EXHIBIT 10.5
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of January 1, 2000 (the
"Effective Date") between True North Communications Inc., a Delaware corporation
(the "Company" or "True North"), and J. Xxxxxxx Xxxx (the "Executive").
WHEREAS, the Company is a global communications holding
company with ownership interests in subsidiaries, affiliates and joint ventures
that are engaged in the advertising agency business, the multimedia production
business, the business of planning and buying of media time and space and
related businesses (the Company and the subsidiaries, affiliates and joint
ventures in which it from time to time has equity interests are hereinafter
referred to collectively as the "True North Group");
WHEREAS, the Executive currently serves the Company as the
Chief Executive Officer of FCB Worldwide L.L.C. ("FCB");
WHEREAS, the Executive and the Company have entered into an
Employment Agreement dated December 31, 1996, as subsequently amended by a
Letter Agreement dated July 30, 1997 (the "Prior Agreement"); and
WHEREAS, the Company and the Executive desire to enter into
this Agreement to replace the Prior Agreement and to provide for the continued
employment of the Executive by the Company upon the terms and subject to the
conditions set forth herein. Unless noted otherwise, all references herein to
the Company shall include FCB.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein, the parties hereby agree as follows:
1. EMPLOYMENT. The Company hereby employs the Executive
and the Executive hereby agrees to be employed by the Company upon the terms and
subject to the conditions contained in this Agreement. The initial term of
employment of the Executive by the Company pursuant to this Agreement (the
"Initial Term") shall commence on the Effective Date and, unless earlier
terminated, shall end on the third annual anniversary of the Effective Date;
provided that the term of this Agreement shall automatically be extended for
three additional years as of the day immediately following the end of the
Initial Term and as of the day immediately following the end of each subsequent
three-year extended term hereof unless the Company or the Executive shall have
terminated the automatic extension provisions of this sentence by giving written
notice to the Executive or the Company, as the case may be, at least 60 days
prior to the then applicable termination date. (The Initial Term and any
extension of the term of this Agreement pursuant to this Section 1 are
collectively referred to herein as the "Employment Period.")
2. POSITION AND DUTIES. The Company shall employ the
Executive during the Employment Period with the title of Chief Executive Officer
of FCB (or such other title(s) as may be mutually agreed upon by the Executive
and the Company). The Executive shall report directly to the True North Chief
Executive Officer (the "True North CEO") and shall be nominated by True North
management to serve on the Board of Directors of True North. The Executive's
principal place of business during the Employment Period shall be in New York
City. Subject to the powers, authority and responsibilities vested in the True
North Board of Directors (the "Board"), in duly constituted committees of the
Board and in the True North CEO, the Executive shall have the duties and
responsibilities commensurate with his position and title as are reasonably
assigned to him from time to time by the True North CEO or the Board. During the
Employment Period, the Executive shall perform faithfully and loyally and to the
best of the Executive's abilities his duties hereunder, shall devote his full
business time, attention and efforts to the affairs of the True North Group and
shall use his reasonable best efforts to promote the interests of the Company.
Notwithstanding the foregoing, the Executive may engage in charitable, civic or
community activities, provided that they do not interfere with the performance
of the Executive's duties hereunder.
3. COMPENSATION.
(a) ANNUAL BASE SALARY. The Company shall pay to the
Executive an annual base salary at the rate of $900,000 per annum in accordance
with the Company's regular payroll practices. The annual base salary shall be
reviewed periodically (for increase only) in accordance with guidelines
applicable to the Company's senior executives generally.
(b) INCENTIVE COMPENSATION. During the Employment Period,
the Executive shall be entitled to participate in the True North Executive
Compensation Program on terms that are comparable to those applicable to the
most senior executives of the Company and its subsidiaries, and as such Program
may be amended from time to time.
(c) OTHER BENEFITS. During the Employment Period, the
Executive shall be entitled to participate in the Company's employee benefit
plans and programs and fringe benefits that are generally available to the most
senior executives of the Company from time to time. All benefits referred to in
this Section 3(c) are hereinafter referred to as the "Employee Benefits."
