AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
between
▇▇▇▇▇▇ & ▇▇▇▇▇▇ GROUP, INC.
and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
dated as of October 14, 2004
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement"),
dated as of October 14, 2004, between ▇▇▇▇▇▇ & ▇▇▇▇▇▇ GROUP, INC.
(the "Company"), a New York corporation, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(the "Executive").
W I T N E S S E T H T H A T:
WHEREAS, the Executive is currently serving as Chairman and
Chief Executive Officer of the Company, pursuant to an Amended
and Restated Employment Agreement, dated as of October 19, 1999
(the "Prior Agreement"); and
WHEREAS, subsequent to the execution of the Prior Agreement,
the Company established an Executive Mandatory Retirement Program
(the "EMR Program") and the ▇▇▇▇▇▇ & ▇▇▇▇▇▇ Group, Inc. Executive
Mandatory Retirement Benefit Plan (the "EMRB Plan") in connection
therewith; and
WHEREAS, the Company and the Executive wish to set forth the
terms and conditions of Executive's employment by the Company
commencing on the date hereof, consistent with the terms of the
EMR Program;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereto agree as follows:
1. Employment. The Company shall employ the Executive, and the
Executive shall be employed by the Company, for the Period of
Employment provided in paragraph 3(a) below and upon the other
terms and conditions set forth in this Agreement.
2. Position and Responsibilities: During the Period of
Employment, the Executive shall:
(a) Serve as the Chairman and Chief Executive Officer of
the Company;
(b) Be responsible for the general management of the
affairs of the Company and all its subsidiaries, reporting
directly to the Board of Directors of the Company (the "Board");
(c) Serve as a member of the Board for the period for which
he is and shall from time to time be elected or reelected; and
(d) Serve, if elected, as President of the Company and as
an officer and director of any subsidiary or affiliate of the
Company.
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3. Terms and Duties
(a) Period of Employment.
(1) The period of the Executive's employment
under this Agreement (the "Period of Employment") commenced on
October 19, 1999 and shall terminate on December 31, 2004,
subject to the earlier termination in accordance with the terms
of this Agreement and subject to extension in accordance with the
terms of paragraph 3(a)(2) below.
(2) Beginning on the date of its commencement,
the Period of Employment shall automatically be extended for one
additional day (subject to earlier termination in accordance with
the terms of this Agreement) for each day of the Period of
Employment that elapses until either the Executive or the Company
notifies the other party in writing that the Company or the
Executive does not want the Period of Employment extended
thereafter; provided, however, that the Period of Employment
shall not be extended pursuant to this sentence beyond the
Initial Mandatory Retirement Date (such date being December 31,
2008, as defined in the EMRB Plan). Notwithstanding the
foregoing provisions of this paragraph 3(a)(2), if, at any time
or times, the Initial Mandatory Retirement Date (or any
subsequent mandatory retirement date) shall be postponed in
accordance with the EMR Program, the Period of Employment shall
automatically be extended to the final mandatory retirement date
established (from time to time) in accordance therewith.
(b) Duties. While employed by the Company, (except for
illness or incapacity and vacation periods) the Executive shall
perform and discharge well and faithfully the duties which the
Board may assign to him from time to time. The Executive shall
not, without the prior consent of the Board, engage in any
business activity for which he is compensated unrelated to the
Company's business; provided, however, the foregoing shall not be
deemed to prohibit the Executive from devoting time to his
personal investments or from continuing the activities he had
been engaged in at the time this Agreement is entered into with
respect to his then personal investments. The Executive shall be
permitted to perform and discharge his duties from any location.
4. Compensation. For all services rendered by the Executive in
any capacity during the Period of Employment, including, without
limitation, services as an executive, officer, director or member
of any committee of the Company or of any subsidiary, affiliate
or division of the Company, the Company shall compensate the
Executive as described in paragraphs (a) through (g) below. For
purposes of this Section 4, the term "Board" shall mean either
the Board of Directors of the Company or a committee of the Board
of Directors (i.e., the Compensation Committee of the Board of
Directors).
