Exhibit 10.1
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EMPLOYMENT AGREEMENT
AGREEMENT entered into as of February 1, 2001, by and between ▇▇▇▇▇▇▇▇
CORPORATION, an Iowa corporation (the "Company"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ("▇▇▇▇").
W I T N E S S E T H:
WHEREAS, ▇▇▇▇ has been employed by the Company since September 10, 1991,
pursuant to an Employment Agreement of that same date;
WHEREAS, the Company wishes to continue to employ ▇▇▇▇ pursuant to the terms
and conditions hereof, and in order to induce ▇▇▇▇ to enter into this agreement
(the "Agreement") and to secure the benefits to accrue from his performance
hereunder is willing to undertake the obligations assigned to it herein; and
WHEREAS, ▇▇▇▇ is willing to continue his employment with the Company under the
terms hereof and to enter into the Agreement;
NOW THEREFORE, in consideration of the premises and mutual covenants contained
herein and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. Position; Duties; Responsibilities.
1.1 ▇▇▇▇ shall serve as Chairman of the Board, Chief Executive Officer and
President of the Company. ▇▇▇▇ shall at all times report to and be subject to
the supervision, control and direction of the Board of Directors of the
Company. ▇▇▇▇ shall at all times be the most senior executive officer of the
Company and all other officers shall report to him. ▇▇▇▇ shall have such other
responsibilities and authorities consistent with the status, titles and
reporting requirements set forth herein as are appropriate to said positions,
subject to change (other than diminution in position, authority, duties or
responsibilities) from time to time by the Board of Directors of the Company.
Anything to the contrary above notwithstanding, the Board of Directors may
elect another employee of the Company to the office of President, which shall
not constitute a breach by the Company of its obligation to ▇▇▇▇ under this
paragraph so long as the compensation to be paid to ▇▇▇▇ under this Agreement
is not reduced as a result of such election.
1.2 During the course of his employment, ▇▇▇▇ agrees to devote his full time
and attention and give his best efforts and skills to furthering the business
and interests of the Company, which may include ▇▇▇▇ volunteering his time and
efforts on behalf of charitable, civic, professional organizations and boards
of other corporations.
2. Term.
The term of employment under this Agreement shall commence as of February 1,
2001, and shall continue through June 30, 2006, unless sooner terminated in
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accordance with this Agreement, and thereafter as herein provided. ▇▇▇▇'▇ term
of employment shall automatically renew for subsequent one (1) year terms, the
first of which would begin on July 1, 2006, subject to the terms of this
Agreement unless either party gives written notice six (6) months or more prior
to the expiration of the then existing term of its decision not to renew.
3. Salary.
3.1 The Company shall pay ▇▇▇▇ a base salary during the term of employment at
the minimum annual rate of Six Hundred Ninety Thousand Dollars ($690,000)
("Base Salary"), payable in accordance with the standard payroll practices of
the Company.
3.2 It is understood that the Base Salary is to be ▇▇▇▇'▇ minimum annual
compensation during ▇▇▇▇'▇ employment with the Company. The Base Salary may
increase at the discretion of the Compensation/Nominating Committee of the
Company's Board of Directors ("Compensation Committee"). "Base Salary" shall
include all such increased amounts.
4. Long-Term Incentive Plans.
During the course of his employment, ▇▇▇▇ shall be eligible to participate in
all long-term incentive plans, including, without limitation, stock incentive
plans adopted by the Company and in effect (collectively, "Long-Term Incentive
Plans"), at levels of awards to be granted by the Compensation Committee
commensurate with the level of ▇▇▇▇'▇ responsibilities, and performance
thereof.
5. Bonus.
5.1 During the course of his employment, ▇▇▇▇ shall be eligible to participate
in the ▇▇▇▇▇▇▇▇ Management Incentive Plan (or any successor or replacement
annual incentive plan of the Company) ("MIP"), for such periods as it continues
in effect, subject to the terms of the MIP, and to the discretion vested in the
Compensation Committee under the MIP; provided, however, that the percentage of
Base Salary payable as a target bonus under the MIP shall not be less than
fifty-five percent (55%) (actual Company financial results may result in an
actual bonus paid to ▇▇▇▇ equal to less than or more than fifty-five percent
(55%) of Base Salary).
5.2 All bonuses pursuant to this Section 5 shall be paid to ▇▇▇▇ in
conformance with the Company's normal bonus pay policies following the end of
the respective fiscal year. For the purpose of this Section 5, the phrase
"paid with respect to the fiscal year" shall include payments made outside of
the fiscal year but for such fiscal year and shall exclude payments made in the
fiscal year that are for another fiscal year.
