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EXHIBIT 10(c)
AGREEMENT
Agreement made as of the 22nd day of
September, 1995, by and between New Valley Corporation, a
corporation incorporated under the laws of the State of
New York, with its principal place of business at 000
Xxxxxxxxx Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000 (the
"Company"), and Xxxxxxx X. Xxxxxx, residing at 000 Xxxxx
Xxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000 (the
"Executive").
W I T N E S S E T H :
WHEREAS, the Company desires to employ
Executive as its Executive Vice President and General
Counsel and Executive is willing to serve in such
capacities;
WHEREAS, the Company and Executive desire
to set forth the terms and conditions of such employment.
NOW, THEREFORE, in consideration of the
premises and of the mutual covenants and agreements herein
contained, the Company and Executive agree as follows:
1. Employment.
The Company hereby agrees to employ
Executive, and Executive agrees to be employed by the
Company, on the terms and conditions herein contained as
its Executive Vice President and General Counsel and in
such other executive capacities with the Company and its
affiliated entities as assigned from time to time by more
senior executives of the Company. The
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Executive shall devote substantially all of his business
time, energy, skill and efforts to the performance of his
duties hereunder and shall faithfully and diligently serve
the Company. The foregoing shall not prevent Executive
from participating in not-for-profit activities or from
managing his passive personal investments provided that
these activities do not materially interfere with
Executive's obligations hereunder. The Executive shall be
entitled to remain as a director of the company set forth
in Exhibit A hereto provided that such activities do not:
(i) violate any law, (ii) limit the Company or its
affiliated entities' activities, (iii) create any conflict
between the Executive's fiduciary obligations to the
Company and its affiliated entities and such directorship;
or (iv) materially interfere with the performance of
Executive's duties hereunder. Furthermore, during the
initial three (3) months of his employment hereunder, the
Executive may on a voluntary basis, but not as a partner,
counsel or employee of his former law firm, assist in the
transition of his law practice and other matters provided
such activities do not materially interfere with
performance of his duties hereunder.
2. Term of Employment.
Executive's employment under this
Agreement shall be for a term commencing on October 1,
1995 (the "Effective Date") and, subject to earlier
termination as provided in Section 7 below, terminating on
December 31, 1997 (the "Initial Term"). The Initial Term
shall be extended for successive one-year periods (the
"Additional Terms") unless terminated at the end of the
Initial Term or any Additional Term by either party upon
ninety (90) days prior written notice given to the other
party (the Initial Term and any Additional Terms shall be
referred to as the "Employment Term"). Notwithstanding
anything else herein, the provisions of Section 8
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hereof shall survive and remain in effect notwithstanding
the termination of the Employment Term or a breach by the
Company of this Agreement or any of its terms.
3. Compensation.
(a) As compensation for his
services under this Agreement, the Company shall pay
Executive a salary at the rate of Six Hundred Thousand
Dollars ($600,000) per year (the "Base Salary"), payable
in equal installments (not less frequently than monthly)
and subject to withholding in accordance with the
Company's normal payroll practices. The Executive's Base
Salary shall be reviewed annually by the Company and may
be increased, but not decreased, in the Company's sole
discretion.
(b) In addition to the Base Salary,
the Company may, in its sole discretion, pay Executive
bonuses from time to time. Notwithstanding the foregoing,
the Company will pay Executive a minimum bonus for 1995 of
One Hundred Thousand Dollars ($100,000) in December 1995.
(c) The Company shall discuss with
the Executive prior to December 31, 1996 the purchase of
equity in the Company by the Executive with financing in
whole or in part by the Company or stock options.
Notwithstanding the foregoing, the Company shall have no
obligation to offer any such equity or to offer financing
of the equity or any stock options and shall have no
liability of any kind whatsoever for not doing so.
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4. Benefits and Fringes.
During the Employment Term, Executive
shall be entitled to such benefits and fringes, if any, as
are generally provided from time to time by the Company to
its executive employees of a comparable level, including
any life or medical insurance plans and pension and other
similar plans, provided that the Executive shall be
provided with life insurance at least equal to his Base
Salary (provided he is insurable at standard rates).
5. Expenses.
The Company shall reimburse Executive in
accordance with its expense reimbursement policy as in
effect from time to time for all reasonable expenses,
including first class airplane travel and other travel
expenses, incurred by Executive in connection with the
performance of his duties under this Agreement upon the
presentation by Executive of an itemized account of such
expenses and appropriate receipts.
