EXHIBIT 10.3 (m)(1)
CONFIDENTAL AND
LEGALLY PRIVILEGED
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 1st day of July 1998,
by and between ▇▇▇▇▇ CORPORATION, a Delaware corporation maintaining its
principal office at Two Pennsylvania Plaza, New York, New York (the "Company")
and ▇▇▇▇▇ ▇▇▇▇▇, an individual now residing at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (the "Employee").
WITNESSETH THAT:
WHEREAS, the Employee is currently serving in an executive capacity as
a Senior Vice President of the Company in its Legal Department and the Company
desires to ensure that the Employee will continue to be available to provide
legal services for the Company and its subsidiaries;
WHEREAS, to induce the Employee to provide such services, the Company
is offering to provide the Employee with the compensation, benefits and security
provided for in this Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto agree as follows:
1. Employment/Capacity/Term.
(a) The Company agrees to and does hereby employ the Employee,
and the Employee agrees to and hereby does enter into the
employ of the Company upon the terms and conditions set
forth in this Agreement. Such employment shall be in an
executive capacity as Senior Vice President of the Company.
(b) This Agreement and such employment shall commence on July 1,
1998 and shall continue through June 30, 2001 (the "Initial
Term"), and from year to year thereafter (the "Extended
Term"), subject to the right of the Employee or the Company
to terminate this Agreement and such employment by written
notice stating an intention to terminate such employment at
least thirty (30) days prior to such termination date (the
"Termination Date"). As used in this Agreement, the phrase
"term of this Agreement" shall be deemed to include the
period subsequent to the date hereof and prior to the
Termination Date.
2. Time and Effort/Absences.
During the "term of this Agreement", the Employee shall devote
his or her entire time and attention during normal business hours
to the business of the Company subject to the supervision of the
Board of Directors of the Company and the President and Chief
Executive Officer of the Company. Employee shall not engage in
any other business activity whether or not such business activity
is pursued for gain, profit, or other pecuniary advantage, but
this restriction shall not be construed to restrict the Employee
(i) from performing services as a member of the Board of
Directors, Board of Trustees or the like of any non-profit entity
for which the Employee receives no compensation, provided that,
such services do not unreasonably interfere with the ability of
the Employee to perform the services and discharge the
responsibilities required of Employee under this Agreement, and
(ii) from investing his or her assets in such form or manner as
will not require any services on the part of the Employee in the
operation of the business of the entity in which such investments
are made. The Employee shall be excused from rendering his or her
services during reasonable vacation periods and during other
reasonable temporary absences as authorized from time to time by
the Board of Directors or the President and Chief Executive
Officer of the Company.
3. Corporate Offices.
If elected, the Employee will serve, without additional
compensation, as an officer and director (or in either capacity)
of the Company and its subsidiaries.
4. Salary/Bonus/Other Benefits.
In consideration of the services and duties to be rendered and
performed by the Employee during the term of this Agreement, the
Company agrees to pay and provide for the Employee the
compensation and benefits described below:
(a) An annual salary, payable in equal monthly or biweekly
installments, in the amount of Two Hundred Three Thousand Dollars
($203,000.00) or in such greater amount as may from time to time
be fixed by the Board of Directors of the Company.
(b) An annual incentive bonus in such amount as may from time to
time be fixed by the Board of Directors of the Company.
(c) Other Benefits. The Company shall continue to provide the
Employee with benefits at least as favorable as benefits
currently provided to Employee and provided on behalf of other
executives of the Company who furnish services of comparable
significance, as they may exist from time to time. Such benefits
presently include (i) grandfathered participation in the ▇▇▇▇▇
Core Medical Program, Group Life Insurance, Supplemental
Executive Group Life Insurance,
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Medical and Dental Insurance, ▇▇▇▇▇ Stock Option Plan, Executive
Pension Plan, ▇▇▇▇▇ Select Plan, ▇▇▇▇▇ Profit Sharing Plan and
▇▇▇▇▇ 401(k) Plan and (ii) an automobile allowance in the amount
of $700.00 per month. Provided, however, any such participation
shall be in accordance with the provisions of such plans and
nothing contained in this Agreement is intended to or shall be
deemed to affect adversely any of the Employee's rights as a
participant under any such plans. Nothing herein shall prevent
the Company from modifying or discontinuing any benefit plan on a
consistent and non-discriminatory basis applicable to all such
executives.