6. Short-Term Disability.
During any period of short-term disability, the Company will continue to pay to
▇▇▇▇ the Base Salary throughout the period of short-term disability, but in no
event beyond June 30, 2006. In addition, ▇▇▇▇ will continue to receive all
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rights and benefits under the benefit plans and programs of the Company in
which ▇▇▇▇ is a participant as determined in accordance with the terms of such
plans and programs, and ▇▇▇▇ shall be eligible to receive the benefit of the
bonus for the year or years in which the short-term disability occurs without
reduction for the period of short-term disability. In the event of ▇▇▇▇'▇
death during a period of short-term disability, the provisions of Section 9.1
shall apply. For the purposes of this Agreement, short-term disability shall
be defined as the incapacitation of ▇▇▇▇ by reason of sickness, accident or
other physical or mental disability which continues for a period not to exceed
the fifth month anniversary of the date of the cause or onset of such
incapacitation. In the event ▇▇▇▇ becomes permanently disabled (as determined
under Section 9.2), the provisions of Section 9.2 shall apply.
7. Employee Benefit Plans.
7.1 During ▇▇▇▇'▇ employment with the Company and subject to all eligibility
requirements, and to the extent permitted by law, ▇▇▇▇ will have the
opportunity to participate in all employee benefit plans and programs generally
available to the Company's employees in accordance with the provisions thereof
as in effect from time to time, including, without limitation, medical
coverage, group life insurance, holidays and vacations, ▇▇▇▇▇▇▇▇ Savings and
Investment Plan (401k) and the ▇▇▇▇▇▇▇▇ Employees' Retirement Income Plan, but
not including the Company's short-term and long-term disability plans, except
to the extent that such disability plans provide greater benefits than under
this Agreement, in which case the applicable disability plan would supercede
the provisions of this Agreement.
7.2 In addition to benefits described in Section 7.1, ▇▇▇▇ shall also receive
or participate in, to the extent permitted by law, the various perquisites and
plans generally available to officers of the Company in accordance with the
provisions thereof as in effect from time to time including, without
limitation, the following perquisites to the extent the Company continues to
offer them: an automobile or automobile allowance, country club dues, dining
club dues, tax and estate planning, supplemental medical plan and executive
life insurance (if insurable). In addition, ▇▇▇▇ shall participate in the
▇▇▇▇▇▇▇▇ Replacement Benefit Plan and the ▇▇▇▇▇▇▇▇ Supplemental Benefit Plan.
7.3 In addition to the other pension benefits, qualified and non-qualified, to
be provided ▇▇▇▇ under this Section 7, the Company agrees to continue to
provide a non-qualified retirement program for ▇▇▇▇ as described in the
attached Exhibit A ("SERP"); however, ▇▇▇▇'▇ entitlements to benefits under
such non-qualified retirement programs are subject to termination under the
provisions of Sections 9.3, 9.5 and 9.8 below. Except as provided in Section
9.3, 9.5 and 9.8, the SERP shall not be subject to termination or amendment by
the Company without the consent of ▇▇▇▇, which may be withheld for any or no
reason.
If at any time the SERP cannot operate because of prohibitions of law and ▇▇▇▇
is otherwise eligible to receive benefits under the terms of the SERP, the
Company agrees to make a payment or payments to ▇▇▇▇ or, if applicable, to his
estate to provide the economic equivalent (giving effect to the time use of
money) to him or his beneficiaries, provided that no such payments shall be
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made if such payments would be prohibited by law. It is the intention of the
parties, should the circumstances contemplated by the preceding sentence occur,
that payments to ▇▇▇▇ in lieu of payments under the SERP shall be made at the
time and in the manner permissible that most nearly approximates the time,
manner, and tax treatment of the payments that would have been made under the
SERP.
8. Expense Reimbursements.
During ▇▇▇▇'▇ employment with the Company, ▇▇▇▇ will be entitled to receive
reimbursement by the Company for all reasonable, out-of-pocket expenses
incurred by him (in accordance with policies and procedures established by the
Company), in connection with his performing services hereunder, provided ▇▇▇▇
properly accounts therefor. In consideration of ▇▇▇▇'▇ use of his own
residence while conducting business in New York City, the Company agrees to pay
▇▇▇▇ Two Hundred Twenty-five Dollars ($225) for each night ▇▇▇▇ is reasonably
required to spend in New York City on account of his attention to the Company's
business in New York City or environs.
9. Consequences of Termination of Employment.
9.1 Death. In the event of the death of ▇▇▇▇ during the term of this
Agreement or during the period when payments are being made pursuant to
Sections 6 or 9.2, this Agreement shall terminate and all obligations to ▇▇▇▇
shall cease as of the date of death except that, (a) the Company will pay the
Base Salary until the end of the month of the first anniversary of ▇▇▇▇'▇ death
(but not beyond June 30, 2006), and (b) all rights and benefits of ▇▇▇▇ under
the benefit plans and programs of the Company including, without limitation,
the SERP in which ▇▇▇▇ is a participant, will be provided as determined in
accordance with the terms and provisions of such plans and programs. Any bonus
(or amounts in lieu thereof) pursuant to Section 5, payable for the fiscal year
in which ▇▇▇▇'▇ death occurs, shall be determined by the Compensation Committee
at its meeting following the end of such fiscal year pro rata to the date of
death and promptly paid to ▇▇▇▇'▇ estate. All awards of restricted stock,
stock options and any other benefits under the Long-Term Incentive Plans shall
be handled in accordance with the terms of the relevant plan and agreements
entered into between ▇▇▇▇ and the Company with respect to such awards.
