1
Exhibit 10.17
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement")
made effective as of the 9th day of June, 1997, among Xxxx Xxxxx Xxxxxx, L.P.
(the "Partnership"), Xxxx Xxxxx Lauren Corporation, a Delaware corporation (the
"Company"), and Xxxxxxx X. Xxxxxx (the "Executive").
WHEREAS, the Executive has heretofore been employed by the
Partnership pursuant to an employment agreement dated as of October 23, 1993, as
previously amended by Amendment No.1 dated as of October 31, 1994 (the "Prior
Agreement");
WHEREAS, the Company is currently contemplating a registered
initial public offering of its Class A Common Stock (the "IPO"), prior to the
consummation of which the rights, duties and obligations of the Partnership
under this Agreement will be assigned to and assumed by the Company;
WHEREAS, the Partnership, the Company and the Executive wish
to amend and restate the Prior Agreement as evidenced by this Agreement
effective as of the date hereof in order to provide for the modification of
certain provisions of the Prior Agreement relating to the Executive's annual and
incentive compensation, equity opportunities and restrictive covenants in the
event the IPO is consummated;
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 Company hereby agrees to
employ the Executive, and the Executive hereby agrees to serve the Company, 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 the Prior
Agreement which shall cease to be of any further force and effect.
2. Term. The employment of the Executive by the Company as
provided in Section 1 pursuant to this Agreement will be effective on the date
hereof. The Executive will serve at the direction and pleasure of the Board. In
the event a registered initial public offering of the equity securities of the
Company (or any entity which shall be assigned or otherwise assume the rights,
duties or obligations of the Partnership hereunder) shall be consummated on or
prior to December 31, 1997 (a "Qualified Offering"), the term of the Executive's
employment under this Employment Agreement shall continue until the close of
business of the fifth anniversary of the consummation of the Qualified Offering,
subject to earlier termination in accordance with the terms of this Agreement
(the "Term"). The Term
2
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 twelve (12) months prior to the commencement of the
next scheduled one year extension.
3. Position and Duties. The Executive shall serve as Vice
Chairman and Chief Operating Officer of the Company and shall have such
responsibilities, duties and authority as he may have as of the date hereof (or
which arise from any comparable position as a key executive officer to which he
may be appointed after the date hereof) and as may from time to time be assigned
to the Executive by the Board that are consistent with such responsibilities,
duties and authority. The Executive shall devote substantially all his working
time and efforts to the business and affairs of the Company.
4. Compensation and Related Matters.
(a) Salary and Incentive Bonus
(i) Salary. During the period of the
Executive's employment hereunder, the Company shall pay to the Executive an
annual salary of not less than $800,000. Such salary shall be paid in
substantially equal installments on a basis consistent with the Company's
payroll practices. This salary shall be subject to annual review by the Board.
Notwithstanding the foregoing, in the event a Qualified Offering is consummated,
the Executive's salary for the period following the Qualified Offering shall not
be less than $900,000 per annum. From and after any Qualified Offering, the term
"Company" as used in this Agreement shall be deemed to refer to the successor to
rights, duties and obligations of the Partnership.
(ii) Incentive Bonus.
(A) During the period of the Executive's
employment prior to the consummation of a Qualified Offering, the Executive's
entitlement to an annual incentive bonus shall continue to be governed by the
letter agreement between the Partnership and the Executive dated as of April 10,
1996 (the "1996 Bonus Letter").
(B) In the event a Qualified Offering is
consummated, the 1996 Bonus Letter shall cease to be effective with respect to
the then current fiscal year and with respect to such then current fiscal year
and all future fiscal years that occur following the Qualified Offering the
Executive's annual incentive bonus will be a percentage of Income Before Taxes
("IBT") of the Company as determined under the Bonus Schedule below; provided
that in no event will the annual incentive bonus with respect to any fiscal year
exceed $3 million.
2
3
Incentive Bonus Schedule
For the first $0 to $75 million of IBT:
0%;
From $75 million to $150 million of IBT:
1.75% of IBT in excess of $75 million;
From $150 million to $200 million of IBT:
1% of IBT in excess of $150 million;
For amounts of IBT over $200 million:
.5% of IBT in excess of $200 million.
