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Exhibit 10.27
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") made effective as of
the 1st day of April, 2000, by and between Xxxx Xxxxx Xxxxxx Corporation, a
Delaware corporation (the "Corporation"), and Xxxxxx Xxxxx (the "Executive").
WHEREAS, the Executive has been employed by the Corporation as
its Executive Vice President, General Counsel, Secretary and Chief Legal
Officer;
WHEREAS, the Corporation would like to continue the Executive
in such positions, and Executive wishes to remain employed in such positions;
and
WHEREAS, the Corporation and the Executive wish to enter into
an employment agreement effective as of the date hereof and intend this
Agreement to supersede all prior agreements between the Corporation and
Executive;
NOW, THEREFORE, intending to be bound the parties hereby agree
as follows with effect from the date first above written.
1. Employment/Prior Agreement. The Corporation hereby agrees
to employ the Executive, and the Executive hereby agrees to serve the
Corporation, on the terms and conditions set forth herein. From and after the
date hereof, the terms of this Agreement shall supersede in all respects the
terms of any prior arrangement or agreement, if any, dealing with the matters
herein.
2. Term. The employment of the Executive by the Corporation as
provided in Section 1 pursuant to this Agreement will be effective on the date
hereof. The term of the Executive's employment under this Employment Agreement
shall continue until the close of business of the third anniversary of the date
of this Agreement, subject to earlier termination in accordance with the terms
of this Agreement (the "Term"). The Term shall be automatically extended for
successive one-year periods thereafter unless either party notifies the other in
writing of its intention not to so extend the Term at least 180 days prior to
the commencement of the next scheduled one year extension (a "NonExtension
Notice").
3. Position and Duties. The Executive shall serve as the
Corporation's Executive Vice President, General Counsel, Secretary and Chief
Legal Officer. The Executive shall report to the Office of the Chairman, and
shall have such responsibilities and duties as may be assigned to Executive from
time to time, which are not inconsistent with Executive's positions. The
Executive shall devote substantially all of Executive's working time and efforts
to the business and affairs of the Corporation.
4. Compensation and Related Matters.
(a) Salary and Incentive Bonus
(i) Salary. During the Term, Executive's
annual
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salary shall be determined prior to the beginning of each year by the
Compensation Committee of the Corporation; provided that such salary may not be
decreased from the level set at any time by the Compensation Committee. Such
salary shall be paid in substantially equal installments on a basis consistent
with the Corporation's payroll practices. Executive's salary as in effect from
time to time is hereinafter referred to as the "Salary".
(ii) Incentive Bonus. Executive shall
participate in the Corporation's Executive Incentive Plan (the "EIP"), and any
substitute therefor, and be eligible to earn an annual cash bonus for each
fiscal year during the term of this Agreement (the "Annual Incentive Bonus").
During the Term, Executive's Annual Incentive Bonus opportunity shall range,
subject to achieving pre-established performance goals, from 50% of Executive's
Salary (the "Target Bonus Opportunity") at target performance to 100% of
Executive's Salary based upon the extent to which corporate or other performance
goals established by the Compensation Committee (the "Compensation Committee")
of the Corporation's Board of Directors (the "Board") are achieved. The Annual
Incentive Bonus, if any, payable to the Executive in respect of each fiscal year
will be paid at the same time that annual bonuses are paid to other executives
under the EIP. Notwithstanding any provision of this Agreement to the contrary,
Executive's entitlement to payment of an Annual Incentive Bonus during any
period when the compensation payable to the Executive pursuant to this Agreement
is subject to the deduction limitations of section 162(m) of the Internal
Revenue Code of 1986, as amended (the "Code"), shall be subject to shareholder
approval of a plan or arrangement evidencing such Annual Incentive Bonus
opportunity that complies with the requirements of section 162(m) of the Code.
(b) Expenses. During the term of the Executive's
employment hereunder, the Executive shall be entitled to receive prompt
reimbursement for all reasonable and customary expenses incurred by the
Executive in performing services hereunder, including all expenses of travel and
living expenses while away from home on business or at the request of and in the
service of the Corporation, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established by the
Corporation.