9.2 Disability. If ▇▇▇▇ shall become permanently incapacitated by reasons of
sickness, accident or other physical or mental disability, as such
incapacitation is certified by a physician chosen by the Company and reasonably
acceptable to ▇▇▇▇ (if he is then able to exercise sound judgment), and shall
therefore be unable to perform his normal duties hereunder, then the employment
of ▇▇▇▇ hereunder and this Agreement may be terminated by ▇▇▇▇ or the Company
upon thirty (30) days' written notice to the other party following such
certification. Should ▇▇▇▇ not acquiesce (or should he be unable to acquiesce)
in the selection of the certifying doctor, a doctor chosen by ▇▇▇▇ (or if he is
not then able to exercise sound judgment, by his spouse or personal
representative) and reasonably acceptable to the Company shall be required to
concur in the medical determination of incapacitation, failing which the two
doctors shall designate a third doctor whose decision shall be determinative as
of the end of the calendar month in which such concurrence or third-doctor
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decision, as the case may be, is made. The Company shall thereafter pay to
▇▇▇▇, at such times as Base Salary provided for in Section 3 of this Agreement
would normally be paid, 100% of Base Salary for the first twelve months
following such termination, 75% of Base Salary for the next twelve-month period
and 50% of Base Salary for the remaining period of what would have constituted
the current term of employment but for termination by reason of disability (but
in no event beyond June 30, 2006). Following the termination pursuant to this
Section 9.2, the Company shall pay or provide to ▇▇▇▇ such other rights and
benefits of participation under the employee benefit plans and programs of the
Company including, without limitation, the SERP in which ▇▇▇▇ is a participant,
to the extent that such continued participation is not otherwise prohibited by
applicable law or by the express terms and provisions of such plans and
programs. All benefits provided under this Section 9.2 shall be in replacement
of and not in addition to benefits payable under the Company's short-term and
long-term disability plans. All awards of restricted stock, stock options and
any other benefits under the Long-Term Incentive Plans shall be handled in
accordance with the terms of the relevant plan and agreements entered into
between ▇▇▇▇ and the Company with respect to such awards.
9.3 Due Cause. The Company may terminate ▇▇▇▇'▇ employment, remove him as an
officer and director of the Company and terminate this Agreement at any time
for Due Cause. In the event of such termination for Due Cause, ▇▇▇▇ shall
continue to receive Base Salary payments provided for in this Agreement only
through the date of such termination for Due Cause and shall be entitled to any
previously earned but unpaid bonus amounts, and ▇▇▇▇ shall be entitled to no
further benefits under this Agreement, except that any rights and benefits ▇▇▇▇
may have under the employee benefit plans and programs of the Company, in which
▇▇▇▇ is a participant, shall be determined in accordance with the terms and
provisions of such plans and programs. ▇▇▇▇ understands and agrees that in the
event of the termination of employment, removal as an officer and director and
termination of this Agreement pursuant to this Section 9.3: (a) All awards of
restricted stock, stock options and any other benefits under the Long-Term
Incentive Plans shall be handled in accordance with the terms of the relevant
plan and agreements entered into between ▇▇▇▇ and the Company with respect to
such awards; (b) the Company shall have no further obligation to pay any bonus
to ▇▇▇▇ under the terms of the MIP or this Agreement; and (c) the Company shall
have no obligation to provide benefits under the SERP, but that the obligations
of ▇▇▇▇ under Section 10 shall remain in full force and effect. The term "Due
Cause" shall mean repeated and gross negligence in fulfillment of, or repeated
failure of ▇▇▇▇ to fulfill his material obligations under this Agreement (other
than any such failure resulting from ▇▇▇▇'▇ mental or physical incapacity as
determined by a physician chosen pursuant to the methodology in Section 9.2),
in either event after due written notice thereof, or serious willful misconduct
by ▇▇▇▇ in respect of his obligations hereunder. Due Cause should not include,
without limitation, (w) refusal by ▇▇▇▇ of an assignment not consistent with
the status, titles and reporting requirements set forth herein or contemplated
hereby, or (x) bad judgment or negligence of ▇▇▇▇, or (y) any act or omission
(other than one constituting a material breach of trust committed in willful or
reckless disregard of the interests of the Company and undertaken for personal
gain) in respect of which a determination could properly have been made by the
Board of Directors of the Company that ▇▇▇▇ met the applicable standard of
conduct prescribed for indemnification or reimbursement under the Bylaws of the
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Company or the laws of Iowa, in each case in effect at the time of such act or
omission, or (z) any act or omission with respect to which notice of
termination is given more than twelve (12) months after the earliest date on
which any non-employee director of the Company who was not a party to such act
or omission knew or should have known of such act or omission. Notwithstanding
the foregoing, ▇▇▇▇ shall not be deemed to have been terminated for Due Cause
unless and until there shall have been delivered to ▇▇▇▇ a copy of a resolution
duly adopted by the affirmative vote of at least 3/4 of the Board (excluding
▇▇▇▇) at a meeting of the Board called and held for such purpose (after
reasonable notice is provided to ▇▇▇▇ and ▇▇▇▇ is given an opportunity,
together with counsel for ▇▇▇▇, to be heard before the Board) finding that in
the good faith opinion of the Board ▇▇▇▇ was guilty of conduct set forth in the
fourth sentence of this Section 9.3 and specifying the particulars thereof.