(d) DIRECTORS PART-TIME EMPLOYMENT AGREEMENT PROGRAM. The
Executive shall be entitled to participate in the Directors Part-Time Employment
Agreement Program (the "DPTEA Program") in accordance with the terms set forth
in the annexed Exhibit A; provided that, to the extent the Executive is entitled
to receive benefits under that Program (i.e., upon his resignation or upon a
Qualifying Termination, as defined below), the amount of annual compensation
paid to the Executive under that Program shall be no less than $475,000; and
provided further that such annual compensation and other benefits shall be paid
for five years even if the Executive's termination of employment occurs after he
attains age 60.
(e) EXPENSE REIMBURSEMENT. During the Employment Period,
the Company shall reimburse the Executive for all proper expenses incurred by
him in the performance of his duties hereunder in accordance with the Company's
policies and procedures.
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4. TERMINATION OF EMPLOYMENT PERIOD.
(a) QUALIFYING TERMINATION. For purposes of this
Agreement, "Qualifying Termination" means the occurrence of any of the
following events: (i) termination of the Executive's employment by the
Company without Cause (as defined in subsection (b) below) during the
Employment Period, (ii) expiration of this Agreement at the end of the
Initial Term or at the end of any extension of the term hereof pursuant to a
written notice given by the Company to the Executive in accordance with
Section 1 hereof, (iii) termination of the Executive's employment by the
Company on account of the Executive having become unable (as determined by
the Company in good faith) to perform regularly his duties hereunder by
reason of illness or incapacity for a period of more than three consecutive
months (termination for "Disability"), (iv) termination of the Executive's
employment on account of the Executive's death, or (v) termination of the
Executive's employment by the Executive due to and by providing written
notice within 60 days of the occurrence, without the Executive's consent, of
any of the following events: (1) any change or changes in the Executive's
duties and responsibilities that, taken as a whole, result in a material
diminution of the Executive's duties and responsibilities with the Company,
(2) a material adverse change in the Executive's title, offices or reporting
lines within the Company, (3) a material breach of the Company's obligations
set forth in this Agreement, including, without limitation, (A) a decrease in
the Executive's base salary, (B) the failure of the Company to provide the
Executive with participation in incentive compensation and other benefit
programs that are generally made applicable to the most senior executives of
the Company from time to time, (C) the failure of Company management for any
reason whatsoever to continue to nominate the Executive for membership on the
Board of Directors of the publicly-held company that ultimately controls FCB
Worldwide L.L.C., or (D) any requirement of the Company that the location
where the Executive is based be materially changed, or (4) the failure of the
Company to obtain an assumption agreement from any successor as contemplated
in Section 15.
For purposes of this Agreement, an isolated, insubstantial and inadvertent
action taken by the Company in good faith and which is remedied by the
Company promptly shall not constitute a basis for a Qualifying Termination.
As provided above, within 60 days of the occurrence of the event or events in
question, the Executive shall notify the Company of his intention to
terminate his employment pursuant to clause (v) above. If the Company intends
to remedy its action(s), it shall provide written notice to the Executive
within 20 days of receipt of the Executive's written notice, and the Company
shall then have 45 additional days to remedy such action(s). The Executive
may proceed with the Qualifying Termination pursuant to clause (v) above if
the Company does not provide notice of intent to remedy within the initial
20-day period or if the Company does not adequately remedy its action(s)
within the additional 45-day period. The foregoing shall be not be construed
to limit the Company's rights to contest the basis for any Qualifying
Termination under clause (v) above or to limit the Executive's rights to
dispute whether a given action can be remedied or whether any actual remedy
is sufficient.
(b) DEFINITION OF CAUSE.