5. Expenses.
The Employee shall be reimbursed for out-of-pocket expenses
incurred from time to time on behalf of the Company or in the
performance of his or her duties under this Agreement, upon the
presentation of such supporting documents and forms as the
Company shall reasonably request.
6. Medical Leave, Reasonable Accommodation, Termination for
Medical Incapacity and Disability Benefits.
The Company agrees to provide the Employee with a medical leave of
absence not to exceed six (6) months in duration in any twelve
(12) month period if the Employee has a medical condition that
precludes the Employee from being fully functional in his or her
position. The term "fully functional" means able to travel to and
from work, be at work, perform satisfactorily all essential
functions of the position as identified herein, and otherwise
meet the demands of the position and the conditions of employment
without significant risk of substantial harm to self or others.
Any leave entitlement granted by Federal, state or local law
shall run concurrently with the commencement of Employees six
month period of leave, whether such leave is taken all at once,
intermittently or on a reduced time basis. Nothing herein is
intended to diminish any entitlement granted by law. If
appropriate, the Company will support the Employee's application
for disability benefits.
If the Employee is not able to return to the position in a fully
functional capacity at the conclusion of six months of medical
leave in a twelve month period, this Agreement may be terminated
by the Board of Directors of the Company at its sole discretion,
without prior notice.
Unless otherwise prohibited by law, the Employee agrees that the
Employee will furnish for review by a medical professional
designated by the Company, copies of the Employee's medical
records pertaining to any medical condition for which the
Employee requests a medical leave of more than twelve (12) weeks
in duration, return to work from any such leave, work
restrictions, modification or accommodation; or the Employee or
the company believes that the Employee has a medical condition
that may be causing or contributing to performance or
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conduct deficiencies. The Employee also agrees to authorize any
health care professional from whom the Employee is receiving
diagnostic evaluation, treatment or other medical care to discuss
the Employee's medical condition with the medical professional
designated by the Company to receive and review the Employee's
medical records. The Employee further agrees that he or she will
undergo, at the sole expense of the Company, any medical
specialty evaluation if requested to do so by the Company.
The Company agrees to provide the Employee, if Employee is
otherwise qualified for the position, with medically necessary
accommodation if it likely will enable the employee to be fully
functional in the position and is reasonable, feasible and will
not impose undue hardship on Company operations. The term
"medically necessary" means that the accommodation has
risk-avoiding or therapeutic value in accordance with
scientifically valid medical principles and practice and that the
Employee requires similar accommodation when performing
comparable non-work functions.
The inability of the Employee to be fully functional in his or
her position for medical reasons shall not constitute a breach of
this Agreement by the Employee. If this Agreement is terminated
by the Company because the Employee is not fully functional in
his or her position for medical reasons, as provided for in this
paragraph, the Company shall be obligated to continue the salary
of the Employee as provided in Paragraph 4. (a) for a period
equal to the greater of (i) twelve (12) months, or (ii) such
longer period as may be determined by the Board of Directors of
the Company, in each case, reduced by any disability insurance
benefits provided for the benefit of the Employee at the expense
of the Company.
7. Death/Death Benefit.
In the event of the death of the Employee during the term of this
Agreement, this Agreement shall terminate and the Employee's
salary shall continue to be paid to his or her designated
beneficiary or, if none, to his or her personal representative,
through the last day of the month in which such death occurs.