9.4 At Will. The other provisions of this Agreement notwithstanding, the
Company may terminate ▇▇▇▇'▇ employment, remove him as an officer and director
and terminate this Agreement at any time for whatever reason it deems
appropriate, with or without cause and with or without prior notice. In the
event of such a termination of ▇▇▇▇'▇ employment and this Agreement, ▇▇▇▇ shall
have no further obligations of any kind under or arising out of the Agreement
(except for the obligations of ▇▇▇▇ under Section 10) and the Company shall be
obligated only to pay ▇▇▇▇ the following: (a) Base Salary and the bonus
amounts provided in Section 5 of this Agreement through the end of the then
current term of employment (the "Remaining Term") as provided in Section 2 of
this Agreement, but no less than a total of twelve (12) months of Base Salary
and target bonus under the MIP or successor plans; and (b) any other amounts
due and owing not then paid; provided, however, that in the event that as a
result of such termination of employment ▇▇▇▇ would otherwise be entitled to a
severance payment (a "Change of Control Severance Payment") under Section 4 of
the Severance Agreement dated as of February 1, 2001, between ▇▇▇▇ and the
Company (the "Severance Agreement"), ▇▇▇▇ shall be entitled to the greater of
(i) the cash severance benefits described in clause (a) of this sentence and
(ii) the cash severance benefits described in Section 4(a) of the Severance
Agreement, but in no event to both payments.
After the date of termination under this Section 9.4 or Sections 9.6 or 9.7,
▇▇▇▇ shall not be treated as an employee for purposes of the Company's employee
benefit plans or programs even though he may continue to receive payments as
provided in this Section 9.4, except that ▇▇▇▇ and his eligible dependents
shall continue, to the extent permitted by law, to be covered by health and
welfare insurance plans or programs in which ▇▇▇▇ and his eligible dependents
participate immediately prior to ▇▇▇▇'▇ termination of employment for the
Remaining Term; provided, however, that if during such time period ▇▇▇▇ should
enter into employment with a new employer and become eligible to receive
comparable insurance benefits, the continued insurance benefits described
herein shall be secondary to those provided under the plans of such employer
during such applicable period of eligibility. In the event that ▇▇▇▇ is
ineligible, for whatever reason, to continue to be so covered with respect to
any of the above-referenced plans or programs, the Company shall provide
substantially equivalent coverage through other sources. In the event ▇▇▇▇
would otherwise be entitled to a Change of Control Severance Payment under the
Severance Agreement as a result of a termination of employment under this
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Section 9.4, ▇▇▇▇ may elect to receive the continued health and welfare
insurance benefits under this Section 9.4 or under Section 4(b) of the
Severance Agreement.
All awards of restricted stock, stock options and any other benefits under the
Long-Term Incentive Plans shall be handled in accordance with the terms of the
relevant plan and agreements entered into between ▇▇▇▇ and the Company with
respect to such awards.
▇▇▇▇ agrees that the payments described in this Section 9.4 shall be full and
adequate compensation to ▇▇▇▇ for all damages ▇▇▇▇ may suffer as a result of
the termination of his employment pursuant to this Section 9.4 or Sections 9.6
or 9.7 and hereby waives and releases the Company from any and all obligations
or liabilities to ▇▇▇▇ arising from or in connection with ▇▇▇▇'▇ employment
with the Company or the termination of his employment including, without
limitation, all rights and claims ▇▇▇▇ may have under federal, state or local
statutes, regulations or ordinances or under any common law principles of
breach of contract or the covenant of good faith and fair dealing, defamation,
wrongful discharge, intentional infliction of emotional distress or promissory
estoppel; provided, however, that any rights and benefits ▇▇▇▇ may have under
the employee benefit plans and programs of the Company, including, without
limitation, the SERP, in which ▇▇▇▇ is a participant, shall be determined in
accordance with the terms and provisions of such plans and programs and, except
as provided in this Section 9.4 with respect to cash severance payments and
continued health and welfare insurance plans, under the Severance Agreement in
the event of a termination of employment which would otherwise entitle ▇▇▇▇ to
a Change of Control Severance Payment.