(i) The Company may terminate the Executive's employment
immediately for "Cause" if, in the reasonable determination of the
Board or the Compensation Committee of
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the Board, as set forth in an action of the Board or such Committee
setting forth in reasonable detail the reasons for such termination,
(A) the Executive engages in conduct that violates in any material
respect one or more significant material written policies of the
Company after the Executive is notified by the Company that he is
engaging in such conduct and that such conduct will be deemed to be
Cause; (B) the Executive fails to perform the essential functions of
his job (except for a failure resulting from a bona fide illness or
incapacity) or fails to carry out the True North CEO's or the Board's
reasonable directions with respect to material duties after the
Executive is notified by the True North CEO or the Board, as
applicable, that he is failing to perform these essential functions or
failing to carry out such reasonable directions and that such conduct
will be deemed to be Cause; (C) the Executive engages in embezzlement
or misappropriation of corporate funds or other acts of fraud,
self-dealing or material dishonesty with respect to significant Company
matters, or commits a felony or any significant violation of any
statutory or common law duty of loyalty to the Company; or (D) the
Executive breaches a material provision of this Agreement (including,
but not limited to, the non-compete, non-solicitation, confidentiality,
or non-disparagement provisions in Sections 7 and 8), after the
Executive is notified by the Company that he has breached a material
provision of this Agreement and that such breach will be deemed to be
Cause. Prior to any termination of the Executive for Cause pursuant to
clauses (A), (B) or (D) of this Section 4(b)(i), the Company shall give
the Executive reasonable opportunity to remedy any condition, conduct,
action or inaction of the Executive giving rise to the violation or
breach of such clause if such violation or breach is remediable.
(ii) Notwithstanding the foregoing, solely for purposes of
determining whether the Executive is entitled to receive benefits under
the DPTEA Program, subparagraph (i) above is modified by replacing
subparts (B), (C) and (D) with the following subparts (B) and (C): (B)
the Executive engages in a material breach of his duties and
responsibilities hereunder as now in effect or as may hereafter be
agreed to with the Executive's written consent (other than as a result
of incapacity due to physical or mental illness), which is demonstrably
willful and deliberate on the Executive's part, which is committed in
bad faith or without reasonable belief that such breach is in the best
interests of the Company and which is not remedied within 30 days (or
sooner, as specified in such written notice, if the Company, in its
good faith judgment, determines that the period must be shorter to
avoid harm to the Company) after receipt of written notice from the
Company specifying such breach; or (C) the Executive commits a felony
involving moral turpitude.
5. CONSEQUENCES OF TERMINATION OF EMPLOYMENT PERIOD.
(a) BENEFITS UPON TERMINATION. If the Employment Period
terminates for any reason, the Executive (or the Executive's executor,
administrator or other legal representative, as the case may be) shall be
entitled to receive the following benefits:
(i) Within 30 days after the amount in question is
reasonably determinable (A) base salary payable through the date of
termination of employment, (B) unpaid annual incentive compensation for
the calendar year immediately preceding the date of such
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termination, and (C) reimbursement of proper expenses incurred through
the date of such termination.
(ii) The vested and, unless such termination is for Cause
as defined in Section 4(b)(i) above, unvested portion of the amounts in
the Executive's deferred variable incentive compensation ("DVIC")
account, such payments to be made in accordance with the terms of the
Executive's DVIC agreement.
(iii) Unless such termination is for Cause as defined in
Section 4(b)(i) above, participation by the Executive and the
Executive's qualified dependents through the Executive's attainment of
age 65 in life insurance, medical and dental benefits, subject to
modifications of general application to executives of the Company.
(iv) Unless such termination is for Cause as defined in
Section 4 (b)(i) above (as modified by Section 4(b)(ii) above),
benefits payable under the terms of the DPTEA Program, subject to the
modifications contained in Section 3(d) above, with all age and service
requirements deemed to have been satisfied.
(v) Participation (by the Executive or the Executive's
qualified dependents, as the case may be) in all other applicable
benefit plans or programs in accordance with the provisions thereof
applicable to terminated employees (or their qualified dependents, as
the case may be).