(C) The annual incentive bonus, whether paid
pursuant to clause (A) or (B) above, will be payable in a lump sum within
thirty days after the Company's year-end financial statements have been
certified by the Company's outside auditors and will not be included for any
purposes under the Deferred Compensation Agreement currently in effect between
the Executive and the Partnership (or any successor agreement thereto).
(D) IBT for purposes of this Agreement will
mean the amount reflected on the line with that term in the Company's financial
statements, prior to deducting the Executive's annual incentive bonus.
(E) Notwithstanding any provision of this
Agreement to the contrary, the 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 Company, provided that such expenses are incurred and accounted
for in accordance with the policies and procedures established by the Company.
(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 Company now
or in the future to its executives and key management employees (or to their
family members), subject to
3
4
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 payable to the Executive pursuant to paragraph (a)
of this Section.
(d) Vacations. The Executive shall be entitled to
reasonable vacations consistent with past practice.
(e) Restricted Stock.
(i) If a Qualified Offering is consummated,
then effective as of the date of commencement of the Qualified Offering, the
Executive will be granted a number of restricted shares of Class A Common Stock
of the issuer of securities in the Qualified Offering with a fair market value
equal to $2 million (based upon the initial offering price per share in the
Qualified Offering); provided that any fractional share will be paid to the
Executive in cash. The restricted shares will vest with respect to one third
(1/3) of the aggregate number of restricted shares so granted on each of (x) the
commencement date of the Qualified Offering, (y) the second anniversary of the
commencement date of the Qualified Offering and (z) the third anniversary of the
commencement date of the Qualified Offering, subject to the Executive's
continued employment through each vesting date.
(ii) In the event a Qualified Offering is
not consummated, the Executive shall receive a special cash bonus in respect of
fiscal year 1997 in the amount of $666,667.00, payable in a lump sum, no later
than December 31, 1997.
(f) Options.
(i) If a Qualified Offering is consummated,
then effective as of the date of commencement of the Qualified Offering, the
Executive will be granted options to purchase 350,000 shares of Class A Common
Stock of the issuer of securities in the Qualified Offering with an exercise
price equal to the initial offering price in the Qualified Offering. In
addition, with respect to at least each of the first three fiscal years
occurring after the Qualified Offering, as of a date no later than each
anniversary of the commencement of the Qualified Offering, the Executive will be
granted options to purchase 150,000 shares of Class A Common Stock of the of the
issuer of securities in the Qualified Offering with an exercise price equal to
the fair market value per shares as of the date of grant.
(ii) Any options granted to the Executive
pursuant to clause (i) above 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.
4
5
5. Termination.
(a) Termination by Company. The Executive's
employment hereunder may be terminated by the Board 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 the
Executive's duties or the assignment to the Executive of a title or duties
inconsistent with his position as a Vice Chairman and Chief Operating Officer of
the Company, (B) a reduction in the Executive's salary or annual incentive bonus
opportunity, (C) a failure of the Company to comply with any material provision
of this Agreement or (D) the Executive's ceasing to be entitled to the payment
of an annual incentive bonus as a result of the failure of the Company'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
Internal Revenue Code of 1986; provided that the events described in clauses
(A), (B) and (C) above shall not constitute Good Reason unless and until such
diminution, 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 Company.
(c) Any termination of the Executive's employment by
the Company 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. If termination is
pursuant to Sections 6(d)(ii)-(iii) or 5(b) hereof, the "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.
(a) If the Company shall terminate the Executive's
employment for any reason other than an Enumerated Reason as set forth in
Section 6(d) hereof and other than due to the Company's election not to extend
the Term of this Agreement 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) (x) if such termination of employment
occurs prior to a Qualified Offering, continued salary payments for a
period of thirty-six (36) months from the date of termination (the
"Severance Period") at the rate and in the manner 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 salary payments shall continue at the rate in
5
6
effect prior to such reduction); plus a pro rata annual incentive bonus
for the year of termination (based on the average annual incentive
bonus paid to the Executive over the preceding two years and based upon
the percentage of the calendar year in which such termination occurs
that shall have elapsed through the date of termination (a "Pro Rata
Annual Incentive Bonus")); or
(y) if such termination of employment occurs
following a Qualified Offering, an amount equal to the greater of:
(A) the sum of (I) three (3) 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) two (2) times the average annual incentive bonus
paid to the Executive over the preceding two years; plus a Pro
Rata Annual Incentive Bonus for the year of termination; and
(B) the sum of (I) (five (5) minus the number of
years (including fractions thereof) that shall have elapsed
since the consummation of the Qualified Offering) 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) two (2) times the average annual
incentive bonus paid to the Executive over the preceding two
(2) years; plus 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 for a period of
thirty-six (36) months from the date of termination, 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. For purposes of clause (A) and clause (B)
above, the Executive's annual incentive bonus for fiscal years 1996 and
1997 shall be deemed to be $1,000,000 and $1,500,000, respectively,
irrespective of the actual bonuses paid to the Executive in respect of
fiscal years 1996 and 1997.