8. Severance Pay.
If the Company gives notice to terminate in accordance with
Paragraph 1.(b) or if the employment of the Employee is
terminated at any time (i) by the Employee for Good Reason (as
defined in Paragraph 9), or (ii) by the Company for any reason
other than for Cause (as hereinafter defined), the Company will
be obligated to pay to the Employee a lump-sum cash payment in an
amount equal to the product of (i) and (ii); where (i) shall
equal the sum of (A) the Employee's annual salary in effect on
the date of termination and (B) the Employee's annual incentive
bonus for the twelve (12) month period ending on December 31
immediately preceding the date such termination of employment
occurs (the "Date of Termination"), but not less than $125,000,
which represents the 1998
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target incentive, divided by twelve (12); and where (ii) shall
be thirty-six (36), (the "Severance Pay"). Termination of the
Employee's employment on account of his disability, death or
voluntary retirement after age 65 will not be considered a
termination of the Employee's employment by the Company and
will not require the Company to pay and provide any Severance
Pay. No Severance Pay will be required if the employment of
the Employee is terminated by the Company for Cause (as
hereinafter defined) or by the Employee (other than for Good
Reason as defined in Paragraph 9) or if the Employee gives
notice to terminate in accordance with Paragraph 1(b). The
Severance Pay provided herein is provided in order to
reinforce and encourage the continued loyalty, attention, and
dedication of the Employee to the Company's business and
affairs without the concerns which normally arise from the
possibility of a loss of employment security. As used herein,
the term "Cause" shall have the following meaning:
Cause. Termination by the Company of the Employee's employment
for "Cause" shall mean termination as a result of (i) the
willful and continued failure by the Employee to perform
substantially the services contemplated by this Agreement
(other than any such failure resulting from the Employee's
incapacity due to physical or mental illness) after a written
demand for substantial performance is delivered to the
Employee by a member or representative of the Board of
Directors of the Company which specifically identifies the
manner in which it is alleged that the Employee has not
substantially performed such services, or (ii) the willful
engaging by the Employee in gross misconduct which is
materially and demonstrably injurious to the Company; provided
that, no act, or failure to act, on the Employee's part shall
be considered "willful" unless done, or omitted to be done, in
bad faith and without reasonable belief that such action or
omission was in, or not opposed to, the best interest of the
Company. It is also expressly understood that the Employee's
attention to or engagement in matters not directly related to
the business of the Company shall not provide a basis for
termination for Cause if such attention or engagement is
authorized by the terms of this Agreement or has otherwise
been approved by the Board of Directors of the Company.
Anything in this Agreement to the contrary notwithstanding,
the Employee's employment may not be terminated for Cause
unless and until there shall have been delivered to the
Employee a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters of the entire
membership of the Board at a meeting of the Board called and
held for that purpose (after reasonable notice to the Employee
and an opportunity for the Employee, together with his
counsel, to be heard before the Board), finding that in the
good faith opinion of the Board the Employee was guilty of the
conduct set forth in clause (i) or (ii) of this subparagraph
(b) and specifying the particulars thereof in detail Except as
otherwise provided in Paragraphs 1 and 6, no purported
termination by the Company of the Employee's employment which
is not justified as a termination of the Employee's employment
for Cause shall be effective.
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9. Termination by the Employee for Good Reason.
The Termination by the Employee of his employment for "Good
Reason" shall be deemed a justifiable termination of his
employment and shall excuse the Employee from the obligation
to render services as provided in Paragraph 2 hereof. Upon
such termination, the Employee shall be entitled to Severance
Pay in accordance with the provisions of Paragraph 8 hereof.
As used herein, the phrase "Good Reason" shall mean:
(a) a change in the Employee's status, title or
position(s) as an officer of the Company in the
executive capacity set forth in this Agreement
which, in his or her reasonable judgment, does not
represent a promotion from or enhancement of his
status, title and position, or the assignment by
the Board of Directors of the Company to the
Employee of any duties or responsibilities with
such status, title or position, or any removal of
the Employee from or any failure to reappoint or
reelect him or her to such position, except in
connection with a justifiable termination by the
Company of the Employee's employment for Cause or
on account of disability, voluntary retirement
after age 65, death of the Employee or the
termination by the Employee of his employment
other than for Good Reason;
(b) a reduction in the Employee's annual salary or a
failure by the Company to pay to the Employee any
installment of the annual salary required by
Paragraph 4, which failure continues for a period of
twenty (20) days after written notice thereof is
given by the Employee to the Company;
(c) the failure by the Company within ten (10) days of
notice from the Employee to obtain the assumption of
this Agreement in form and substance to the
reasonable satisfaction of the Employee by any
successor as referred to in Paragraph 12; or
(d) any refusal by the Company to allow the Employee to
attend to matters or engage in activities not
directly related to the business of the Company which
is permitted by this Agreement or which, prior
thereto, was permitted by the Board of Directors of
the Company.
