EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement"), dated as of January 1, 2000, between THE
XXXXX XXXXXX COMPANIES INC., a Delaware corporation (the "Company"), and XXXX X.
XXXXXXXXXX, a resident of Scarsdale, New York (the "Executive" or "you"),
W I T N E S S E T H:
WHEREAS, the Company and its subsidiaries are principally engaged in
the business of manufacturing, marketing and selling skin care, makeup,
fragrance and hair care products and related services (the "Business"); and
WHEREAS, the Executive and the Company are parties to an employment
agreement dated as of July 1, 1995 (the "Previous Agreement"); and
WHEREAS, the Company desires to continue to retain the services of the
Executive, and to appoint him as President and Chief Executive Officer, and the
Executive desires to provide services in such capacities to the Company, upon
the terms and subject to the conditions hereinafter set forth; and
WHEREAS, the Compensation Committee of the Board of Directors of the
Company (the "Compensation Committee") has approved the terms of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and obligations hereinafter set forth, the parties hereto, intending
to be legally bound, hereby agree as follows:
1. Employment Term.
The Company hereby agrees to employ the Executive, and the Executive
hereby agrees to enter into employment, as President and Chief Executive Officer
of the Company for the period commencing on January 1, 2000 and ending on June
30, 2005 unless terminated sooner pursuant to Section 6 hereof (the "Term of
Employment"). The six-month period commencing January 1, 2000 and ending June
30, 2000 shall be the "Six-Month Period". The twelve-month period commencing on
July 1, 2000 shall be the "First Contract Year" hereunder, and subsequent
twelve-month periods shall be subsequent Contract Years.
2. Duties and Extent of Services.
(a) During the Term of Employment, the Executive shall serve as the
President and Chief Executive Officer of the Company, and, in such capacities,
shall render such executive, managerial, administrative and other services as
customarily are associated with and incident to such positions, and as the
Company may, from time to time, reasonably require of him consistent with such
positions. The Executive shall only be required to report (i) to the
Company's Chairman so long as Xxxxxxx X. Xxxxxx continues to serve in such
capacity, and (ii) directly to the Board of Directors.
(b) The Executive shall serve as a Director of the Company if elected
to such position and shall also hold such other positions and executive offices
of the Company and/or of any of the Company's subsidiaries or affiliates as may
from time to time be agreed by the Executive or assigned by the Board of
Directors of the Company, provided that each such position shall be commensurate
with the Executive's standing in the business community as President and Chief
Executive Officer. The Executive shall not be entitled to any compensation other
than the compensation provided for herein for serving during the Term of
Employment in any other office or position of the Company or any of its
subsidiaries or affiliates, unless the Board of Directors of the Company shall
specifically approve such additional compensation.
(c) The Executive shall be a full-time employee of the Company and
shall exclusively devote all his business time and efforts faithfully and
competently to the Company and shall diligently perform to the best of his
ability all of the duties required of him as President and Chief Executive
Officer, and in the other positions or offices of the Company or its
subsidiaries or affiliates assigned to him hereunder. Notwithstanding the
foregoing provisions of this section, the Executive may (i) serve as a
non-management director of such business corporations (or in a like capacity in
other for-profit or not-for-profit organizations) as the Board of Directors or
Chairman of the Board of the Company may approve, such approval not to be
unreasonably withheld, and (ii) devote such time to the management of his
personal investments that does not significantly or adversely impact the time
spent on his duties for the Company.
3. (a) Base Salary. As compensation for all services to be rendered
pursuant to this Agreement and as payment for the rights and interests granted
by Executive hereunder, the Company shall pay or cause any of its subsidiaries
to pay the Executive a base salary of $2,000,000 per year (the "Base Salary").
All amounts of Base Salary provided for hereunder shall be payable in accordance
with the regular payroll policies of the Company in effect from time to time.
(b) Incentive Bonus Compensation. (i) For the Six-Month Period, the
Compensation Committee shall, after consultation with the Executive, establish a
bonus opportunity for the Executive with a maximum payout of $600,000 based on
the Company's performance for the six months ending June 30, 2000. The bonus
opportunity established by the Compensation Committee in August 1999 shall
remain in full force and effect for the period ending June 30, 2000. (ii) For
each Contract Year hereunder through the Contract Year ending June 30, 2003, the
Compensation Committee has granted to the Executive annual aggregate
opportunities under the Company's Executive Annual Incentive Plan (the "Bonus
Plan") (i.e., the maximum bonus that may be awarded) equal to one hundred fifty
percent (150%) of the Base Salary established under Section 3(a) hereof, subject
to the terms and conditions of the Bonus Plan, which are incorporated herein by
reference; provided, however, that the Compensation Committee shall not exercise
any discretion pursuant to Section 4(d) of the Bonus Plan to reduce the amount
of Executive's annual bonus. For any Contract Year ending after June 30, 2003,
the
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Executive shall be entitled to participate in such bonus plans as the
Compensation Committee shall determine.
