EXHIBIT 10.14
EMPLOYMENT AGREEMENT dated as of the 26th day of June, 1997 by
and between BOZELL, JACOBS, XXXXXX & XXXXXXXX, INC., (hereinafter the
"Agency"), a Delaware corporation, with its principal place of business at 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and VALENTINE X. XXXXXX,
(hereinafter the "Executive"), residing at 000 Xxxxxxxxx Xxxxx Xxxx,
Xxxxxxxxx, X. Y. 11030.
W I T N E S S E T H :
WHEREAS, the Executive has been in the employ of the Agency for many
years last past, and is as of the date of this Agreement a stockholder,
director, Vice Chairman and Chief Financial Officer of the Agency, and
WHEREAS, the Agency desires to further acknowledge the Executive's
years of service to the Agency and the important contributions the Executive
has made to enhance the value of the Agency for the benefit of its
stockholders, and that in the event of a sale of the Agency there is a
significant likelihood that the Executive will not be able to continue to
fully untilize his skills, experience and dedication in an appropriate manner
for the benefit of the Agency and the Executive; and
WHEREAS, the Agency and the Executive have entered into an Agreement
dated as of April 1, 1992 (the "Agreement"), and
WHEREAS, the parties are desirous of restating the term of the
Executive's employment and entering into an Employment Agreement which will
supersede all the terms and conditions of the existing Agreement.
NOW, THEREFORE, in consideration of the mutual premises herein
contained, and for other good and valuable considerations, it is agreed that
the terms of the Agreement are hereby amended and restated as follows:
1. The Executive's employment with the Agency is hereby
continued throughout the Term, as hereinafter defined. The Executive agrees
to continue to render his services exclusively to the Agency throughout the
Term, and further agrees to render his services loyally and faithfully and to
the best of his abilities. The Executive shall render his full time and
attention during regular business hours to the services to be rendered by him
hereunder.
2. The Executive shall serve as a Vice Chairman of the
Agency. In addition, throughout the Term, the Executive shall serve as the
Chief Financial Officer of the Agency.
In such capacity, the Executive shall report directly to Xxxxxxx X. Xxxxxxx,
Xx. ("Xxxxxxx") (or, if Xxxxxxx is not an executive officer of the Agency, the
Chief Executive Officer of the Agency) and shall perform such functions as are
customarily performed by a Chief Financial Officer and such other functions as
may from time to time be designated by the Board of Directors of the Agency
not inconsistent with the offices of Vice chairman of the Agency and Chief
Financial officer. In addition, throughout the Term, the Agency shall cause
the Executive to be elected to the Board of Directors of the Agency and to the
Executive and Finance Committees of such Board. Moreover, in the event of a
Change of Control (as hereinafter defined), the Executive shall also serve as
an Executive Vice President in charge of Operations and Mergers and
Acquisitions (or other office of comparable or more senior title, position,
duties and responsibilities (such office and other offices being referred to
as "Approved Offices")) of the Parent Company (as hereinafter defined) unless
the Parent Company is an Excluded Parent Company (as hereinafter defined).
Notwithstanding the preceding provisions of this paragraph, but without
affecting any other provisions of this Agreement (including, without
limitation the last two sentences of this paragraph 2), if the Parent Company
is True North Communications Inc. ("TN"), Executive's position need not be
with the Agency but may be solely an Approved Office at the Parent Company,
and in serving in an Approved office, Executive shall have duties and
responsibilities of a senior executive nature, which shall consist of duties
and responsibilities regarding operations and mergers and acquisitions for the
Parent Company and its subsidiaries and other senior executive duties and
responsibilities as shall be assigned to Executive by Xxxxxxx (or, if Xxxxxxx
is not an executive officer of the Parent Company, the Chief Executive officer
of the Parent Company) from time to time, and Executive shall report directly
to the Chief Executive Officer of the Parent Company. The Executive's services
shall be performed at the Agency's principal executive offices in Manhattan,
subject to the reasonable travel requirements of his position and duties
hereunder. The parties acknowledge that the Executive's performance of
services in Manhattan as referred to in the preceding sentence is a material
term of this Agreement.