(b) ADDITIONAL BENEFITS UPON QUALIFYING TERMINATION. If
the Employment Period terminates upon the occurrence of a Qualifying
Termination, the Executive (or the Executive's executor, administrator or other
legal representative, as the case may be) shall be entitled to receive the
following additional benefits:
(i) Within 30 days after the amount in question is
reasonably determinable, annual incentive compensation for the calendar
year in which such termination shall have occurred, prorated through
the date of such termination based on actual results of operations for
such full calendar year.
(ii) If the Qualifying Termination is for any reason other
than death or Disability:
(A) all equity-based awards subject to vesting
requirements (including stock options and restricted
stock) then held by the Executive shall on the date
of such termination be 100% vested; and
(B) for a period of three years commencing on the day
immediately following the date of termination of the
employment of the Executive, he shall be entitled to
receive (1) an amount equal to the Executive's base
salary, at the rate payable as of the date of such
termination, payable in accordance with the Company's
normal payroll policies and (2) within 30 days after
the amount in question is reasonably determinable,
annual incentive compensation at the
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higher of (x) the amount payable to the Executive for
the calendar year in which such termination shall
have occurred or (y) the average of the amounts
payable to the Executive for the three calendar years
immediately preceding the year in which such
termination shall have occurred (this three-year
severance payment period, in which the Executive is
receiving all the benefits provided in this Section
5, being hereinafter referred to as the "Severance
Period").
(iii) Each stock option granted to the Executive by the
Company then held by the Executive shall be exercisable (to the extent
it is vested at the date of termination or to the extent it becomes
vested in accordance with subparagraph (ii)(A) above) by the Executive
or the Executive's executor, administrator or other legal
representative, as the case may be, for up to three years after the
date of termination, but in no case beyond a date 10 years following
the date of grant of such option.
(iv) Immediately following the expiration of the Severance
Period (or immediately following the Executive's termination of
employment, in the case of Disability or death), the Executive, or his
executor, administrator or other legal representative, as the case may
be, shall be entitled to compensation and benefits payable under the
DPTEA Program, with all age and service requirements deemed to have
been satisfied and assuming 30 years of credited service.
(c) TERMINATION AFTER A CHANGE IN CONTROL. If the
Executive incurs a Qualifying Termination within two years of the occurrence of
a "Change in Control" under and as defined in the Company's Asset Protection
Plan (or a similar replacement plan providing severance benefits to Company
employees after a change in control), then, at the request of the Executive, the
benefits payable to the Executive pursuant to Section 5(b)(ii)(B)(1) above upon
such Qualifying Termination shall be paid to the Executive in one lump sum
within 60 days of such Qualifying Termination, and the benefits payable to the
Executive pursuant to Sections 5(b)(i) and 5(b)(ii)(B)(2) above upon such
Qualifying Termination shall be paid to the Executive in one lump sum within 30
days after the amounts in question is reasonably determinable. At the request of
the Executive, one or more of these payment(s) shall be reduced to the extent
required to avoid the excise tax, if any, imposed under Section 4999 of the
Internal Revenue Code of 1986, as amended, but only if such reduction would
result in a larger after-tax benefit to the Executive, after taking into account
all applicable local, state, and federal income and excise taxes.
6. FEDERAL AND STATE WITHHOLDING. The Company shall
deduct from the amounts payable to the Executive pursuant to this Agreement the
amount of all required federal and state withholding taxes in accordance with
the Executive's Form W-4 on file with the Company and all applicable social
security and Medicare taxes.