(a) Base Salary. During the Period of Employment, the
Company shall pay the Executive a fixed salary (the "Base
Salary") at an annual rate of not less than $202,980. On January
1, 2001, and on each January 1 thereafter during the Period of
Employment, the Base Salary shall be increased so that the new
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Base Salary equals the product of the Base Salary in effect on
the immediately preceding December 31 times the quotient obtained
by dividing A by B, where:
"A is the Consumer Price Index, All Urban Consumers
(CPI-U), U.S. City of Average for All Items (standard reference
base period 1982-84 = 100) (the "CPI"), as published during the
September immediately preceding the January 1 with respect to
which the increased Base Salary is being computed; and
B is the CPI as published during the September twelve
months prior to the September referred to in "A" above. If
during the Period of Employment, the United States Bureau of
Labor Statistics (the "Bureau") ceases publication of the CPI,
the calculations required hereby shall thereafter be made using
the consumer price index published by the Bureau (or any
successor agency of the federal government) that is most nearly
equivalent to the CPI."
(b) Discretionary Base Salary Increases. At any time or
from time to time during the Period of Employment, the Board may
increase the Base Salary to an amount exceeding the Base Salary
determined pursuant to paragraph 3(a) above. Following any such
discretionary increase in the Base Salary, the Board may or may
not maintain the Base Salary at that increased level (or further
increase the Base Salary beyond that level). But in no event
shall the Base Salary in effect for any portion of the Period of
Employment be an annual amount less than the amount determinable
in accordance with paragraph 3(a) above.
(c) Incentive Compensation. During the Period of
Employment, the Executive shall participate in the Company's
Employee Profit Sharing Plan (the "Profit Sharing Plan"), a copy
of which is attached to this Agreement as Schedule A. If during
the Period of Employment, the Executive ceases to participate in
the Profit Sharing Plan, the Profit Sharing Plan is amended, or
his participation in the Profit Sharing Plan is diminished, the
Company agrees to restructure his compensation under this
Agreement to provide for an earnings opportunity substantially
equivalent to that which existed while the Executive participated
in the Profit Sharing Plan, prior to the amendment of the Profit
Sharing Plan or prior to the time his participation was
diminished, as the case may be.
(d) Additional Benefits. In addition, the Executive shall
be entitled to participate in all compensation or employee
benefit plans or programs, and to receive all benefits,
perquisites, and emoluments for which any salaried employees are
eligible under any plan or program, now or hereafter established
and maintained by the Company for salaried employees (which shall
be comparable to those provided to senior officers of other
comparable companies), to the extent permissible under the
general terms and provisions of such plans or programs and in
accordance with the provisions thereof, including group
hospitalization, health, dental care, life or other insurance,
tax-qualified pension, savings, thrift and profit-sharing plans,
termination pay programs, sick-leave plans, travel or accident
insurance, disability insurance, auto allowance or auto lease
plans, and executive contingent compensation plans, including,
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without limitation, capital accumulation programs and stock
purchase, restricted stock or stock option plans. Specifically,
but without limitation, the Company shall furnish the Executive,
with (1) cash reimbursement for the cost of term life insurance
for the benefit of the Executive's designated beneficiary in the
amount of at least $2,000,000, (2) supplemental uninsured medical
reimbursement plan coverage of $10,000 for expenses incurred by
the Executive or his covered dependents which are not covered by
the Company's group hospitalization, health and dental care
insurance plans, provided that this $10,000 limit shall be
increased so that on a cumulative basis, such limit equals the
product of $10,000 multiplied times the quotient (the "CPI
Factor") obtained by dividing the CPI published during the most
recent September by the CPI published for September, 1999, (3)
disability insurance (through an insurance carrier and/or self-
insured by the Company) for the benefit of the Executive in the
amount of 100% of his Base Salary and (4) long-term care
insurance (through an insurance carrier) for the benefit of the
Executive and his spouse in an amount reasonable expected to
cover daily expenses of $250 (subject to cost of living
adjustments) the Executive and his spouse may each incur with
respect to long-term care. After an event of a Change of Control
(as defined in the Severance Compensation Agreement, made
effective as of August 15, 1990, by and between the Company and
the Executive), the disability insurance referred to in clause
(3) above shall be provided through an insurance carrier. If
such disability insurance is provided to the Executive at any
time though an insurance carrier, then at the Executive's
election, the Company shall increase the Executive's Base Salary
in an amount equal to the premium payments due with respect to
such insurance and the Executive shall thereafter be responsible
for making the premium payments for such coverage.