3. The term of this Agreement (the "Term") shall be
deemed to commence as of the date of this Agreement and shall continue until
March 31, 2000 and thereafter shall continue until terminated by either party
upon at least ninty (90) days written notice, subject at all times, however,
to earlier termination as set forth in this Agreement.
4. As full compensation for his services hereunder, the
Agency agrees to pay the Executive, and the Executive agrees to accept, the
following:
a. An annual salary (the "Salary) computed at the
rate of Four Hundred Fifty-Nine Thousand Four Hundred Fifty
Dollars ($459,450) payable in such installments as salaries
are paid to other executive personnel of the Agency.
b. On April 1, 1998 and on each anniversary
thereof within the Term (the "Adjustment Date"), the
Executive's Salary shall be adjusted upward based upon the
Consumer Price Index for all Urban Consumer/United States City
Average, as published by the Bureau of Labor Statistics of the
United States Department of Labor (the "CPI"). The
Executive's Salary for the twelve (12) months beginning on
each Adjustment Date shall be equal to the greater of (i)
$459,450 or (ii) $400,000 multiplied by a fraction, the
numerator of which shall be the CPI published most recently
prior to the Adjustment Date and the denominator of which
shall be the CPI published most recently prior to April 1,
1992. In no event, however, shall the Salary for any such
twelve (12) month period exceed one hundred six percent (106%)
of the Salary payable in the previous twelve (12) month
period.
c. The Executive shall be entitled to
reimbursement of authorized business expenses incurred in
connection with the performance of his duties in accordance
with the Agency's standard policy with regard thereto.
d. The Executive shall be entitled to life
insurance, medical insurance and dental insurance,
participation in the Agency's Profit-Sharing and 401(k) Plans,
Stock Bonus Plan, EWAP, Bonus Plan, Stock Option Plan
(including any successor or replacement plans of any of the
foregoing), and other fringe benefits in accordance with the
Agency's standard policy affecting senior Agency executives of
the Agency and its susidiaries generally and in accordance
with the terms of the applicable plans. Without limiting the
foregoing, the Executive shall be entitled to continue to
participate in, and the Agency shall maintain for the benefit
of the Executive, the Bonus Plan (including any successor or
replacement plans providing substantial comparable benefits)
and the amount of any bonus to be allocated thereunder to the
Executive shall be as determined by the Chief Executive
Officer of the Agency (or Xxxxxxx if at any time after a
Change of Control, Xxxxxxx
ceases to be the Chief Executive Officer of the Agency and is
employed by the Parent Company). Furthermore, without limiting
the foregoing, throughout the Term, the Executive shall be
entitled to at least such fringe benefits, welfare benefits,
perquisites, office, furniture and support services as
received by other senior executives of the Agency and its
subsidiaries generally; provided that throughout the Term, the
Executive shall be entitled to at least such of the foregoing
as Executive received as of March 31, 1997, including without
limitation, paid vacation, country club membership and dues
and the costs (including, without limitation, costs of
insurance, gas, maintenance, parking and lease payments) of a
new Chrysler automobile selected by the Executive every three
years.
e. In addition to the foregoing, the Executive
shall be entitled to such bonuses as may be determined at any
time or from time to time by the Board of Directors of the
Agency or any authorized committee thereof.
f. In the event that a majority of the stock entitled to
vote with respect to the election of directors of the Agency(or
a substantial portion of the operations of the Agency at any
time is owned beneficially, whether directly or indirectly, by
another entity or in the event of any merger, reorganization or
consolidation whereby the existing stockholders of the Agency as
of the date hereof do not own more than 66-2/3% of the then
outstanding shares of the entity resulting from such merger,
reorganization, or consolidation (ultimate entity in each such
case being referred to herein as a "Parent Company" and such
event being a "Change of Control"), the Executive shall be
entitled to such number of options to purchase shares of stock
of such Parent Company, on such terms and conditions, as shall
be recommended by Xxxxxxx; provided however, that the amount,
price and other terms and conditions shall be consistent with
the terms of any Parent Company stock option plan and grants
made thereunder to executive officers of such Parent Company;
and provided further that such stock options will become 100%
vested and fully exercisable for their term in the event that
the Executive terminates his employment for Good Reason or is
terminated by the Agency without "Cause".
