EMPLOYMENT AGREEMENT
--------------------
THIS AGREEMENT ("Agreement"), dated as of July 1, 1998,
between THE XXXXX XXXXXX COMPANIES INC., a Delaware corporation (the "Company"),
and XXXXXX X. XXXXXXX, a resident of [CITY, STATE] (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company and its divisions, subsidiaries and
affiliates are principally engaged in the business of manufacturing and
marketing skin care, makeup, fragrance and hair care products (the "Business");
and
WHEREAS, the Company desires to continue to retain the
services of the Executive, and to appoint him to the capacity of President,
Xxxxx Xxxxxx (USA & Canada), a division of the Company, and the Executive
desires to provide services in such capacity to the Company, upon the terms and
subject to the conditions hereinafter set forth; and
WHEREAS, the Compensation Committee of the Board of Directors
of the Company (the "Compensation Committee") has approved the terms of this
Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and obligations hereinafter set forth, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Employment Term.
The Company hereby agrees to employ the Executive, and the
Executive hereby agrees to enter into employment, as President, Xxxxx Xxxxxx
(USA & Canada) for the period commencing on July 1, 1998 and ending on June 30,
2001 unless terminated sooner pursuant to Section 5 hereof (the "Term of
Employment"). The twelve-month period commencing on July 1, 1998 shall be the
"First Contract Year" hereunder, and subsequent twelve-month periods shall be
subsequent Contract Years.
2. Duties and Extent of Services.
(a) During the Term of Employment, the Executive shall serve
as President, Xxxxx Xxxxxx (USA & Canada) and, in such capacity, shall render
such executive, managerial, administrative and other services as customarily are
associated with and incident to such position and as the Company may, from time
to time, reasonably require of him consistent with such position.
(b) The Executive shall also hold such other positions and
executive offices of the Company and/or of any of the Company's divisions,
subsidiaries or affiliates as may from time to time be authorized by the Board
of Directors of the Company, provided that each such position shall be
commensurate with the Executive's standing in the business community as
President, Xxxxx Xxxxxx (USA & Canada). The Executive shall not be entitled to
any compensation other than the compensation provided for herein for serving
during the Term of Employment in any other office or position of the Company or
any of its divisions, subsidiaries or affiliates, unless the Board of Directors
(or the Compensation Committee) of the Company shall have specifically approved
such additional compensation.
(c) The Executive shall be a full time employee of the Company
and shall exclusively devote all his business time and efforts to faithfully,
competently and diligently perform to the best of his ability all of the duties
required of him as President, Xxxxx Xxxxxx (USA & Canada), and in the other
positions or offices of the Company or its divisions, subsidiaries or affiliates
required of him hereunder. Notwithstanding the foregoing provisions of this
Section 2(c), the Executive may serve as a non-management director of such
business corporations (or in a like capacity in other for-profit or
not-for-profit organizations) as the Board of Directors or Chief Executive
Officer of the Company may approve.
3. (a) Base Salary. As compensation for all services to be
rendered pursuant to this Agreement and as payment for the rights and interests
granted by Executive hereunder, the Company shall pay or cause any of its
subsidiaries to pay the Executive a base salary (the "Base Salary") in the gross
amount of one million dollars ($1,000,000) for each Contract Year during the
Term of Employment hereunder. All amounts of Base Salary provided for hereunder
shall be payable in accordance with the regular payroll policies of the Company
in effect from time to time.
(b) Incentive Bonus Compensation. In addition to the Base
Salary set out at Section 3(a) hereof, the Executive shall be eligible to
participate in the Company's Executive Annual Incentive Plan (the "Bonus Plan"),
provided the Bonus Plan shall have received appropriate approval by the
stockholders of the Company. The Compensation Committee has granted aggregate
2
bonus opportunities for the Executive under the terms of the Bonus Plan as
follows:
For the First Contract Year: $1,000,000
For the Second Contract Year: $1,125,000
For the Third Contract Year: $1,250,000.
