein is for convenience and is not intended
to express any preference by the Company for executives of any gender.
8
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amended and Restated Employment Agreement as of the Effective Date.
-----------------------------------------
[EXECUTIVE]
"Executive"
[The Executive acknowledges that this
agreement contains an arbitration
provision which may be enforced by either
party hereto]
BRAND SERVICES, INC.
By:
--------------------------------------
Title:
-----------------------------------
the "Company"
9
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
WHEREAS, BRAND SERVICES, INC., a Delaware corporation (the "Company")
and Xxxxxxx X. Xxxxxxxx ("Executive") previously entered into an employment
agreement dated as of April 1, 2001 (as subsequently amended or modified, the
"Agreement"); and
WHEREAS, the parties desire to amend, restate and continue the
Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
hereto agree that the Agreement is hereby amended, restated and continued as
follows, all effective as of the Effective Date as described below:
1. EFFECTIVE DATE. For purposes of this Agreement, the "Effective Date"
shall be the date on which the Effective Time occurs (as defined in that certain
Agreement and Plan of Merger among Brand Holdings, LLC, Brand Acquisition Corp.,
DLJ Brand Holdings, Inc. and various sellers dated as of August 9, 2002 (the
"Merger Agreement")). Notwithstanding the foregoing or any other provision of
this Agreement, this Agreement shall become effective only upon the occurrence
of the Effective Time, and if the Effective Time does not occur by December 31,
2002 this Agreement shall be of no force and effect and shall terminate
automatically without any further actions of the parties.
2. AGREEMENT TERM. Executive's continued employment by the Company
shall commence on the Effective Date, and shall, unless extended as set forth
below, terminate on the second anniversary of the Effective Date (the
"Expiration Date"). Executive's employment shall be automatically extended on a
year to year basis following the Expiration Date, unless a written notice to
terminate is given by the Company to Executive not less than thirty (30), nor
more than sixty (60), days prior to the scheduled Expiration Date. The period
commencing on the Effective Date and ending on the Expiration Date, as the same
may be extended from time to time hereunder, is hereinafter referred to as the
"Employment Term". Notwithstanding the foregoing, the Employment Term shall
terminate in any and all events upon the termination of Executive's employment
hereunder as hereinafter provided.
3. POSITIONS. During the Employment Term, executive shall serve as
Chief Financial Officer and Vice President, Finance. Executive shall report
directly to the President and Chief Executive Officer of the Company (the "CEO")
and shall have such duties and authority commensurate with such position as
shall be determined from time to time by the CEO. Executive shall devote
substantially all of his business time and best efforts to the performance of
his duties hereunder and shall not engage in any other business, profession or
occupation for compensation or otherwise.
4. BASE SALARY. During the Employment Term, the Company shall pay
Executive a base salary (the "Base Salary") at the annual rate of not less than
$175,000, payable bi-weekly in arrears, in accordance with the usual payment
practices of the Company. Executive's Base Salary shall be subject to periodic
review by the CEO and the Compensation Committee of the Board of Directors of
the Company (the "Compensation Committee"), not less frequently than annually,
beginning January 1, 2003.
5. BONUS.
(a) With respect to each fiscal year in the Employment Term,
Executive shall be eligible for a bonus of up to 120% of his Base Salary (the
"Annual Bonus") to be determined annually in accordance with the Company's
annual bonus plan, as earned through the achievement of certain profitability
and performance objectives which are annually developed by the CEO and as
reviewed and approved by the Compensation Committee (the "Bonus Plan"). The
Bonus Plan shall have terms (including the terms of calculating bonuses)
consistent with the terms of the Company's 2002 bonus plan, a copy of which is
annexed hereto as Annex I.
(b) Any bonus payable hereunder shall be paid at or about the
same time bonuses are paid to the Company's other senior executives and, in the
case of the Annual Bonus, in accordance with the terms of the Bonus Plan.
6. EMPLOYEE BENEFITS.
(a) During the Employment Term, Executive shall be entitled to
participate on a basis no less favorable than other similarly-situated senior
executives of the Company in all retirement, welfare benefit, incentive
compensation, perquisite and other plans and arrangements of the Company
applicable to senior executives of the Company, as in effect from time to time.
(b) The Company shall establish a nonqualified deferred
compensation plan ("Deferred Compensation Plan") which shall have a term of five
(5) years and, for each year of the Employment Term or thereafter during which
the Executive is employed by the Company, the Company shall provide Executive
with an annual contribution to such plan in an amount equal to the 15 percent of
Executive's Base Salary for such year (pro rated to reflect any period of less
than 12 months). Executive's rights with respect to his benefits under the
Deferred Compensation Plan shall be exclusively as described in the Deferred
Compensation Plan. Amounts contributed by the Company to the Deferred
Compensation Plan shall not be taken into account for any purpose under any
other plan, program, policy or arrangement of the Company or its affiliates.
7. BUSINESS EXPENSES. During the Employment Term, the Company shall
reimburse such of Executive's travel, entertainment and other business expenses
as are reasonably and necessarily incurred by Executive during the Employment
Term in the performance of his duties hereunder, in accordance with the
Company's policies as in effect from time to time.