(e) Perquisites. The Company shall also furnish the
Executive, without cost to him, with (1) a Company-owned or
leased automobile which will be replaced with a new automobile
every four years, provided that the Executive may select the
automobile and, if the value of the automobile selected by the
Executive is greater than $40,000 times the CPI Factor (for
purposes of this clause (1) only, the CPI Factor shall be based
on the CPI published for September, 1991 rather than for
September, 1999), the Executive shall pay to the Company, each
month during which he shall have use of the automobile, the
difference between the monthly market rental of the vehicle being
furnished to the Executive and the monthly market rental of an
automobile with a value of $40,000 times the CPI Factor; and (2)
membership in one health club (including the cost of a personal
trainer), one luncheon club, and one social or country club of
the Executive's choosing. The Company shall also reimburse the
Executive annually for the cost of (1) an annual physical
examination of the Executive by a physician selected by the
Executive, and (2) personal financial, investment or tax advice,
not to exceed $5,000 times the CPI Factor per annum. Any
reimbursable amount for the cost of personal financial,
investment or tax advice not utilized in a year shall be
available to reimburse the Executive for such costs incurred in a
prior or subsequent year. The Executive shall properly document
such costs for federal income taxation purposes to preserve any
deduction for such reimbursements to which the Company may be
entitled.
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(f) Deferred Compensation. The Company agrees to adopt a
supplemental executive retirement plan (the "SERP") for the
benefit of the Executive. Under the SERP, the Company shall
cause an amount equal to one-twelfth of the Executive's current
Base Salary to be credited each month (a "Monthly Credit") to a
special account maintained for this purpose on the books of the
Company for the benefit of the Executive (the "SERP Account").
The amounts credited to the SERP Account shall be deemed invested
or reinvested in such mutual funds (or, if the Board makes a
determination described in the last sentence under this paragraph
4(f), such U.S. Government securities) as determined by the
Executive. The SERP Account shall be credited and debited to
reflect the deemed investment returns, losses and expenses
attributed to such deemed investments and reinvestments. The
Executive's benefit under the SERP shall equal the balance in the
SERP Account and such benefit shall always be 100% vested (i.e.,
not forfeitable). The Executive shall determine the form and
timing of the distribution of the balance in the SERP Account;
provided, however, in the event of the termination of the Period
of Employment pursuant to paragraphs 6, 7 or 8, the balance in
the SERP Account shall be distributed to the Executive or the
Executive's beneficiary, as the case may be, in a lump-sum
payment within 30 days of such termination. The Company shall
establish a rabbi trust for the purpose of accumulating funds to
satisfy the obligations incurred by the Company pursuant to this
paragraph 4(f). Each time the Company credits a Monthly Credit
to the SERP Account, the Company shall make a corresponding
dollar contribution to the trust. The Executive's rights to
benefits pursuant to this paragraph 4(f) shall be no greater than
those of a general creditor of the Company. The Executive's
benefits pursuant to this paragraph 4(f) may not be anticipated,
alienated, pledged, encumbered or subject to attachment,
garnishment, levy, execution, or other legal or equitable
process. If the Board determines that the investment of the
rabbi trust assets in mutual funds will cause the Company to fail
to comply with certain statutory asset holding requirements, such
assets shall be invested in U.S. Government securities to the
extent necessary to meet the statutory requirements.