The actual bonus payable to Executive in respect of each Contract Year during
the Term of Employment shall be determined by the Compensation Committee, and
shall be calculated with reference to the attainment by the Company and the
Executive of performance goals for such Contract Year established by the
Compensation Committee under the terms of the Bonus Plan.
(c) Deferral. The Executive may elect to defer payment of all
or any part of his bonus incentive compensation payable in accordance with
Section 3(b) hereof in respect of any Contract Year, by giving to the Company
written notice thereof, on or before March 31 of such Contract Year.
Additionally, in the event that in respect of any fiscal year of the Company any
amount of Base Salary, any amount payable under the Bonus Plan or any other
amount payable to the Executive hereunder or otherwise shall, either alone or in
combination with other amounts payable hereunder or otherwise, result in the
payment by the Company of any amount that shall not be currently deductible by
it pursuant to the provisions of Section 162(m) of the Internal Revenue Code of
1986, as amended (the "Code"), or like or successor provisions (a
"Non-Deductible Amount"), the Company may elect to defer the payment of the
Non-Deductible Amount. Any amounts, so deferred, either by election of the
Executive or by election of the Company shall be credited to a bookkeeping
account in the name of the Executive as of the date scheduled for payment
hereunder. Such amounts shall be credited with interest as of each June 30
during the term of deferral, compounded annually, at a rate per annum equal to
the annual rate of interest announced by Citibank, N.A. in New York, New York as
its base rate in effect on such June 30, but in no event shall such rate exceed
9%. The entire amount credited to such bookkeeping account shall be paid to the
Executive on a date to be chosen by the Company, but in no event later than 90
days after the termination of the Executive from employment with the Company.
(d) Share Incentive Plan. In July 1998, the Compensation
Committee granted to the Executive options to purchase 50,000 shares of Class A
Common Stock of the Company ("Common Stock") under the terms of the Company's
3
Fiscal 1996 Share Incentive Plan ("Share Incentive Plan"). Additionally, senior
management shall recommend to the Compensation Committee that the Executive be
granted options to purchase not fewer than 50,000 shares of Common Stock as of
each July 1 during the Term of Employment under the terms of the Share Incentive
Plan or such successor plan of similar import as shall then exist.
4. Benefits and Other Reimbursements.
(a) Benefits. During the Term of Employment, the Executive
shall be entitled to (i) participate in any and all benefit programs and
arrangements now in effect and hereinafter adopted and made generally available
by the Company to its senior officers, including but not limited to the Xxxxx
Xxxxxx Inc. Retirement Growth Account Plan, the related Xxxxx Xxxxxx Inc.
Benefit Restoration Plan, contributory and non-contributory Company welfare and
benefit plans, disability plans, and medical, death benefit and standard and
supplemental life insurance plans for which the Executive shall be eligible, or
may become eligible during the Term of Employment; (ii) participate in the
Company's executive automobile program now in effect and hereinafter adopted and
generally made available by the Company to its senior officers; and (iii) paid
vacations during each year of the Term of Employment in accordance with the
policies and procedures of the Company as in effect from time to time for its
senior officers.
(b) Perquisite Reimbursement . The Company shall reimburse to
the executive the actual expense incurred by him in connection with his
professional standing, in accordance with the guidelines set out in the
Company's executive perquisite program. In no event shall the gross amount of
such reimbursements be greater than $15,000 in respect of any calendar year
during the Term of Employment.
(c). Expenses. The Company agrees to reimburse the Executive
for all reasonable and necessary travel (including first class air fare),
business entertainment and other business out-of-pocket expenses incurred or
expended by him in connection with the performance of his duties hereunder upon
presentation of proper expense statements or vouchers or such other supporting
information as the Company may reasonably require of the Executive.
5. Termination.
(a) Permanent Disability. In the event of the "permanent
disability" (as hereinafter defined) of the Executive during the Term of
Employment, the Company shall have the right, upon written notice to the
4
Executive, to terminate the Executive's employment hereunder, effective upon the
giving of such notice (or such later date as shall be specified in such notice).