(c) Deferral. The Executive may elect to defer payment of all or any
part of his bonus incentive compensation payable in accordance with Section
3(b)(ii) hereof in respect of any Contract Year during the Term of Employment,
by giving to the Company written notice thereof, on or before March 31 of such
Contract Year. Additionally, in the event that in respect of any fiscal year of
the Company any amount of Base Salary, any amount payable under the Bonus Plan
or any other amount payable to the Executive hereunder or otherwise shall,
either alone or in combination with other amounts payable hereunder or
otherwise, result in the payment by the Company of any amount that shall not be
currently deductible by it pursuant to the provisions of Section 162(m) of the
Internal Revenue Code of 1986, as amended (the "Code"), or like or successor
provisions (a "Non-Deductible Amount"), the Company may elect to defer the
payment of the Non-Deductible Amount. Any amounts, so deferred, either by
election of the Executive or by election of the Company shall be credited to a
bookkeeping account in the name of the Executive as of the date scheduled for
payment hereunder. Such amounts shall be credited with interest as of each June
30 during the term of deferral, compounded annually, at a rate per annum, equal
to the annual rate of interest announced by Citibank, N.A. in New York, New York
as its base rate in effect on such June 30, but in no event shall such rate
exceed 9%. The entire amount credited to such bookkeeping account shall be paid
to the Executive on a date to be chosen by the Company, but in no event later
than 90 days after the termination of the Executive's employment with the
Company, unless the Executive requests prior to termination of his employment
from the Company to continue the deferral of such payments until a later date or
dates and the Company agrees to such request. The Company, in its sole
discretion, may provide an investment facility for all or a portion of such
deferred amounts, but shall not be required to do so.
4 (a) Stock Units. Pursuant to the Previous Agreement, the Company
established a Share Unit Account for the Executive. The Compensation Committee
approved the conversion of 181,585 units in the Share Unit Account as of January
1, 2000 as follows: 100,000 shares of Class A Common Stock to be issued and
81,585 share units to cover the various withholding taxes due and owing in
connection with the conversion. For each Contract Year hereunder, the
Compensation Committee has awarded to you, as of each July 1 of each such
Contract Year, under the Company's Fiscal 1999 Share Incentive Plan (the "Share
Incentive Plan") (or to the extent that any such award is not permitted for any
Contract Year or Years by reason of the terms of the Share Incentive Plan, under
a successor plan, if any (which, subject to any provisions necessary to comply
with changes in law or accounting policies, shall contain terms no less
favorable to the Executive than the terms of the existing Share Incentive Plan),
hereafter adopted by the then Compensation Committee and subject to and
conditioned upon the approval by the stockholders of the Company), a number of
Stock Units equal to the lesser of (x) 200,000 or (y) (i) $2,000,000 divided by
(ii) the average closing price of the Class A Common Stock on the New York Stock
Exchange or any other national securities exchange or other market system as
reported by The Wall Street Journal for the twenty (20) trading days next
preceding such July 1 (the "Average Share Price"), rounded to the next lower
whole unit, subject to the terms and conditions of the Share Incentive Plan (or
such successor plan), which are
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incorporated herein by reference. The limitations on the number of Stock Units
contained in this Section 4(a) shall be adjusted in the manner provided in
Section 14 of the Share Incentive Plan for changes in the Class A Common Stock.
In addition, as further compensation to you, in the event that, as of such July
1, the Average Share Price times 200,000 shall be less than $2,000,000, the
amount of such deficiency shall be credited as a cash addition to a bookkeeping
account in the name of the Executive, and shall be credited with interest and
paid to the Executive in the same manner provided for deferred payments in
Section 3(c) hereof.
Additionally, for each Contract Year hereunder, the Compensation
Committee has awarded to you under the Share Incentive Plan, as of each date
during the Term of Employment (and continuing thereafter until full payment of
share units shall be made) that the Company shall pay a dividend to holders of
record of the Class A Common Stock, a number of Stock Units equal to (x) the
aggregate dividend payable on a number of shares equal to the number of Stock
Units held in his Share Unit Account as of the record date for the dividend,
divided by (y) the average closing price of the Class A Common Stock on the New
York Stock Exchange or any other national securities exchange or other market
system as reported by The Wall Street Journal for the twenty (20) trading days
next preceding the payment date for such dividend, rounded to the next lower
whole unit. Such additional Stock Units shall be awarded subject to the terms
and conditions of the Share Incentive Plan, which are incorporated herein by
reference.
Stock units credited to the Share Unit Account during any Contract Year
hereunder shall be non-forfeitable as long as the Executive shall remain in the
employ of the Company during the entirety of such Contract Year. In the event
that the employment of Executive shall terminate during any Contract Year
hereunder (other than a termination due to disability or death, or a termination
in accordance with Section 6(c), 6(f) or 6(g) hereof), Stock Units credited or
creditable to the Share Unit Account during such Contract Year shall be
forfeited and shall be neither due nor payable to the Executive. In the event
that the Executive's employment hereunder is terminated due to disability or
death, or a termination in accordance with Section 6(c), 6(f) or 6(g) hereof,
the Stock Units shall be credited to the Share Unit Account during the Contract
Year of such termination shall be fully vested and payable to the Executive.
The Company shall make full payment to the Executive of the Share Unit
Account on a date to be chosen by it, but in no event later than 90 days after
the termination of the Executive's employment with the Company, unless the
Executive requests prior to the termination of his employment for the Company to
continue the deferral of such payments until a later date or dates and the
Company agrees to such requests. Such payment shall be made by transfer to the
Executive of a number of shares of Class A Common Stock of the Company equal to
the number of Stock Units credited to the Share Unit Account as of the date of
such payment, reduced by the number of shares having a value, as of the date of
such payment, equal to the federal, state and local withholding tax due and
owing in connection with such transfer. The Company, in its discretion, may no
more than once in any twelve month period convert all or some of the Stock Units
in the Share Unit Account to a cash equivalent amount (based on the closing
price per share of the Class A Common Stock on the date of conversion), which
amount shall be placed in a deferred account and be governed by Section 3(c)
hereof. In the event any such conversion is made, the Share Unit Account will be
reduced accordingly.