(ii) Continued participation in the
Company's health benefit plans during the Severance Period; provided
that if the Executive is provided with similar coverage by a successor
employer, any such coverage by the Company shall cease;
(iii) Continued use of the Company
automobile until the then existing auto lease term expires;
6
7
(iv) Waiver of collateral interest securing
return to the Company of premiums paid by the Company for the
Executive's existing split dollar life insurance policy;
(v) Any unvested restricted shares granted
to the Executive pursuant to Section 4(e) will continue to vest on their
scheduled vesting dates, subject to and conditioned upon the Executive's
compliance with Section 8 hereof;
(vi) Any unvested options granted to the
Executive pursuant to Section 4(f) will continue to vest on their scheduled
vesting dates, subject to and conditioned upon the Executive's compliance with
Section 8 hereof and subject to and conditioned upon the Executive's compliance
with Section 8, any vested options granted to the Executive pursuant to Section
4(f) (including any options that continue to vest as described above) will
remain exercisable until the latest to occur of (x) five (5) years from the
commencement of the Qualified Offering, (y) one (1) year from the date the
Executive's termination of employment and (z) thirty (30) days from the date the
option becomes vested and exercisable;
(vii) 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 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 Company entitled to vote for the election
of the Company's directors; and
(viii) Except as provided above, the Company
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).
(b) If the Executive's employment is terminated by
his death or by the Company due to the Executive's Disability (as defined
below):
(i) The Company 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;
(ii) Any unvested restricted shares granted
to the Executive pursuant to Section 4(e) shall vest immediately;
7
8
(iii) Any unvested options granted to the
Executive pursuant to Section 4(f) will vest and all such options held by the
Executive, or his estate, will remain exercisable for three (3) years from the
date of the Executive's death or termination due to disability; and
(iv) Except as provided above, the Company
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 Company pursuant to section 6(d) (iii) for Cause or by the Executive for
other than Good Reason (including due to the Executive's election not to extend
the Term as contemplated by Section 2), the Company shall pay the Executive his
full salary through the date of termination at the rate in effect prior to such
termination and the Company shall have no further obligations to the Executive
under this Agreement but the Executive shall be bound by Section 8 hereof.
Following any such termination, any then unvested restricted shares granted to
the Executive pursuant to Section 4(e) shall be forfeited and any options
granted to the Executive pursuant to Section 4(f) that have not theretofore been
exercised shall cease to be exercisable and shall terminate as of the date of
such termination of employment.
(d) The term "Enumerated Reason" with respect to
termination by the Company 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 may occur
before or after 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 Company may terminate the Executive's
employment hereunder.
(iii) Cause. The Company 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
by the Company that specifically identifies the manner in which the
Company 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 Company) constituting any
felony or (3) the willful engaging by the Executive in gross misconduct
relating to the Executive's employment that is materially injurious
8
9
to the Company, 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 Company
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 Company. Notwithstanding the forgoing, the
Executive shall not be deemed to have been terminated for Cause without
(x) reasonable written notice to the Executive setting forth the
reasons for the Company's intention to terminate for Cause, (y) an
opportunity for the Executive, together with his counsel, to be heard
before the Board, and (z) delivery to the Executive of a Notice of
Termination, as defined in Section 5(c) hereof, from the Board finding
that in the good faith opinion of the Board the Executive was guilty of
conduct set forth above in clauses (A) through (C) hereof, and
specifying the particulars thereof in detail.