(g) Office Equipment. During the Period of Employment, the
Company shall provide the Executive with state of the art
communication and office equipment for use at a residence of the
Executive's choice.
(h) Vacation. In each calendar year during the Period of
Employment, the Executive shall be entitled to 1 1/2 days of an
annual vacation for each full year of employment with the Company
(e.g., for 2000, the Executive shall be entitled to 25 1/2 vacation
days).
5. Business Expenses. The Company shall pay or reimburse the
Executive for all reasonable travel or other expenses incurred by
the Executive in connection with the performance of his duties
and obligations under this Agreement, including, without
limitation, routine and necessary costs of maintaining the
automobile (including garage space) provided to the Executive by
the Company pursuant to paragraph 4(e) above, subject to the
Executive's presentation of appropriate vouchers in accordance
with such procedures as the Company may from time to time
establish for senior officers and to preserve any deductions for
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federal income taxation purposes to which the Company may be
entitled.
6. Disability.
(a) In the event of the disability of the Executive during
the Period of Employment, the Company shall, subject to the
provisions of the next following sentence, continue to pay to the
Executive the compensation provided in paragraph 4 above during
the period of his disability. But if the Executive's disability
continues until the Executive becomes entitled to receive the
proceeds of the disability insurance described in paragraph 4(d)
above (such period commencing upon Executive's disability and end
on the date he is entitle to receive disability insurance
proceeds, the "Disability Period"), the Company may, at its
election, terminate the Period of Employment, in which event the
Company's obligation to make payments under paragraph 4 (except
as provided in paragraph 4(f)) shall cease, except for (1) earned
(through the effective date of the termination) but unpaid Base
Salary, (2) incentive compensation, subject to the terms of the
Profit Sharing Plan, (3) Monthly Credits to the SERP Account
through the effective date of termination and (4) retirement
benefits as described in paragraph 10 below. However, the
benefits described in paragraph 4(d) and the perquisites
described in paragraph 4(e), shall continue to be provided for a
period of ten years, except that the Company shall only continue
to provide the automobile described in paragraph 4(d) for six
months following termination of the Period of Employment and then
allow the Executive to assume (without any continuing obligations
under the lease, if any, on the part of the Company) the
Company's rights and obligations to lease or purchase such
automobile (to the extent any lease is so assumable) or to
purchase such automobile at its then book value.
(b) During the period the Executive is receiving payments,
either under paragraph 6 or under the disability insurance
described in paragraph 4(d) above, to the extent that he is
physically and mentally able to do so, he shall furnish
information and assistance to the Company and, upon a reasonable
request in writing by the Board from time to time, he shall make
himself available to the Company to undertake reasonable
assignments consistent with the dignity, importance, and scope of
his prior position with the Company and his physical and mental
health. During the Disability Period, the Executive shall report
directly to the Board. If the Company fails to make a payment or
provide a benefit required under paragraph 6(a), the Executive's
obligation to furnish information and assistance and undertake
assignments shall terminate.
(c) Upon any cessation of payments under the disability
insurance described in paragraph 4(d) above, the Company shall
also pay to the Executive or his wife, if he predeceases her
during such period, for a period of three years, the Base Salary
amount that existed at the time of the Disability Period in the
form of severance or disability benefits, or both. Such Base
Salary amount shall be paid by the Company in 36 monthly
installments commencing in the month following the cessation of
payments under the disability insurance.
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(d) If the Executive dies during the Disability Period, the
Company shall pay his wife, if she survives him, for a period of
two years the Base Salary amount that existed at the onset of the
disability in the form of a death benefit. Such Base Salary
amount shall be paid by the Company in 24 monthly installments
commencing in the month following the Executive's death.