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(b) Stock Options. (i) As of the date hereof, the Compensation
Committee has awarded to you options to purchase one million (1,000,000) shares
of the Company's Class A Common Stock pursuant to the Share Incentive Plan. The
terms of the options are set forth in a separate grant letter approved by the
Compensation Committee and attached hereto. (ii) Beginning with the First
Contract Year, the Compensation Committee approved the grant to you of options
to purchase 500,000 shares of the Company's Class A Common Stock under the Share
Incentive Plan during each contract year (or, to the extent that any such grant
is not permitted during each Contract Year during the Term of Employment by
reason of the terms of the Share Incentive Plan, or under a successor plan if
any, hereafter adopted by the then Compensation Committee containing terms no
less favorable to the Executive than the terms of the Share Incentive Plan,
subject to any provisions necessary to comply with changes in law or accounting
policies, and subject to and conditioned upon the approval by the stockholders
of the Company) at exercise prices equal to the fair market value (as defined in
the Share Incentive Plan) on each grant date, subject to the terms and
conditions of the Share Incentive Plan, which are incorporated herein by
reference. The number of stock options awarded hereunder shall be adjusted in
the manner provided in Section 14 of the Share Incentive Plan for changes in the
Class A Common Stock. The terms of the options shall be set forth in a separate
grant letter approved by the Compensation Committee substantially in the form
attached hereto as Exhibit A.
(c) Certain Conditions. Executive acknowledges and agrees that any
grant of Stock Units or Stock Options otherwise provided for in this Section 4
shall be effective as provided herein only to the extent permitted by the Share
Incentive Plan, and this Agreement shall not obligate the Company to adopt any
successor plan providing for the grant of Stock Units or Stock Options (or
substantially similar benefits).
5. Benefits.
(a) Standard Benefits. During the Term of Employment, the Executive
shall be entitled to (i) participate in any and all benefit programs and
arrangements now in effect and hereinafter adopted and made generally available
by the Company to its senior officers, including but not limited to the Xxxxx
Xxxxxx Inc. Incentive Thrift Plan (the "Thrift Plan"), the Xxxxx Xxxxxx Inc.
Retirement Growth Account Plan (the "Qualified Plan"), the related Xxxxx Xxxxxx
Inc. Benefit Restoration Plan (the "Non-Qualified Plan"), contributory and
non-contributory Company welfare and benefit plans, disability plans, and
medical, death benefit and life insurance plans for which the Executive shall be
eligible, or may become eligible during the Term of Employment; (ii) participate
in the Company's automobile program now in effect and hereinafter adopted and
generally made available by the Company to its senior officers; and (iii) paid
vacations during each year of the Term of Employment in accordance with the
policies and procedures of the Company as in effect from time to time for its
senior officers.
(b) Pension. In calculating the amount of benefit payable to the
Executive with reference to his participation in the Qualified Plan and the
Non-Qualified Plan, the entire period of service of the Executive with the
Company and its affiliates shall be recognized as credited service and amounts
payable to the Executive pursuant to the Bonus Plan (up to a
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maximum of 100% of the Executive's Base Salary in any Contract Year) shall be
included as pensionable compensation. The amount of benefit thus calculated,
less the amount actually payable to the Executive under the terms of the
Qualified Plan and the Non-Qualified Plan, shall be paid to the Executive by the
Company as a supplemental pension benefit, in the form and at the time elected
by the Executive for payment of his actual benefit under such Plans.
(c) Split-Dollar Life Insurance. (i) The Company will continue to
provide the Executive with the split-dollar life insurance under the existing
arrangements and subject to the existing conditions, except that the death
benefit will be increased to $20 million (subject to standard underwriting
contingencies). (ii) The Executive or his designee will procure a second-to-die
variable universal life insurance policy on the life of the Executive and his
spouse (the "Policy"), whereupon the Company will enter into a collateral
assignment split-dollar life insurance arrangement (the "Split Dollar
Agreement") in respect of the Policy with the Executive or his designee,
reasonably acceptable to them, under which the Company will make five
approximately equal annual payments, commencing as soon as feasible, totaling
approximately $26,634,000, but in no event less than $26,000,000 nor more than
$27,000,000. The obligation of the Company to continue to make the payments
shall survive any termination of Executive's employment, other than (x) a
termination of the Executive by the Company for Cause pursuant to Section 6(d)
or (y) a voluntary termination by the Executive prior to June 30, 2003, other
than (A) a termination by the Executive for a material breach by the Company
pursuant to Section 6(f) or (B) a termination by the Executive for Good Reason
following a Change of Control pursuant to Section 6(g)(ii). The Split Dollar
Agreement shall provide for a repayment to the Company of the entire amount of
its payments, on terms and at a time as shall be reasonably acceptable to the
Company.
(d) Expenses. The Company agrees to reimburse the Executive for all
reasonable and necessary travel (including first class air fare), business
entertainment and other business out-of-pocket expenses incurred or expended by
him in connection with the performance of his duties hereunder upon presentation
of proper expense statements or vouchers or such other supporting information as
the Company may reasonably require of the Executive.
6. Termination.
(a) Permanent Disability. In the event of the "permanent disability"
(as hereinafter defined) of the Executive during the Term of Employment, the
Company shall have the right, upon written notice to the Executive, to terminate
the Executive's employment hereunder, effective upon the giving of such notice
(or such later date as shall be specified in such notice). In the event of such
termination, the Company shall have no further obligations hereunder, except
that the Executive shall be entitled (i) to receive any amounts or benefits to
which the Executive may otherwise have been entitled prior to the effective date
of termination; (ii) to be paid his Base Salary under Section 3(a) hereof for a
period of one (1) year from the effective date of termination; provided,
however, that the Company shall only be required to pay that amount of the
Executive's Base Salary which shall not be covered by pension benefits or
long-term disability payments, if any, to the Executive under any Company plan
or arrangement and (iii) to receive a pro-rata portion of the annual bonus that
the Executive would have been
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entitled to receive had he remained in employment through the end of the
Contract Year during which the termination due to permanent disability occurred.