6. Vacation.
During the Employment Term, Executive
shall be entitled to vacation in accordance with the
Company's practices, provided that Executive shall not be
entitled to less than five (5) weeks paid vacation in each
full contract year.
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7. Earlier Termination.
(a) Executive's employment under
this Agreement and the Employment Term shall terminate
prior to December 31, 1997 as follows:
(i) automatically on the date of
Executive's death.
(ii) Upon written notice given by
the Company to the Executive if Executive is unable to
perform his material duties hereunder for 180 days
(whether or not continuous) during any period of 360
consecutive days by reason of physical or mental
disability.
(iii) Upon written notice by the
Company to the Executive for Cause. Cause shall mean (A)
the Executive's conviction (treating a nolo contendere
plea as a conviction) of a felony (whether or not any
right of appeal has been or may be exercised); (B) willful
refusal to attempt to properly perform his obligations
under this Agreement, or follow the direction of the Board
of Directors of the Company (the "Board") or a more senior
executive of the Company, which in either case is not
remedied promptly after receipt by the Executive of
written notice from the Company specifying the details
thereof, provided the refusal to follow a direction shall
not be Cause if the Executive in good faith believes that
such direction is not legal or ethical and promptly
notifies the Company in writing of such belief; (C) the
Executive's gross negligence or willful misconduct with
regard to the Company or its affiliated entities, their
business, assets or employees; (D) the Executive's breach
of fiduciary duty owed to the Company or any subsidiary
thereof, including, without limitation the obligations set
forth in Section 8 hereof; or (E) any other breach by the
Executive of a material provision of this Agreement that
remains uncured for ten (10) days after written notice
thereof is given to the Executive. Upon a termination for
Cause, the Executive (and his representative) shall be
given the opportunity to
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appear before the Board to explain why the Executive
believes that Cause did not occur. Such appearance shall
be scheduled on no less than twenty (20) and no more than
forty (40) days notice to Executive. In the event the
Board agrees with the Executive, which shall be a
determination made in its sole discretion, the Executive
shall be retroactively reinstated in his position. (The
removal pending such Board meeting shall not be deemed
Good Reason under (vi) below).
(iv) Upon written notice by the Company
without Cause.
(v) Upon the voluntary resignation
of the Executive without Good Reason upon sixty (60) days
prior written notice to the Company (which the Company may
in its sole discretion make effective earlier).
(vi) Upon the written resignation
of the Executive for Good Reason stating with specificity
the details of the Good Reason, if the stated Good Reason
is not cured within thirty (30) days of the giving of such
notice. "Good Reason" shall mean (A) relocation of the
Executive's office from Dade County, Florida, (B) any
material reduction in duties or responsibilities or (C)
any other material breach of any provision of this
Agreement by the Company.
(b) Upon such earlier termination
of the Employment Term the Executive shall be entitled to
receive any unpaid salary and accrued vacation through his
date of termination and any benefits under any benefit
plan in accordance with the terms of said plan. In
addition, if the termination is pursuant to (a)(iv) or
(a)(vi) above or non-renewal of the Employment Term by the
Company pursuant to Section 2 above, the Executive shall
receive, provided he signs a release of all claims arising
out of his employment with the Company or
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termination thereof (other than his right to
indemnification, which shall survive) in such form as
reasonably requested by the Company, severance pay in a
lump sum equal to the amount of Base Salary he would have
received if he was employed until the later of December
31, 1997 or one year after termination of the Employment
Term. Such lump sum severance shall be paid within ten
(10) business days after the Executive's execution of the
aforesaid release. In the event termination is pursuant
to (a)(ii) alone, the Executive shall receive in monthly
payments for one (1) year thereafter his Base Salary
reduced by any disability benefits or worker's
compensation salary replacement he receives from any
program sponsored or made available by the Company or a
governmental entity. In addition, until the earlier of
(i) Executive commencing other full-time employment or
(ii) 12 months after the end of the Employment Term, to
the extent the Executive or his dependents are eligible
for COBRA coverage, the Company shall pay for such
coverage. The Company and its affiliated entities shall
have no other obligations to the Executive.