9.5 Employee Voluntary. In the event ▇▇▇▇ terminates his employment of his
own volition prior to the end of the term of this Agreement, except for a
termination as described in Sections 9.6 or 9.7 and except as specifically
provided otherwise in the Severance Agreement, such termination shall
constitute a voluntary termination and in such event the Company's only
obligation to ▇▇▇▇ shall be to make Base Salary payments provided for in this
Agreement through the period ending with the date of such voluntary
termination. Except as may be otherwise expressly provided in Section 6, 7.3,
and 9.2, but subject to the following provisions of this Section 9.5, any
rights and benefits ▇▇▇▇ may have under the employee benefit plans and programs
of the Company, in which he is a participant, shall be determined in accordance
with the terms and provision of such plans and programs. ▇▇▇▇ understands and
agrees that in the event of the termination of employment pursuant to this
Section 9.5: (a) All awards of restricted stock, stock options and any other
benefits under the Long-Term Incentive Plans shall be handled in accordance
with the terms of the relevant plan and agreements entered into between ▇▇▇▇
and the Company with respect to such awards; (b) the Company shall have no
further obligation to pay any bonus to ▇▇▇▇ under the terms of the MIP or this
Agreement; and (c) the Company shall have no obligation to provide benefits
under the SERP, but that the obligations of ▇▇▇▇ under Section 10 shall remain
in full force and effect.
9.6 Failure to Re-elect as Chairman of the Board of Directors. In the event
▇▇▇▇ is not re-elected to or is removed from the position of Chairman of the
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Board (for reasons other than for Due Cause or physical or mental incapacity)
prior to the end of the term of this Agreement, ▇▇▇▇ shall have the right to
terminate his employment with the Company within ninety (90) days of being
notified of such action, and such termination shall be deemed to be termination
by the Company without "Due Cause," and such termination shall be treated in
accordance with the terms of Section 9.4 above.
If ▇▇▇▇ shall terminate his employment and such termination is deemed to be
termination by the Company without Due Cause pursuant to this Section or
Section 9.7, ▇▇▇▇ shall be entitled to the same rights and benefits, and free
of all further obligations of any kind under or arising out of this Agreement
(except for obligations under Section 10), all as provided in connection with a
termination pursuant to Section 9.4 above. ▇▇▇▇ agrees that the payments
described in Section 9.4 shall be full and adequate compensation to ▇▇▇▇ for
all damages he may suffer as a result of the termination of his employment
pursuant to this Section or Section 9.7, and hereby waives and releases the
Company from any and all obligations or liabilities to ▇▇▇▇ arising from or in
connection with ▇▇▇▇'▇ employment with the Company or the termination of his
employment including, without limitation, all rights and claims ▇▇▇▇ may have
under federal, state or local statutes, regulations or ordinances or under any
common law principles of breach of contract or the covenant of good faith and
fair dealing, defamation, wrongful discharge, intentional infliction of
emotional distress or promissory estoppel; provided, however, that any rights
and benefits ▇▇▇▇ may have under the employment benefit plans and programs of
the Company, including, without limitation, the SERP, in which ▇▇▇▇ is a
participant, shall be determined in accordance with the terms and provisions of
such plans and programs. All awards of restricted stock, stock options and any
other benefits under the Long-Term Incentive Plans shall be handled in
accordance with the terms of the relevant plan and agreements entered into
between ▇▇▇▇ and the Company with respect to such awards.
In the event of a sale or other disposition of all or substantially all of the
assets of the Company ("Sale of Assets"), which is not treated as a Change of
Control of the Company under the Severance Agreement, if ▇▇▇▇ is not permitted
to become the Chairman of the Board and Chief Executive Officer, or Chief
Executive Officer and President of the company acquiring or receiving all or
substantially all of the assets of the Company, ▇▇▇▇ shall have the right to
voluntarily resign his employment with the Company within the thirty-day period
following such Sale of Assets and such voluntary resignation shall be
considered a termination of employment pursuant to Section 9.4 hereof and ▇▇▇▇
shall be entitled to the benefits described therein.
9.7 Failure to Re-elect as Chief Executive Officer, Director or Member of
Executive Committee. If at any time prior to the end of the term of this
Agreement ▇▇▇▇ is not re-elected to or is removed from the office of Chief
Executive Officer, or as a Director of the Company or as a member of the
Executive Committee of the Company's Board of Directors (for reasons other than
for Due Cause), ▇▇▇▇ shall have the right to terminate his employment with the
Company by giving written notice within ninety (90) days after the date of such
action, and such termination shall be deemed to be termination by the Company
without "Due Cause," and such termination shall be treated in accordance with
the terms of Section 9.4 above.
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9.8 Retirement Before Age 65. In the event ▇▇▇▇ elects to retire from
employment with the Company and commence the available benefits under certain
of the Company's benefit plans and programs prior to attaining age 65, ▇▇▇▇
shall receive retirement benefits under the SERP only to the extent and in the
amounts as determined by the Board of Directors of the Company. Termination of
employment pursuant to Sections 9.4, 9.6, or 9.7, shall not be deemed to be
retirement within the meaning of this Section and ▇▇▇▇ shall be entitled to
retirement benefits under the SERP. All awards of restricted stock, stock
options and any other benefits under the Long-Term Incentive Plans shall be
handled in accordance with the terms of the relevant plan and agreements
entered into between ▇▇▇▇ and the Company with respect to such awards.