In addition, upon termination for permanent disability, the Executive shall
continue to participate in any and all pension, insurance and other benefit
plans and programs of the Company during the period the Executive is continuing
to receive his Base Salary in accordance with this Section 6(a). Thereafter, the
Executive's rights to participate in such programs and plans, or to receive
similar coverage, if any, shall be as determined under such programs; provided,
however, that, except as otherwise provided in this Section 6(a), the Company
will have no further obligations under Sections 3(b) and 4 hereof. For purposes
of this Section 6(a), "permanent disability" means any disability as defined
under the Company's applicable disability insurance policy or, if no such policy
is available, any physical or mental disability or incapacity that renders the
Executive incapable of performing the services required of him in accordance
with his obligations under Section 2 hereof for a period of six (6) consecutive
months or for shorter periods aggregating six (6) months during any twelve-month
period.
(b) Death. In the event of the death of the Executive during the Term
of Employment, the Company shall pay to the Executive's estate or legal
representative any amounts to which the Executive otherwise would have been
entitled hereunder prior to the date of his death or which become payable by
reason of his death.
(c) Termination Without Cause. The Company shall have the right, upon
sixty (60) days' prior written notice given to the Executive, to terminate the
Executive's employment for any reason whatsoever. In the event of such
termination, for a period ending on the first to occur of a date three (3) years
from the effective date of termination or June 30, 2005, the Executive shall be
entitled as damages to (i) receive his Base Salary as established under Section
3(a) hereof; (ii) receive annual bonus compensation equal to the average of
actual annual bonuses paid or payable to the Executive during the Term of
Employment in accordance with Section 3(b)(ii) hereof, or if such termination
occurs prior to the payment of any bonus hereunder, equal to the Executive's
Base Salary; and (iii) participate in all pension, insurance and other benefit
plans, programs or arrangements, on terms identical to those applicable to
full-term senior officers of the Company; provided, however, that, except as
otherwise provided in this Section 6(c), the Company will have no further
obligations under Sections 3(b) and 4 hereof. In the event of termination
pursuant to this Section 6(c), the Executive shall not be required to mitigate
his damages hereunder.
(d) Cause. The Company shall have the right, upon written notice to the
Executive, to terminate the Executive's employment under this Agreement for
"Cause" (as hereinafter defined), effective upon the giving of such notice (or
such later date as shall be specified in such notice), and the Company shall
have no further obligations hereunder, except to pay the Executive any amounts
otherwise payable pursuant to Section 3 hereof and provide the Executive any
benefits to which the Executive may have been otherwise entitled prorated to the
effective date of termination, provided, however, that prior to the effective
date of any termination for Cause, the Executive shall be given the opportunity
to appear before the Board of Directors, with or without legal representation,
at the Executive's election, to present arguments and evidence on his own
behalf. The Executive's right to participate in any of the Company's
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retirement, insurance and other benefit plans and programs shall be as
determined under such programs and plans; provided, however, that, except as
otherwise provided in this Section 6(d), the Company will have no further
obligations under Sections 3(b) and 4 hereof.
For purposes of this Agreement, "Cause" means:
(i) fraud, embezzlement or gross insubordination on the part
of the Executive or material breach by the Executive of his obligations under
Section 7 or 8 hereof;
(ii) conviction of, or the entry of a plea of nolo contendere
by the Executive for, any felony;
(iii) a material breach of, or the willful failure or refusal
by the Executive to perform and discharge, his duties, responsibilities or
obligations under this Agreement (other than under Sections 7 and 8 hereof,
which shall be governed by clause (i) above, and other than by reason of
disability or death) that is not corrected within thirty (30) days following
written notice thereof to the Executive by the Company, such notice to state
with specificity the nature of the breach, failure or refusal; provided that if
such breach, failure or refusal is capable of correction but cannot reasonably
be corrected within thirty (30) days of written notice thereof, correction shall
be commenced by the Executive within such period and may be completed within a
reasonable period thereafter; or
(iv) any act of moral turpitude or willful misconduct by the
Executive which (A) is intended to result in substantial personal enrichment of
the Executive at the expense of the Company or any of its subsidiaries or
affiliates or (B) has a material adverse impact on the business or reputation of
the Company or any of its subsidiaries or affiliates (such determination to be
made by the Company's Board of Directors in its reasonable judgment).
(e) Termination by Executive. The Executive shall have the right,
exercisable at any time during the Term of Employment, to terminate his
employment for any reason whatsoever, upon six (6) months' prior written notice
to the Company. Upon such termination, the Company shall have no further
obligations hereunder other than to pay the executive his accrued benefits
through the date of such termination. The Company expressly acknowledges that
any termination of Executive's employment with the Company following the
effective date of this Agreement shall qualify as a retirement termination
within the meaning of the Company's Retirement Growth Account Plan and shall
entitle the Executive to receive all Company benefits that are contingent upon
the Executive's retirement, pursuant to the terms of each such Company benefit
plan or award agreement.