8. TERMINATION. The Employment Term may be terminated prior to its
scheduled expiration for any of the reasons set forth in this Section 8 or
Section 9. Upon a termination or expiration of the Employment Term, Executive
shall be entitled to the payments, if any, described in this Section 8 or
Section 9, whichever is applicable.
(a) FOR CAUSE BY THE COMPANY, OR TERMINATION BY EXECUTIVE FOR
ANY REASON. The Employment Term may be terminated prior to its scheduled
expiration by the Company for Cause (as defined below). In addition, the
Employment Term may be terminated prior to its scheduled expiration by Executive
for any reason. If, prior to the Expiration Date, the Employment Term is
terminated by the Company for Cause, or by Executive for any reason, then
Executive shall be entitled to receive his Base Salary through the date of
termination, any
2
Bonus that has been earned in accordance with Section 5 for a prior fiscal year
but not yet paid and any unreimbursed business expenses, payable promptly
following the later of the date of such termination and the date on which the
appropriate documentation is provided. All other benefits following termination
of the Employment Term pursuant to this Section 8(a) shall be determined in
accordance with the plans, policies and practices of the Company.
(b) DEATH OR DISABILITY. The Employment Term shall terminate
prior to its scheduled expiration upon Executive's death or, at the Company's
election, if Executive incurs a Disability (as hereinafter defined). If the
Employment Term is terminated prior to the Expiration Date by reason of
Executive's death or, at the Company's election, if Executive incurs a
Disability, Executive's estate or, in the case of Executive's Disability,
Executive (or such other person duly appointed by a court of competent
jurisdiction to manage Executive's affairs) shall receive (i) the amounts
described under Section 8(a), and subject to Executive's continued compliance
with the covenants set forth in Section 10 in the event of Executive's
Disability, (ii) continued payment of Base Salary through the first anniversary
of the date of death or the date of the Executive's termination of employment
due to Disability.
All other benefits following termination of the Employment
Term pursuant to this Section 8(b) shall be determined in accordance with the
plans, policies and practices of the Company.
(c) BY THE COMPANY WITHOUT CAUSE. The Employment Term may be
terminated prior to the Expiration Date by the Company without Cause. If the
Employment Term is terminated prior to the Expiration Date by the Company
without Cause, then subject to Executive's continued compliance with the
covenants set forth in Section 10, Executive shall receive (i) the amounts
described under Section 8(a); (ii) continued payment of Base Salary through the
last day of the 24th month following the date of termination (the "Severance
Period"); provided that, upon the written request of Executive, the payments of
Base Salary for the 13th through 24th months of the Severance Period shall be
accelerated and paid to Executive in a lump-sum payment, to the extent not
previously paid to Executive; (iii) continued coverage under the Company's
welfare benefit arrangements as in effect from time to time through the earlier
of (A) the end of the Severance Period, and (B) such time as Executive is
eligible to receive comparable welfare benefits from a subsequent employer. All
other benefits following termination of the Employment Term pursuant to this
Section 8(c) shall be determined in accordance with the plans, policies and
practices of the Company.
(d) UPON SCHEDULED EXPIRATION. The Employment Term shall
expire on the Expiration Date (after giving effect to any extensions set forth
in Section 2 hereof). In the event the Employment Term expires, then Executive
shall only be entitled to receive the amounts described in Section 8(a) above.
(e) DEFINITIONS. For purposes of this Section 8, the following
terms shall have the following meanings:
(i) "Cause" shall mean:
3
(A) Executive's willful and continued
failure substantially to perform his duties under the
Agreement (other than as a result of total or partial
incapacity due to physical or mental illness);
(B) An act or acts on Executive's part
constituting a felony under the laws of the United
States or any other state thereof or any other
jurisdiction in which the Company conducts business;
(C) Executive's being under the influence of
illegal drugs or alcohol while performing his duties
hereunder;
(D) Any other act or omission which is
materially injurious to the financial condition or
business reputation of the Company or any of its
affiliates; or
(E) Executive's breach of the provisions of
Section 10.
For purposes of this definition, no act or failure to act
shall be deemed "willful" unless effected by Executive not in good
faith and without a reasonable belief that such action or failure to
act was in or not opposed to the Company's best interests.
(ii) "Disability" shall mean Executive's inability,
as a result of physical or mental illness, to perform the duties of the
position(s) specified in Section 3 for a period of 90 consecutive days
or for an aggregate of 90 days in any twelve consecutive month period.
Any question as to the existence of the Disability of Executive as to
which Executive and the Company cannot agree shall be determined in
writing by a qualified independent physician selected by the Company
and reasonably acceptable to Executive. The determination of Disability
made in writing to the Company and Executive shall be final and
conclusive for all purposes of the Agreement.
(f) NOTICE OF TERMINATION. Any purported termination of the
Employment Term prior to the Expiration Date by the Company or by Executive
shall be communicated by written notice of termination to the other party
hereto, which notice 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 under the provision so
indicated.