(e) As used in this Agreement, the term "disability" shall
have the following meaning:
Executive is unable to perform with reasonable continuity
the material duties of his position with the Company as a result
of sickness, illness, or accidental bodily injury.
7. Death. If the Executive dies during the Period of
Employment, the Executive's designated beneficiary shall be
entitled to receive the proceeds of any life or other insurance
or other death benefit program provided pursuant to paragraph
4(d) above in accordance with the provisions thereof, and the
Period of Employment and the Company's obligation to make
payments under paragraph 4 (except as provided in paragraph 4(f))
shall cease as of the date of death, except (1) for earned
(through the date of death) but unpaid Base Salary, (2) incentive
compensation, subject to the terms of the Profit Sharing Plan,
(3) Monthly Credits to the SERP Account through the date of death
and (4) retirement benefits as described in paragraph 10 below.
The Company shall pay the Executive's wife, if she survives him,
for a period of two years the Base Salary amount that existed at
the time of death in the form of a death benefit. Such Base
Salary amount shall be paid by the Company in 24 monthly
installments commencing in the month following the Executive's
death.
8. Effect of Termination of Employment.
(a) If the Period of Employment hereunder terminates
because of either a Without Cause Termination or Constructive
Discharge, the Executive shall be entitled to (1) earned (through
the effective date of the termination) but unpaid Base Salary,
(2) incentive compensation, subject to the terms of the Profit
Sharing Plan, (3) Monthly Credits to the SERP Account through the
effective date of the termination and (4) retirement benefits as
described in paragraph 10 below. In addition, if the Period of
Employment is terminated because of either a Without Cause
Termination or Constructive Discharge, the Company shall, as
liquidated damages or severance pay, or both, pay to the
Executive two times his Base Salary in effect at the time of such
termination, in the manner and at the times provided in paragraph
4(a) above to the Executive or, in the event of his subsequent
death, to his estate. Such payments shall commence immediately
following such termination and shall continue for a period of
time equal to the remainder of the Period of Employment
immediately prior to such termination (the "Severance Period").
In addition, benefits described in paragraph 4(d), the
perquisites described in paragraph 4(e) and the communication and
office equipment described in paragraph 4(g) shall continue to be
provided during the Severance Period, except that the Company
shall only continue to provide the automobile described in
paragraph 4(e) for six months following such termination and then
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allow the Executive to assume (without any continuing obligations
under the lease, if any, on the part of the Company) the
Company's rights and obligations to lease or purchase such
automobile (to the extent any lease is so assumable) or to
purchase such automobile at its then book value and that the
Company shall continue to provide communication and office
equipment to the Executive for only 18 months. To the extent
that the Executive is entitled to receive cash compensation that
is (or would be, if any elective deferral were disregarded)
subject to federal income taxation in respect of any other
employment or a consulting position with another company during
the Severance Period, the payments to be made pursuant to this
paragraph 8(a) shall be correspondingly reduced by such cash
compensation and, to the extent that benefits of the kind
required by this paragraph 8(a) to be continued are payable in
respect of such other employment or consulting position, such
benefits provided by the other Company shall be deemed the pri-
▇▇▇▇ coverage for purposes of coordination of benefits and
avoiding duplication of benefits. However, at no time shall such
benefits of a kind described herein, be less than those required
by this paragraph 8(a) or paragraphs 4(d) and 4(e).
(b) If the Period of Employment hereunder terminates
because of a Termination for Cause, (1) earned (through the
effective date of termination) but unpaid Base Salary, (2)
incentive compensation, subject to the terms of the Profit
Sharing Plan and (3) Monthly Credit to the SERP Account through
the effective date of the termination shall be payable to the
Executive, but no other payments (except deferred compensation as
provided in paragraph 4(f)) shall be made, or benefits provided,
by the Company.