(f) Termination by Executive for Material Breach. The Executive shall
have the right, exercisable by notice to the Company, to terminate his
employment effective thirty (30) days after the giving of such notice, if, at
any time during the Term of Employment, the Company shall be in material breach
of its obligations hereunder; provided, however, that such notice must be
provided to the Company within ninety (90) days of the date on which the
Executive obtains knowledge of such material breach; and provided further, that
such
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termination will not become effective if within the thirty-day (30) notice
period the Company shall have cured all such material breaches of its
obligations hereunder. For purposes of this Section 6(f), a material breach
shall include, but not be limited to, (i) a material reduction in the
Executive's aggregate authority, functions, duties or responsibilities provided
in Section 2 hereof (ii) the Company's failure to cause the Executive to serve
in all the positions set forth in Section 1 hereof for any time period in which
he is entitled to so serve, (iii) the Company's failure to pay any award that
the Executive is entitled to receive pursuant to the terms of this Agreement,
(iv) a material adverse change in the Executive's reporting lines, without his
consent or (v) the failure to elect or continue the Executive as a director of
the Company, without his consent. Such termination shall be deemed to be a
termination without cause and shall be controlled by the provisions of Section
6(c) hereof.
(g) Change of Control.
(i) Definitions. For purposes of this Agreement,
(A) a "Change of Control" shall be deemed to have
occurred upon any of the following events:
(1) a change in control of the direction and
administration of the Company's business of a nature that would be required to
be reported in response to Item 6(e) of Schedule 14A of Regulation 14(A)
promulgated under the Securities Exchange Act of 1934, as amended; or
(2) during any period of two (2) consecutive years,
the individuals who at the beginning of such period constitute the Company's
Board of Directors or any individuals who would be "Continuing Directors" (as
defined below) cease for any reason to constitute a majority thereof; or
(3) the Company's Class A Common Stock shall cease to
be publicly traded; or
(4) the Company's Board of Directors shall approve a
sale of all or substantially all of the assets of the Company, and such
transaction shall have been consummated; or
(5) the Company's Board of Directors shall approve any
merger, consolidation, or like business combination or reorganization of the
Company, the consummation of which would result in the occurrence of any event
described in Section 6(g)(i)(A)(2) or (3) above, and such transaction shall have
been consummated.
Notwithstanding the foregoing, (X) changes in the
relative beneficial ownership among members of the Lauder family and
family-controlled entities shall not, by itself, constitute a Change of Control
of the Company, (Y) any spin-off of a division or
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subsidiary of the Company to its stockholders shall not constitute a Change of
Control of the Company.
(B) "Continuing Directors" shall mean (1) the directors
in office on January 1, 2000 and (2) any successor to such directors and any
additional director who after January 1, 2000 was nominated or selected by a
majority of the Continuing Directors in office at the time of his or her
nomination or selection.
(C) "Good Reason" means the occurrence of any of the
following, without the express written consent of the Executive, after the
occurrence of a Change in Control:
(1) (a) the assignment to the Executive of any duties
inconsistent in any material adverse effect with the Executive's position,
authority or responsibilities as contemplated by Section 2 hereof, or (b) any
other material adverse change in such position, including title, authority or
responsibilities;
(2) any failure by the Company to comply with any
provisions of Sections 3, 4 or 5 hereof, other than an insubstantial or
inadvertent failure remedied by the Company promptly after receipt of notice
thereof given by the Executive;
(3) the Company's requiring the Executive to be based
at any office or location more than 50 miles from that location at which he
performed his services specified under the provisions of Section 2 immediately
prior to the Change in Control, except for travel reasonably required in the
performance of the Executive's responsibilities; or
(4) any failure by the Company to obtain the
assumption and agreement to perform this Agreement by a successor as
contemplated by Section 14.
(ii) Termination for Good Reason. Following the occurrence of
a Change of Control, the Executive may terminate his employment for Good Reason.
Such termination shall be deemed to be a termination without cause and shall be
controlled by the provisions of Section 6(c) hereof.
(h) Certain Payments by the Company.
(i) In the event that any amount or benefit paid or
distributed to the Executive pursuant to this Agreement, taken together with any
amounts or benefits otherwise paid or distributed to the Executive by the
Company or any affiliated company (collectively, the "Covered Payments"), are or
become subject to the tax (the "Excise Tax") imposed under Section 4999 of the
Code, or any similar tax that may hereafter be imposed, the Company shall pay to
the Executive at the time specified in Section 6(h) (v) below an additional
amount (the "Tax Reimbursement Payment") such that the net amount retained by
the Executive with respect to such Covered Payments, after deduction of any
Excise Tax on the Covered Payments and any
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Federal, state and local income or employment tax and Excise Tax on the Tax
Reimbursement Payment provided for by this Section 6(f), but before deduction
for any Federal, state or local income or employment tax withholding on such
Covered Payments, shall be equal to the amount of the Covered Payments.
(ii) For purposes of determining whether any of the Covered
Payments will be subject to the Excise Tax and the amount of such Excise Tax,
(A) such Covered Payments will be treated as "parachute
payments" within the meaning of Section 280G of the Code, and all "parachute
payments" in excess of the "base amount" (as defined under Section 28OG(b) (3)
of the Code) shall be treated as subject to the Excise Tax, unless, and except
to the extent that, in the good faith judgment of the Company's independent
certified public accountants appointed prior to the date of the Change in
Control or tax counsel selected by such Accountants (the "Accountants"), the
Company has a reasonable basis to conclude that such Covered Payments (in whole
or in part) either do not constitute "parachute payments" or represent
reasonable compensation for personal services actually rendered (within the
meaning of Section 28OG(b) (4) (B) of the Code) in excess of the allocable "base
amount," or such "parachute payments" are otherwise not subject to such Excise
Tax, and
(B) the value of any non-cash benefits or any deferred
payment or benefit shall be determined by the Accountants in accordance with the
principles of Section 280G of the Code.