7. NONCOMPETITION; NONSOLICITATION; CONFIDENTIALITY.
(a) COVENANT NOT TO COMPETE. The Executive acknowledges
that in the course of employment with the Company pursuant to this Agreement,
the Executive will become familiar
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with the Confidential Information (as defined below) of the Company and its
subsidiaries, affiliates and clients, and that the Executive's services will be
of special, unique and extraordinary value to the Company. Except with the prior
written consent of the Board:
(i) during the Employment Period and any Severance Period
the Executive shall not engage in any activities, whether as employer,
proprietor, principal, partner, stockholder (other than the holder of
1% or less of the stock of a corporation the securities of which are
traded on a securities exchange or in the over-the-counter market),
director, officer, employee or otherwise, in competition with (A) the
businesses conducted at the date hereof by FCB Worldwide L.L.C. or any
of its subsidiaries (the "FCB Group") or (B) any business in which the
FCB Group is substantially engaged in or has taken significant steps
(in which the Executive is involved) to become engaged in within the
one-year period preceding the termination of Executive's employment
with the Company; and
(ii) during the Employment Period, any Severance Period
and, subject to the last paragraph of this Section 7(a)(ii), any period
during which the Executive is receiving benefits under the DPTEA
Program, but in no event for less than the Employment Period and 12
months thereafter and in no event for more than the Employment Period
and five years thereafter, the Executive shall not, directly or
indirectly, either on the Executive's behalf or on behalf of any other
person, firm or corporation:
(A) solicit or call on any account that is a customer or
client of the FCB Group at the time of the
Executive's termination, or that was a customer,
client or other business relationship of the FCB
Group at any time within six months prior to the date
of such termination; or
(B) induce or attempt to persuade any employee of the FCB
Group (except for the Executive's administrative
assistant) or any senior executive within the True
North Group to terminate the individual's employment
relationship with the FCB Group or the True North
Group.
Notwithstanding the foregoing, at any time after the 12-month
anniversary of the end of the Employment Period the Executive may elect
to forego all remaining benefits under the DPTEA Program, by delivering
written notice to the Company to that effect. If the Executive so
notifies the Company, then the Executive shall not be subject to the
restrictions set forth in this Section 7(ii) for what would have been
the duration of his receipt of benefits under the DPTEA. This shall not
in any way limit the Executive's obligations under this Section 7(ii)
for the full duration of the Employment Period and any Severance
Period.
The Executive's obligations under this Section 7 are subject to the Company's
obligation to pay all compensation and benefits to which the Executive is
entitled under this Agreement.
(b) CONFIDENTIAL INFORMATION AND TRADE SECRETS. The
Executive agrees that the Company has a protectable interest in Company bidding
information, trade secrets, client information, computer programs, financial
information and other confidential information
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(collectively, the "Confidential Information"). The Executive shall not, at any
time during the Employment Period (except for the benefit of the Company within
the scope of the Executive's duties) or thereafter, make use of any nor divulge
any Confidential Information, except to the extent that such Confidential
Information becomes publicly available (through sources other than the
Executive), is published in a newspaper, magazine or other periodical available
to the general public (other than as a result of disclosure by the Executive) or
as the Company may so authorize in writing; and when the Executive shall cease
to be employed by the Company, the Executive shall surrender to the Company all
Confidential Information and records and other documents obtained by him or
entrusted to the Executive during the course of the Executive's employment
hereunder (together with all copies thereof) which pertain specifically to any
of the businesses covered by the covenants in Section 7(a)(i) or which were paid
for by the Company; provided, however, that the Executive may retain copies of
such documents as necessary for the Executive's personal records for federal
income tax purposes. The Executive also agrees that the Executive will not at
any time (whether before or after the termination of the Executive's employment
with the Company) disclose to anyone the terms of this Agreement, except to the
Executive's counsel, accountants and members of the Executive's immediate
family.
(c) SCOPE OF COVENANTS; REMEDIES. The following
provisions shall apply to the covenants of the Executive contained in this
Section:
(i) the covenants set forth in Sections 7(a)(i) and
7(a)(ii) shall apply within all territories in which the FCB Group is
actively engaged in the conduct of business during the Employment
Period, including, without limitation, the territories in which
customers are then being solicited;
(ii) the Executive expressly agrees and acknowledges that
the covenants contained in Sections 7(a) and 7(b) are reasonable in all
respects (including subject matter, time period and geography) and
necessary because of the substantial and irreparable harm that would be
caused to the Company by the Executive engaging in any of the
prohibited activities contained in such Sections. The Executive
expressly agrees and acknowledges that the covenants contained in this
Agreement will not preclude the Executive from earning a livelihood,
nor unreasonably limit the Executive's ability to earn a living, since
the Executive has the ability and experience to engage in employment
that will not breach or violate the covenants contained in this
Agreement. Each party intends and agrees that if in any action before
any court or agency legally empowered to enforce the covenants
contained in Sections 7(a) and 7(b) any term, restriction, covenant or
promise contained therein is found to be unreasonable and accordingly
unenforceable, then such term, restriction, covenant or promise shall
be deemed modified to the extent necessary to make it enforceable by
such court or agency; and
(iii) the covenants contained in Sections 7(a) and 7(b)
shall survive the conclusion of the Executive's employment by the
Company.