8. Confidential Information and Non-Competition.
(a) Executive acknowledges that as
a result of his employment by the Company, Executive will
obtain secret and confidential information as to the
Company and its affiliated entities, that the Company and
its affiliated entities will suffer substantial damage,
which would be difficult to ascertain, if Executive shall
enter into Competition, as defined below, with the Company
or any affiliated entity and that because of the nature of
the information that will be known to Executive it is
necessary for the Company to be protected by the
prohibition against Competition set forth herein, as well
as the Confidentiality restrictions set forth herein.
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Executive acknowledges that the provisions of this
Agreement are reasonable and necessary for the protection
of the business of the Company and its affiliated entities
and that part of the compensation paid under this
Agreement is in consideration for the agreements in this
Section 8.
(b) Competition shall mean:
(i) participating, directly or
indirectly, as an individual proprietor, partner,
stockholder, officer, employee, director, joint venturer,
investor, lender, consultant or in any capacity whatsoever
(within the United States of America, Canada, or in any
country where the Company or its affiliates do business)
in a business in competition with any operating business
conducted by the Company or its affiliated entities; with
regard to which Executive worked or otherwise had
responsibilities or had access to material Confidential
Information while employed by the Company or its
affiliated entities or an investment opportunity within
the provisions of subpart (E) below; provided, however,
that such participation shall not include: (A) the mere
ownership of not more than one percent (1%) of the total
outstanding stock of a publicly held company; (B) the
performance of services for any enterprise to the extent
such services are not performed, directly or indirectly,
for a business in the aforesaid Competition; (C) any
activity engaged in with the prior written approval of the
Chief Executive Officer of the Company; (D) the practicing
of law in a law firm that represents such competing
business provided that Executive does not personally
represent such competing business; or (E) investment
banking activities (including without limitation with an
investment entity for its own account or a fund operated
by it) provided such activities do not involve any
investment opportunity that the Company or any affiliated
entity is considering or advising on at the time
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of termination of the Employment Term either for its own
account, any fund managed by it or for any customer or
potential customer of the Company or such entity.
(ii) recruiting, soliciting or
inducing, of any nonclerical employee or employees of the
Company or its affiliated entities to terminate their
employment with, or otherwise cease their relationship
with, the Company or its affiliated entities or hiring or
assisting another person or entity to hire any nonclerical
employee of the Company or its affiliated entities or any
person who within six (6) months before had been a
nonclerical employee of the Company or any of its
affiliated entities. Notwithstanding the foregoing, if
requested by an entity with which Executive is not
affiliated, Executive may serve as a reference for any
person who at the time of the request is not an employee
of the Company or any of its affiliated entities.
(iii) If any restriction set forth
with regard to Competition is found by any court of
competent jurisdiction, or an arbitrator, to be
unenforceable because it extends for too long a period of
time or over too great a range of activities or in too
broad a geographic area, it shall be interpreted to extend
over the maximum period of time, range of activities or
geographic area as to which it may be enforceable.
(c) During and after the Employment
Term, Executive shall hold in a fiduciary capacity for the
benefit of the Company and its affiliated entities all
secret or confidential information, knowledge or data
relating to the Company and its affiliates, and their
respective businesses, including any confidential
information as to customers of the Company or its
affiliated entities, (i) obtained by Executive during his
employment by the Company or its affiliated entities and
(ii) not otherwise public knowledge or known within the
Company's or affiliated entity's industry. Executive
shall not, without prior written consent of the Company,
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unless compelled pursuant to the order of a court or other
governmental or legal body having jurisdiction over such
matter, communicate or divulge any such information,
knowledge or data to anyone other than the Company and
those designated by it. In the event Executive is
compelled by order of a court or other governmental or
legal body to communicate or divulge any such information,
knowledge or data to anyone other than the Company and
those designated by it, Executive shall promptly notify
the Company of any such order and shall cooperate fully
with the Company in protecting such information to the
extent possible under applicable law.
(d) Upon termination of Executive's
employment with the Company and its affiliated entities,
or at any other time as the Company may request, Executive
will promptly deliver to the Company all documents
(whether prepared by the Company, an affiliated entity,
Executive or a third party) relating to the Company or an
affiliated entity or any of their businesses or property
which Executive may possess or have under his direction or
control.
(e) During the Employment Term and
for one (1) year thereafter, Executive will not enter into
Competition with the Company or its affiliated entities.