(iii) For purposes of determining the amount of the Tax
Reimbursement Payment, the Executive shall be deemed to pay:
(A) Federal income, social security, medicare and other
employment taxes at the highest applicable marginal rate of Federal income
taxation for the calendar year in which the Tax Reimbursement Payment is to be
made, and
(B) any applicable state and local income or other
employment taxes at the highest applicable marginal rate of taxation for the
calendar year in which the Tax Reimbursement Payment is to be made, net of the
maximum reduction in Federal income taxes which could be obtained by Executive
from the deduction of such state or local taxes if paid in such year.
(iv) In the event that the Excise Tax is subsequently
determined by the Accountants or pursuant to any proceeding or negotiations with
the Internal Revenue Service to be less than the amount taken into account
hereunder in calculating the Tax Reimbursement Payment made, the Executive shall
repay to the Company, at the time of such determination, the portion of such
prior Tax Reimbursement Payment that would not have been paid if such reduced
Excise Tax had been taken into account in initially calculating such Tax
Reimbursement Payment, plus interest on the amount of such repayment at the rate
provided in Section 1274(b)(2)(b) of the Code. Notwithstanding the foregoing, in
the event any portion of the Tax
11
Reimbursement Payment to be refunded to the Company has been paid to any
Federal, state or local tax authority, repayment thereof shall not be required
until actual refund or credit of such portion has been made to the Executive,
and interest payable to the Company shall not exceed interest received or
credited to the Executive by such tax authority for the period it held such
portion. The Executive and the Company shall mutually agree upon the course of
action to be pursued (and the method of allocating the expenses thereof) if the
Executive's good faith claim for refund or credit is denied.
In the event that the Excise Tax is later determined by the
Accountants or pursuant to any proceeding or negotiations with the Internal
Revenue Service to exceed the amount taken into account hereunder at the time
the Tax Reimbursement Payment is made (including, but not limited to, by reason
of any payment the existence or amount of which cannot be determined at the time
of the Tax Reimbursement Payment), the Company shall make an additional Tax
Reimbursement Payment in respect of such excess (plus any interest or penalty
payable with respect to such excess) at the time that the amount of such excess
is finally determined.
(v) The Tax Reimbursement Payment (or portion thereof)
provided for in Section 6(h)(i) above shall be paid to the Executive not later
than 10 business days following the payment of the Covered Payments; provided,
however, that if the amount of such Tax Reimbursement Payment (or portion
thereof) cannot be finally determined on or before the date on which payment is
due, the Company shall pay to the Executive by such date an amount estimated in
good faith by the Accountants to be the minimum amount of such Tax Reimbursement
Payment and shall pay the remainder of such Tax Reimbursement Payment (together
with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon
as the amount thereof can be determined, but in no event later than 45 calendar
days after payment of the related Cover Payment. In the event that the amount of
the estimated Tax Reimbursement Payment exceeds the amount subsequently
determined to have been due, such excess shall constitute a loan by the Company
to the Executive, payable on the fifth business day after written demand by the
Company for payment (together with interest at the rate provided in Section
1274(b)(2)(B) of the Code).
(vi) The Company shall pay directly or reimburse Executive for
the cost of hiring his own accounting and/or legal experts in connection with
any determinations to be made as to the amounts of the Covered Payments and/or
the Tax Reimbursement Payment; provided, however, that the Company shall not be
required to make any such payments in excess of $20,000. The provisions of this
Section 6(h) shall survive Executive's termination of employment hereunder.
(i) Effect of Termination. Upon the termination of the Executive's
employment hereunder for any reason, the Company shall have no further
obligations hereunder, except as otherwise provided herein. The Executive,
however, shall continue to have the obligations provided for in Sections 7 and 8
hereof. Furthermore, upon such termination, the Executive shall be deemed to
have resigned immediately from all offices and directorships held by him in the
Company or any of its subsidiaries.
12
7. Confidentiality; Ownership.
(a) The Executive agrees that he shall forever keep secret and retain
in strictest confidence and not divulge, disclose, discuss, copy or otherwise
use or suffer to be used in any manner, except in connection with the Business
of the Company, its subsidiaries or affiliates and any other business or
proposed business of the Company or any of its subsidiaries or affiliates, any
"Protected Information" in any "Unauthorized" manner or for any "Unauthorized"
purpose (as such terms are hereinafter defined).
(i) "Protected Information" means trade secrets, confidential
or proprietary information and all other knowledge, know-how, information,
documents or materials owned, developed or possessed by the Company or any of
its subsidiaries or affiliates, whether in tangible or intangible form,
pertaining to the Business or any other business or proposed business of the
Company or any of its subsidiaries or affiliates, including, but not limited to,
research and development, operations, systems, data bases, computer programs and
software, designs, models, operating procedures, knowledge of the organization,
products (including prices, costs, sales or content), processes, formulas,
techniques, machinery, contracts, financial information or measures, business
methods, business plans, details of consultant contracts, new personnel hiring
plans, business acquisition plans, customer lists, business relationships and
other information owned, developed or possessed by the Company or its
subsidiaries or affiliates; provided that Protected Information shall not
include information that becomes generally known to the public or the trade
without violation of this Section 7.