In the event of such termination, the Company shall have no further obligations
hereunder, except that the Executive shall be entitled (i) to receive any
amounts or benefits to which the Executive may otherwise have been entitled
prior to the effective date of termination; (ii) to be paid his Base Salary
under Section 3(a) hereof for a period of one (1) year from the effective date
of termination; provided, however, that the Company shall only be required to
pay that amount of the Executive's Base Salary which shall not be covered by
Company provided long-term disability payments, if any, to the Executive; and
(iii) to receive any unpaid bonus compensation earned under Section 3(b) hereof
that relates to any Contract Year ending prior to the date of permanent
disability. In addition, upon termination for permanent disability, the
Executive shall continue to participate in any and all pension, insurance and
other benefit plans and programs of the Company during the period the Executive
is continuing to receive his Base Salary in accordance with this Section 5(a).
Thereafter, the Executive's rights to participate in such programs and plans, or
to receive similar coverage, if any, shall be as determined under such programs;
provided, however, that, except as otherwise provided in this Section 5(a), the
Company will have no further obligations under Sections 3(b) and (d) hereof. For
purposes of this paragraph, "permanent disability" means any physical or mental
disability or incapacity that renders the Executive incapable of performing the
services required of him in accordance with his obligations under Section 2
hereof for a period of six (6) consecutive months or for shorter periods
aggregating six (6) months during any twelve-month period.
(b) Death. In the event of the death of the Executive during
the Term of Employment, this Agreement shall automatically terminate. In the
event of such termination the Company shall have no further obligations
hereunder, except to pay, the Executive's beneficiary or legal representative
(i) the Executive's Base Salary as established under Section 3(a) hereof as of
the date of his death from such date to the last day of the month in which the
death occurs; (ii) bonus compensation earned under Section 3(b) hereof that
relates to any Contract Year ending prior to the date of his death; and (iii)
any other amounts to which the Executive otherwise would have been entitled to
hereunder prior to the date of his death; provided, however, that, except as
otherwise provided in this Section 5(b), the Company will have no further
obligations under Sections 3(b) and (d) hereof.
(c) Termination Without Cause. The Company shall have the
right, upon sixty (60) days' written notice given to the Executive, to terminate
this Agreement for any reason whatsoever. In the event of such termination, for
5
a period of one (1) year from the effective date of termination, the Executive
shall be entitled as damages to (i) receive his Base Salary as established under
Section 3(a) hereof as of the effective date of such termination; (ii) receive
bonus compensation equal to fifty percent (50%) of the average of incentive
compensation bonuses previously paid or payable to the Executive under Section
3(b) hereof during the term of employment (or, if no such bonuses have been paid
or are payable as of the date of such termination, fifty percent (50%) of the
target bonus established under Section 3(b) hereof in respect of the Contract
Year in which occurs the date of such termination); and (iii) participate in all
pension, insurance and other benefit plans, programs or arrangements, on terms
identical to those applicable to full term senior officers of the Company;
provided, however, that, except as otherwise provided in this Section 5(c), the
Company will have no further obligations under Sections 3(b) and (d) hereof. In
the event of termination pursuant to this Section 5(c), the Executive shall not
be required to mitigate his damages hereunder.
(d) Cause. The Company shall have the right, upon written
notice to the Executive, to terminate the Executive's employment under this
Agreement for "Cause" (as hereinafter defined), effective upon the giving of
such notice (or such later date as shall be specified in such notice), and the
Company shall have no further obligations hereunder, except to pay the Executive
any amounts otherwise payable pursuant to Section 3(a) hereof and provide the
Executive any benefits to which the Executive may have been otherwise entitled
prorated to the effective date of termination. The Executive's right to
participate in any of the Company's retirement, insurance and other benefit
plans and programs shall be as determined under such plans and programs;
provided, however, that, except as otherwise provided in this Section 5(d), the
Company will have no further obligations under Sections 3(b) and (d) hereof.