10. Covenants of ▇▇▇▇.
10.1 ▇▇▇▇ acknowledges that as a result of the services to be rendered to the
Company hereunder, ▇▇▇▇ will be brought into close contact with many
confidential affairs of the Company, its subsidiaries and affiliates, not
readily available to the public. ▇▇▇▇ further acknowledges that the services
to be performed under this Agreement are of a special, unique, unusual,
extraordinary and intellectual character; that the business of the Company is
national in scope; that its goods and services are marketed throughout the
United States; and that the Company competes with other organizations that are
or could be located in nearly any part of the United States.
10.2 In recognition of the foregoing, ▇▇▇▇ covenants and agrees that, except
as is necessary in providing services under this Agreement or to the extent
necessary to comply with law or the valid order of a court or government agency
of competent jurisdiction, ▇▇▇▇ will not knowingly use for his own benefit nor
knowingly divulge any Confidential Information and Trade Secrets of the
Company, its subsidiaries and affiliated entities, which are not otherwise in
the public domain and, so long as they remain Confidential Information and
Trade Secrets not in the public domain, will not intentionally disclose them to
anyone outside of the Company either during or after his employment. For the
purposes of this Agreement, "Confidential Information and Trade Secrets" of the
Company means information which is secret to the Company, its subsidiaries and
affiliated entities. It may include, but is not limited to, information
relating to the magazines, books, publications, products, services, television
stations, real estate franchise operations, new and future concepts and
business of the Company, its subsidiaries and affiliates, in the form of
memoranda, reports, computer software and data banks, customer lists, employee
lists, books, records, financial statements, manuals, papers, contracts and
strategic plans. As a guide, ▇▇▇▇ is to consider information originated,
owned, controlled or possessed by the Company, its subsidiaries or affiliated
entities which is not disclosed in printed publications stated to be available
for distribution outside the Company, its subsidiaries and affiliated entities
as being secret and confidential. In instances where doubt does or should
reasonably be understood to exist in ▇▇▇▇'▇ mind as to whether information is
secret and confidential to the Company, its subsidiaries and affiliated
entities, ▇▇▇▇ agrees to request an opinion, in writing, from the Company.
10.3 Anything to the contrary in this Section 10 notwithstanding, ▇▇▇▇ shall
disclose to the public and discuss such information as is customary or legally
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required to be disclosed by a Company whose stock is publicly traded, or that
is in the best interests of the Company to do so.
10.4 ▇▇▇▇ will deliver promptly to the Company on the termination of his
employment with the Company, or at any other time the Company may so request,
all memoranda, notes, records, reports and other documents relating to the
Company, its subsidiaries and affiliated entities, and all property owned by
the Company, its subsidiaries and affiliated entities, which ▇▇▇▇ obtained
while employed by the Company, and which ▇▇▇▇ may then possess or have under
his control.
10.5 During and for a period of one (1) year after the termination of
employment with the Company (except that the time period of such restrictions
shall be extended by any period during which ▇▇▇▇ is in violation of this
Section 10.5), ▇▇▇▇ will not: (a) knowingly interfere with, disrupt or attempt
to disrupt, any then existing relationship, contractual or otherwise between
the Company, its subsidiaries or affiliated entities, and any customer, client,
supplier, or agent, it being understood that the right to seek or enter into
contractual arrangements with independent contractors, including, without
limitation, consultants, professionals, authors, advertisers and the like,
shall not be abridged by reason of this Section 10; or (b) knowingly solicit,
or assist any other entity in soliciting for employment, any person known to
▇▇▇▇ to be an agent or executive employee of the Company, its subsidiaries or
affiliated entities.
10.6 ▇▇▇▇ will promptly disclose to the Company all inventions, processes,
original works of authorship, trademarks, patents, improvements and discoveries
related to the business of the Company, its subsidiaries and affiliated
entities (collectively "Developments"), conceived or developed during ▇▇▇▇'▇
employment with the Company and based upon information to which he had access
during the term of employment, whether or not conceived during regular working
hours, through the use of the Company time, material or facilities or
otherwise. All such Developments shall be the sole and exclusive property of
the Company, and upon request ▇▇▇▇ shall deliver to the Company all outlines,
descriptions and other data and records relating to such Developments, and
shall execute any documents deemed necessary by the Company to protect the
Company's rights hereunder. ▇▇▇▇ agrees upon request to assist the Company to
obtain United States or foreign letters patent and copyright registrations
covering inventions and original works of authorship belonging to the Company
hereunder. If the Company is unable because of ▇▇▇▇'▇ mental or physical
incapacity to secure ▇▇▇▇'▇ signature to apply for or to pursue any application
for any United States or foreign letters patent or copyright registrations
covering inventions and original works of authorship belonging to the Company
hereunder, then ▇▇▇▇ hereby irrevocably designates and appoints the Company and
its duly authorized officers and agents as his agent and attorney in fact, to
act for and in his behalf and stead to execute and file any such applications
and to do all other lawfully permitted acts to further the prosecution and
issuance of letters patent or copyright registrations thereon with the same
legal force and effect as if executed by him. ▇▇▇▇ hereby waives and
quitclaims to the Company any and all claims, of any nature whatsoever, that he
may hereafter have for infringement of any patents or copyright resulting from
any such application for letters patent or copyright registrations belonging to
the Company hereunder.