8. NONDISPARAGEMENT; COOPERATION. (a) The Executive
shall not, at any time during his employment with the Company or thereafter,
make any public or private statement to the
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news media, to any True North Group competitor or client, or to any other
individual or entity, if such statement would disparage any of the True North
Group, any of their respective businesses or any director or officer of any of
them or such businesses or would have a deleterious effect upon the interests of
any of such businesses or the stockholders or other owners of any of them;
provided, however, that the Executive shall not be in breach of this restriction
if such statements consist solely of (i) private statements made to any
officers, directors or employees of any of the True North Group by the Executive
in the course of carrying out his duties pursuant to this Agreement or, to the
extent applicable, his duties as a director or officer, or (ii) private
statements made to persons other than clients or competitors of any of the True
North Group (or their representatives) or members of the press or the financial
community that do not have a material adverse effect upon any of the True North
Group; and provided further that nothing contained in this Section 8(a) or in
any other provision of this Agreement shall preclude the Executive from making
any statement in good faith that is required by law, regulation or order of any
court or regulatory commission, department or agency.
(b) The Company shall not, at any time during the
Executive's employment with the Company or thereafter, authorize any person to
make, nor shall the Company condone the making of, any statement, publicly or
privately, which would disparage the Executive; provided, however, that the
Company shall not be in breach of this restriction if such statements consist
solely of (i) private statements made to any officers, directors or employees of
the True North Group or (ii) private statements made to persons other than
clients or competitors of any of the True North Group (or their representatives)
or members of the press or the financial community that do not have a material
adverse effect upon the Executive; and provided further that nothing contained
in this Section 8(b) or in any other provision of this Agreement shall preclude
any officer, director, employee, agent or other representative of any of the
True North Group from making any statement in good faith which is required by
any law, regulation or order of any court or regulatory commission, department
or agency.
9. ENFORCEMENT. The parties hereto agree that the
Company would be damaged irreparably in the event that any provision of Section
7 or 8 of this Agreement were not performed in accordance with its terms or were
otherwise breached and that money damages would be an inadequate remedy for any
such nonperformance or breach. Accordingly, the Company and its successors or
permitted assigns shall be entitled, in addition to other rights and remedies
existing in their favor, to an injunction or injunctions to prevent any breach
or threatened breach of any of such provisions and to enforce such provisions
specifically (without posting a bond or other security). Each of the parties
agrees that he or it will submit himself or itself to the personal jurisdiction
of the courts of the State of New York in any action by the other party to
enforce an arbitration award against him or it or to obtain interim injunctive
or other relief pending an arbitration decision.
10. SURVIVAL. Sections 7, 8, 9 and 11 of this Agreement
shall survive and continue in full force and effect in accordance with their
respective terms, notwithstanding any termination or expiration of the
Employment Period.