(c) Notwithstanding anything to the contrary in this
Agreement, if the Period of Employment hereunder terminates
because the Executive has reached the later of the Initial
Mandatory Retirement Date (as such term is defined in the EMRB
Plan), or, if the mandatory retirement date has been postponed in
accordance with the EMR Program, the final mandatory retirement
date established in accordance therewith, (1) earned (through the
effective date of termination) but unpaid Base Salary, (2)
incentive compensation, subject to the terms of the Profit
Sharing Plan, (3) Monthly Credit to the SERP Account through the
effective date of the termination, and (4) any benefits to which
the Executive may be entitled pursuant to the EMRB Plan, subject
to the terms of the EMRB Plan, shall be payable to the Executive,
but no other payments (except deferred compensation as provided
in paragraph 4(f)) shall be made, or benefits provided, by the
Company.
(d) As used in this Agreement:
(1) "Termination for Cause" means a termination
of the Period of Employment by the Company, by written notice to
the Executive, specifying the event relied upon for such
termination, because of the Executive's serious, willful
misconduct in respect of his duties under this Agreement,
including, without limitation, conviction of a felony or for
perpetration of a common law fraud which has resulted in material
economic damage to the Company or any of its subsidiaries or
affiliates. If the Executive's misconduct can be cured, a
Termination for Cause shall not occur until the Executive fails
to so cure within 30 days from delivery to the Executive of a
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written demand by the Company that he do so, which demand shall
specify the misconduct being relied upon for termination pursuant
to this paragraph 8(c)(1).
(2) "Constructive Discharge" means a termination
of the Period of Employment by the Executive because of (A) a
failure of the Company to fulfill its obligations under this
Agreement in any material respect, including any failure to elect
or reelect or to appoint or reappoint the Executive to the
offices of Chairman of the Company and its Chief Executive
Officer or as a member of the Board or other material change by
the Company in the functions, duties, or responsibilities of the
Executive's position with the Company which would reduce the
ranking or level, dignity, responsibility, importance, or scope
of such position, or (B) any assignment or reassignment by the
Company of the Executive to a place of employment other than the
Company's headquarters, (which shall be located in New York, New
York, or other location of the Executive's choosing). A
Constructive Discharge shall apply to any case in which the
Company shall have failed to remedy within 30 days from delivery
to the Company of a written demand by the Executive that it do
so, which demand shall specify the circumstances being relied
upon for termination pursuant to this paragraph 8(c)(2).
(3) "Without Cause Termination" means a
termination of the Period of Employment by the Company other than
because of disability or expiration of the Period of Employment
and other than a Termination for Cause. The exercise by the
Company or the Executive, as the case may be of a right to
terminate the Period of Employment under this paragraph 8(c)
shall not abrogate the rights and remedies of the terminating
party in respect of the circumstances giving rise to such
termination.
9. Other Duties of Executive During and After Period of
Employment.
(a) The Executive shall, upon reasonable notice, during or
after the Period of Employment, furnish such information as may
be in his possession to, and cooperate with, the Company, as the
Company may reasonably request in connection with the analysis,
negotiation, and settlement of any pending claims and any
litigation in which the Company or any of its subsidiaries or
affiliates, is, or may become, a party.
(b) The Executive recognizes and acknowledges that all
information pertaining to the affairs, business, or clients of
the Company or any of its subsidiaries or affiliates, as such
information may exist from time to time, is confidential
information and is a unique and valuable asset of the Company,
access to and knowledge of which are essential to the performance
of the Executive's duties under this Agreement. The Executive
shall not, during the Period of Employment or thereafter, except
to the extent reasonably necessary in the performance of his
duties under this Agreement, divulge to any person, firm,
association, corporation or governmental agency, any information
concerning the affairs, business, clients, or customers of the
Company or any of its subsidiaries or affiliates (except such
information as it is required by law to be divulged to a
government agency), or make use of any such information for his
own purposes or for the benefit of any person, firm, association
or corporation (except the Company or its subsidiaries or
affiliates) and shall use his best efforts to prevent the
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disclosure of any such information by others. All records,
memoranda, letters, books, papers, reports, accountings,
experience or other data, and other records and documents
relating to the business of the Company or any of its
subsidiaries or affiliates, whether made by the Executive or
otherwise coming into his possession, are confidential
information and are, and shall be, and shall remain the property
of the Company.