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10.7 ▇▇▇▇ agrees that the remedy at law for any breach or threatened breach of
any covenant contained in this Section 10 may be inadequate and that the
Company, in addition to such other remedies as may be available to it, in law
or in equity, shall be entitled to injunctive relief without bond or other
security.
10.8 Although the restrictions contained in Section 10.1, 10.2, 10.4 and 10.5
above are considered by the parties hereto to be fair and reasonable in the
circumstances, it is recognized that restrictions of such nature may fail for
technical reasons, and accordingly it is hereby agreed that if any of such
restrictions shall be adjudged to be void or unenforceable for whatever reason,
but would be valid if part of the wording thereof were deleted, or the period
thereof reduced or the area dealt with thereby reduced in scope, the
restrictions contained in Section 10.1, 10.2, 10.4 and 10.5 shall be enforced
to the maximum extend permitted by law, and the parties consent and agree that
such scope or wording may be accordingly judicially modified in any proceeding
brought to enforce such restrictions.
10.9 Notwithstanding that ▇▇▇▇'▇ employment hereunder may expire or be
terminated as provided in Sections 2 or 9 above, this Agreement shall continue
in full force and effect insofar as is necessary to enforce the covenants and
agreements of ▇▇▇▇ contained in this Section 10.
11. Arbitration.
The parties shall use their best efforts and good will to settle all disputes
by amicable negotiations. The Company and ▇▇▇▇ agree that, with the express
exception of any dispute or controversy arising under Section 9.2 or Section 10
of this Agreement or as may be required under Section 3(g) of the Severance
Agreement, any controversy or claim arising out of or in any way relating to
▇▇▇▇'▇ employment with the Company, including, without limitation, any and all
disputes concerning this Agreement and the termination of this Agreement that
are not amicably resolved by negotiation, shall be settled by arbitration in
New York, New York, or such other place agreed to by the parties, as follows:
(a) Any such arbitration shall be heard before a panel consisting of one (1)
to three (3) arbitrators, each of whom shall be impartial. Except as the
parties may otherwise agree, all arbitrators shall be appointed in the first
instance by the President of the New York State Bar Association or, in the
event of his unavailability by reason of disqualification or otherwise, by the
Chairman of the Executive Committee of said Bar Association. In determining
the number and appropriate background of the arbitrators, the appointing
authority shall give due consideration to the issues to be resolved, but his
decision as to the number of arbitrators and their identity shall be final.
(b) An arbitration may be commenced by any party to this Agreement by the
service of a written Request for Arbitration upon the other affected party.
Such Request for Arbitration shall summarize the controversy or claim to be
arbitrated, and shall be referred by the complaining party to the appointing
authority for appointment of arbitrators ten (10) days following such service
or thereafter. If the panel of arbitrators is not appointed by the appointing
authority within thirty (30) days following such reference, any party may apply
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to any court within the State of New York for an order appointing arbitrators
qualified as set forth below. No Request for Arbitration shall be valid if it
relates to a claim, dispute, disagreement or controversy that would have been
time barred under the applicable statute of limitations had such claim,
dispute, disagreement or controversy been submitted to the courts of the State
of New York.
(c) The Company agrees to reimburse ▇▇▇▇, to the full extent permitted by law,
for all legal fees and costs which ▇▇▇▇ may reasonably incur as a result of any
contest by the Company, ▇▇▇▇ or others of the validity or enforceability of, or
liability under, any provision of this Agreement or any guarantee of
performance thereof (including as a result of any contest by ▇▇▇▇ about the
amount of any payment pursuant to this Agreement), provided that ▇▇▇▇ prevails
on at least one material claim against the Company or such other party in
connection with such contest. The parties hereby expressly waive punitive
damages, and under no circumstances shall an award contain any amount that in
any way reflects punitive damages.
(d) Judgment on the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof.
(e) It is intended that controversies or claims submitted to arbitration under
this Section 11 shall remain confidential, and to that end it is agreed by the
parties that neither the facts disclosed in the arbitration, the issues
arbitrated, nor the views or opinions of any persons concerning them, shall be
disclosed by third persons at any time, except to the extent necessary to
enforce an award or judgment or as required by law or in response to legal
process or in connection with such arbitration. In addition, ▇▇▇▇ shall be
entitled to disclose the facts disclosed in arbitration, the issues arbitrated,
and the views or opinions of any persons concerning them to legal and tax
advisors so long as such advisors agree to be bound by the terms of this
Agreement.
12. Successors and Assigns.
12.1 Assignment by the Company. This Agreement shall inure to the benefit of
and shall be binding upon the successors and assigns of the Company.