For purposes of this Agreement, "Cause" means:
(i) fraud, embezzlement or gross insubordination on
the part of the Executive or material breach by the Executive of his obligations
under Section 6 or 7 hereof;
(ii) conviction of or the entry of a plea of nolo
contendere by the Executive for any felony;
(iii) a material breach of, or the willful failure
or refusal by the Executive to perform and discharge, his duties,
responsibilities or obligations under this Agreement (other than under Sections
6 and 7 hereof, which shall be governed by clause (i) above, and other than by
reason of disability or death) that is not corrected within thirty (30) days
6
following written notice thereof to the Executive by the Company, such notice to
state with specificity the nature of the breach, failure or refusal; provided
that if such breach, failure or refusal cannot reasonably be corrected within
thirty (30) days of written notice thereof, correction shall be commenced by the
Executive within such period and may be corrected within a reasonable period
thereafter; or
(iv) any act of moral turpitude or willful
misconduct by the Executive which (A) is intended to result in substantial
personal enrichment of the Executive at the expense of the Company or any of its
subsidiaries or affiliates or (B) has a material adverse impact on the business
or reputation of the Company or any of its subsidiaries or affiliates (such
determination to be made by the Company's Board of Directors in its reasonable
judgment).
(e) Termination by Executive. The Executive shall have the
right, exercisable at any time during the Term of Employment, to terminate this
agreement for any reason whatsoever, upon six (6) months written notice to the
Company. In such event, the Company shall have no further obligations hereunder,
except that, for a period of six (6) months after the effective date of such
termination, the Company shall pay to the Executive (i) his Base Salary as
established under Section 3(a) hereof; and (ii) bonus compensation equal to
twenty-five percent (25%) of the Base Salary paid pursuant to clause (i) above,
such bonus compensation to be paid simultaneously with the last Base Salary
payment for the applicable fiscal year; provided, however, that, except as
otherwise provided in this Section 5(e), the Company will have no further
obligations under Sections 3(b) and (d) hereof.
(f) Termination by Executive for Material Breach. The
Executive shall have the right, exercisable by notice to the Company, to
terminate his employment effective thirty (30) days after the giving of such
notice, if, at any time during the Term of Employment, the Company shall be in
material breach of its obligations hereunder; provided, however, that such
notice must be provided to the Company within thirty (30) days of the occurrence
of such material breach; and provided further, that such termination will not
become effective if within such thirty (30) day period the Company shall have
cured all such material breaches of its obligations hereunder. For purposes of
this Section 5(f), a material breach shall include, but not be limited to, a
material reduction in the Executive's authority, functions, duties or
responsibilities provided in Section 2 hereof or the Company's failure to cause
the Executive to serve in the position set forth in Section 1 hereof for any
time period in which he is entitled to so serve. Such termination shall be
deemed to be a termination without cause and shall be controlled by the
provisions of Section 5(c) hereof.
7
(g) Certain Limitations. Notwithstanding anything to the
contrary contained herein, in the event that any payment received or to be
received by the Executive pursuant to Section 5 hereof or otherwise (a
"Severance Payment") would be subject to the excise tax (the "Excise Tax")
imposed by Section 4999 of the Code (in whole or part), the Severance Payment
shall be reduced so that the total of all amounts treated as "parachute
payments" under Section 280G of the Code shall not exceed 2.99 times the
Executive's "base amount" (as defined under Section 280G of the Code).
(h) Effect of Termination. Upon the termination of the
Executive's employment for any reason, the Company shall have no further
obligations hereunder, except as otherwise provided herein. The Executive,
however, shall continue to have the obligations provided for in Sections 6 and 7
hereof. Furthermore, upon such termination, the Executive shall be deemed to
have resigned immediately from all offices and directorships held by him in the
Company or any of its subsidiaries.
6. Confidentiality; Ownership.
(a) The Executive agrees that he shall forever keep secret and
retain in strictest confidence and not divulge, disclose, discuss, copy or
otherwise use or suffer to be used in any manner, except in connection with the
Business of the Company and the businesses of any of its subsidiaries or
affiliates, any "Protected Information" in any "Unauthorized" manner or for any
Unauthorized purpose (as such terms are hereinafter defined).