11. ARBITRATION. Any dispute or controversy between the
Company and the Executive, whether arising out of or relating to this Agreement,
the breach of this Agreement, or
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otherwise, shall be settled by arbitration administered by the American
Arbitration Association ("AAA") and, in accordance with its Commercial Rules
then in effect (to the extent applicable), and judgment on the award rendered by
the arbitrator may be entered in any court having jurisdiction thereof. Any
arbitration shall be held before a single arbitrator who shall be selected by
mutual agreement of the Company and the Executive, unless the parties are unable
to agree to an arbitrator, in which case the arbitrator will be selected under
the procedures of the AAA. The arbitrator shall have the authority to award any
remedy or relief that a court of competent jurisdiction could order or grant,
including, without limitation, the issuance of an injunction. However, the
Company may, at its option without inconsistency with this arbitration
provision, apply to any court having jurisdiction over such dispute or
controversy for the purpose of seeking injunctive or other equitable relief to
enforce Sections 7, 8 and 9 of this Agreement. In connection with any
arbitration initiated pursuant to this Section 11, the Company shall pay the
costs of the arbitrator, and the Company shall reimburse the Executive, within a
reasonable period of time following demand therefor, for attorneys' fees and
related expenses reasonably incurred by the Executive in connection with the
arbitration proceeding, as well as for costs and expenses reasonably incurred by
the Executive to enter or enforce the award rendered by the arbitrator. Except
as necessary in court proceedings to enforce this arbitration provision or an
award rendered hereunder, or to obtain interim relief, neither a party nor an
arbitrator may disclose the existence, content or results of any arbitration
hereunder without the prior written consent of the Company and the Executive.
The Company and the Executive acknowledge that this Agreement evidences a
transaction involving interstate commerce. Notwithstanding any choice of law
provision included in this Agreement, the United States Federal Arbitration Act
shall govern the interpretation and enforcement of this arbitration provision.
12. NOTICES. All notices and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when personally delivered or five days after deposit in the
United States mail, certified and return receipt requested, postage prepaid,
addressed (a) if to the Executive, to the most recent address then shown on the
employment records of the Company, and if to the Company, to True North
Communications Inc., 000 Xxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000,
Attention: General Counsel, or (b) to such other address as either 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.
13. SEVERABILITY. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is determined to be
invalid, illegal or unenforceable in any respect under applicable law or rule in
any jurisdiction, such invalidity, illegality or unenforceability shall not
affect the validity, legality or enforceability of any other provision of this
Agreement or the validity, legality or enforceability of such provision in any
other jurisdiction, but this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
14. ENTIRE AGREEMENT. This Agreement, together with the
DPTEA Program documentation and all stock option, restricted stock agreements
and DVIC agreements between the Executive and the Company, constitutes the
entire agreement and understanding between the parties with respect to the
subject matter hereof and supersedes and preempts the Prior Agreement, the Asset
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Protection Plan Agreement previously signed by the Company and the Executive,
and any other prior understandings, agreements or representations by or between
the parties, written or oral, which may have related in any manner to the
subject matter hereof. This Agreement is not intended to supplant any accrued
benefits or rights of the Executive under any applicable Company benefit plans
or programs. Without derogating any rights provided herein and without affecting
the interpretation of this Agreement, the Company confirms that the Executive's
rights to accelerated vesting and extended exercisability of outstanding stock
options upon a Qualifying Termination, pursuant to Sections 5(b)(ii)(A) and
5(b)(iii) hereof, are retained from the Prior Agreement and are intended to
constitute a continuation of the Prior Agreement.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be
enforceable by the Executive and the Executive's heirs, executors,
administrators and legal representatives, and by the Company and its successors
and permitted assigns. Any successor or permitted assign of the Company shall
assume by instrument delivered to the Executive the liabilities of the Company
hereunder. This Agreement shall not be assigned by the Company other than to a
successor pursuant to a merger, consolidation or transfer of all or
substantially all of the capital stock or assets of the Company.
16. GOVERNING LAW. This Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
New York without regard to principles of conflict of laws.
17. AMENDMENT AND WAIVER. The provisions of this
Agreement may be amended or waived only by the written agreement of the Company
and the Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement.
18. COUNTERPARTS. This Agreement may be executed in two
counterparts, each of which shall be deemed to be an original and both of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, to be effective as of the date first above written.