(f) In the event of a breach or
potential breach of this Section 8, Executive acknowledges
that the Company and its affiliated entities will be
caused irreparable injury and that money damages may not
be an adequate remedy and agree that the Company and its
affiliated entities shall be entitled to injunctive relief
(in addition to its other remedies at law) to have the
provisions of this Section 8 enforced.
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9. Executive Representation
Executive represents and warrants that he
is under no contractual or other limitation from entering
into this Agreement and performing his obligations
hereunder.
10. Indemnification
The Executive shall be entitled to be
indemnified by the Company for his actions as an officer,
director, employee, agent or fiduciary of the Company or
its affiliated entities to the fullest extent permitted by
applicable law and shall have legal fees and other
expenses paid to him in advance of final disposition of a
proceeding provided he executes an undertaking to repay
such amounts if, and to the extent, required to do so by
applicable law. The Company shall cover the Executive
under any directors and officers liability insurance
policy to the same extent as its other senior officers.
11. Entire Agreement; Modification.
This Agreement constitutes the full and
complete understanding of the parties hereto and will
supersede all prior agreements and understandings, oral or
written, with respect to the subject matter hereof. Each
party to this Agreement acknowledges that no
representations, inducements, promises or agreements, oral
or otherwise, have been made by either party, or anyone
acting on behalf of either party, which are not embodied
herein and that no other agreement, statement or promise
not contained in this Agreement shall be valid or binding.
This Agreement may not be modified or amended except by an
instrument in writing signed by the party against whom or
which enforcement may be sought.
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12. Severability.
Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the
extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and
provisions of this Agreement or affecting the validity or
enforceability of any of the terms of provisions of this
Agreement in any other jurisdiction.
13. Waiver of Breach.
The waiver by any party of a breach of
any provisions of this Agreement, which waiver must be in
writing to be effective, shall not operate as or be
construed as a waiver of any subsequent breach.
14. Notices
All notices hereunder shall be in writing
and shall be deemed to have been duly given when delivered
by hand, or one day after sending by express mail or other
"overnight mail service," or three days after sending by
certified or registered mail, postage prepaid, return
receipt requested. Notice shall be sent as follows: if
to Executive, to the address as listed in the Company's
records; and if to the Company, to the Company at its
office or set forth at the head of this Agreement, to the
attention of the Chairman with a copy to Proskauer Xxxx
Xxxxx & Xxxxxxxxxx, at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attn: Xxxxxx X. Xxxxx, Esq. Either party may
change the notice address by notice given as aforesaid.
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15. Assignability; Binding Effect.
This Agreement shall be binding upon and
inure to the benefit of Executive and Executive's legal
representatives, heirs and distributees, and shall be
binding upon and inure to the benefit of the Company, its
successors and assigns. This Agreement may not be
assigned by the Executive. This Agreement may not be
assigned by the Company except in connection with a merger
or a sale by the Company of all or substantially all of
its assets and then only provided the assignee
specifically assumes in writing all of the Company's
obligations hereunder.
16. Governing Law.
(a) All issues pertaining
to the validity, construction, execution and performance
of this Agreement shall be construed and governed in
accordance with the laws of the State of Florida, without
giving effect to the conflict or choice of law provisions
thereof.
(b) Any dispute or
controversy with regard to this Agreement, other then
injunctive relief pursuant to Section 8, shall be settled
by arbitration in Miami, Florida before the American
Arbitration Association ("AAA") in accordance with the
rules of Commercial Arbitration of the AAA. The decision
of the arbitrators shall be final and binding upon the
parties hereto and may be entered in any court having
jurisdiction. The parties shall each bear fifty (50)
percent of the cost of the AAA and the arbitrators, but
each party shall bear its or his own legal expenses.
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17. Headings.
The headings in this Agreement are
intended solely for convenience or reference and shall be
given no effect in the construction or interpretation of
this Agreement.
18. Counterparts.
This Agreement may be executed in several
counterparts, each of which shall be deemed to be an
original but all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the Company has
caused this Agreement to be duly executed and Executive
has hereunto set his hand as of the date first set forth
above.
NEW VALLEY CORPORATION
By:________________________________
Name:
Title:
___________________________________
Xxxxxxx X. Xxxxxx
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EXHIBIT A
Xxxxxx International Corporation