(e) If the "Term" becomes effective following a
Qualified Offering pursuant to Section 2, and if the Executive's employment with
the Company shall terminate due to the Company's election not to extend the Term
of this Agreement as contemplated by Section 2:
(i) The Executive shall be entitled to
receive an amount, payable in equal monthly installments over a one year period,
equal to the sum of (x) his annual salary, plus (y) his average annual incentive
bonus paid over the preceding two years;
(ii) Any unvested restricted shares granted
to the Executive pursuant to Section 4(e) will continue to vest on their
scheduled vesting dates, subject to and conditioned upon the Executive's
compliance with Section 8 hereof;
(iii) Any unvested options granted to the
Executive pursuant to Section 4(f) will continue to vest on their scheduled
vesting dates, subject to and conditioned upon the Executive's compliance with
Section 8 hereof and subject to and conditioned upon the Executive's compliance
with Section 8, any vested options granted to the Executive pursuant to Section
4(f) (including any options that continue to vest as described above) will
remain exercisable until the latest to occur of (x) five (5) years from the
effectiveness of the Qualified Offering, (y) one (1) year from the date the
Executive's termination of employment and (z) thirty (30) days from the date the
option becomes vested and exercisable; and
(iv) Except as provided above, the Company
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).
9
10
7. Mitigation. The Executive shall have no duty to mitigate
the payments provided for in Section 6(a) 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 Company.
8. Noncompetition.
(a) The Executive agrees that for the duration of his
employment and for a period three (3) years from the date of termination
thereof, 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 Company or its
subsidiaries or affiliates 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 three (3) years from the date of termination
thereof, 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 Company 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 Company for purposes of this Section 8(b)) the Company or any
of its subsidiaries or affiliates or their reputation.
The following paragraphs (c), (d), (e) and (f) shall only
apply following the consummation of a Qualified Offering:
(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) five (5) years from the
commencement of a Qualified Offering and (y) two (2) years from the
date of such termination of employment; and
(ii) in the event of the Executive's
termination of employment by the Company without Cause or the
Executive's resignation for Good Reason pursuant to Section 5(b), for
two (2) years from the date of such termination of employment; and
(iii) in the event of the Executive's
termination of employment by the Company for Cause, at the election of
the Company in consideration for the payment to the Executive of an
amount equal to the Executive's salary and annual incentive bonus
(equal to the average annual incentive bonus paid to the Executive over
the preceding two years) for each year within such period, for a period
of up to two (2) years from the date of such termination of employment,
10
11
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 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 any of the brands and companies that the Company and the Executive
may agree to and acknowledge in writing in the future based upon a good faith
determination that such brands or companies compete with the Company or its
affiliates.
(d) The Executive will not at any time (whether
during or after his employment with the Company) disclose or use for his own
benefit or purposes or the benefit or purposes of any other person, entity or
enterprise, other than the Company or any of its 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 Company generally, or any
affiliate of the Company; provided that the foregoing shall not apply to
information which is not unique to the Company 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 Company for any reason, he will return to the Company immediately all
memoranda, books, papers, plans, information, letters and other data, and all
copies thereof or therefrom, in any way relating to the business of the Company
and its affiliates.
(e) If the Executive breaches, or threatens to commit
a breach of, any of the provisions of this Section 8 (the "Restrictive
Covenants"), the Company 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 Company 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 Company and that
money damages will not provide an adequate remedy to the Company;
11
12
(ii) The right and remedy to require the
Executive to account for and pay over to the Company 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
Company; and
(iii) The right to discontinue the payment
of any amounts owing to the Executive under the Agreement.
(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 Company 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 Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company 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.
(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:
12
13
If to the Executive:
Xx. Xxxxxxx X. Xxxxxx
00 Xxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
if to the Company:
Xxxx Xxxxx Xxxxxx Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
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 Company 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.
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 in accordance with the rules of
the American Arbitration Association then in effect. Judgment may be entered on
the arbitrator's award in any court having jurisdiction; provided, however, that
the Company 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 may be granted without the necessity
of the Company's posting any bond, and provided further that the Executive shall
be entitled to seek specific performance of
13
14
his right to be paid until the date of termination 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 Company 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 $25,000.
15. Withholding. The Company 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.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be duly executed and the Executive has hereunto set his hand, effective as of
the 9th day of June, 1997.
XXXX XXXXX LAUREN, L.P
By: XXXX XXXXX XXXXXX CORPORATION
General Partner
By: /s/ Xxxxxx Xxxxx
___________________________________
XXXX XXXXX XXXXXX CORPORATION
By: /s/ Xxxxx Lauren
___________________________________
/s/ Xxxxxxx X. Xxxxxx
______________________________________
Executive: Xxxxxxx X. Xxxxxx
14