(c) Other Benefits. During the term of the
Executive's employment hereunder, the Executive shall be entitled to participate
in or receive benefits under any medical, pension, profit sharing or other
employee benefit plan or arrangement generally made available by the Corporation
now or in the future to its executives and key management employees (or to their
family members), subject to and on a basis consistent with the terms, conditions
and overall administration of such plans and arrangements. Nothing paid to the
Executive under any plan or arrangement presently in effect or made available in
the future shall be deemed to be in lieu of the Salary or Annual Incentive
Bonuses payable to the Executive pursuant to paragraph (a) of this Section.
(d) Vacations. The Executive shall be entitled to
reasonable vacations consistent with the Corporation's past practice.
(e) Options. Executive shall be entitled to annual
grants of stock options to purchase shares of the Corporation's Class A Common
Stock,
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pursuant to the terms of the Corporation's 1997 Long-Term Stock Incentive Plan,
on the same basis as grants generally are made available to the Corporation's
executives at the level of Group President/President. The determination whether
to make such grants, individually and/or as a group, and the amount thereof
shall be in the sole discretion of the Compensation Committee. Options granted
to the Executive pursuant to the foregoing will vest and become exercisable
ratably over three (3) years on each of the first three anniversaries of the
date of grant, subject to the Executive's continued employment through each
vesting date, and will have an exercise price equal to the fair market value per
share as of the date of grant.
5. Termination.
(a) Termination by Corporation. The Executive's
employment hereunder may be terminated at any time with or without Cause.
(b) Termination by the Executive. The Executive may
terminate his employment hereunder with or without Good Reason. For purposes of
this Agreement, "Good Reason" shall mean (A) a material diminution in or adverse
alteration to Executive's title, positions or duties as set forth in Section 3
herein, (B) a reduction in the Executive's Salary or Annual Incentive Bonus
opportunity or the Corporation's electing to eliminate the EIP without
substituting therefor a plan which provides for a reasonably comparable Annual
Incentive Bonus opportunity or the Executive's ceasing to be entitled to the
payment of an Annual Incentive Bonus as a result of the failure of the
Corporation's shareholders to approve a plan or arrangement evidencing such
Annual Incentive Bonus in a manner that complies with the requirements of
section 162(m) of the Code, (C) the relocation of Executive's principal office
outside of the area which comprises a fifty (50) mile radius from New York City
or (D) a failure of the Corporation to comply with any material provision of
this Agreement; provided that the events described in clauses (A), (B), (C) and
(D) above shall not constitute Good Reason unless and until such diminution,
change, reduction or failure (as applicable) has not been cured within thirty
(30) days after notice of such noncompliance has been given by the Executive to
the Corporation.
(c) Any termination of the Executive's employment by
the Corporation or by the Executive (other than termination pursuant to Section
6(d)(i) hereof) shall be communicated by written Notice of Termination to the
other party hereto in accordance with Section 10 hereof. A "Notice of
Termination" shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated.
6. Compensation Upon Termination. The provisions of this
Section 6 shall exclusively govern the Executive's rights hereunder upon
termination of employment with the Corporation and its affiliates; provided that
the nothing in this Agreement shall adversely affect the Executive's rights, if
any, following such termination of employment under the Corporation's employee
benefit plans and policies.
