EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement"), dated as of July 1, 2001,
between THE XXXXX XXXXXX COMPANIES INC., a Delaware corporation (the "Company"),
and XXXXXXX XXXXXXXX-XXXXXXXX, a resident of New York, 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 Company desires to continue to retain the
services of the Executive, and to appoint him as Group President; and
WHEREAS, the Compensation Committee of the Board of Directors
of the Company (the "Compensation Committee") and the Stock Plan Subcommittee of
the Compensation Committee have 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.
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The Company hereby agrees to employ the Executive, and the
Executive hereby agrees to enter into employment, as Group President of the
Company for the period commencing on July 1, 2001 and ending June 30, 2004
unless terminated sooner pursuant to Section 6 hereof (the "Term of
Employment"). The twelve-month period commencing on July 1, 2001 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 Group President of the Company, and, in such capacity, he shall serve as the
senior-most executive responsible for one or more of the Company's brands and/or
business units as he may be assigned from time to time. In such capacity, he
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.
(b) The Executive 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 Chief Executive Officer of the Company, the Chairman of the Board of
Directors of the Company or 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 Group President. 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 or the appropriate committee thereof 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 Group President, 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 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, Chairman of the Board or Chief Executive Officer of the
Company may approve, such approval not to be unreasonably withheld.
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 $83,333.33 per month (which
equates to $1,000,000 per annum) (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. The Compensation Committee
has established for the Executive annual opportunities (i.e., the maximum bonus
that may be awarded in respect of each fiscal year of the Company) under the
Company's Executive Annual Incentive Plan or any subsequent Bonus Plan for
executives that is approved by the stockholders of the Company (the "Bonus
Plan") equal to $1,300,000 in respect of the First Contract Year, $1,400,000 in
respect of the Second Contract Year and $1,500,000 in respect of the Third
Contract Year, subject to the terms and conditions of the Bonus Plan, which are
incorporated herein by reference.
(c) Deferral. The Executive may elect to defer payment of all
or any part of his incentive bonus compensation payable in accordance with
Section 3(b) 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
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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 Options. Beginning with the First Contract Year,
the Compensation Committee approved the grant to the Executive of options to
purchase 100,000 shares of the Company's Class A Common Stock ("Stock Options")
under the Fiscal 1999 Share Incentive Plan or successor plan (the "Share
Incentive Plan") in respect of each Contract Year, subject to the terms and
conditions of the Share Incentive Plan (or applicable successor plan), which are
incorporated herein by reference. The terms of the options shall be set forth in
a separate grant letter approved by the Compensation Committee or the Stock Plan
Subcommittee.
(b) Certain Conditions. Executive acknowledges and agrees that any grant
of 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.
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(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
Companies 401(k) Plan (the "401(k) 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.
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(b) Perquisite Reimbursement. The Company shall reimburse the
Executive the actual expense incurred by him in connection with his professional
standing, in accordance with the guidelines set out in the Company's executive
perquisite program. In no event shall the gross amount of such reimbursements be
greater than $15,000 in respect of any fiscal year during the Term of
Employment.
(c) 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.
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(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 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, this Agreement shall automatically terminate. In the
event of such termination the Company shall have no further obligations
hereunder, except to pay the Executive's beneficiary or legal representative (i)
for a period of one (1) year from the date of his death, the Executive's Base
Salary as established under Section 3(a) hereof as of the date of his death;
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(ii) (A) bonus compensation earned but not paid under Section 3(b) hereof that
relates to any Contract Year ending prior to the date of his death and (B) a
one-time payment equal to fifty percent (50%) of the average of actual annual
bonuses paid or payable during the Term of Employment in accordance with Section
3(b) hereof, except that if the Executive dies during the First Contract Year,
the sum of $650,000; and (iii) any other amounts to which the Executive
otherwise would have been entitled to hereunder prior to the date of his death;
provided, however, that, except as otherwise provided in this Section 6(b), the
Company will have no further obligations under Sections 3(b) hereof.
(c) Termination Without Cause. The Company shall have the
right, upon one hundred twenty (120) 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 latest to occur of (x)
a date one (1) year from the effective date of termination, (y) June 30, 2004,
or (z) the conclusion of a severance period consistent with Company policy
(which in no event will exceed two years), the Executive shall be entitled as
damages to (i) receive his Base Salary as established under Section 3(a) hereof;
and (ii) 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. In addition, he shall receive a one-time payment equal
to fifty percent (50%) of the average of actual annual bonuses paid or payable
to the Executive during the Term of Employment in accordance with Section 3(b)
hereof, or, if such termination occurs prior to the payment of any bonus
hereunder, the sum of $650,000. 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. The Executive's right to
participate in any of the Company's 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
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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.
(f) Non-Renewal. In the event the Company does not offer the
Executive the renewal of the Term of Employment on the basis of terms no less
favorable than those pending at the time of the conclusion of the Term, the
Executive shall be entitled to a severance arrangement providing Base Salary and
contribution of certain benefits for a period consistent with Company policy at
that time (which in no event will exceed two years).
(g) 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.
(h) Relocation. In the event of termination of the Executive's
employment hereunder for any reasons other than for "Cause" pursuant to Section
6(d) hereof, including non-renewal, the Company shall reimburse the Executive
for the actual cost of relocating Executive and his family from the New York
area to Paris, France. Such reimbursement shall be subject to Executive's
actually undertaking relocation within one year from the termination of his
employment. In no event shall such reimbursement exceed the gross amount of
$50,000.
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
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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 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
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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 two (2) years 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 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) hereof.
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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 Qualified Plan
and the Non-Qualified Plan and applicable successor plans or agreements, 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.
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.
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(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 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.
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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:
Xxxxxxx Xxxxxxxx-Xxxxxxxx
[Address]
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, 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.
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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/Xxxxxxx Xxxxxxxx-Xxxxxxxx
----------------------------
Xxxxxxx Xxxxxxxx-Xxxxxxxx
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