(g) RELEASE. Any payments by the Company to Executive under
this Section 8 or Section 9 below or in connection with any dispute arising
under or in connection with this Agreement or relating to Executive's employment
with the Company (including payments pursuant to arbitration as provided for in
Section 12(k) hereof) will be contingent upon the execution by Executive of a
release of any claims Executive may have against the Company, its affiliates or
any successor to the Company, such release to be in a form satisfactory to the
Company in its sole discretion.
9. CHANGE OF TITLE, JOB RESPONSIBILITIES, WORK LOCATION, BASE SALARY
AND/OR BONUS OPPORTUNITY. Notwithstanding the provisions of Section 8(a) to the
contrary, if, within 24 months following a Change in Control (as defined below),
Executive's title, job
4
responsibilities, and/or work location are changed from those described in
Section 3 of this Agreement, or if Executive's Base Salary is reduced or if
Executive's opportunity to earn an annual bonus up to 120% of Base Salary as set
forth in Section 5 is eliminated, Executive shall have the option for a period
equal to the earlier of (i) 24 months after the date of the Change in Control,
and (ii) the scheduled expiration of Employment Term, to terminate his
employment with the Company and, subject to Executive's continued compliance
with the covenants set forth in Section 10, to receive (i) the amounts described
under Section 8(a); (ii) continued payment of Base Salary through the last day
of the 24th month following the date of termination (the "Change Severance
Period"); (iii) continued coverage under the Company's welfare benefit
arrangements as in effect from time to time through the earlier of (A) the end
of the Change Severance Period, and (B) such time as Executive is eligible to
receive comparable welfare benefits from a subsequent employer. All other
benefits following termination of the Employment Term pursuant to this Section 9
shall be determined in accordance with the plans, policies and practices of the
Company. For purposes of this Agreement, the term "Change in Control" means a
change of control of more than fifty percent (50%) of the common stock of the
Company or the common equity units Brand Holdings, LLC (other than through a
sale into the public markets) occurring at any time after the Effective Date.
10. NON-COMPETITION/CONFIDENTIAL INFORMATION.
(a) Executive acknowledges and recognizes the highly
competitive nature of the businesses of the Company and its affiliates and
accordingly agrees that during the Employment Term and through the later of the
Severance Period or twenty-four (24) months following the date of termination of
employment:
(i) Executive will not directly or indirectly engage
in any business which is in competition with any line of business
conducted by the Company or its affiliates (including without
limitation by performing or soliciting the performance of services for
any person who is a customer or client of the Company or any of its
affiliates) whether such engagement is as an officer, director,
proprietor, employee, partner, investor (other than as holder of less
than 1% of the outstanding capital stock of a publicly traded
corporation), consultant, advisor, agent, sales representative or other
participant, in any geographic area in which the Company or any of its
affiliates conducted any such competing line of business.
(ii) Executive will not directly or indirectly assist
others in engaging in any of the activities in which Executive is
prohibited from engaging in by clause (i) above.
(b) Executive will not directly or indirectly induce any
employee of the Company or any of its affiliates to engage in any activity in
which Executive is prohibited to engage by paragraph (a) above or to terminate
his employment with the Company or any of its affiliates, and will not directly
or indirectly employ or offer employment to any person who was employed by the
Company or any of its affiliates unless such person shall have ceased to be
employed by the Company or any of its affiliates for a period of at least 12
months.
5
(c) Executive will not at any time (whether during or after
his employment with the Company) disclose or use for his own benefit or purposes
or the benefit or purposes of any other person, firm, partnership, joint
venture, association, corporation or other business organization, entity or
enterprise other than the Company and 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 Company generally
or of any subsidiary or affiliate of the Company, provided that the foregoing
shall not apply to information which is not unique to the Company or which is
generally known to the industry or the public other than as a result of
Executive's breach of this covenant. Executive agrees that upon termination of
his employment with the Company for any reason, he will return to the Company
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 Company and its affiliates, except that he may retain personal notes,
notebooks and diaries. Executive further agrees that he will not retain or use
for his account at any time any trade names, trademark or other proprietary
business designation used or owned in connection with the business of the
Company or its affiliates.
11. SPECIFIC PERFORMANCE AND OTHER REMEDIES. Executive acknowledges and
agrees that the Company has no adequate remedy at law for a breach or threatened
breach of any of the provisions of Section 10 and, in recognition of this fact,
Executive agrees that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the Company, without posting any bond and
without notice to Executive, shall be entitled to obtain equitable relief in the
form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be available.
Nothing in this Agreement shall be construed as prohibiting the Company from
pursuing any other remedies at law or in equity that it may have or any other
rights that it may have under any other agreement.
12. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Missouri without reference
to principles of conflict of laws.
(b) ENTIRE AGREEMENT/AMENDMENTS. This Agreement contains the
entire understanding of the parties with respect to the subject matter hereof
and supersedes any prior agreements between the Company and Executive. There are
no restrictions, agreements, promises, warranties, covenants or undertakings
between the parties with respect to the subject matter herein other than those
expressly set forth herein and therein. No provision in this Agreement may be
amended unless such amendment is agreed to in writing.