(a) If the Corporation shall terminate the
Executive's employment for any reason other than an Enumerated Reason as set
forth in Section
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6(d) hereof and other than due to the Corporation's election not to extend the
Term of this Agreement by delivery of a NonExtension Notice as contemplated by
Section 2, or if the Executive resigns for Good Reason pursuant to Section 5(b)
hereof, then so long as the Executive complies with Section 8 hereof the
Executive shall be entitled to the following:
(i) an amount equal to the greater of:
(A) the sum of (I) two (2) times the
Executive's Salary at the rate in effect on such date (unless
employment is terminated by the Executive for Good Reason
pursuant to Section 5(b) hereof as a result of a Salary
reduction, in which case, at the rate in effect prior to such
reduction), plus (II) one (1) times the "Average Annual
Incentive Bonus" (which term shall mean the average of the
Annual Incentive Bonuses paid to the Executive over the
preceding two fiscal years or, if the Executive was not
eligible to earn an Annual Incentive Bonus hereunder during
one or both of the preceding two fiscal years, then based on
the Annual Incentive Bonus paid in the prior fiscal year, if
the Executive was so eligible, or if the Executive was not so
eligible, then based on the Target Bonus Opportunity); plus
(III) a pro rata Average Annual Incentive Bonus for the fiscal
year of termination and based upon the percentage of the
fiscal year in which such termination occurs that shall have
elapsed through the date of termination (a "Pro Rata Annual
Incentive Bonus")); and
(B) the sum of (I) three (3) minus
the number of years (including fractions thereof) that shall
have elapsed from the date of this Agreement times the
Executive's Salary at the rate in effect on such date (unless
employment is terminated by the Executive for Good Reason
pursuant to Section 5(b) hereof as a result of a Salary
reduction, in which case, at the rate in effect prior to such
reduction), plus (II) one (1) times the Average Annual
Incentive Bonus; plus (III) a Pro Rata Annual Incentive Bonus
for the year of termination.
Any amounts paid pursuant to either
clause (A) or clause (B) above shall be paid in equal monthly
installments from the date of termination for a period of two
(2) years in the case of clause (A) above and for a period of
up to three (3) years less the number of years (including
fractions thereof) which shall have elapsed from the date of
this Agreement in the case of clause (B) above (such periods,
whichever is applicable, hereinafter referred to as the
"Severance Period"), except that the Pro Rata Annual Incentive
Bonus shall be paid in a lump sum in cash within thirty (30)
days following the date of the Executive's termination of
employment.
(ii) Continued participation in the
Corporation's health benefit plans during the Severance
Period; provided that if the Executive is provided with
coverage by a successor employer, any such coverage by the
Corporation shall cease;
(iii) Continued use of the Corporation
automobile or payment of Executive's automobile allowance, as
applicable, until expiration of the Severance Period or until
Executive secures new
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employment, whichever first occurs;
(iv) Waiver of collateral interest securing
return to the Corporation of premiums paid by the Corporation
for the Executive's existing split dollar life insurance
policy;
(v) If a Change of Control shall have
occurred prior to the date of termination, the Executive shall
be entitled at his option, exercisable in writing within
fifteen days of the date of termination, to receive the
equivalent of the Salary and Annual Incentive Bonus payments
pursuant to subsection (i) above in two equal lump sum
installments, the first payable within 30 days of the date of
termination and the second on the first anniversary of the
date of termination. As used herein, the term "Change of
Control" shall mean Xxxxx Xxxxxx or members of his family (or
trusts or entities created for their benefit) no longer
control 50% or more of the voting power of the then
outstanding securities of the Corporation entitled to vote for
the election of the Corporation's directors; and
(vi) Except as provided in this Section
6(a), the Corporation will have no further obligations to the
Executive under this Agreement following the Executive's
termination of employment under the circumstances described in
this Section 6(a). In addition to the foregoing, the
Corporation will provide to the Executive, at the Executive's
request, reasonable outplacement services consistent with the
Corporation's past practices for other former executives (the
"Outplacement Benefit"). The Corporation anticipates that
health benefits made available pursuant to clause (ii) above
will be provided in accordance with applicable COBRA
provisions. The Corporation shall waive or pay for any COBRA
premiums otherwise payable by the Executive. In the event
COBRA coverage expires, Corporation shall in lieu of such
coverage at its option provide alternative coverage or
reimburse the Executive for the actual costs incurred by
Executive for alternative coverage, for the remaining portion
of the Severance Period during which Executive would otherwise
be entitled to continued health benefits.
(b) If the Executive's employment is terminated by
his death or by the Corporation due to the Executive's Disability (as defined
below), the Corporation shall pay any amounts due to the Executive through the
date of his death or the date of his termination due to Disability, including a
Pro Rata Annual Incentive Bonus for the year of termination. Except as provided
in this Section 6(b), the Corporation will have no further obligations to the
Executive under this Agreement following the Executive's termination of
employment under the circumstances described in this Section 6(b).
