EXHIBIT 10.12
January 22, 1999
Chairman of the Board
▇▇▇ ▇▇▇▇▇▇▇ Company, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Chairman:
In consideration for my election to the Board of Directors of ▇▇▇ ▇▇▇▇▇▇▇
Company, Inc. (the "Company"), or my continuing service on said Board, I hereby
agree to be bound by the terms of the Executive Employment Consultancy
Arrangement (the "Arrangement"), a copy of which is attached hereto, and the
Executive Employment Consultancy Arrangement Employment Agreement, a draft copy
of which is attached hereto. I acknowledge that I have received a copy of the
Arrangement and had an opportunity to review the Arrangement. I further
acknowledge that I understand the purposes of the Arrangement and agree that it
is in the best interests of the Company that I retire from the Board in
accordance with the terms of the Arrangement.
I further acknowledge and agree that my agreement to participate in the
Arrangement is an essential and material condition of my election to the Board
of Directors, and that without such participation I would not be elected to the
Board of Directors.
In further consideration for my receipt of the benefits of serving on the Board
and the benefits of the Arrangement, I agree not to institute, directly or
indirectly, or in any manner aid in, except as may be required pursuant to legal
process, any action or proceeding of any kind against the Company arising out of
or related to the Arrangement, excepting an action for breach of the Arrangement
by the Company or for its failure to provide vested benefits to which I am
legally entitled, if any. I further agree to release and forever discharge the
Company, its successors and assigns and its past and present officers,
directors, and employees from any and all claims arising out of my employment,
my agreement to accept the Arrangement and my retirement pursuant to that
Arrangement, including but not limited to any and all claims under any federal,
state or local discrimination laws or ordinances, such as the Age Discrimination
in Employment Act of 1967, as amended (including as amended by the Older Workers
Benefit Protection Act), 29 U.S.C. ss.793 et seq.
This Arrangement and attendant release is given knowingly and voluntarily and I
acknowledge that (1) this release is written in a manner understood by me; (2)
this release refers to rights under the Age Discrimination in Employment Act, as
amended; (3) I have not waived any rights arising after the date hereof; (4)I
have received valuable consideration from the Arrangement in exchange for the
release other than amounts I am already entitled to receive; and (5) I have been
advised to consult with an attorney prior to releasing any rights hereunder.
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I have had 21 days to consider whether to consent to the above release.
Moreover, I understand that I have 7 days from the date hereof to revoke my
consent to the above release.
The Company and I expressly consent that this Arrangement shall be given full
force and effect according to each and all of its terms and provisions.
Very truly yours,
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
3/19/93
▇▇▇ ▇▇▇▇▇▇▇ COMPANY, INC.
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Executive Employment Consultancy
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Arrangement
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As of June 20, 1997
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Statement of Objectives
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Whereas, this Board does hereby acknowledge that it is in the best
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interests of the Company to maintain a planned and orderly succession of
top management; and
Whereas, this Board also recognizes that, in order for any program of
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succession to be efficient, the program must be accepted by and start
with those in the top echelons of management; namely, the Board of
Directors.
Now, therefore, to compensate members of the Board for the impact of the
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implementation of an orderly succession of management, an Executive
Employment Consultancy Arrangement (the "Arrangement") is hereby
established with the following terms and conditions:
1. Agreement: It is hereby agreed that each member of the Board of
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Directors of ▇▇▇ ▇▇▇▇▇▇▇ Company, Inc., upon no later than the
commencement of payments under the Arrangement or as of the
first day of the month following such Board member's 57th
birthday, shall cease to be a member of the Company's Board of
Directors and no longer hold any Corporate or Divisional office,
however, employee status shall continue during the term of the
Arrangement.
2. Exceptions: It is further agreed that the only exceptions to
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this Arrangement shall be those as agreed to in a written action
of the Executive Committee, except for the authority given to
the Chief Executive Officer to grant exemptions under Sections
11 and 13.