(ii) "Unauthorized" means: (A) in contravention of the
policies or procedures of the Company or any of its subsidiaries or affiliates;
(B) otherwise inconsistent with the measures taken by the Company or any of its
subsidiaries or affiliates to protect their interests in any Protected
Information; (C) in contravention of any lawful instruction or directive, either
written or oral, of an employee of the Company or any of its subsidiaries or
affiliates empowered to issue such instruction or directive; or (D) in
contravention of any duty existing under law or contract. Notwithstanding
anything to the contrary contained in this Section 7, the Executive may disclose
any Protected Information to the extent required by court order or decree or by
the rules and regulations of a governmental agency or as otherwise required by
law or to his legal counsel and, in connection with a determination under
Section 6(h), to accounting experts; provided that the Executive shall provide
the Company with prompt notice of such required disclosure in advance thereof so
that the Company may seek an appropriate protective order in respect of such
required disclosure.
(b) The Executive acknowledges that all developments, including,
without limitation, inventions (patentable or otherwise), discoveries, formulas,
improvements, patents, trade secrets, designs, reports, computer software, flow
charts and diagrams, procedures, data, documentation, ideas and writings and
applications thereof relating to the Business or any business or planned
business of the Company or any of its subsidiaries or affiliates that, alone or
jointly with others, the Executive may conceive, create, make, develop, reduce
to practice or acquire during the Term of Employment (collectively, the
"Developments") are works made for
13
hire and shall remain the sole and exclusive property of the Company. The
Executive hereby assigns to the Company, in consideration of the payments set
forth in Section 3(a) hereof, all of his right, title and interest in and to all
such Developments. The Executive shall promptly and fully disclose all future
material Developments to the Board of Directors of the Company and, at any time
upon request and at the expense of the Company, shall execute, acknowledge and
deliver to the Company all instruments that the Company shall prepare, give
evidence and take all other actions that are necessary or desirable in the
reasonable opinion of the Company to enable the Company to file and prosecute
applications for and to acquire, maintain and enforce all letters patent and
trademark registrations or copyrights covering the Developments in all countries
in which the same are deemed necessary by the Company. All memoranda, notes,
lists, drawings, records, files, computer tapes, programs, software, source and
programming narratives and other documentation (and all copies thereof) made or
compiled by the Executive or made available to the Executive concerning the
Developments or otherwise concerning the Business or planned business of the
Company or any of its subsidiaries or affiliates shall be the property of the
Company or such subsidiaries or affiliates and shall be delivered to the Company
or such subsidiaries or affiliates promptly upon the expiration or termination
of the Term of Employment.
(c) The provisions of this Section 7 shall, without any limitation as
to time, survive the expiration or termination of the Executive's employment
hereunder, irrespective of the reason for any termination.
8. Covenant Not to Compete. Subject to the last sentence of this
Section 8, the Executive agrees that during the Term of Employment and for a
period of one (1) year commencing upon the expiration or termination of the
Executive's employment hereunder (the "Non-Compete Period"), the Executive shall
not, directly or indirectly, without the prior written consent of the Company:
(a) solicit, entice, persuade or induce any employee, consultant, agent
or independent contractor of the Company or of any of its subsidiaries or
affiliates to terminate his, her or its employment with the Company or such
subsidiary or affiliate, to become employed by any person, firm or corporation
other than the Company or such subsidiary or affiliate or approach any such
employee, consultant, agent or independent contractor for any of the foregoing
purposes, or authorize or assist in the taking of any such actions by any third
party (for purposes of this Section 8 (a), the terms "employee," "consultant,"
"agent" and "independent contractor" shall include any persons with such status
at any time during the six (6) months preceding any solicitation in question);
or
(b) directly or indirectly engage, participate, or make any financial
investment in, or become employed by or render consulting, advisory or other
services to or for any person, firm, corporation or other business enterprise,
wherever located, which is engaged, directly or indirectly, in competition with
the Business or any business of the Company or any of its subsidiaries or
affiliates as conducted or any business proposed to be conducted at the time of
the expiration or termination of the Executive's employment hereunder; provided,
however, that nothing in this Section 8(b) shall be construed to preclude the
Executive from making any
14
investments in the securities of any business enterprise whether or not engaged
in competition with the Company or any of its subsidiaries or affiliates, to the
extent that such securities are actively traded on a national securities
exchange or in the over-the-counter market in the United States or on any
foreign securities exchange and represent, at the time of acquisition, not more
than 3% of the aggregate voting power of such business enterprise.
Notwithstanding the foregoing, the Executive shall not be subject to
the terms and provisions of paragraph (b) of this Section 8 if the Term of
Employment is terminated pursuant to Section 6(c), 6(f) or 6(g)(ii) hereof.
9. Specific Performance. The Executive acknowledges that the services
to be rendered by the Executive are of a special, unique and extraordinary
character and, in connection with such services, the Executive will have access
to confidential information vital to the Company's Business and the other
current or planned businesses of it and its subsidiaries and affiliates. By
reason of this, the Executive consents and agrees that if the Executive violates
any of the provisions of Sections 7 or 8 hereof, the Company and its
subsidiaries and affiliates would sustain irreparable injury and that monetary
damages would not provide adequate remedy to the Company and that the Company
shall be entitled to have Section 7 or 8 hereof specifically enforced by any
court having equity jurisdiction. Nothing contained herein shall be construed as
prohibiting the Company or any of its subsidiaries or affiliates from pursuing
any other remedies available to it or them for such breach or threatened breach,
including the recovery of damages from the Executive.
10. Deductions and Withholding. The Executive agrees that the Company
or its subsidiaries or affiliates, as applicable, shall withhold from any and
all compensation paid to and required to be paid to the Executive pursuant to
this Agreement, all Federal, state, local and/or other taxes which the Company
determines are required to be withheld in accordance with applicable statutes or
regulations from time to time in effect and all amounts required to be deducted
in respect of the Executive's coverage under applicable employee benefit plans.