5. The Agency may terminate this Agreement for Cause at
any time upon written notice to the Executive. "Cause", as used herein, is
hereby defined as:
a. the Executive's conviction in a court of
law of any crime or offense involving misuse or
misappropriation of money or other property of the
Agency, or
b. the Executive's continued, willful
failure or refusal to perform specific written
directives of Xxxxxxx (so long as Xxxxxxx is employed by
the Agency or Parent Company and otherwise of the Board
of Directors of the Agency or Parent Company), which
directives involve material aspects of the Executive's
duties and responsibilities and which are consistent
with the scope and nature of the Executive's duties and
responsibilities as set forth in paragraph 2 hereof, and
Executive's failure to cure the same within thirty (30)
days Written notice thereof by the Agency (which notice
specifically states it is being given pursuant to this
paragraph 5.b.), and
c. any flagrant act of dishonesty or
disloyalty by the Executive or any act involving gross
moral turpitude of the Executive, in either case which
materially adversely affects the business of the Agency.
6. If, on account of any physical or mental
disability, the Executive shall fail or be unable to perform under this
Agreement for a continuous period of one hundred twenty (120) days or an
aggregate period of one hundred eighty (180) days during any consecutive
twelve (12) month period, then the Agency may, at its option, terminate
the Term upon thirty (30) days written notice. In such event, the
Executive shall be entitled to receive, in addition to any and all
disability and other benefits that he may otherwise be entitled to
receive and all accrued but unpaid amounts hereunder and under all
plans, Policies, options (including, without limitation the options
referred to in paragraph 4f. above) and other agreements, the
compensation otherwise payable to him pursuant to paragraph 4 hereof
through the end of the month ending 36 months after the month in which
such termination is made effective. The option to terminate provided in
this paragraph 6 is separate, distinct and additional to any right on
the part of the Agency to terminate this Agreement pursuant to paragraph
5 hereof. In the event that, subsequent to the termination of this
Agreement by the Executive for Good Reason (as defined below) or by the
Agency without "Cause", during the Post-Term Benefit Period (as defined
below) the Executive's physical or mental condition becomes such that if
this Agreement were then in effect the Executive would be disabled
pursuant to this Agreement, then, in addition to the amounts payable
pursuant to paragraph 8b, the Executive
shall be entitled to receive the compensation otherwise payable to him
pursuant to paragraph 4 hereof for and through the end of the month
ending 36 months after the month in which such termination is effective
as if he had become disabled during the Term.
If there should be a dispute between the parties hereto
as to the Executive's physical or mental disability for purposes of this
Agreement, the question shall be settled by the opinion of an impartial
reputable physician or psychiatrist agreed upon for the purpose by the
parties or their representatives, or if the parties cannot agree within
thirty (30) days after a request for designation of such party, then
each party shall designate a physician or psychiatrist and the two of
them shall designate a third such medical professional and the opinion
of a majority of the three (3) of them shall settle the question. The
certification of such physician or psychiatrist or the majority of the
three (3) of them, as the case may be, as to the question in dispute
shall be final and binding upon the parties hereto.
7. The Term will terminate in the event that the
Executive should die during the Term. In such event, the Executive's
personal representative shall be entitled to receive and all accrued but
unpaid amounts hereunder and under all other plans, policies, options
(including, without limitation, the options referred to in paragraph 4f.
above) and other agreements, the compensation otherwise payable to the
Executive pursuant to paragraph 4 hereof through the end of the month
ending 36 months after the month in which his death occurs.
8. a. The Executive shall have the right at any time
following the later of the date on which the occurrence of such event
becomes known to the Executive or the expiration of any "cure" period as
provided below (provided that no "cure" period shall apply for any
purpose if the following events occur with the authorization, approval
or direction of the Board of Directors of the Agency or any committee
thereof, or other than on an isolated basis), by giving not less than
ten (10) days prior written notice to the Agency, to terminate his
employment for "Good Reason" which, for purposes of this Agreement, is
hereby defined as the occurrence, without the Executive's consent, of
one or more of the following events, as determined in Executive's
reasonable judgment:
(i) if the Executive is not appointed to or is
otherwise removed from the offices of Vice
Chairman and/or Chief Financial Officer of the Agency
(other than pursuant to the sixth sentence of paragraph
2 hereof) and/or from any Approved Offices of the Parent
Company (other than of Interpublic, Omnicom Group, Inc.