(c) During the Period of Employment and for a one year
period thereafter in the event of (1) a Termination for Cause,
(2) a termination of the Period of Employment by the Executive
that is not a Constructive Discharge, or (3) the disability of
the Executive, the Executive shall not:
Make any statement or perform any act intended to advance an
interest of any existing or prospective competitor of the Company
or any of its subsidiaries or affiliates in any way that will
injure an interest of the Company or any of its subsidiaries or
affiliates in its relationship and dealings with existing or
potential clients, customers or brokers or to do any act that is
disloyal to the Company or inconsistent with the Company's
interests or in violation of any provision of this Agreement.
(d) The Company's obligation to make payments under para-
graph 4, other than the deferred compensation described in
paragraph 4(f), shall cease upon any violation of the provisions
of paragraph 9 which is not inadvertent and which has resulted in
material economic damage to the Company or any of its
subsidiaries.
10. Retirement Benefits. At the termination of Executive's
employment with the Company, the Executive, his spouse and
dependents shall be entitled to medical and health insurance
coverage comparable to what they were receiving immediately prior
to the termination of the Executive's employment. The coverage
shall be secondary to any government provided or subsequent
employer provided health insurance plans. The Company shall
reasonably and fairly determine and pay to the Executive or the
Executive's spouse, if he dies prior to such payment, the present
value of such medical and health insurance benefits (the "Present
Value"), together with such additional amount necessary to
provide the Executive or his spouse, as the case may be, with an
after-tax amount equal to the Present Value. Any dispute as to
whether the Company has complied with its obligations under this
paragraph 10 may be referred to final and binding arbitration in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association, and the Company agrees to reimburse the
Executive or the Executive's spouse, as the case maybe, for
reasonable attorney fees and expenses incurred by the Executive
or the Executive' spouse in connection with such arbitration.
11. Indemnification, Litigation.
(a) Throughout the Period of Employment and thereafter, the
Executive shall continue to be entitled to indemnification from
the Company pursuant to the Indemnification Agreement, dated as
of December 15, 1992 between the Company and the Executive (the
"Indemnification Agreement"), a copy of which is attached hereto
as Exhibit B.
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(b) In the event of any litigation or other proceeding
between the Company and the Executive with respect to the subject
matter of this Agreement and the enforcement of rights hereunder,
the Company shall reimburse the Executive for all costs and
expenses relating to such litigation or other proceeding,
including reasonable attorneys' fees and expenses, provided that
such litigation or proceeding results in any:
(1) Settlement requiring the Company to make a
payment to the Executive; or
(2) Judgment, order, or award in favor of the
Executive, regardless of whether such judgment, order, or award
is subsequently reversed on appeal or in a collateral proceeding.
(c) In no event shall the Executive be required to
reimburse the Company for any of the costs and expenses relating
to such litigation or other proceeding referred to in paragraph
11(b).
12. Withholding Taxes. The Company may directly or indirectly
withhold from any payments made under this Agreement all federal,
state, city, or other taxes as shall be required pursuant to any
law or governmental regulation or ruling.
13. Consolidation, Merger, or Sale of Assets; Change of Control.
(a) Nothing in this Agreement shall preclude the Company
from consolidating or merging into or with, or transferring all
or substantially all of its assets to, another corporation which
assumes this Agreement and all obligations and undertakings of
the Company hereunder. Upon such a consolidation, merger, or
transfer of assets and assumption, the term "Company" as used
herein shall mean such other corporation and this Agreement shall
continue in full force and effect.