(c) NO WAIVER. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party's rights or deprive such party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement.
No waiver by either party of any breach by the other party of any condition or
provision contained in this Agreement to be performed by such other party shall
be deemed a waiver of a similar or dissimilar condition or provision at the same
or any prior or
6
subsequent time. Any waiver must be in writing and signed by Executive or the
Company, as the case may be.
(d) SEVERABILITY. It is expressly understood and agreed that
although Executive and the Company consider the restrictions contained in
Section 10 to be reasonable, if a final judicial determination is made by a
court of competent jurisdiction that the time or territory restriction in
Section 10 or any other restriction contained in Section 10 is an unenforceable
restriction against Executive, such provision shall not be rendered void but
shall be deemed amended to apply to such maximum time and territory, if
applicable, or otherwise to such maximum extent as such court may judicially
determine or indicate to be enforceable. Alternatively, if any court of
competent jurisdiction finds that any restriction contained in Section 10 is
unenforceable, and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein. In the event that any one or more of the
other provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
(e) ASSIGNMENT. This Agreement shall not be assignable by
either party without the consent of the other party.
(f) SUCCESSORS. This Agreement shall inure to the benefit of
and be binding upon the personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees of the
parties hereto. Executive shall be entitled to select (and change, to the extent
permitted under any applicable law) a beneficiary or beneficiaries to receive
any compensation or benefit payable hereunder following Executive's death by
giving the Company written notice thereof. In the event of Executive's death or
a judicial determination of his incompetence, reference in this Agreement to
Executive shall be deemed, where appropriate, to refer to his beneficiary,
estate or other legal representative.
(g) COMMUNICATIONS. For the purpose of this Agreement, notices
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when faxed or delivered or two
business days after being mailed by United States registered or certified mail,
return receipt requested, postage prepaid, addressed (i) to Executive at his
address then appearing in the personnel records of the Company and; (ii) to the
Company at the Company's then current headquarters, with a copy to Brand
Holdings, LLC, c/o X.X. Xxxxxx Partners, LLC, 1221 Avenue of the Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxxxxxx Xxxxxxx; or (iii) to such
other address as either party may have furnished to the other in writing in
accordance herewith, with such notice of change of address being effective only
upon receipt.
(h) WITHHOLDING TAXES. The Company may withhold from any and
all amounts payable under this Agreement such Federal, state, local and any
other applicable taxes as may be required to be withheld pursuant to any
applicable law or regulation.
(i) SURVIVORSHIP. The respective rights and obligations of the
parties hereunder shall survive any termination of Executive's employment to the
extent necessary to assure the agreed preservation of such rights and
obligations.
7
(j) REPRESENTATIONS. Each party represents and warrants to the
other that he or it is fully authorized and empowered to enter into this
Agreement and that the performance of his or its obligations under this
Agreement will not violate any agreement between him or it and any other person
or entity.
(k) ARBITRATION. The parties agree that all disputes arising
under or in connection with this Agreement, and any and all claims by Executive
relating to his employment with the Company, including any claims of
discrimination arising under Title VII of the Civil Rights Act of 1964, as
amended, the Age Discrimination in Employment Act, the Americans with
Disabilities Act or any similar federal, state or local law will be submitted to
arbitration in the County of St. Louis of the State of Missouri to the American
Arbitration Association ("AAA") under its rules then prevailing for the type of
claim in issue. The parties each hereby specifically submit to the personal
jurisdiction of any federal or state court located in the County of St. Louis
and the State of Missouri for any such action and further agree that service of
process may be made within or without the State of Missouri by giving notice in
the manner provided herein.
In any action or proceeding relating to this Agreement, the
parties agree that no damages other than compensatory damages shall be sought or
claimed by either party and each party waives any claim, right or entitlement to
punitive, exemplary, statutory or consequential damages, or any other damages,
and each relevant arbitration panel is specifically divested of any power to
award any damages in the nature of punitive, exemplary, statutory or
consequential damages, or any other damages of any kind or nature in excess of
compensatory damages.
(l) FEES AND EXPENSES. In the event of a dispute by the
Company or Executive as to the validity or enforceability of, or liability
under, any provision of this Agreement and with respect to any claims arising in
connection with Executive's employment with the Company, each party shall pay
its own legal fees and expenses incurred in connection with such dispute or
claim; provided, however, and notwithstanding the foregoing, in the event of a
breach of this Agreement by the Company at any time after a Change of Control,
whether or not litigation is commenced, then the Company shall pay to Executive,
in addition to any damages incurred by Executive, the costs and expenses
incurred by Executive in connection with any such breach (including, without
limitation, all court costs and reasonable attorneys' fees and costs).
(m) COUNTERPARTS. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
(n) HEADINGS. The headings of the sections contained in this
Agreement are for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement. Any reference to
Executive in the masculine gender herein is for convenience and is not intended
to express any preference by the Company for executives of any gender.
8
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amended and Restated Employment Agreement as of the Effective Date.
-----------------------------------------
[EXECUTIVE]
"Executive"
[The Executive acknowledges that this
agreement contains an arbitration
provision which may be enforced by either
party hereto]
BRAND SERVICES, INC.
By:
--------------------------------------
Title:
-----------------------------------
the "Company"
9
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
WHEREAS, BRAND SERVICES, INC., a Delaware corporation (the "Company")
and Xxxxx X. Xxxxxxxx ("Executive") previously entered into an employment
agreement dated as of April 1, 2001 (as subsequently amended or modified, the
"Agreement"); and
WHEREAS, the parties desire to amend, restate and continue the
Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
hereto agree that the Agreement is hereby amended, restated and continued as
follows, all effective as of the Effective Date as described below:
1. EFFECTIVE DATE. For purposes of this Agreement, the "Effective Date"
shall be the date on which the Effective Time occurs (as defined in that certain
Agreement and Plan of Merger among Brand Holdings, LLC, Brand Acquisition Corp.,
DLJ Brand Holdings, Inc. and various sellers dated as of August 9, 2002 (the
"Merger Agreement")). Notwithstanding the foregoing or any other provision of
this Agreement, this Agreement shall become effective only upon the occurrence
of the Effective Time, and if the Effective Time does not occur by December 31,
2002 this Agreement shall be of no force and effect and shall terminate
automatically without any further actions of the parties.
2. AGREEMENT TERM. Executive's continued employment by the Company
shall commence on the Effective Date, and shall, unless extended as set forth
below, terminate on the second anniversary of the Effective Date (the
"Expiration Date"). Executive's employment shall be automatically extended on a
year to year basis following the Expiration Date, unless a written notice to
terminate is given by the Company to Executive not less than thirty (30), nor
more than sixty (60), days prior to the scheduled Expiration Date. The period
commencing on the Effective Date and ending on the Expiration Date, as the same
may be extended from time to time hereunder, is hereinafter referred to as the
"Employment Term". Notwithstanding the foregoing, the Employment Term shall
terminate in any and all events upon the termination of Executive's employment
hereunder as hereinafter provided.
3. POSITIONS. During the Employment Term, executive shall serve as Vice
President, Operations-Southwest Region. Executive shall report directly to the
President and Chief Executive Officer of the Company (the "CEO") and shall have
such duties and authority commensurate with such position as shall be determined
from time to time by the CEO. Executive shall devote substantially all of his
business time and best efforts to the performance of his duties hereunder and
shall not engage in any other business, profession or occupation for
compensation or otherwise.
4. BASE SALARY. During the Employment Term, the Company shall pay
Executive a base salary (the "Base Salary") at the annual rate of not less than
$161,288, payable bi-weekly in arrears, in accordance with the usual payment
practices of the Company. Executive's Base Salary shall be subject to periodic
review by the CEO and the Compensation Committee of the Board of Directors of
the Company (the "Compensation Committee"), not less frequently than annually,
beginning January 1, 2003.
5. BONUS.
(a) With respect to each fiscal year in the Employment Term,
Executive shall be eligible for a bonus of up to 120% of his Base Salary (the
"Annual Bonus") to be determined annually in accordance with the Company's
annual bonus plan, as earned through the achievement of certain profitability
and performance objectives which are annually developed by the CEO and as
reviewed and approved by the Compensation Committee (the "Bonus Plan"). The
Bonus Plan shall have terms (including the terms of calculating bonuses)
consistent with the terms of the Company's 2002 bonus plan, a copy of which is
annexed hereto as Annex I.
(b) Any bonus payable hereunder shall be paid at or about the
same time bonuses are paid to the Company's other senior executives and, in the
case of the Annual Bonus, in accordance with the terms of the Bonus Plan.
6. EMPLOYEE BENEFITS.
(a) During the Employment Term, Executive shall be entitled to
participate on a basis no less favorable than other similarly-situated senior
executives of the Company in all retirement, welfare benefit, incentive
compensation, perquisite and other plans and arrangements of the Company
applicable to senior executives of the Company, as in effect from time to time.
(b) The Company shall establish a nonqualified deferred
compensation plan ("Deferred Compensation Plan") which shall have a term of five
(5) years and, for each year of the Employment Term or thereafter during which
the Executive is employed by the Company, the Company shall provide Executive
with an annual contribution to such plan in an amount equal to the 15 percent of
Executive's Base Salary for such year (pro rated to reflect any period of less
than 12 months). Executive's rights with respect to his benefits under the
Deferred Compensation Plan shall be exclusively as described in the Deferred
Compensation Plan. Amounts contributed by the Company to the Deferred
Compensation Plan shall not be taken into account for any purpose under any
other plan, program, policy or arrangement of the Company or its affiliates.
7. BUSINESS EXPENSES. During the Employment Term, the Company shall
reimburse such of Executive's travel, entertainment and other business expenses
as are reasonably and necessarily incurred by Executive during the Employment
Term in the performance of his duties hereunder, in accordance with the
Company's policies as in effect from time to time.