(e) the change of employee's principal place of
employment to a location more than 50 miles from
Employee's current principal place of employment,
except for required travel on the Company's business
to an extent substantially consistent with Employee's
business travel obligations.
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10. Notice of Termination.
Any purported notice of termination of the Employee's
employment shall be communicated in writing and delivered to
the other party as provided in Paragraph 12, below
(hereinafter a "Notice of Termination").
11. Confidentiality and Limited Covenant Not to Compete.
In connection with the performance of the Employee's job
duties in a position of trust and confidence, he or she will
develop or receive confidential, restricted or unpublished
information involving trade secrets, customer-related
information, vendor-related information, copyrights, lists,
data and other information, strategic planning or operating
data, computer programs, financial, pricing, operating or
training data or other confidential business techniques,
processes, methods or information which is not generally known
to the public (collectively referred to as "proprietary
information"). Employee will receive or have access to
"proprietary information" which was obtained and developed
through the investment of substantial amounts of money, time
and effort by the Company. Employee acknowledges and agrees
that disclosure of such "proprietary information" or its use
for the benefit of any other person or entity would be
injurious to the Company. Employee also acknowledges and
agrees that unless Employee agrees to maintain the
confidentiality of such "proprietary information" and to limit
its use solely to the Company, Employee would not have been
granted employment and if already employed, Employee's
employment would cease immediately. Regardless of the
cessation of Employees employment for any reason, the
Employee's obligation to continue to maintain the
confidentiality of the "propriety information" shall continue.
The Employee agrees to deliver to the Company, at its request,
or in any event, upon cessation of Employee's employment with
the Company (for whatever reason and at whatever time) (a) all
memoranda, notes, records, files or other documentation,
whether made or compiled by the Employee alone or in
conjunction with others (regardless of whether such persons
are employed by the Company); (b) all proprietary and other
information of the Company which is in Employee's control or
possession; and (c) copies of such information, as well as
other corporate property. Regardless of cessation of
Employee's employment by the Company, and without any fee, the
Employee will assist the Company in protecting all rights the
Company may have to such proprietary information.
The Employee recognizes that, as a direct consequence of the
materials, information and training provided to him or her by
the Company, the access he or she is granted to proprietary
information and the opportunities that he or she will have
while employed by the Company to cultivate the loyalty and
goodwill of the Company's customers, suppliers, vendors and
other persons, it is important that the Employee refrain from
engaging in activities which could result in damage to the
Company's business.
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The Employee further recognizes that the Company has invested
considerable time and money to train its employees, in the
services provided by the Company and to develop the special
skills required to perform such services. Therefore, he or she
will not, during the term of his or her employment with the
Company and for a period of one (1) year immediately
thereafter, solicit, entice, hire or otherwise seek to
persuade, either directly or through any other entity, any
officer, employee, consultant or agent of the Company to
discontinue such relationship for any reason. During such
period, the Employee will not solicit business with any
customers of the Company, nor will he or she seek to entice or
persuade any sources of referral, vendors or other entities,
who are then doing business with the Company to reduce,
discontinue or curtail any services provided to the Company in
any respect.
To avoid the use of "proprietary information", the Employee
agrees to refrain from engaging in competing employment either
directly or indirectly on his or her own behalf or as an
agent, consultant or employee of any partnership, corporation
or other entity, in any state where the Company conducts
business for a period of six (6) months after his or her
employment ceases (regardless of the reason for cessation of
such employment).
The Employee recognizes and agrees that ascertaining damages
in the event of his or her breach or violation of any covenant
or undertaking contained in this Agreement would be difficult,
if not impossible, and further recognizes that the various
rights and duties created in this Agreement are essential for
the operation of the Company's business operations.