or WPP (each an "Excluded Parent Company")) for any
reason other than in connection with the termination of
his employment with the Agency or if, after a Change of
Control, the Executive is directed to report directly to
any person or entity other than the Chief Executive
officer of the Parent Company (other than an Excluded
Parent Company);
(ii) if the Executive is not elected to or is
otherwise removed from the Board of Directors of the
Agency and/or the Executive Committee and/or the Finance
Committee thereof or from any positions the Executive
holds at any time with any of the Agency's subsidiaries
(this provision continuing to apply with respect to any
subsidiary of the Agency as of the date of this
Agreement which ceases to be a subsidiary of the Agency
but is a subsidiary of a Parent Company) for any reason
other than in connection with the termination of his
employment or pursuant to the sixth sentence of
paragraph 2 hereof;
(iii) if there is either any material diminution
in the Executive's duties and/or responsibilities with
respect to the Agency and its subsidiaries (this
provision continuing to apply with respect to any
subsidiary of the Agency as of the date of this
Agreement which ceases to be a subsidiary of the Agency
but is a subsidiary of a Parent Company) or assignment
to the Executive of any duties inconsistent in any
material respect from such duties and/or
responsibilities of the Executive as of March 31, 1997,
and the foregoing is not cured within thirty (30) days
after written notice thereof to the Agency (other than
pursuant to the sixth sentence of paragraph 2 hereof),
and/or, in the event the Executive is holding any
Approved Office with any Parent Company other than an
Excluded Parent Company, and any of the following
circumstances occur (the following circumstances being
referred to herein as a "Parent Company Diminution"):
the Executive's duties and/or responsibilities with
respect to the Parent Company and its subsidiaries are
materially diminished from or inconsistent in any
material respect from the Executive's duties and/or
responsibilities with the Parent Company as
required by the sixth sentence of paragraph 2 hereof,
and the foregoing is not cured within thirty (30) days
after written notice thereof to the Parent Company (it
being understood and agreed that any requirement that
the Executive report directly to any person or entity
other than the Chief Executive officer of the Parent
Company shall, under all circumstances, constitute
grounds for termination for Good Reason under clause (i)
of this paragraph 8a and are not subject to this clause
(iii));
(iv) if the Executive's rate of Salary (as in
effect from time to time) and/or fringe benefits payable
under paragraph 4 hereof are reduced or, in the case of
fringe benefits, are materially reduced, for any reason
other than in connection with the termination of his
employment and the foregoing is not cured within thirty
(30) days after written notice thereof to the Agency;
(v) notice that the Executive shall be located
at offices other than pursuant to paragraph 2 hereof, or
the assignment of duties requiring Executive to travel
for business on a meaningfully more burdensome basis
generally than on the date of this Agreement;
(vi) the commission by the Agency of a material
breach of any of its obligations under this Agreement
(other than any breaches referred to in clauses (i) -
(v) of this paragraph 8a), the Bonus Plan as it pertains
to the Executive or any of the Executive's Stock Option
Agreements which breach shall continue for thirty (30)
days after written notice thereof to the Agency; or
(vii) any assignment or purported assignment,
whether by operation of law or otherwise, in
contravention of paragraph 15 hereof, or if the assignee
and its Parent Company do not deliver to the Executive,
prior to such assignment, an instrument assuming all
Agency obligations hereunder.
Notwithstanding anything in this paragraph 8a to the
contrary, in the event that the Executive shall claim that he is
entitled to terminate his employment for "Good Reason" as a result of a
Parent Company Diminution (but not for any other basis for Good Reason,
including, without limitation, pursuant to clause (i) hereof) and within
ten (10) days after receiving notice to such effect by the
Executive, the Parent Company shall give notice to the Executive that
the Parent Company, by its Chief Executive Officer, Board of Directors
or any authorized committee thereof, believes that the specific facts do
not constitute a basis for a Parent Company Diminution, then the
determination as to whether or not a Parent Company Diminution has
occurred shall be determined by arbitration in accordance with paragraph
9 hereof.
b. in the event that the Agency terminates the
Executive's employment with the Agency without Cause (which specifically
includes, without limitation, any termination by the Agency pursuant to
paragraph 3 hereof) or the Executive terminates his employment with the
Agency for Good Reason, the Executive shall be under absolutely no duty
whatsoever to mitigate damages and, in addition to all accrued but
unpaid amounts hereunder and under all plans, policies, options
(including, without limitation, the options referred to in paragraph 4f.