3. Individuals Affected: Individuals who have been members of the
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Board of Directors of the Company at least sixty months on or
prior to the Commencement Date.
4. Implementation:
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A. No later than seven months prior to an Individual's 57th
birthday, he will be informed of amounts he will receive on
his leaving the Board at age 57;
B. At any time prior to the seven months notice in (A) above,
the Individual shall initiate participation in the
Arrangement by contacting the Chief Executive Officer and
the Chairman of the Board in writing:
1. no earlier than twelve months prior to the
Individual's 55th birthday; and
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2. at least six months, but no earlier than twelve
months, prior to the Commencement Date.
5. Commencement Date: May be designated by the Individual as the last day
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of any calendar quarter after the Individual's 55th birthday, but not
later than the end of the month in which the Individual's 57th
birthday occurs.
6. Compensation: 1st through 5th year following Commencement Date, annual
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compensation is equal to 30% of the following amount:
(a) base salary earned by the Individual in the calendar year prior
to the Commencement Date; plus
(b) the greater of (i) the bonus earned by the Individual in the
calendar year prior to the Commencement Date, or (ii) one-half of
the combined sum of the bonus earned by the Individual in the two
calendar years prior to the Commencement Date. The term "bonus"
as used herein is defined solely as the profit participation
bonus, excluding any incentive bonus, performance bonus, or
similar payments.
7. Employee Benefits: As an employee, the Individual shall be entitled
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during the term of the Arrangement (1st through 5th year) to participate
in such employee benefit plans as the Company may offer to all other
executive or similarly situated employees, except for the Supplemental
Income and Long-Term Disability Programs and the Star Reachers
Compensation Plan, in which participation shall cease upon the
Commencement Date.
8. Stock Ownership: On or before the Commencement Date, the Individual
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shall sell all common stock and/or beneficial interest in common stock
represented by Voting Trust Certificates of the ▇▇▇ ▇▇▇▇▇▇▇ Company,
Inc. Voting Trust and/or Voting Trust Certificates of the ▇▇▇ ▇▇▇▇▇▇▇
Worldwide, Inc. Voting Trust held in the Individual's name (and/or
Trusts established by the Individual).
9. In the Event of Death: If the Individual dies at any time after the
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Individual's request to participate in the Arrangement has been
submitted to and accepted by the Chairman of the Board, or at any time
during the 1st through 5th year, any unpaid compensation shall be paid
to the Individual's estate according to the payment schedule previously
established or at such earlier time or times as the Company may
determine.
10. In the Event of Disability: If the Individual becomes disabled after the
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Individual's request to participate in the Arrangement has been
submitted to and accepted by the
6/20/97
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Chairman of the Board, or at any time during the 1st through 5th year,
any unpaid compensation shall continue to be paid as if such disability
had not occurred.
11. Covenant Not to Compete: During the term of the Arrangement, the
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Individual covenants and agrees that he or she will not:
(a) Directly or indirectly, own, manage, operate, control, be employed
by or be connected with the ownership, management, operation or
control of:
(1) Any advertising agency (or holding company or subsidiary
thereof) other than the Company;
(2) Any client of the Company or of the Company's subsidiaries
or affiliates; or
(3) Any company or other entity selling products that compete
with products of clients of the Company or of the Company's
subsidiaries or affiliates;
unless the Chief Executive Officer of the Company shall have given
prior written consent upon such terms as he shall deem
appropriate.
(b) Directly or indirectly, for the Individual's own benefit or for
the benefit of any other person, firm or corporation:
(1) Solicit, for purposes of employment, either any employee of
the Company or its subsidiaries or affiliates or any
employee of any client of the Company or the Company's
subsidiaries or affiliates;
(2) Induce either any employee of the Company or its
subsidiaries or affiliates or any employee of any client of
the Company or the Company's subsidiaries or affiliates to
terminate such employment for purposes of becoming employed
elsewhere;
(3) Interfere with the relationship either between the Company
or its subsidiaries or affiliates and its employees or
between any client of the Company or of the Company's
subsidiaries or affiliates and its employees; or
(4) Otherwise hire or induce others to hire either any employee
of the Company or its subsidiaries or affiliates or of any
client of the Company or of the Company's subsidiaries or
affiliates;
6/20/97
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unless the Chief Executive Officer of the Company shall have given
prior written consent upon such terms as he shall deem appropriate.