(i) "Protected Information" means trade secrets,
confidential or proprietary information and all other knowledge, know-how,
information, documents or materials owned, developed or possessed by the Company
or any of its subsidiaries or affiliates, whether in tangible or intangible
form, pertaining to the Business of the Company or the businesses of any of its
subsidiaries or affiliates, including, but not limited to, research and
development operations, systems, data bases, computer programs and software,
designs, models, operating procedures, knowledge of the organization, products
(including prices, costs, sales or content), processes, formulas, techniques,
machinery, contracts, financial information or measures, business methods,
business plans, details of consultant contracts, new personnel acquisition
plans, business acquisition plans, customer lists, business relationships and
other information owned, developed or possessed by the Company or its
subsidiaries or affiliates, except as required in the course of performing
duties hereunder; provided that Protected Information shall not include
information that becomes generally known to the public or the trade without
violation of this Section 6.
8
(ii) "Unauthorized" means: (A) in contravention of
the policies or procedures of the Company or any of its subsidiaries or
affiliates; (B) otherwise inconsistent with the measures taken by the Company or
any of its subsidiaries or affiliates to protect their interests in any
Protected Information; (C) in contravention of any lawful instruction or
directive, either written or oral, of an employee of the Company or any of its
subsidiaries or affiliates empowered to issue such instruction or directive; or
(D) in contravention of any duty existing under law or contract. Notwithstanding
anything to the contrary contained in this Section 6, the Executive may disclose
any Protected Information to the extent required by court order or decree or by
the rules and regulations of a governmental agency or as otherwise required by
law; provided that the Executive shall provide the Company with prompt notice of
such required disclosure in advance thereof so that the Company may seek an
appropriate protective order in respect of such required disclosure.
(b) The Executive acknowledges that all developments,
including, without limitation, inventions (patentable or otherwise),
discoveries, formulas, improvements, patents, trade secrets, designs, reports,
computer software, flow charts and diagrams, procedures, data, documentation,
ideas and writings and applications thereof relating to the Business or planned
business of the Company or any of its subsidiaries or affiliates that, alone or
jointly with others, the Executive may conceive, create, make, develop, reduce
to practice or acquire during the Term of Employment (collectively, the
"Developments") are works made for hire and shall remain the sole and exclusive
property of the Company and the Executive hereby assigns to the Company, in
consideration of the payments set forth in Section 3(a) hereof, all of his
right, title and interest in and to all such Developments. The Executive shall
promptly and fully disclose all future material Developments to the Board of
Directors of the Company and, at any time upon request and at the expense of the
Company, shall execute, acknowledge and deliver to the Company all instruments
that the Company shall prepare, give evidence and take all other actions that
are necessary or desirable in the reasonable opinion of the Company to enable
the Company to file and prosecute applications for and to acquire, maintain and
enforce all letters, patent and trademark registrations or copyrights covering
the Developments in all countries in which the same are deemed necessary by the
Company. All memoranda, notes, lists, drawings, records, files, computer tapes,
programs, software, source and programming narratives and other documentation
(and all copies thereof) made or compiled by the Executive or made available to
the Executive concerning the Developments or otherwise concerning the Business
or planned business of the Company or any of its subsidiaries or affiliates
9
shall be the property of the Company or such subsidiaries or affiliates and
shall be delivered to the Company or such subsidiaries or affiliates promptly
upon the expiration or termination of the Term of Employment.
(c) The provisions of this Section 6 shall, without any
limitation as to time, survive the expiration or termination of the Executive's
employment hereunder, irrespective of the reason for any termination.