above) and other agreements and a pro rata bonus for the year in which
such termination takes place based on the bonus earned by the Executive
for the then immediately preceding fiscal year, the Executive shall be
entitled to receive and there shall be paid by the Agency to the
Executive within ten (10) days after such termination of employment, a
lump sum cash payment in an amount equal to the product of (x) $668,385
times (y) the number of years or fractions thereof in the following
period (such period being referred to as the "Post-Term Benefit Period")
(A) in the event such termination is effective on or prior to March 31,
1998, for a period from the effective date of such termination through
March 31, 2001 or (B) in the event such termination is effective after
March 31, 1998, for a three-year period commencing on the effective date
of such termination of employment.
In addition, throughout the Post-Term Benefit Period the
Agency shall provide coverage under all dental, medical, life, accident
and all other insurance and welfare plan benefits for Executive and his
family (on the terms required to be provided to Executive pursuant to
this Agreement immediately prior to such termination) at Agency expense,
or if coverage under any given insurance or welfare plan on such terms
cannot be provided to Executive and his family, payments to Executives
which, on an after tax basis, equal to the amounts which would be
necessary to be paid by Executive to obtain such comparable coverage for
Executive and his family, for the Post-Term Benefit period.
No compensation or any other amounts or benefits
received by Executive shall be applied in mitigation of amounts
otherwise then or thereafter payable to the
Executive pursuant to this paragraph 8 (b) or otherwise. Nothing
contained in this Agreement shall be deemed to limit Executive's rights
under any retiree benefit or other plan, agreement or arrangement.
9. a. Notwithstanding anything in this Agreement to
the contrary, (i) if it shall be determined that any payment or
distribution by the Agency to or for the benefit of the Executive
(whether paid or payable or distributed or distributable pursuant to the
terms of this Agreement or otherwise, but determined without regard to
any adjustment required under this Section 9) (in the aggregate, the
"Total Payment") would be subject to the excise tax imposed by Section
4999 of the Internal Revenue Code of 1986, as amended, or any successor
(the "Code") (the "Excise Tax"), and (ii) if after reduction by the
amount of such Excise Tax the amount of the Total Payments would be less
than the maximum amount that could be paid to the Executive without the
imposition of such Excise Tax, then the payments due hereunder shall be
reduced so that the Total Payments are One Dollar ($l) less than such
maximum amount.
b. All determinations required to be made under
Sections 9a. and b., including whether and when a reduction in the
amount payable hereunder pursuant to Section 9(a) is required and the
amount of any such reduction and the assumptions to be utilized in
arriving at such determination, shall be made by the Agency's public
accounting firm (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Agency and the Executive within 15
business days of the receipt of notice from the Executive that there has
been a payment under Section 8, or such earlier time as is requested by
the Agency or the Executive. In the event that the Accounting Firm is
serving as accountant or auditor for the individual entity or group
effecting the Change in Control, the Executive, at his election, may
appoint another nationally recognized public accounting firm to make the
determinations required hereunder (which accounting firm shall then be
referred to as the Accounting Firm hereunder). All fees and expenses of
the Accounting Firm shall be borne solely by the Agency. If the
Accounting Firm determines that no Excise Tax is payable by the
Executive, it shall furnish the Executive with a written opinion that
failure to report the Excise Tax on the Executivels applicable federal
income tax return would not result in the imposition of a negligence or
similar penalty. Any determination by the Accounting Firm shall be
binding upon the Agency and the Executive. As a result of the
uncertainty in the application of Section 4999 of the Code at the time
of the initial determination by the Accounting Firm hereunder, it is
possible that the reduction
in the amount payable hereunder pursuant to Section 8 will not have been
made consistent with the calculations required to be made hereunder. In
the event that the Accounting Firm determines that the reduction was too
small, upon receipt of notice from the Accounting Firm to such effect,
the Executive shall promptly pay to the Agency the amount of the
required reduction. Conversely, in the event that the Accounting Firm
determines that the reduction was too great, upon receipt from the
Accounting Firm to such effect, the Agency shall promptly pay to the
Executive the amount determined by the Accounting Firm to have been an
excess reduction.