8. TERMINATION. The Employment Term may be terminated prior to its
scheduled expiration for any of the reasons set forth in this Section 8 or
Section 9. Upon a termination or expiration of the Employment Term, Executive
shall be entitled to the payments, if any, described in this Section 8 or
Section 9, whichever is applicable.
(a) FOR CAUSE BY THE COMPANY, OR TERMINATION BY EXECUTIVE FOR
ANY REASON. The Employment Term may be terminated prior to its scheduled
expiration by the Company for Cause (as defined below). In addition, the
Employment Term may be terminated prior to its scheduled expiration by Executive
for any reason. If, prior to the Expiration Date, the Employment Term is
terminated by the Company for Cause, or by Executive for any reason, then
Executive shall be entitled to receive his Base Salary through the date of
termination, any
2
Bonus that has been earned in accordance with Section 5 for a prior fiscal year
but not yet paid and any unreimbursed business expenses, payable promptly
following the later of the date of such termination and the date on which the
appropriate documentation is provided. All other benefits following termination
of the Employment Term pursuant to this Section 8(a) shall be determined in
accordance with the plans, policies and practices of the Company.
(b) DEATH OR DISABILITY. The Employment Term shall terminate
prior to its scheduled expiration upon Executive's death or, at the Company's
election, if Executive incurs a Disability (as hereinafter defined). If the
Employment Term is terminated prior to the Expiration Date by reason of
Executive's death or, at the Company's election, if Executive incurs a
Disability, Executive's estate or, in the case of Executive's Disability,
Executive (or such other person duly appointed by a court of competent
jurisdiction to manage Executive's affairs) shall receive (i) the amounts
described under Section 8(a), and subject to Executive's continued compliance
with the covenants set forth in Section 10 in the event of Executive's
Disability, (ii) continued payment of Base Salary through the first anniversary
of the date of death or the date of the Executive's termination of employment
due to Disability.
All other benefits following termination of the Employment
Term pursuant to this Section 8(b) shall be determined in accordance with the
plans, policies and practices of the Company.
(c) BY THE COMPANY WITHOUT CAUSE. The Employment Term may be
terminated prior to the Expiration Date by the Company without Cause. If the
Employment Term is terminated prior to the Expiration Date by the Company
without Cause, then subject to Executive's continued compliance with the
covenants set forth in Section 10, Executive shall receive (i) the amounts
described under Section 8(a); (ii) continued payment of Base Salary through the
last day of the 24th month following the date of termination (the "Severance
Period"); provided that, upon the written request of Executive, the payments of
Base Salary for the 13th through 24th months of the Severance Period shall be
accelerated and paid to Executive in a lump-sum payment, to the extent not
previously paid to Executive; (iii) continued coverage under the Company's
welfare benefit arrangements as in effect from time to time through the earlier
of (A) the end of the Severance Period, and (B) such time as Executive is
eligible to receive comparable welfare benefits from a subsequent employer. All
other benefits following termination of the Employment Term pursuant to this
Section 8(c) shall be determined in accordance with the plans, policies and
practices of the Company.
(d) UPON SCHEDULED EXPIRATION. The Employment Term shall
expire on the Expiration Date (after giving effect to any extensions set forth
in Section 2 hereof). In the event the Employment Term expires, then Executive
shall only be entitled to receive the amounts described in Section 8(a) above.
(e) DEFINITIONS. For purposes of this Section 8, the following
terms shall have the following meanings:
(i) "Cause" shall mean:
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(A) Executive's willful and continued
failure substantially to perform his duties under the
Agreement (other than as a result of total or partial
incapacity due to physical or mental illness);
(B) An act or acts on Executive's part
constituting a felony under the laws of the United
States or any other state thereof or any other
jurisdiction in which the Company conducts business;
(C) Executive's being under the influence of
illegal drugs or alcohol while performing his duties
hereunder;
(D) Any other act or omission which is
materially injurious to the financial condition or
business reputation of the Company or any of its
affiliates; or
(E) Executive's breach of the provisions of
Section 10.
For purposes of this definition, no act or failure to act
shall be deemed "willful" unless effected by Executive not in good
faith and without a reasonable belief that such action or failure to
act was in or not opposed to the Company's best interests.
(ii) "Disability" shall mean Executive's inability,
as a result of physical or mental illness, to perform the duties of the
position(s) specified in Section 3 for a period of 90 consecutive days
or for an aggregate of 90 days in any twelve consecutive month period.
Any question as to the existence of the Disability of Executive as to
which Executive and the Company cannot agree shall be determined in
writing by a qualified independent physician selected by the Company
and reasonably acceptable to Executive. The determination of Disability
made in writing to the Company and Executive shall be final and
conclusive for all purposes of the Agreement.
(f) NOTICE OF TERMINATION. Any purported termination of the
Employment Term prior to the Expiration Date by the Company or by Executive
shall be communicated by written notice of termination to the other party
hereto, which notice 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 under the provision so
indicated.
(g) RELEASE. Any payments by the Company to Executive under
this Section 8 or Section 9 below or in connection with any dispute arising
under or in connection with this Agreement or relating to Executive's employment
with the Company (including payments pursuant to arbitration as provided for in
Section 12(k) hereof) will be contingent upon the execution by Executive of a
release of any claims Executive may have against the Company, its affiliates or
any successor to the Company, such release to be in a form satisfactory to the
Company in its sole discretion.