TRUE NORTH COMMUNICATIONS INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------------------
Xxxxx X. Xxxx,
Chairman and Chief Executive Officer
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------------------
Xxxxxxx X. Xxxxxxx,
Chairman of the Compensation
Committee of the Board of Directors
EXECUTIVE:
/s/ J. Xxxxxxx Xxxx
-------------------------------------------------------
J. Xxxxxxx Xxxx
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EXHIBIT A
[LOGO]
DIRECTORS PART-TIME EMPLOYMENT AGREEMENT
RESOLVED, that the Company's policy permitting directors to terminate
their full-time employment at the traditional age of 60 with the Company's
consent and to continue on a part-time basis until age 65 is hereby amended and
restated as follows:
1. Each director of the Company who at age 55 has been a
director of the Company and a full-time employee of the Company or any
subsidiary for a period of at least five years immediately prior
thereto shall have the right, upon termination of the director's
full-time employment prior to age 65 by the Company or with its consent
to receive an annual salary from the Company until the earlier to occur
of attainment of age 65 or payment of the amount for five years. The
amount to be paid shall be 45% of the director's average annual
compensation reduced 1/30 for each year that the director's service is
less than 30 years. Average annual compensation and service are defined
as follows:
a. average annual compensation - one-fifth of the
director's compensation (including bonus) during the five
consecutive calendar years within the last ten calendar years
prior to termination in which the director's compensation was
highest.
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b. service - the total of the years as determined in
i and ii below.
i. the total of all years of service with
the Company or any subsidiary, plus
ii. the total of years of service as a board
member.
The Company will provide each director with an agreement and
payments will commence at the time of termination of the director's
full-time employment.
2. If the full-time employment of any employee who at age 55
has been a director of the Company and a full-time employee of the
Company or any subsidiary for a period of at least five years shall
terminate by reason of the director's death or disability after age 55,
the Company shall pay to the director or to the director's beneficiary
in the event of the director's death, until the earlier to occur of
attainment of age 65 or payment of the amount for five years, an annual
amount determined in the same manner as described in 1 above. For this
purpose, "beneficiary" shall mean any person or persons designated by
the director or former director by written notice to the Company, or in
the absence of such designation, the executor or administrator of the
director or former director.
3. If the full-time employment of a director shall terminate
within two years after a change in control of the Company, the director
shall be entitled to a payment until the earlier to occur of attainment
of age 65 or payment of the amount for five years, with such payment
determined in the same manner as described in 1 above, except that the
requirement for the director to have attained age 55 and have been a
full-time employee for five or more years
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shall be waived. A change in control shall mean (i) an acquisition
(other than directly from the Company) of 15% or more of the beneficial
interest in the voting stock of the Company by a party other than the
Company or a Company sponsored benefit plan; or (ii) a change in the
Board of Directors as a result of which the current directors (together
with the successors they nominate or approve for nomination) cease to
be a majority of the Board of Directors of the Company; or (iii) a
merger, reorganization or consolidation whereby the existing
shareholders of the Company do not own more than 66-2/3% of the then
outstanding shares resulting from such merger, reorganization or
consolidation.
4. A director eligible for salary as provided in 1 above at
the time of termination will have the status of a part-time employee
with continuation of life insurance, medical, dental, long-term
disability, and business travel accident benefits.
5. A director eligible for salary as provided in 1 above will
receive at the time of termination a $10,000 car allowance as an offset
to the expense of purchasing the director's Company-leased car.
6. The policy set forth in these resolutions shall be subject
to amendment or revocation at any time by the Board of Directors or its
duly authorized committee, provided that, in consideration of the
reliance of directors upon the Company's policy as heretofore in effect
or as restated herein, no amendment or revocation after the date hereof
shall adversely affect any director who at the time of such amendment
or revocation shall have reached age 55 and have been a director of the
Company and a full-time employee of the Company or any subsidiary for a
period of at least five years.
FURTHER RESOLVED, that the Secretary of the Company be and is hereby
directed to
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furnish a certified copy of these resolutions to each present director of the
Company who is a full-time employee of the Company or any subsidiary.
-------------------------------
(Name)
-------------------------------
Date
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