c. If any contest or dispute shall arise under this
Agreement involving termination of the Executivels employment with the
Agency or involving the failure or refusal of the Agency to perform
fully in accordance with the terms of this Agreement, including any
arbitration under paragraph 9f, the Agency shall reimburse the
Executive, on a current basis, for all legal fees and expenses, if any,
incurred by the Executive in connection with such contest or dispute,
together with interest in an amount equal to the prime rate of Citibank,
N.A. from time to time in effect, but in no event higher than the
maximum legal rate permissible under applicable law, such interest to
accrue from the date the Agency receives the Executivels statement for
such fees and expenses through the date of payment thereof, provided
however, that in the event the resolution of any such contest or dispute
includes a finding denying, in total, the Executive's claims in such
contest or dispute, the Executive shall be required to reimburse the
Agency, over a period of 12 months from the date of such resolution, for
all sums advanced to the Participant pursuant to this Section 9(c).
d. The Agency's obligation to make any payments
provided for this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Agency or
any of its affiliates may have against the Executive or others.
e. If there shall be any dispute between the Agency
or any of its affiliates and the Executive in the event of any
termination of the Executive's employment, then unless and until there
is a final, nonappealable judgment by a court of competent jurisdiction
declaring that such termination was for Cause, that, except as set forth
in paragraph 9f, the determination by the Executive of the existence of
a termination for Good Reason was not reasonable, or that the Agency or
any of its affiliates is not otherwise obligated to pay any amount or
provide any
benefit to the Executive and his dependents or other beneficiaries, as
the case may be, under Section 8, the Agency shall pay all amounts, and
provide all benefits, to the Executive and his dependents or other
beneficiaries, as the case may be, that the Agency would be required to
pay or provide pursuant to Section 8 as though such termination were by
the Agency without Cause or by the Executive for Good Reason.
f. In the event of a disagreement in accordance
with the last paragraph of paragraph 8a as to whether or not a Parent
Company Diminution has occurred, such matter shall be determined by
expedited arbitration under the auspices of the American Arbitration
Association ("AAA") - Such arbitration shall be governed by the then
current rules of the AAA. In this regard, the parties agree that (i)
such arbitration shall commence as promptly as possible after the 20th
day following service of the notice by the Parent Company pursuant to
the last paragraph of xxxxxxxxx 0x, (xx) the proceeding shall be
determined by one arbitrator (who shall be selected or approved by the
AAA), (iii) the arbitrator shall have authority to determine only the
issue of whether or not a Parent Company Diminution (as defined in this
Agreement) has occurred, and shall have no authority to order a
modification or amendment of this Agreement, and (iv) the decision of
the arbitrator shall be final and binding upon the parties thereto.
Until the ruling of such arbitrator, the Executive shall continue to be
employed pursuant to the terms and conditions of this Agreement,
including the payment to the Executive of all compensation under
paragraph 4 as and when due. In the event that in any circumstance the
arbitrator shall rule that a Parent Company Diminution has not occurred,
neither Executive's having given notice of termination for Good Reason
with respect thereto nor such ruling shall constitute a termination of
employment or breach of this Agreement by the Executive and this
Agreement shall continue in full force and effect in accordance with its
terms.
10. At all times during the Term and the Post-Term Benefit
Period the Agency shall maintain and pay on a timely basis the premiums
for an insurance policy on the life of the Executive with the named
beneficiary being the Executivels spouse or such other person or party
as the Executive may designate from time to time (the "Policy"). The
Policy shall be in the face amount of at least $900,000, shall be issued
through an insurance carrier having a rating of at least AA and the
Policy may not be cashed in and no borrowing against the Policy or
alienation thereof shall be permitted.
11. In consideration of the Executive's employment and
continued employment by the Agency, the Executive agrees that while in
the employ of the Agency and for a period of one (1) year subsequent to
the termination of his employment, whether such termination occurs prior
to, simultaneously with or after the expiration of the Term, (the period
from the commencement of employment through the one (1) year period
subsequent to termination of employment being the "Non Competition
Period") the Executive will not, directly or indirectly, either on his
own behalf or on behalf of any other person, firm or corporation,
solicit any account which is a client of the Agency at any time within
one year prior to the date of such termination.