7. Covenant Not to Compete. Subject to the last sentence of
this Section 7, the Executive agrees that during the Term of Employment and for
a period of one (1) year commencing upon the expiration or termination of the
Executive's employment (the "Non-Compete Period"), the Executive shall not,
directly or indirectly, without the prior written consent of the Company:
(a) solicit, entice, persuade or induce any employee,
consultant, agent or independent contractor of the Company or of any of its
subsidiaries or affiliates to terminate his or her employment with the Company
or such division, subsidiary or affiliate, to become employed by any person,
firm or corporation other than the Company or such subsidiary or affiliate or
approach any such employee, consultant, agent or independent contractor for any
of the foregoing purposes, or authorize or assist in the taking of any such
actions by any third party (for purposes of this Section 7(a), the terms
"employee," "consultant," "agent" and "independent contractor" shall include any
persons with such status at any time during the six (6) months preceding any
solicitation in question); or
(b) directly or indirectly engage, participate, or make any
financial investment in, or become employed by or render consulting, advisory or
other services to or for any person, firm, corporation or other business
enterprise, wherever located, which is engaged, directly or indirectly, in
competition with the Company's Business or the businesses of its subsidiaries or
affiliates as conducted or any business proposed to be conducted at the time of
the expiration or termination of the Executive's employment hereunder; provided,
however, that nothing in this Section 7(b) shall be construed to preclude the
Executive from making any investments in the securities of any business
enterprise whether or not engaged in competition with the Company or any of its
subsidiaries or affiliates, to the extent that such securities are actively
traded on a national securities exchange or in the over-the-counter market in
the United States or on any foreign securities exchange and represent, at the
time of acquisition, not more than 1% of the aggregate voting power of such
business enterprise.
10
Notwithstanding the foregoing, the Executive shall not be
subject to the terms and provisions of paragraph (b) of this Section 7 if the
Term of Employment is terminated pursuant to Section 5(c) or 5(f) hereof.
8. Specific Performance. The Executive acknowledges that the
services to be rendered by the Executive are of a special, unique and
extraordinary character and, in connection with such services, the Executive
will have access to confidential information vital to the Company's Business and
the businesses of its subsidiaries and affiliates. By reason of this, the
Executive consents and agrees that if the Executive violates any of the
provisions of Sections 6 or 7 hereof, the Company and its subsidiaries and
affiliates would sustain irreparable injury and that monetary damages would not
provide adequate remedy to the Company and that the Company shall be entitled to
have Section 6 or 7 hereof specifically enforced by any court having equity
jurisdiction. Nothing contained herein shall be construed as prohibiting the
Company or any of its subsidiaries or affiliates from pursuing any other
remedies available to it for such breach or threatened breach, including the
recovery of damages from the Executive.
9. Deductions and Withholding. The Executive agrees that the
Company or its divisions, subsidiaries or affiliates, as applicable, shall
withhold from any and all compensation paid to and required to be paid to the
Executive pursuant to this Agreement, all Federal, state, local and/or other
taxes which the Company determines are required to be withheld in accordance
with applicable statutes or regulations from time to time in effect and all
amounts required to be deducted in respect of the Executive's coverage under
applicable employee benefit plans. For purposes of this Agreement and
calculations hereunder, all such deductions and withholdings shall be deemed to
have been paid to and received by the Executive.
10. Entire Agreement. This Agreement embodies the entire
agreement of the parties with respect to the Executive's employment,
compensation, perquisites and related items and supersedes any other prior oral
or written agreements, arrangements or understandings between the Executive and
the Company or any of its divisions, subsidiaries or affiliates, and any such
prior agreements, arrangements or understandings are hereby terminated and of no
further effect. This Agreement may not be changed or terminated orally but only
by an agreement in writing signed by the parties hereto.
11. Waiver. The waiver by the Company of a breach of any
provision of this Agreement by the Executive shall not operate or be construed
as a waiver of any subsequent breach by him. The waiver by the Executive of a
breach of any provision of this Agreement by the Company shall not operate or be
construed as a waiver of any subsequent breach by the Company.
11
12. Governing Law; Jurisdiction.
(a) This Agreement shall be subject to, and governed by, the
laws of the State of New York applicable to contracts made and to be performed
therein.