9. CHANGE OF TITLE, JOB RESPONSIBILITIES, WORK LOCATION, BASE SALARY
AND/OR BONUS OPPORTUNITY. Notwithstanding the provisions of Section 8(a) to the
contrary, if, within 24 months following a Change in Control (as defined below),
Executive's title, job
4
responsibilities, and/or work location are changed from those described in
Section 3 of this Agreement, or if Executive's Base Salary is reduced or if
Executive's opportunity to earn an annual bonus up to 120% of Base Salary as set
forth in Section 5 is eliminated, Executive shall have the option for a period
equal to the earlier of (i) 24 months after the date of the Change in Control,
and (ii) the scheduled expiration of Employment Term, to terminate his
employment with the Company and, subject to Executive's continued compliance
with the covenants set forth in Section 10, to receive (i) the amounts described
under Section 8(a); (ii) continued payment of Base Salary through the last day
of the 24th month following the date of termination (the "Change Severance
Period"); (iii) continued coverage under the Company's welfare benefit
arrangements as in effect from time to time through the earlier of (A) the end
of the Change Severance Period, and (B) such time as Executive is eligible to
receive comparable welfare benefits from a subsequent employer. All other
benefits following termination of the Employment Term pursuant to this Section 9
shall be determined in accordance with the plans, policies and practices of the
Company. For purposes of this Agreement, the term "Change in Control" means a
change of control of more than fifty percent (50%) of the common stock of the
Company or the common equity units Brand Holdings, LLC (other than through a
sale into the public markets) occurring at any time after the Effective Date.
10. NON-COMPETITION/CONFIDENTIAL INFORMATION.
(a) Executive acknowledges and recognizes the highly
competitive nature of the businesses of the Company and its affiliates and
accordingly agrees that during the Employment Term and through the later of the
Severance Period or twenty-four (24) months following the date of termination of
employment:
(i) Executive will not directly or indirectly engage
in any business which is in competition with any line of business
conducted by the Company or its affiliates (including without
limitation by performing or soliciting the performance of services for
any person who is a customer or client of the Company or any of its
affiliates) whether such engagement is as an officer, director,
proprietor, employee, partner, investor (other than as holder of less
than 1% of the outstanding capital stock of a publicly traded
corporation), consultant, advisor, agent, sales representative or other
participant, in any geographic area in which the Company or any of its
affiliates conducted any such competing line of business.
(ii) Executive will not directly or indirectly assist
others in engaging in any of the activities in which Executive is
prohibited from engaging in by clause (i) above.
(b) Executive will not directly or indirectly induce any
employee of the Company or any of its affiliates to engage in any activity in
which Executive is prohibited to engage by paragraph (a) above or to terminate
his employment with the Company or any of its affiliates, and will not directly
or indirectly employ or offer employment to any person who was employed by the
Company or any of its affiliates unless such person shall have ceased to be
employed by the Company or any of its affiliates for a period of at least 12
months.
5
(c) Executive will not at any time (whether during or after
his employment with the Company) disclose or use for his own benefit or purposes
or the benefit or purposes of any other person, firm, partnership, joint
venture, association, corporation or other business organization, entity or
enterprise other than the Company and 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 Company generally
or of any subsidiary or affiliate of the Company, provided that the foregoing
shall not apply to information which is not unique to the Company or which is
generally known to the industry or the public other than as a result of
Executive's breach of this covenant. Executive agrees that upon termination of
his employment with the Company for any reason, he will return to the Company
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 Company and its affiliates, except that he may retain personal notes,
notebooks and diaries. Executive further agrees that he will not retain or use
for his account at any time any trade names, trademark or other proprietary
business designation used or owned in connection with the business of the
Company or its affiliates.
11. SPECIFIC PERFORMANCE AND OTHER REMEDIES. Executive acknowledges and
agrees that the Company has no adequate remedy at law for a breach or threatened
breach of any of the provisions of Section 10 and, in recognition of this fact,
Executive agrees that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the Company, without posting any bond and
without notice to Executive, shall be entitled to obtain equitable relief in the
form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be available.
Nothing in this Agreement shall be construed as prohibiting the Company from
pursuing any other remedies at law or in equity that it may have or any other
rights that it may have under any other agreement.
12. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Missouri without reference
to principles of conflict of laws.
(b) ENTIRE AGREEMENT/AMENDMENTS. This Agreement contains the
entire understanding of the parties with respect to the subject matter hereof
and supersedes any prior agreements between the Company and Executive. There are
no restrictions, agreements, promises, warranties, covenants or undertakings
between the parties with respect to the subject matter herein other than those
expressly set forth herein and therein. No provision in this Agreement may be
amended unless such amendment is agreed to in writing.
(c) NO WAIVER. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party's rights or deprive such party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement.