(c) If the Executive's employment shall be terminated
by the Corporation pursuant to Section 6(d)(iii) for Cause or by the Executive
for other than Good Reason, the Corporation shall pay the Executive his full
Salary through the date of termination at the rate in effect prior to such
termination and, except as provided in this Section 6(c), the Corporation shall
have no further obligations to the Executive under this Agreement following the
Executive's termination of employment under the circumstances described in this
Section 6(c).
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(d) The term "Enumerated Reason" with respect to
termination by the Corporation of the Executive's employment shall mean any one
of the following reasons:
(i) Death. The Executive's employment
hereunder shall terminate upon his death.
(ii) Disability. If, as a result of the
Executive's incapacity due to physical or mental illness, the
Executive shall have been absent from his duties hereunder on
a full-time basis for the entire period of six consecutive
months, and within thirty (30) days after written Notice of
Termination is given (which Notice of Termination may be given
before or after the end of such six-month period; provided
that the termination would not be effective until the end of
such six-month period) shall not have returned to the
performance of his duties hereunder on a full-time basis (a
"Disability"), the Corporation may terminate the Executive's
employment hereunder.
(iii) Cause. The Corporation shall have
"Cause" to terminate the Executive's employment hereunder upon
(1) the willful and continued failure by the Executive to
substantially perform his duties hereunder after demand for
substantial performance is delivered to him by the Corporation
that specifically identifies the manner in which the
Corporation believes the Executive has not substantially
performed his duties, or (2) Executive's conviction of, or
plea of nolo contendere to, a crime (whether or not involving
the Corporation) constituting any felony or (3) the willful
engaging by the Executive in gross misconduct relating to the
Executive's employment that is materially injurious to the
Corporation, monetarily or otherwise (including, but not
limited to, conduct that constitutes competitive activity, in
violation of Section 8) or which subjects, or if generally
known, would subject the Corporation to public ridicule or
embarrassment. For purposes of this paragraph, no act, or
failure to act, on the Executive's part shall be considered
"willful" unless done, or omitted to be done, by him not in
good faith and without reasonable belief that his action or
omission was in the best interest of the Corporation.
Notwithstanding the foregoing, the Executive's employment may
be terminated for Cause only by act of the Board of Directors
of the Corporation and, in any event, the Executive's
employment shall not be deemed to have been terminated for
Cause without (x) reasonable written notice to the Executive
setting forth the reasons for the Corporation's intention to
terminate for Cause, (y) the opportunity to cure (if curable)
within 10 days of such written notice of the event(s) giving
rise to such notice, and (z) an opportunity for the Executive,
together with his counsel, to be heard by the Board of
Directors of the Corporation.
(e) If the Executive's employment with the
Corporation shall terminate due to the Corporation's or the Executive's election
not to extend the Term of this Agreement by delivery of a NonExtension Notice as
contemplated by Section 2, then the Executive shall be entitled to receive his
full Salary through the date of termination plus the Annual Incentive Bonus, if
any, that Executive would have been entitled to receive had he remained in the
Corporation's employment
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through the end of its fiscal year, prorated to the date of termination. Such
prorated Annual Incentive Bonus shall be payable at the same time as the
Corporation pays annual bonuses to other executives under the EIP. In addition,
if the Corporation was the party that so elected not to extend the Term of this
Agreement as described above, then the Executive shall be entitled to receive
the Outplacement Benefit and an amount, payable in equal monthly installments
over a one-year period, equal to the sum of (x) his Salary, plus (y) one (1)
times the Average Annual Incentive Bonus. Except as provided in this Section
6(e), the Corporation shall have no further obligations to the Executive under
this Agreement following the Executive's termination of employment under the
circumstances described in this Section 6(e).
(f) As a condition precedent to receipt of the
payments provided for Sections 6(a) and 6(e), Executive shall be required to
execute a general release in favor of the Corporation, excluding only the
payments remaining to be made pursuant to such Sections.