The Executive further covenants and agrees that during the
Non Competition Period he will not, directly or indirectly, perform any
advertising, public relations, marketing or research services for any
such account, either on his own behalf or on behalf of any advertising
agency, public relations consultant, or similar organization
representing any such account.
The Executive further covenants and agrees that within the
Non Competition Period he will not, directly or indirectly, employ or
attempt to employ or assist anyone else to employ any person who is at
such time or who was at any time within the six (6) month period
immediately prior to such time, in the employ of the Agency.
Accounts which are or were clients of the Agency, as used
herein, are hereby defined as advertising or public relations accounts
which are principally represented by the office of the Agency at which
the Executive is principally employed.
The Executive also agrees that he will not at any time
(whether before or after the termination of his employment with the
Agency) disclose to anyone any confidential information or trade secrets
of the Agency or of any client of the Agency, or utilize such
confidential information or trade secrets for his own benefit or the
benefit of third parties. All records, memoranda, notes and other
documents compiled by him or made available to him during his employment
concerning the business of the Agency or the business of any of its
clients shall be and remain the property of the Agency, and shall be
delivered to the Agency upon the termination of the Executive's
employment or any time prior thereto upon request.
In the event of any breach by the Executive of any of the
covenants hereinabove contained, it is specifically understood and
agreed that the Agency shall be entitled, in
addition to any other remedies which it may have, to equitable relief by
way of injunction or otherwise.
12. a. The Agency agrees that, in addition to any rights that
the Executive may have under the certificate of incorporation and
by-laws of the Agency as the same may be in effect from time to time
hereafter as to indemnification and advancement of expenses, the
Executive shall hereby, as a matter of separate contract, be entitled
and continue to be entitled to all rights of indemnification and
advancement of expenses provided to directors, officers, employees or
agents of the Agency or who serve or served at the request of the Agency
in any capacity with any other corporation or other enterprise, under
the certificates or articles of incorporation and by-laws of the Agency
and such other companies as in effect on the date hereof (the provisions
of which are incorporated herein by reference), regardless of any
amendments thereto which thereafter occur, which rights the Agency
expressly agree shall apply to the Executive as a director, officer,
employee and agent of the Agency, and which rights shall continue
indefinitely in the Executive's favor as to any actions, suits, claims
or proceedings now pending or threatened and as to any actions, suits,
claims or proceedings which may hereafter be brought or threatened.
b. The Agency agrees to include the Executive as an
insured beneficiary of, and to furnish the Executive with coverage
under, any and all director and officer liability insurance policies now
or hereafter maintained by the Agency or its affiliates to the same
extent other current and/or former officers and directors of the Agency
are provided coverage thereunder. Such coverage shall be furnished to
the Executive until the expiration of the statutes of limitations
applicable to the liabilities for which indemnification is provided
herein. The Agency agrees to furnish the Executive with evidence of such
coverage upon the Executive's written request.
13. This Agreement constitutes the complete understanding
between the parties with respect to the employment of the Executives
hereunder, and no statement, representation, warranty or covenant has
been made by either party with respect thereto except as expressly set
forth herein. This Agreement may not be altered, modified, amended or
terminated except by written instrument signed by each of the parties
hereto.
14. If any covenant or other provision of this Agreement is
declared to be invalid, unlawful, or incapable of being enforced, by
reason of any rule of law or public policy, all other conditions and
provisions of this Agreement which can be given effect without the
valid, unlawful or unenforceable provision, shall be given effect.
15. The obligations and rights of the Executive shall inure to
the benefit of and shall be binding upon himself and his personal
representatives, and the obligations and rights of the Agency shall
inure to the benefit of and shall be binding upon it and its successors
and assigns; provided, however, that the Company shall not assign this
Agreement other than to a successor pursuant to a merger, consolidation
or transfer of all or substantially all of the outstanding capital stock
or assets of the Agency.
16. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date and year first set forth above.
BOZELL, JACOBS, XXXXXX &
XXXXXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
----------------------------
Xxxxxxx X. Xxxxxxx, Xx.,
Chief Executive Officer
and President
ACCEPTED AND AGREED
/s/ Valentine X. Xxxxxx
------------------------------
Valentine X. Xxxxxx