12.2 Assignment by ▇▇▇▇. ▇▇▇▇ may not assign this Agreement or any part
thereof; provided, however, that nothing herein shall preclude one or more
beneficiaries of ▇▇▇▇ from receiving any amount that may be payable following
the occurrence of his legal incompetency or his death and shall not preclude
the legal representative of his estate from receiving such amount or from
assigning any right hereunder to the person or persons entitled thereto under
his will or, in the case of intestacy, to the person or persons entitled
thereto under the laws of the intestacy applicable to his estate.
13. Governing Law.
This Agreement shall be deemed a contract made under, and for all purposes
shall be construed in accordance with, the laws of the State of New York
without reference to the principles of conflict of laws.
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14. Entire Agreement.
This Agreement and the attached Exhibits contain all the understandings and
representations between the parties hereto pertaining to the subject of the
employment of ▇▇▇▇ by the Company and supersedes all undertakings and
agreements, whether oral or in writing, if any there be, previously entered
into by them with respect thereto other than those agreements listed on the
attached Exhibit B.
15. Amendment or Modification; Waiver.
No provision of this Agreement may be amended or modified unless such amendment
or modification is agreed to in writing, signed by ▇▇▇▇ and by a duly
authorized officer of the Company and approved in advance by the Compensation
Committee. Except as otherwise specifically provided in this Agreement, no
wavier by either party hereto of any breach by the other party of any condition
or provision of the Agreement to be performed by such other party shall be
deemed a waiver of a similar or dissimilar provision or condition at the same
or any prior or subsequent time.
16. Notices.
Any notice to be given hereunder shall be in writing and delivered personally
or sent by overnight mail, such as Federal Express, addressed to the party
concerned at the address indicated below or to such other address as such party
may subsequently give notice of hereunder in writing:
If to Company:
Chairman of the Compensation/Nominating Committee
Board of Directors
▇▇▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇, Esquire
Vice President-General Counsel & Secretary
▇▇▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
If to ▇▇▇▇:
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ Rover, Esquire
White & Case
1155 Avenue of the Americas
New York, N.Y. 10036
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17. Severability.
In the event that any provision or portion of this Agreement shall be
determined to be invalid or unenforceable for any reason, the remaining
provisions or portions of this Agreement shall be unaffected thereby and shall
remain in full force and effect to the fullest extent permitted by law.
18. Withholding.
Anything to the contrary notwithstanding, all payments required to be made by
the Company hereunder to ▇▇▇▇ or his beneficiaries, including his estate, shall
be subject to withholding and deductions as the Company may reasonably
determine it should withhold or deduct pursuant to any applicable law or
regulation. In lieu of withholding or deducting, such amounts, in whole or in
part, the Company may, in its sole discretion, accept other provision for
payment as permitted by law, provided it is satisfied in its sole discretion
that all requirements of law affecting its responsibilities to withhold such
taxes have been satisfied.
19. Deferred Payments.
Any amounts required under this Agreement to be paid to ▇▇▇▇ that ▇▇▇▇ can and
does elect to defer under any Company benefit plan or program shall be deemed
to have been paid to him for purposes of this Agreement; provided, however,
that if the Company breaches the terms of any deferred compensation plan,
arrangement or agreement with respect to which such amounts are to be paid,
▇▇▇▇ may claim a breach of this Agreement.
20. Survivorship.
The respective rights and obligations of the parties hereunder shall survive
any termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations.
21. Duty to Mitigate; Set-off.
▇▇▇▇ shall not be required to seek employment, nor shall the amount of any
payment provided for under this Agreement be reduced by any compensation earned
by ▇▇▇▇ as the result of employment by another employer after the date of
termination of ▇▇▇▇'▇ employment, or otherwise, except as may be provided under
Section 9.4 with respect to health and welfare insurance benefits. The
Company's obligation to make the payments provided for in this Agreement and
otherwise to perform its obligations hereunder shall not be affected by any
set-off, counterclaim, recoupment, defense, or other claim, right or action
that the Company may have against ▇▇▇▇ or others.
22. Headings.
Headings of the sections of this Agreement are intended solely for convenience
and no provision of this Agreement is to be construed by reference to the title
of any section.
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23. Knowledge and Representation.
▇▇▇▇ acknowledges that the terms of this Agreement have been fully explained
to him, that ▇▇▇▇ understands the nature and extent of the rights and
obligations provided under this Agreement, and that ▇▇▇▇ has been represented
by legal counsel in the negotiation and preparation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first set forth above.
▇▇▇▇▇▇▇▇ CORPORATION
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ By /s/ E.T. ▇▇▇▇▇▇▇▇ III
------------------- ----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ E. T. ▇▇▇▇▇▇▇▇ III
Chairman of the Executive Committee
Dated: Dated:
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The following supplemental exhibit to the Employment Agreement dated
February 1, 2001, between ▇▇▇▇▇▇▇▇ Corporation and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ have been
omitted in this Form 10-Q filing. The Company agrees to provide this exhibit
to the Commission upon request.
Exhibit A Minimum Supplemental Retirement Benefit
Program
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