(b) The provisions of the Severance Compensation Agreement,
made effective as of August 15, 1990, by and between the Company
and the Executive, (the "Severance Compensation Agreement"), a
copy of which is attached hereto as Exhibit C shall continue to
be effective except that references to an "Employment Agreement"
therein shall hereafter refer to this Agreement and the
computation provided for in Section 2(a) thereof shall not
include the Executive's incentive compensation and bonus.
14. Effect of Prior Agreements. This Agreement between the
Company and the Executive, together with the Indemnification
Agreement and the Severance Compensation Agreement, contains the
entire understanding between the Company and the Executive with
respect to the subject matter hereof and supersedes any prior
employment agreement (including the "Prior Agreement") between
the Company or any predecessor of the Company and the Executive,
except that this Agreement shall not affect or operate to reduce
any benefit or compensation inuring to the Executive of a kind
elsewhere provided and not expressly provided in this Agreement.
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15. Notices. All notice, requests, demands, and other
communications required or permitted hereunder shall be given in
writing and shall be deemed to have been duly given if hand
delivered or mailed, postage prepaid by same day or overnight
mail as follows:
(1) To the Company: ▇▇▇▇▇▇ & ▇▇▇▇▇▇ Group, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: Secretary
(2) To the Executive: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other address as either party shall have previously
specified in writing to the other.
16. No Attachment. Except as required by law, no right to
receive payments under this Agreement shall be subject to
anticipation, commutation, alienation, sale, assignment,
encumbrance, charge, pledge, or hypothecation or to execution,
attachment, levy, or similar process or assignment by operation
of law, and any attempt, voluntary or involuntary, to effect any
such action shall be null, void, and of no effect. But nothing
in this paragraph 16 shall preclude the executors,
administrators, or other legal representatives of the Executive
from assigning any rights hereunder to the person or persons
entitled thereto.
17. Binding Agreement. This Agreement shall benefit and bind
(a) the Executive, his heirs, beneficiaries, and personal
representatives, and (b) the Company and its successors and
assigns.
18. Severability. If any provision of this Agreement shall be
held or deemed to be invalid, inoperative or unenforceable in any
jurisdiction or jurisdictions, because of conflicts with any
constitution, statute, rule or public policy or for any other
reason, such circumstance shall not have the effect of rendering
the provision in question unenforceable in any other jurisdiction
or in any other case of circumstance or of rendering any other
provisions herein contained unenforceable to the extent that such
other provisions are not themselves actually in conflict with
such constitution, statute or rule or public policy, but this
Agreement shall be reformed and construed in any such
jurisdiction or case as if such invalid, inoperative, or
unenforceable provision had never been contained herein and such
provision reformed so that it would be enforceable to the maximum
extent permitted in such jurisdiction or in such case.
19. Modification and Waiver. This Agreement may not be modified
or amended except by an instrument in writing signed by the
parties hereto. No terms or condition of the Agreement shall be
deemed to have been waived, nor shall there be any estoppel
against the enforcement of any provision of this Agreement except
by written instrument signed by the party charged with such
waiver or estoppel. No such written waiver shall be deemed a
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continuing waiver unless specifically stated therein, and each
such waiver shall operate only as to the specific term or
condition waived and shall not constitute a waiver of such term
or condition for the future as to any act other than that
specifically waived.
20. Headings of No Effect. The paragraph headings contained in
this Agreement are included solely for convenience of reference
and shall not in any way affect the meaning or interpretation of
any of the provisions of this Agreement.
21. Governing Law. The laws of New York shall govern the
validity, construction, and interpretation of this Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed and its seal to be affixed hereunto by its duly
authorized officers, and the Executive has signed and delivered
this Agreement, on the date set forth above.
▇▇▇▇▇▇ & ▇▇▇▇▇▇ GROUP, INC.
BY:/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: President
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
13