Consequently, irreparable injury would result from any
violation of this Agreement by him or her. Since it would be
difficult, if not impossible, to compensate fully the Company
by monetary damages in the event of the Employee's breach
(although the Company retains the right to commence a civil
action seeking monetary damages), the Employee agrees that the
Company, in addition to and without limiting any other remedy
or right it may have, shall have the immediate right to obtain
a preliminary, and subsequently, a final injunction against
the Employee, to be issued by a court of competent
jurisdiction, enjoining the Employee from engaging in any
breach or violation of this Agreement. An injunction shall be
issued without posting a bond that otherwise might be
required. If an injunction is issued or if monetary damages
are awarded against the Employee, he or she will reimburse the
Company for the legal fees and court costs incurred in
obtaining such relief (including all appeals and other
proceedings).
12. Binding Effect.
This Agreement shall be binding upon and inure to the benefit
of:
(a) Any successors or assigns of the Company, whether by
way of a merger or consolidation, or liquidation of
the Company, or by way of the Company
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selling all or substantially all of the assets of the
Company to a successor entity; and
(b) The Employee's estate, his or her executors,
administrators, heirs and beneficiaries.
13. Notices.
Any notice or other communication required under this
Agreement shall be in writing, shall be deemed to have been
given and received when delivered in person, or, if mailed,
shall be deemed to have been given when deposited in the
United States mail, first class, registered or certified,
return receipt requested, with proper postage prepaid, and
shall be deemed to have been received on the third business
day thereafter, and shall be addressed as followed:
If to the Company, addressed to:
▇▇▇▇▇ Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chairman of the Board, President
and Chief Executive Officer
With a copy to its: General Counsel
If to the Employee, addressed to:
▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
or such other address as to which any party hereto may have
notified the other in writing.
14. Governing Law.
This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New York, without
regard to its conflict or choice of laws provisions to
preserve the parties intent, and the enforceability of this
Agreement.
15. Entire Agreement.
This Agreement contains the entire arrangement or
understanding between the Employee and the Company relating to
the employment of the Employee of the Company and, except as
otherwise set forth in this Agreement, shall supercede any and
all existing oral or written agreements, representations or
warranties
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between the Employee and the Company relating to the
Employee's employment by the Company. No provision of the
Agreement may be modified or amended except by any instrument
in writing by or for both parties hereto. All references to
paragraphs refer to paragraphs of this Agreement.
16. Waiver.
Failure of either party hereto to insist upon strict
compliance by the other party with any term, covenant or
condition hereof shall not be deemed a waiver of such term,
covenant or condition, nor shall any waiver of such term,
covenant or condition, nor shall any waiver or relinquishment
or failure to insist upon strict compliance of any right or
power hereunder at any one or more time be deemed a waiver or
relinquishment of such right or power at any other time or
times.
17. Assignment by Employee.
The rights and benefits of the Employee under this Agreement
are personal to him or her and no such right or benefit shall
be subject to voluntary or involuntary alienation, assignment
or transfer; provided, however, that nothing in this Paragraph
shall preclude the Employee from designating a beneficiary or
beneficiaries to receive any benefit payable on his or her
death.
18. Severability.
If for any reason any provision of this Agreement shall be
held invalid, such invalidity shall not affect any other
provision of this Agreement not held so invalid, and all other
provisions shall to the full extent consistent with law
continue in full force and effect. If any such provision shall
be held invalid in part, such invalidity shall in no way
affect the remaining portion of such provision not held so
invalid, and the remaining portion of such provision, together
with all other provisions of this Agreement, shall to the full
extent consistent with law continue in full force and effect.
19. Headings.
The headings of paragraphs are included solely for convenience
of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
▇▇▇▇▇ CORPORATION
Dated:June 24, 1998 By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------- ---------------------------------
Chairman of the Board,
President and Chief
Executive Officer
Dated:June 24, 1998 By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------- ---------------------------------
▇▇▇▇▇ ▇▇▇▇▇ - Employee