For purposes of this Agreement and calculations hereunder, all such deductions
and withholdings shall be deemed to have been paid to and received by the
Executive.
11. Entire Agreement. Except for the Fiscal 1999 Share Incentive Plan,
the Executive's outstanding stock option agreements, the Executive Annual
Incentive Plan, the Thrift Plan, the split-dollar life insurance arrangement
between the Company and the Executive, the agreement dated January 1, 2000
relating to the conversion of 181,585 share units, the prior arrangements
relating to the Executive's deferred compensation and the Qualified Plan and the
Non-Qualified Plan, this Agreement embodies the entire agreement of the parties
with respect to the Executive's employment, compensation, perquisites and
related items and supersedes any other prior oral or written agreements,
arrangements or understandings between the Executive and the Company or any of
its subsidiaries or affiliates, and any such prior agreements, arrangements or
understandings are hereby terminated and of no further effect. This Agreement
may not be changed or terminated orally but only by an agreement in writing
signed by the parties hereto.
15
12. Waiver. The waiver by the Company of a breach of any provision of
this Agreement by the Executive shall not operate or be construed as a waiver of
any subsequent breach by him. The waiver by the Executive of a breach of any
provision of this Agreement by the Company shall not operate or be construed as
a waiver of any subsequent breach by the Company.
13. Governing Law; Jurisdiction.
(a) This Agreement shall be subject to, and governed by, the laws of
the State of New York applicable to contracts made and to be performed therein.
(b) Any action to enforce any of the provisions of this Agreement shall
be brought in a court of the State of New York located in the Borough of
Manhattan of the City of New York or in a Federal court located within the
Southern District of New York. The parties consent to the jurisdiction of such
courts and to the service of process in any manner provided by New York law.
Each party irrevocably waives any objection which it may now or hereafter have
to the laying of the venue of any such suit, action or proceeding brought in
such court and any claim that such suit, action or proceeding brought in such
court has been brought in an inconvenient forum and agrees that service of
process in accordance with the foregoing sentences shall be deemed in every
respect effective and valid personal service of process upon such party.
14. Assignability. The obligations of the Executive may not be
delegated and, except with respect to the designation of beneficiaries in
connection with any of the benefits payable to the Executive hereunder, the
Executive may not, without the Company's written consent thereto, assign,
transfer, convey, pledge, encumber, hypothecate or otherwise dispose of this
Agreement or any interest herein. Any such attempted delegation or disposition
shall be null and void and without effect. The Company and the Executive agree
that this Agreement and all of the Company's rights and obligations hereunder
may be assigned or transferred by the Company to and shall be assumed by and be
binding upon any successor to the Company. The Company shall require any
successor by an agreement in form and substance satisfactory to the Executive,
expressly to assume and agree to perform this Agreement in the same manner and
to the same extent as the Company would be required to perform if no such
succession had taken place. The term "successor" means, with respect to the
Company or any of its subsidiaries, any corporation or other business entity
which, by merger, consolidation, purchase of the assets or otherwise acquires
all or a majority of the operating assets or business of the Company.
15. Severability. If any provision of this Agreement or any part
thereof, including, without limitation, Sections 7 and 8 hereof, as applied to
either party or to any circumstances shall be adjudged by a court of competent
jurisdiction to be void or unenforceable, the same shall in no way affect any
other provision of this Agreement or remaining part thereof, or the validity or
enforceability of this Agreement, which shall be given full effect without
regard to the invalid or unenforceable part thereof.
If any court construes any of the provisions of Section 7 or 8 hereof,
or any part thereof, to be unreasonable because of the duration of such
provision or the geographic scope
16
thereof, such court may reduce the duration or restrict or redefine the
geographic scope of such provision and enforce such provision as so reduced,
restricted or redefined.
16. Notices. All notices to the Company or the Executive permitted or
required hereunder shall be in writing and shall be delivered personally, by
telecopier or by courier service providing for next-day delivery or sent by
registered or certified mail, return receipt requested, to the following
addresses:
The Company:
The Xxxxx Xxxxxx Companies Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
The Executive:
Xxxx X. Xxxxxxxxxx
[Address]
With a copy to:
Xxxxx X. Xxxxx, Esq.
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Either party may change the address to which notices shall be sent by sending
written notice of such change of address to the other party. Any such notice
shall be deemed given, if delivered personally, upon receipt; if telecopied,
when telecopied; if sent by courier service providing for next-day delivery, the
next business day following deposit with such courier service; and if sent by
certified or registered mail, three days after deposit (postage prepaid) with
the U.S. mail service.
17. No Conflicts. The Executive hereby represents and warrants to the
Company that his execution, delivery and performance of this Agreement and any
other agreement to be delivered pursuant to this Agreement will not (i) require
the consent, approval or action of any other person or (ii) violate, conflict
with or result in the breach of any of the terms of, or constitute (or with
notice or lapse of time or both, constitute) a default under, any agreement,
arrangement or understanding with respect to the Executive's employment to which
the Executive is a party or by which the Executive is bound or subject. The
Executive hereby agrees to indemnify and hold harmless the Company and its
directors, officers, employees,
17
agents, representatives and affiliates (and such affiliates' directors,
officers, employees, agents and representatives) from and against any and all
losses, liabilities or claims (including interest, penalties and reasonable
attorneys' fees, disbursements and related charges) based upon or arising out of
the Executive's breach of any of the foregoing representations and warranties.
18. Paragraph Headings. The paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
19. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
THE XXXXX XXXXXX COMPANIES INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President - Global
Human Resources
/s/ Xxxx X. Xxxxxxxxxx
--------------------------------------
Xxxx X. Xxxxxxxxxx