No waiver by either party of any breach by the other party of any condition or
provision contained in this Agreement to be performed by such other party shall
be deemed a waiver of a similar or dissimilar condition or provision at the same
or any prior or
6
subsequent time. Any waiver must be in writing and signed by Executive or the
Company, as the case may be.
(d) SEVERABILITY. It is expressly understood and agreed that
although Executive and the Company consider the restrictions contained in
Section 10 to be reasonable, if a final judicial determination is made by a
court of competent jurisdiction that the time or territory restriction in
Section 10 or any other restriction contained in Section 10 is an unenforceable
restriction against Executive, such provision shall not be rendered void but
shall be deemed amended to apply to such maximum time and territory, if
applicable, or otherwise to such maximum extent as such court may judicially
determine or indicate to be enforceable. Alternatively, if any court of
competent jurisdiction finds that any restriction contained in Section 10 is
unenforceable, and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein. In the event that any one or more of the
other provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
(e) ASSIGNMENT. This Agreement shall not be assignable by
either party without the consent of the other party.
(f) SUCCESSORS. This Agreement shall inure to the benefit of
and be binding upon the personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees of the
parties hereto. Executive shall be entitled to select (and change, to the extent
permitted under any applicable law) a beneficiary or beneficiaries to receive
any compensation or benefit payable hereunder following Executive's death by
giving the Company written notice thereof. In the event of Executive's death or
a judicial determination of his incompetence, reference in this Agreement to
Executive shall be deemed, where appropriate, to refer to his beneficiary,
estate or other legal representative.
(g) COMMUNICATIONS. For the purpose of this Agreement, notices
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when faxed or delivered or two
business days after being mailed by United States registered or certified mail,
return receipt requested, postage prepaid, addressed (i) to Executive at his
address then appearing in the personnel records of the Company and; (ii) to the
Company at the Company's then current headquarters, with a copy to Brand
Holdings, LLC, c/o X.X. Xxxxxx Partners, LLC, 1221 Avenue of the Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxxxxxx Xxxxxxx; or (iii) to such
other address as either party may have furnished to the other in writing in
accordance herewith, with such notice of change of address being effective only
upon receipt.
(h) WITHHOLDING TAXES. The Company may withhold from any and
all amounts payable under this Agreement such Federal, state, local and any
other applicable taxes as may be required to be withheld pursuant to any
applicable law or regulation.
(i) SURVIVORSHIP. The respective rights and obligations of the
parties hereunder shall survive any termination of Executive's employment to the
extent necessary to assure the agreed preservation of such rights and
obligations.
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(j) REPRESENTATIONS. Each party represents and warrants to the
other that he or it is fully authorized and empowered to enter into this
Agreement and that the performance of his or its obligations under this
Agreement will not violate any agreement between him or it and any other person
or entity.
(k) ARBITRATION. The parties agree that all disputes arising
under or in connection with this Agreement, and any and all claims by Executive
relating to his employment with the Company, including any claims of
discrimination arising under Title VII of the Civil Rights Act of 1964, as
amended, the Age Discrimination in Employment Act, the Americans with
Disabilities Act or any similar federal, state or local law will be submitted to
arbitration in the County of St. Louis of the State of Missouri to the American
Arbitration Association ("AAA") under its rules then prevailing for the type of
claim in issue. The parties each hereby specifically submit to the personal
jurisdiction of any federal or state court located in the County of St. Louis
and the State of Missouri for any such action and further agree that service of
process may be made within or without the State of Missouri by giving notice in
the manner provided herein.
In any action or proceeding relating to this Agreement, the
parties agree that no damages other than compensatory damages shall be sought or
claimed by either party and each party waives any claim, right or entitlement to
punitive, exemplary, statutory or consequential damages, or any other damages,
and each relevant arbitration panel is specifically divested of any power to
award any damages in the nature of punitive, exemplary, statutory or
consequential damages, or any other damages of any kind or nature in excess of
compensatory damages.
(l) FEES AND EXPENSES. In the event of a dispute by the
Company or Executive as to the validity or enforceability of, or liability
under, any provision of this Agreement and with respect to any claims arising in
connection with Executive's employment with the Company, each party shall pay
its own legal fees and expenses incurred in connection with such dispute or
claim; provided, however, and notwithstanding the foregoing, in the event of a
breach of this Agreement by the Company at any time after a Change of Control,
whether or not litigation is commenced, then the Company shall pay to Executive,
in addition to any damages incurred by Executive, the costs and expenses
incurred by Executive in connection with any such breach (including, without
limitation, all court costs and reasonable attorneys' fees and costs).
(m) COUNTERPARTS. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
(n) HEADINGS. The headings of the sections contained in this
Agreement are for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement. Any reference to
Executive in the masculine gender herein is for convenience and is not intended
to express any preference by the Company for executives of any gender.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amended and Restated Employment Agreement as of the Effective Date.
-----------------------------------------
[EXECUTIVE]
"Executive"
[The Executive acknowledges that this
agreement contains an arbitration
provision which may be enforced by either
party hereto]
BRAND SERVICES, INC.
By:
--------------------------------------
Title:
-----------------------------------
the "Company"
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