(c) The precise value of the covenants contained in this Section 11 is so
difficult to evaluate that no accurate measure of monetary damages
could possibly be established and, in the event of a breach or
threatened breach of such covenants, the Company's remedy at law would
be inadequate and the Company shall be entitled to temporary and
permanent injunctive relief restraining the Individual from such
breach or threatened breach. In the event that any covenant made in
this Section 11 shall be more restrictive than permitted by applicable
law, it shall be limited to the extent which is so permitted. Nothing
in this subsection (c) shall be construed as preventing the Company
from pursuing any and all other remedies available to it for breach or
threatened breach of covenants made in this Section 11, including the
recovery of money damages from the Individual.
It is expressly understood and agreed that the Company's remedies for
breach of these covenants shall not be limited to damages in the amount of
salary to be paid under the Arrangement.
12. Conflict of Interest: The ▇▇▇ ▇▇▇▇▇▇▇ Company Conflict of Interest
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Policy signed by the Individual during his or her employment by the Company
will continue in effect during the term of the Individual's participation
under the Arrangement.
13. Guidelines for Exemptions from Certain Non-Compete Provisions: The Chief
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Executive Officer may allow the Individual receiving benefits under the
Arrangement to do some additional work for other advertising agencies as
long as their work cannot be construed to be in competition with the
Company.
While each case will have to be decided on the individual facts, exemptions
given by the Chief Executive Officer under Section 11, above, will be
considered under the following guidelines:
(a) The Individual may not work in the U.S. for an agency that shares a
U.S. client with the Company.
(b) The Individual may not work in the U.S. for a U.S. agency that handles
a competitor of any of the Company's clients.
(c) In case of any Individual who lives and works outside the U.S.,
guidelines (a) and (b) would be applied to non-U.S. agencies as well,
but because of the many variables, specific guidelines cannot be set
up in advance.
(d) Furthermore, in the event that either (a), (b) or (c) occurs after the
Individual has gone to work for the other agency, the Individual must
resign from the
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other agency within 60 days after such occurrence or else the Company
has no further liability to provide benefits under the Arrangement.
(e) Additionally, the Individual agrees not to, directly or indirectly,
assist in the hiring of any Company employee by the new agency. A
violation of this provision would also result in a termination of
benefits under the Arrangement.
(f) Situations may arise that could result in possible embarrassment to
the Company arising out of continued employment of any Individual as
specified above. Because of the impossibility to predict any such
occurrence, the Chief Executive Officer may, in his sole discretion,
revoke permission previously granted when he believes that such
revocation is necessary to protect the best interests of the Company.
In the event of a revocation, the Individual must resign from the
other agency within 60 days of notice of revocation or else the
Company has no further liability to provide benefits under the
Arrangement.
14. Letter of Agreement: At the time of the election to the Board and as a
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condition of serving on the Board, each Board member-elect shall execute a
letter agreeing to the terms of the Arrangement set forth above and
releasing any and all claims with respect to such Arrangement and
retirement pursuant to the Arrangement, including claims of discrimination.
A copy of the letter to be executed is attached.
DRAFT
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Re: Employment Agreement
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Dear __________:
This letter will constitute our agreement with you concerning your status as an
Executive Consultant.
Term - You will be employed by the Company for the period commencing __________
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__________ and ending ____________.
Duties and Responsibilities - During the term of your employment, you agree to
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serve as an executive consultant to the Company providing services when
required, as the Executive Committee may from time to time prescribe. You shall
commence the performance of such duties at such time as the Company, after at
least five days' prior notice in each case, directs.