(g) Notwithstanding the foregoing, (A) in the event
the Corporation (or its successor) and the Executive both determine, based upon
the advice of the independent public accountants for the Corporation, that part
or all of the consideration, compensation or benefits to be paid to the
Executive under this Agreement constitute "parachute payments" under Section
280G(b)(2) of the Internal Revenue Code of 1986, as amended, then, if the
aggregate present value of such parachute payments, singularly or together with
the aggregate present value of any consideration, compensation or benefits to be
paid to the Executive under any other plan, arrangement or agreement which
constitute "parachute payments" (collectively, the "Parachute Amount") exceeds
2.99 times the Executive's "base amount", as defined in Section 280G(b)(3) of
the Code (the "Executive Base Amount"), the amounts constituting "parachute
payments" which would otherwise be payable to or for the benefit of the
Executive shall be reduced to the extent necessary so that the Parachute Amount
is equal to 2.99 times the Executive Base Amount (the "Reduced Amount");
provided that such amounts shall not be so reduced if the Executive determines,
based upon the advice of an independent nationally recognized public accounting
firm (which may, but need not be the independent public accountants of the
Corporation), that without such reduction the Executive would be entitled to
receive and retain, on a net after tax basis (including, without limitation, any
excise taxes payable under Section 4999 of the Code), an amount which is greater
than the amount, on a net after tax basis, that the Executive would be entitled
to retain upon his receipt of the Reduced Amount.
(B) If the determination made pursuant to
clause (A) above results in a reduction of the payments that would otherwise be
paid to the Executive except for the application of this Section 6(g), then the
Executive may then elect, in his sole discretion, which and how much of any
particular entitlement shall be eliminated or reduced and shall advise the
Corporation in writing of his election within ten days of the determination of
the reduction in payments. If no such election is made by the Executive within
such ten-day period, the Corporation may elect which and how much of any
entitlement shall be eliminated or reduced and shall notify the Executive
promptly of such election. Within ten days following such determination and the
elections hereunder, the Corporation shall pay or distribute to or for the
benefit of the Executive such amounts as are then due to the Executive under
this Agreement and shall promptly pay or distribute to or for the benefit of the
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Executive in the future such amounts as become due to the Executive under this
Agreement.
(C) As a result of the uncertainty in the
application of Section 280G of the Code at the time of a determination
hereunder, it is possible that payments will be made by the Corporation which
should not have been made under clause (A) of this Section 6(g) ("Overpayment")
or that additional payments which are not made by the Corporation pursuant to
clause (A) of this Section 6(g) should have been made ("Underpayment"). In the
event that there is a final determination by the Internal Revenue Service, a
final determination by a court of competent jurisdiction or a change in the
provisions of the Code or regulations pursuant to which an Overpayment arises,
any such Overpayment shall be treated for all purposes as a loan to the
Executive which the Executive shall repay to the Corporation together with
interest at the applicable Federal rate provided for in Section 7872(f)(2) of
the Code. In the event that there is a final determination by the Internal
Revenue Service, a final determination by a court of competent jurisdiction or a
change in the provisions of the Code or regulations pursuant to which an
Underpayment arises under this Agreement, any such Underpayment shall be
promptly paid by the Corporation to or for the benefit of the Executive,
together with interest at the applicable Federal rate provided for in Section
7872(f)(2) of the Code.
7. Mitigation. The Executive shall have no duty to mitigate
the payments provided for in Section 6 by seeking other employment or otherwise
and such payment shall not be subject to reduction for any compensation received
by the Executive from employment in any capacity following the termination of
the Executive's employment with the Corporation.
8. Noncompetition.
(a) The Executive agrees that for the duration of his
employment and for a period two (2) years from the date of termination thereof
and during any Severance Period, he will not, on his own behalf or on behalf of
any other person or entity, hire, solicit, or encourage to leave the employ of
the Corporation or its subsidiaries, affiliates or licensees any person who is
an employee of any of such companies.
(b) The Executive agrees that for the duration of his
employment and for a period of two (2) years from the date of termination
thereof and during any Severance Period, the Executive will take no action which
is intended, or would reasonably be expected, to harm (e.g. making public
derogatory statements or misusing confidential Corporation information, it being
acknowledged that the Executive's employment with a competitor in and of itself
shall not be deemed to be harmful to the Corporation for purposes of this
Section 8(b)) the Corporation or any of its subsidiaries, affiliates or
licensees or their reputation.
(c) The Executive agrees that during the duration of
his employment and;
(i) in the event of the Executive's
termination of employment due to the Executive's resignation
without Good Reason, until the later of (x) three (3) years
from the date of this Agreement and (y) twelve
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(12) months from the date of such termination of employment;
and
(ii) in the event of the Executive's
termination of employment by the Corporation without Cause or
the Executive's resignation for Good Reason pursuant to
Section 5(b), for twelve (12) months from the date of such
termination of employment; and
(iii) in the event of the Executive's
termination of employment by the Corporation for Cause, at the
election of the Corporation in consideration for the payment
to the Executive of an amount equal to one twelfth (1/12) the
Executive's Salary and Annual Incentive Bonus (equal to the
average of the Annual Incentive Bonuses paid to the Executive
over the preceding two years) for each month within such
period, for a period of up to twelve (12) months from the date
of such termination of employment,
then, during the period specified in clause (i), (ii) or (iii) above, as
applicable, the Executive shall not, directly or indirectly, (A) engage in any
"Competitive Business" (as defined below) for his own account, (B) enter into
the employ of, or render any services to, any person engaged in a Competitive
Business, or (C) become interested in any entity engaged in a Competitive
Business, directly or indirectly as an individual, partner, shareholder,
officer, director, principal, agent, employee, trustee, consultant, or in any
other relationship or capacity; provided that nothing shall prevent the
Executive from providing legal services in private practice; provided, further,
that the Executive may own, solely as an investment, securities of any entity
which are traded on a national securities exchange if the Executive is not a
controlling person of, or a member of a group that controls such entity and does
not, directly or indirectly, own 2% or more of any class of securities of such
entity.
For purposes of this Agreement the term "Competitive Business"
shall mean a business which competes with the Corporation or its subsidiaries,
affiliates or licensees, and shall include, without limitation, those brands and
companies that the Corporation and the Executive have jointly designated in
writing on the date hereof as being in competition with the Corporation as of
the date hereof. The term Competitive Business is not intended to include the
business of a competitor of a licensee whose business does not involve or
compete with the licensed businesses of the Corporation or its subsidiaries and
affiliates.
(d) The Executive will not at any time (whether
during or after his employment with the Corporation) disclose or use for his own
benefit or purposes or the benefit or purposes of any other person, entity or
enterprise, other than the Corporation or any of its subsidiaries or affiliates,
any trade secrets, information, data, or other confidential information relating
to customers, development programs, costs, marketing, trading, investment, sales
activities, promotion, credit and financial data, manufacturing processes,
financing methods, plans or the business and affairs of the Corporation
generally, or any subsidiary, affiliate or licensee of the Corporation; provided
that the foregoing shall not apply to information which is not unique to the
Corporation or which is generally known to the industry or the public other than
as a result of the Executive's breach of this covenant. The Executive agrees
that upon termination of his employment with the Corporation for any reason, he
will return to the Corporation immediately all memoranda, books, papers, plans,
information, letters and other data, and all copies
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thereof or therefrom, in any way relating to the business of the Corporation or
its subsidiaries or affiliates or licensees.
(e) If the Executive breaches, or threatens to commit
a breach of, any of the provisions of this Section 8 (the "Restrictive
Covenants"), the Corporation shall have the following rights and remedies, each
of which rights and remedies shall be independent of the other and severally
enforceable, and all of which rights and remedies shall be in addition to, and
not in lieu of, any other rights and remedies available to the Corporation under
law or equity:
(i) The right and remedy to have the
Restrictive Covenants specifically enforced by any court
having equity jurisdiction, it being acknowledged and agreed
that any such breach or threatened breach will cause
irreparable injury to the Corporation and that money damages
will not provide an adequate remedy to the Corporation;
(ii) The right and remedy to require the
Executive to account for and pay over to the Corporation all
compensation, profits, monies, accruals, increments or other
benefits (collectively, "Benefits") derived or received by the
Executive as the result of any transactions constituting a
breach of any of the Restrictive Covenants, and the Executive
shall account for and pay over such Benefits to the
Corporation; and
(iii) The right to discontinue the payment
of any amounts owing to the Executive under the Agreement. To
the extent Executive disputes the discontinuance of any
payments hereunder, such payments shall be segregated and
deposited in an interest bearing account pending resolution of
the dispute.
(f) If any court determines that any of the
Restrictive Covenants, or any part thereof, is invalid or unenforceable, the
remainder of the Restrictive Covenants shall not thereby be affected and shall
be given full effect, without regard to the invalid portion. In addition, if any
court construes any of the Restrictive Covenants, or any part thereof, to be
unenforceable because of the duration of such provision or the area covered
thereby, such court shall have the power to reduce the duration or area of such
provision and, in its reduced form, such provision shall then be enforceable and
shall be enforced.
9. Successors; Binding Agreement.
(a) The Corporation will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Corporation to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Corporation would be required to perform it if no such
succession had taken place. As used in this Agreement, "Corporation" shall mean
the Corporation as hereinbefore defined and any successor to its business and/or
assets as aforesaid which executes and delivers the agreement provided for in
this Section 9 or which otherwise becomes bound by all the terms and provisions
of this Agreement by operation of law.
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(b) This Agreement and all rights of the Executive
hereunder shall inure to the benefit of and be enforceable by the Executive's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any
amounts are payable to him hereunder all such amounts unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to the
Executive's devisee, legatee, or other designee or, if there be no such
designee, to the Executive's estate.
10. Notice. For the purposes of this Agreement, notices,
demands and all other communications provided for in this Agreement shall be in
writing and shall be deemed to have been duly given when personally delivered
with receipt acknowledged or five business days after having been mailed by
United States certified or registered mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive:
Xxxxxx Xxxxx
0000 Xxx Xxxxxx
Xxxxxxx, XX 00000
If to the Corporation:
Xxxx Xxxxx Lauren Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
11. Miscellaneous. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the Executive and such officer of the Corporation
as may be specifically designated by the Board. No waiver by either party hereto
at any time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of New York without regard to its conflicts of law principles.
12. Validity. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
13. 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 together will constitute one and the same instrument.
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14. Arbitration. Any dispute or controversy arising under or
in connection with this Agreement shall be settled exclusively by arbitration in
the City of New York before a single arbitrator who shall be a retired federal
judge in accordance with the then obtaining National Rules for the Resolution of
Employment Disputes or, if such rules are no longer in effect the then obtaining
employment rules of the American Arbitration Association. Judgment may be
entered on the arbitrator's award in any court having jurisdiction; provided,
however, that the Corporation shall be entitled to seek a restraining order or
injunction in any court of competent jurisdiction to prevent any continuation of
any violation of the provisions of Section 8 of this Agreement and the Executive
hereby consents that such restraining order or injunction be granted without the
necessity of the Corporation's posting any bond, and provided further that the
Executive shall be entitled to seek specific performance of his right to be paid
during the pendency of any dispute or controversy arising under or in connection
with this Agreement. Fees and expenses payable to the American Arbitration
Association and the arbitrator shall be shared equally by the Corporation and by
the Executive, but the parties shall otherwise bear their own costs in
connection with the arbitration; provided that the arbitrator shall be entitled
to include as part of the award to the prevailing party the reasonable legal
fees and expenses incurred by such party in an amount not to exceed $50,000.
15. Withholding. The Corporation may withhold from any amounts
payable under this Agreement such federal, state and local taxes as may be
required to be withheld pursuant to applicable law or regulation.
16. Entire Agreement. This Agreement sets forth the entire
agreement of the parties hereto in respect of the subject matter contained
herein and supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto; and any prior agreement
of the parties hereto in respect of the subject matter contained herein is
hereby terminated and cancelled.
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IN WITNESS WHEREOF, the Corporation has caused this Agreement
to be duly executed and the Executive has hereunto set his hand, effective as of
the first day written above.
XXXX XXXXX XXXXXX CORPORATION
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: President and Chief Operating Officer
Date: April 1, 2000
/s/ Xxxxxx Xxxxx
-------------------------------------
Executive: XXXXXX XXXXX
Date: April 1, 2000
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