(b) Any action to enforce any of the provisions of this
Agreement shall be brought in a court of the State of New York located in the
Borough of Manhattan of the City of New York or in a Federal court located
within the Southern District of New York. The parties consent to the
jurisdiction of such courts and to the service of process in any manner provided
by New York law. Each party irrevocably waives any objection which it may now or
hereafter have to the laying of the venue of any such suit, action or proceeding
brought in such court and any claim that such suit, action or proceeding brought
in such court has been brought in an inconvenient forum and agrees that service
of process in accordance with the foregoing sentences shall be deemed in every
respect effective and valid personal service of process upon such party.
13. Assignability. The obligations of the Executive may not be
delegated and, except with respect to the designation of beneficiaries in
connection with any of the benefits payable to the Executive hereunder, the
Executive may not, without the Company's written consent thereto, assign,
transfer, convey, pledge, encumber, hypothecate or otherwise dispose of this
Agreement or any interest herein. Any such attempted delegation or disposition
shall be null and void and without effect. The Company and the Executive agree
that this Agreement and all of the Company's rights and obligations hereunder
may be assigned or transferred by the Company to and shall be assumed by and be
binding upon any successor to the Company. The term "successor" means, with
respect to the Company or any of its subsidiaries, any corporation or other
business entity which, by merger, consolidation, purchase of the assets or
otherwise acquires all or a material part of the assets of the Company.
14. Severability. If any provision of this Agreement or any
part thereof, including, without limitation, Sections 6 and 7 hereof, as applied
to either party or to any circumstances shall be adjudged by a court of
competent jurisdiction to be void or unenforceable, the same shall in no way
affect any other provision of this Agreement or remaining part thereof, which
shall be given full effect without regard to the invalid or unenforceable part
thereof, or the validity or enforceability of this Agreement.
12
If any court construes any of the provisions of Section 6 or 7
hereof, or any part thereof, to be unreasonable because of the duration of such
provision or the geographic scope thereof, such court may reduce the duration or
restrict or redefine the geographic scope of such provision and enforce such
provision as so reduced, restricted or redefined.
15. Notices. All notices to the Company or the Executive
permitted or required hereunder shall be in writing and shall be delivered
personally, by telecopier or by courier service providing for next-day delivery
or sent by registered or certified mail, return receipt requested, to the
following addresses:
The Company:
The Xxxxx Xxxxxx Companies Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Executive Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
The Executive:
Either party may change the address to which notices shall be sent by sending
written notice of such change of address to the other party. Any such notice
shall be deemed given, if delivered personally, upon receipt; if telecopied,
when telecopied; if sent by courier service providing for next-day delivery, the
next business day following deposit with such courier service; and if sent by
certified or registered mail, three days after deposit (postage prepaid) with
the U.S. mail service.
16. No Conflicts. The Executive hereby represents and warrants
to the Company that his execution, delivery and performance of this Agreement
and any other agreement to be delivered pursuant to this Agreement will not (i)
require the consent, approval or action of any other person or (ii) violate,
conflict with or result in the breach of any of the terms of, or constitute (or
13
with notice or lapse of time or both, constitute) a default under, any
agreement, arrangement or understanding with respect to the Executive's
employment to which the Executive is a party or by which the Executive is bound
or subject. The Executive hereby agrees to indemnify and hold harmless the
Company and its directors, officers, employees, agents, representatives and
affiliates (and such affiliates' directors, officers, employees, agents and
representatives) from and against any and all losses, liabilities or claims
(including, interest, penalties and reasonable attorneys' fees, disbursements
and related charges) based upon or arising out of the Executive's breach of any
of the foregoing representations and warranties.
17. Effective Date. This Agreement shall be effective as of
July 1, 1998.
18. Paragraph Headings. The paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
19. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
THE XXXXX XXXXXX COMPANIES INC.
By:
-------------------------------
Name:
Title:
-------------------------------
Xxxxxx X. Xxxxxxx
14