During the term of your employment, you agree to devote your best efforts,
energy and skill in the performance of your duties to advance the interests of
the Company.
Compensation - For all services rendered by you during the term of your
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employment, the Company shall pay you a salary of $________ for each of the five
years of the term of your employment. Salary shall be payable in installments at
the end of each semi-monthly period.
Employee Benefits - During the term of your employment, you shall be entitled to
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participate in such employee plans of the Company as are in effect from time to
time in accordance with provisions of such plans; provided, however, that you
shall not be entitled to participate in any bonus plan of the Company or in
Supplemental Long-Term Disability Income program of the Company or the Star
Reachers Compensation Plan of the Company.
Death or Disability - In the event of your death or permanent disability (as
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defined in the Company's disability plan) during the term of your employment,
the Company will pay to you in the case of disability, or to the beneficiary or
beneficiaries last designated by you in writing to the Chief Executive Officer
of the Company in case of your death or, in the absence of such designation, to
your estate, the payments which would have been made to you hereunder during
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the remainder of the term of your employment. You may delete, add or change
beneficiaries in the manner set forth above at any time.
Covenant Not to Compete - During the term of your employment, you covenant and
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agree that you will not, directly or indirectly, own, manage, operate, control,
be employed by or be connected with the ownership, management, operation or
control of:
(a) Any advertising agency (or holding company or subsidiary thereof)
other than the Company;
(b) Any client of the Company or any of its subsidiaries or
affiliates; or
(c) Any company or other entity selling products that compete with
products of clients of the Company or any of its subsidiaries or
affiliates
unless the Chief Executive Officer of the Company shall have given you prior
written consent upon such terms as he shall deem appropriate.
In addition to the foregoing, you further covenant and agree that, during the
term of your employment you will not, directly or indirectly, for your own
benefit or for the benefit of any other person, firm, or corporation:
(a) Solicit, for purposes of employment, either any employee of the
Company or its subsidiaries or affiliates or any employee of any
client of the Company or its subsidiaries or affiliates;
(b) Induce either any employee of the Company or its subsidiaries or
affiliates or any employee of any client of the Company or its
subsidiaries or affiliates to terminate such employment for purposes
of becoming employed elsewhere;
(c) Interfere with the relationship either between the Company or its
subsidiaries or affiliates and its employees or between any client of
the Company or its subsidiaries or affiliates and its employees; or
(d) Otherwise hire or induce others to hire either any employee of the
Company or its subsidiaries or affiliates or of any client of the
Company or its subsidiaries or affiliates unless the Chief Executive
Officer of the Company shall have given prior written consent upon
such terms as he shall deem appropriate.
It is expressly understood and agreed that the Company's remedies for breach of
any of these covenants shall not be limited to damages in the amount of salary
to be paid to you hereunder.
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Termination by Company - The Company may terminate this Agreement:
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(a) Upon a material breach of any provision hereof by you which shall not
be remedied within ten days after notice; or
(b) For cause relating to substantial matters which might have a serious,
material adverse impact on the Company, which shall not be remedied
within ten days after notice; or
(c) For cause relating to substantial matters which have had a serious,
material adverse impact on the Company; or
(d) For cause relating to your conduct which, in the judgment of the
Company, discredits the Company or its clients or is detrimental to
the reputation, character, or standing of the Company or its clients.
* * *
This letter supersedes all prior agreements or understandings as to your
employment by the Company, it being understood and agreed that this letter
contains our entire understanding with respect to its subject matter.
As you know, I am writing this letter on behalf of the Company pursuant to a
resolution of the Board of Directors authorizing me to execute such agreements.
Please execute the original of this letter and return it to me, upon which it
will be binding and effective on the Company and you.
Very truly yours,
▇▇▇ ▇▇▇▇▇▇▇ COMPANY, INC.
By:_______________________
Agreed and Accepted: