AGREEMENT REGARDING SEVERANCE PAYMENTS
THIS AGREEMENT REGARDING SEVERANCE PAYMENTS (the "Agreement"), made
and entered into as of April 1, 1997, by and between DAMES & ▇▇▇▇▇,
INC., a Delaware corporation, (hereinafter called the "Corporation") and ▇▇▇▇
▇. ▇▇▇▇▇ (hereinafter called the "Executive").
WITNESSETH THAT:
WHEREAS, the Corporation desires to provide certain severance benefits to
Executive solely if Executive's employment is terminated under certain
circumstances in connection with a Change of Control or following a
termination of the employment of ▇▇▇▇▇▇ ▇▇▇▇▇▇;
WHEREAS, capitalized terms not otherwise defined shall have the meaning
set forth in Paragraph 7;
NOW, THEREFORE, the Corporation and the Executive, each intending to be
legally bound, hereby mutually covenant and agree as follows:
1. Severance Benefit In Connection With Certain Terminations Following a
Termination of ▇▇▇▇▇▇ ▇▇▇▇▇▇'▇ Employment. Subject to the limitations on
payment set forth in Paragraph 4, if (i) Executive's employment terminates
prior to March 31, 2001 by reason of the discharge of the Executive by the
Corporation other than for Cause, death or disability or by reason of the
resignation of the Executive for Good Reason, and (ii) the Date of
Termination with respect to such termination or resignation occurs within
the one year period following the termination of ▇▇▇▇▇▇ ▇▇▇▇▇▇'▇ employment as
President and Chief Executive Officer for any reason:
1.1 The Corporation shall pay all Accrued Obligations to the
Executive in a lump sum in cash within thirty (30) days after the Date of
Termination; provided, however, that any portion of the Accrued Obligations
which consists of bonus, deferred compensation, or incentive compensation
shall be determined and paid in accordance with the terms of the relevant
plan as applicable to the Executive;
1.2 Within thirty (30) days after the Date of Termination, the
Corporation shall pay to the Executive a lump sum equal to the sum of (A) the
Executive's then current annual base salary and (B) the Executive's then
current target annual bonus amount;
1.3 For a period of one (1) year after the Date of Termination, the
Corporation shall continue to provide benefits to the Executive and/or the
Executive's family at least equal to those which would have been provided to
them in accordance with the executive benefit plans, programs and arrangements
then in effect with respect to Executive; provided, however, that the
Executive may elect at any time, by written notice to the Corporation, to
irrevocably surrender any or all of such remaining benefits and to receive in
lieu thereof a cash payment in an amount equivalent to the value of the
surrendered benefits, as determined by a nationally recognized certified
public accounting firm designated by the Executive;
1.4 All long-term incentive compensation awards to the Executive,
including (but not by way of limitation) all equity-based incentive
compensation awards (such as (A) options to purchase stock of the Corporation,
(B) restricted stock of the Corporation, or (C) similar equity-based units or
interests) shall, if not otherwise vested, vest in full upon such termination
of employment; and
1.5 The Corporation shall, at its sole expense, provide the
Executive with outplacement services the scope and provider of which shall be
selected by the Executive; provided, however, the aggregate amount paid by
the Corporation for such outplacement services shall not exceed 15% of the
Executive's base salary as of the Date of Termination.
2. Severance Benefit In Connection With Certain Resignations
Following a Change of Control. Subject to the limitations on payment set forth
in Paragraph 4, in the event that (i) Executive's employment terminates prior
to March 31, 2001 by reason of the resignation of the Executive for any
reason (other than Good Reason) during the period of one (1) month which
begins twelve (12) months after the occurrence of a Change of Control, and
(ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ has resigned during such one (1) month period for any
reason (other than Good Reason, as defined in his employment agreement with
the Corporation dated as of April 1, 1997 (the "▇▇▇▇▇▇ Agreement")) pursuant
to Paragraph 9(b) of the ▇▇▇▇▇▇ Agreement, Executive shall be entitled to the
benefits described in Paragraph 1 except that:
2.1 The lump sum payable under Paragraph 1.2 shall be equal to two
(2) times the sum of (A) the Executive's then current annual base salary and
(B) the Executive's then current target annual bonus amount; and
2.2 The period during which benefits shall be provided pursuant to
paragraph 1.3 shall be equal to two (2) years.
3. Severance Benefit In Connection With Certain Terminations Without
Cause or Resignations for Good Reason Following A Change of Control. In the
even that Executive's employment terminates prior to March 31, 2001 by reason
of the discharge of the Executive by the Corporation other than for Cause,
death or disability or by reason of the resignation of the Executive for Good
Reason, and the Date of Termination with respect to such termination or
resignation occurs within the two year period following a Change of Control,
Executive shall be entitled to the benefits described in Paragraph 1 (but not
the benefits described in Paragraph 2) except that:
3.1 The lump sum payable under Paragraph 1.2 shall be equal to three
(3) times the sum of (A) the Executive's then current annual base salary and
(B) the Executive's then current target annual bonus amount;
3.2 the period during which benefits shall be provided pursuant to
paragraph 1.3 shall be equal to three (3) years;
3.3 the limitations set forth in Paragraph 4 shall not apply; and
3.4 the provisions of Paragraph 5 shall apply.
4. Limitations on Payment.
4.1 Except as provided in Paragraph 3, in the event that (i) the
Executive's employment is terminated (whether by the Company or by the
Executive) and the Executive is entitled to the benefits described in
Paragraph 1 or 2, and (ii) any payment or benefit (within the meaning of
Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the
"Code")), to the Executive or for the Executive's benefit paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise in connection with, or arising out of, the Executive's employment
with the Corporation or any of its subsidiaries or a Change of Control (a
"Payment" or "Payments"), would be subject to the excise tax imposed by
Section 4999 of the Code (the "Section 4999 Excise Tax"), then such Payments
shall be reduced (but not below zero) but only to the extent necessary that
no portion thereof shall be subject to the Section 4999 Excise Tax (the
"Section 4999 Limit"). Unless the Executive shall have given prior written
notice specifying a different order to the Corporation to effectuate the
limitations described in the preceding sentence, the Corporation shall reduce
or eliminate the Payments by first reducing or eliminating those Payments or
benefits which are not payable in cash and then by reducing or eliminating
cash Payments, in each case in reverse order beginning with payments or
benefits which are to be paid the farthest in time from the Determination (as
hereinafter defined). Any notice given by the Executive pursuant to the
preceding sentence shall take precedence over the provisions of any other plan,
arrangement or agreement governing the Executive's rights and entitlements to
any benefits or compensation.
4.2 All determinations required to be made under this Paragraph 4
(each, a "Determination") shall be made, at the Corporation's expense, by
KPMG Peat Marwick (the "Accounting Firm"). In the event of a Change of
Control, if the Accounting Firm is serving as accountant or auditor for the
individual, entity or group effecting the Change of Control, the Executive
shall appoint another nationally recognized accounting firm to make the
determinations required hereunder (which accounting firm shall then be referred
to as the Accounting Firm hereunder). The Accounting Firm shall provide its
calculations, together with detailed supporting documentation, both to the
Corporation and to the Executive within fifteen (15) calendar days after the
date on which the Executive's right to a Payment hereunder was triggered (if
requested at that time by the Corporation or the Executive) or such other
time as requested by the Corporation or the Executive (in either case provided
that the Corporation or the Executive believes in good faith that any of the
Payments may be subject to the Section 4999 Excise Tax); provided, however,
that if the Accounting Firm determines that no Section 4999 Excise Tax is
payable by the Executive with respect to a Payment or Payments, it shall
furnish the Executive with an opinion reasonably acceptable to the Executive
that no Section 4999 Excise Tax will be imposed with respect to any such
Payment or Payments. Any good faith determination by the Accounting Firm
shall be final, binding and conclusive upon the Corporation and the Executive.
4.3 As a result of the uncertainty in the application of Sections
4999 and 280G of the Code, it is possible that the Payments either will have
been made or will not have been made by the Corporation, in either case in a
manner inconsistent with the limitations provided in Paragraph 4.1 (an
"Excess Payment" or "Underpayment", respectively). If it is established
pursuant to (i) a final determination of a court for which all appeals have
been taken and finally resolved or the time for all appeals has expired, or
(ii) an Internal Revenue Service (the "IRS") proceeding which has been finally
and conclusively resolved, that an Excess Payment has been made, such Excess
Payment shall be deemed for all purposes to be a loan to the Executive made
on the date the Executive received the Excess Payment and the Executive shall
repay the Excess Payment to the Corporation on demand, together with interest
on the Excess Payment at the applicable federal rate (as defined in Section
1274(d) of the Code) from the date of the Executive's receipt of such Excess
Payment until the date of such repayment. If it is determined by (i) the
Accounting Firm, the Corporation (which shall include the position taken
by the Corporation, together with its consolidated group, on its federal
income tax return) or the IRS, (ii) pursuant to a determination by a court,
or (iii) upon the resolution to the Executive's satisfaction of any dispute,
that an Underpayment has occurred, the Corporation shall pay an amount equal
to the Underpayment to the Executive within ten (10) calendar days of such
determination or resolution, together with interest on such amount at the
applicable federal rate from the date such amount should have been paid to
the Executive pursuant to the terms of this Agreement or otherwise, but for
the operation of this Paragraph 4, until the date of payment.
5. Certain Additional Payments by the Corporation. If, and only if,
Executive's employment terminates prior to March 31, 2001 by reason of the
discharge of the Executive by the Corporation other than for Cause, death or
disability or by reason of the resignation of the Executive for Good Reason
and the Date of Termination with respect to such termination or resignation
occurs within the two year period following a Change of Control, the
provisions of this Paragraph 5 shall apply.
5.1 If the provisions of this Paragraph 5 apply, in the event it
shall be determined that any Payment (determined without regard to any
additional payments required under this Paragraph 5) would be subject to the
Section 4999 Excise Tax or if any interest or penalties are incurred by the
Executive with respect to such excise tax (such excise tax, together with any
such interest and penalties, being hereinafter collectively referred to as
the "Excise Tax"), then the Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that, after
payment by the Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without limitation, any
income taxes (and any interest and penalties imposed with respect thereto)
and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payment described above.
5.2 Subject to the provisions of paragraph 5.3, below, all
determinations required to be made under this Paragraph 5, including whether
and when a Gross-Up Payment is required and the amount of such Gross-Up
Payment and the assumptions to be utilized in arriving at such determination,
shall be made by the Accounting Firm, which shall provide detailed supporting
calculations both to the Corporation and the Executive within fifteen (15)
business days of the receipt of notice from the Executive that there has been
a Payment, or such earlier time as is requested by the Corporation. All fees
and expenses of the Accounting Firm shall be borne solely by the Corporation.
Any Gross-Up Payment, as determined pursuant to this Paragraph 5, shall be
paid by the Corporation to the Executive within five (5) days of the receipt
of the Accounting Firm's determination. If the Accounting Firm determines
that no Excise Tax is payable by the Executive, it shall furnish the
Executive with a written opinion that failure to report the Excise Tax on the
Executive's applicable federal income tax return would not result in the
imposition of a negligence or similar penalty. Any good faith determination
by the Accounting Firm shall be binding upon the Corporation and the
Executive. As a result of the uncertainty in the application of Section 4999
of the Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments which will not have been
made by the Corporation should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. In the event that the
Corporation exhausts its remedies pursuant to paragraph 5.3, below, and the
Executive thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has
occurred and any such Underpayment shall be promptly paid by the Corporation
to or for the benefit of the Executive.
5.3 The Executive shall notify the Corporation in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Corporation of a Gross-Up Payment. Such notification shall be
given as soon as practicable but no later than fifteen (15) business days
after the Executive is informed in writing of such claim and shall apprise
the Corporation of the nature of such claim and the date on which such claim
is requested to be paid. The Executive shall not pay such claim prior to the
expiration of the thirty (30) day period following the date on which
Executive gives such notice to the Corporation (or such shorter period ending
on the date that any payment of taxes with respect to such claim is due). If
the Corporation notifies the Executive in writing prior to the expiration of
such period that it desires to contest such claim, the Executive shall:
(i) Give the Corporation any information reasonably requested
by the Corporation relating to such claim,
(ii) Take such action in connection with contesting such claim
as the Corporation shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Corporation,
(iii) Cooperate with the Corporation in good faith in order
effectively to contest such claim, and
(iv) Permit the Corporation to participate in any proceedings
relating to such claim;
provided, however, that the Corporation shall bear and pay directly all costs
and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise Tax or income tax (including
interest and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without limiting the
foregoing provisions of this paragraph 5.3, the Corporation shall control all
proceedings taken in connection with such contest and, at its sole option,
may pursue or forego any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in respect of such claim
and may, at its sole option, either direct the Executive to pay the tax
claimed and ▇▇▇ for a refund or contest the claim in any permissible manner;
and the Executive agrees to prosecute such contest to a determination before
any administrative tribunal, in a court of initial jurisdiction and in one or
more appellate courts, as the Corporation shall determine; provided, however,
that if the Corporation directs the Executive to pay such claim and ▇▇▇ for a
refund, the Corporation shall advance the amount of such payment to the
Executive on an interest-free basis and shall indemnify and hold the
Executive harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such
advance; and further provided that any extension of the statute of
limitations relating to payment of taxes for the taxable year of the
Executive with respect to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Corporation's
control of the contest shall be limited to issues with respect to which a
Gross-Up Payment would be payable hereunder and the Executive shall be
entitled to settle or contest, as the case may be, any other issue raised by
the Internal Revenue Service or any other taxing authority.
5.4 If, after the receipt by the Executive of an amount advanced
by the Corporation pursuant to paragraph 5.3, above, the Executive becomes
entitled to receive any refund with respect to such claim, the Executive
shall (subject to the Corporation's complying with the requirements of said
paragraph 5.3) promptly pay to the Corporation the amount of such refund
(together with any interest paid or credited thereon, after taxes applicable
thereto). If, after the receipt by the Executive of an amount advanced by the
Corporation pursuant to said paragraph 5.3, a determination is made that the
Executive shall not be entitled to any refund with respect to such claim and
the Corporation does not notify the Executive in writing of its intent to
contest such denial of refund prior to the expiration of thirty (30) days
after such determination, then such advance shall be forgiven and shall not
be required to be repaid; and the amount of such advance shall offset, to the
extent thereof, the amount of the Gross-Up Payment required to be paid.
6. Covenants of the Executive. In order to induce the Corporation to
enter into this Agreement, the Executive hereby agrees as follows:
6.1 Non-Competition. The Executive hereby agrees with the
Corporation that during the term of his employment hereunder, and in certain
instances, as provided below, for a period following termination of his
employment hereunder, (i) he shall not, directly or indirectly, engage in, or
be employed by, or act as a consultant to, or be a director, officer, owner
or partner of, or acquire any interest in (other than an interest of 1% or
less in the outstanding capital stock of a publicly traded corporation),
any business activity or entity which competes with the Corporation or any of
its subsidiaries, (ii) he shall not solicit any employee of the Corporation
or any of its subsidiaries to leave the employment thereof or in any way
interfere with the relationship of such employee with the Corporation or its
subsidiaries, unless he believes in good faith that such action during the
term of his employment by the Corporation is in the best interests of the
Corporation, and (iii) he shall not induce or attempt to induce any customer,
supplier, licensee or other individual, corporation or other business
organization having a business relation with the Corporation or its
subsidiaries to cease doing business with the Corporation or its subsidiaries
or in any way interfere with the relationship between any such customer,
supplier, licensee or other person and the Corporation or its subsidiaries;
provided, however, that as to the period after termination of the Executive's
employment hereunder, the restrictive covenants set forth in this paragraph 6
shall apply only for that time period for which the Executive has received or
is receiving the severance benefits described in paragraphs 1.2 and 1.3, 3.1
and 3.2, or 2.1 and 2.2; but provided further that at any time following the
termination of employment hereunder, the Executive shall be released from
said restrictive covenants if he waives further payment of benefits under
said paragraphs and repays to the Corporation that portion of any benefits
already received under those paragraphs which corresponds to any period of time
which has not yet elapsed.
6.2 Enforcement. The Executive recognizes that the provisions of
this Paragraph 6 are vitally important to the continuing welfare of the
Corporation and its subsidiaries and that money damages would constitute an
inadequate remedy for any violation thereof. Accordingly, in the event of
any such violation by the Executive, the Corporation and its subsidiaries, in
addition to any other remedies they may have, shall have the right to
institute and maintain a proceeding to compel specific performance thereof or
to seek an injunction restraining any action by the Executive in violation of
this Paragraph 6.
7. Definitions. For purposes of this Agreement, the following
capitalized terms shall have the meanings set forth below:
7.1 "Accrued Obligations" shall mean, as of the Date of Termination,
the sum of (A) the Executive's base salary through the Date of Termination to
the extent not theretofore paid, (B) the amount of any bonus, incentive
compensation, deferred compensation and other cash compensation accrued by
the Executive as of the Date of Termination to the extent not theretofore
paid and (C) any vacation pay, expense reimbursements and other cash
entitlements accrued by the Executive as of the Date of Termination to the
extent not theretofore paid. For the purpose of this definition, amounts
shall be deemed to accrue ratably over the period during which they are earned,
but no discretionary compensation shall be deemed earned or accrued until it
is specifically approved by the board of directors of the Corporation (the
"Board") in accordance with the applicable plan, program or policy.
7.2 "Cause" shall mean (A) the Executive's continued failure to
perform substantially the duties of his employment, (B) the Executive's
engaging in illegal conduct or gross misconduct which is materially injurious
to the Corporation, or (C) the conviction of the Executive with respect to
any crime or criminal offense involving dishonesty or fraud, or any felony
other than DUI. Notwithstanding the foregoing, no act or omission by the
Executive shall constitute Cause pursuant to part (A) of the previous
sentence unless the Corporation has given detailed written notice thereof to
the Executive, and the Executive has failed to remedy such act or omission
within a reasonable time after receiving such notice.
7.3 "Change of Control" shall mean:
7.3.1 The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 30% or more of the combined voting power of the then
outstanding voting securities of the Corporation entitled to vote generally
in the election of directors (the "Corporation Voting Securities"); provided,
however, that (X) any acquisition by or from the Corporation or any of its
subsidiaries, (Y) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Corporation or any of its subsidiaries
or (Z) any acquisition by any corporation with respect to which, following
such acquisition, more than 70% of the combined voting power of the then
outstanding voting securities of such corporation entitled to vote generally
in the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and entities who
were the beneficial owners of the Corporation Voting Securities immediately
prior to such acquisition in substantially the same proportion as their
ownership, immediately prior to such acquisition of the Corporation Voting
Securities shall not constitute a Change of Control; or
7.3.2 Individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") ceasing for any reason to constitute at least
two-thirds of the Board, provided that any individual becoming a director
subsequent to the date hereof whose election, or nomination for election by
the Corporation's shareholders, was approved by a vote of at least a majority
of the directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but excluding,
for this purpose, any such individual whose initial assumption of office is
in connection with an actual or threatened election contest relating to the
election of the directors of the Corporation; or
7.3.3 Approval by the shareholders of the Corporation of a
reorganization, merger or consolidation (a "Business Combination") with
respect to which all or substantially all of the individuals and entities who
were the respective beneficial owners of the then outstanding shares of
capital stock of the Corporation (the "Outstanding Corporation Capital Stock")
and Corporation Voting Securities immediately prior to such Business
Combination do not, following such Business Combination, beneficially own,
directly or indirectly, more than 70% of, respectively, the then outstanding
shares of capital stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from the Business Combination
in substantially the same proportion as their ownership immediately prior to
such Business Combination of the Outstanding Corporation Capital Stock and
Corporation Voting Securities, as the case may be; or
7.3.4 (i) A complete liquidation or dissolution of the
Corporation or (ii) a sale or other disposition of all or substantially all
of the assets of the Corporation other than to a corporation with respect to
which, following such sale or disposition, more than 70% of, respectively,
the then outstanding shares of capital stock and the combined voting power of
the then outstanding voting securities entitled to vote generally in the
election of directors is then owned beneficially, directly or indirectly, by
all or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Corporation Capital Stock
and Corporation Voting Securities immediately prior to such sale or
disposition in substantially the same proportion as their ownership of the
Outstanding Corporation Capital Stock and Corporation Voting Securities, as
the case may be, immediately prior to such sale or disposition.
7.4 "Date of Termination" shall mean in the event of a discharge of
the Executive without Cause or a resignation by the Executive, the date
specified in the written notice to the Executive (in the case of discharge)
or the Corporation (in the case of resignation), which date shall be no less
than sixty (60) days from the date of such written notice.
7.5 "Good Reason" shall mean (i) any assignment to the Executive of
any duties inconsistent with the Executive's positions with the Corporation
as of the date of this Agreement, (ii) any action by the Corporation which
results in diminution in such positions, authority, duties or responsibilities,
or (iii) any reduction by the Corporation of Executive's base salary,
excluding for this purpose in each case any action not taken in bad faith and
which is remedied by the Corporation promptly after receipt of written
notice thereof given by the Executive in accordance with Paragraph 10.
8. No Set-Off or Mitigation. The Corporation'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 which the Corporation
may have against the Executive or others. In no event shall the Executive
be obligated to seek other employment or take any other action by way of
mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement and such amounts shall not be reduced whether
or not the Executive obtains other employment.
9. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the heirs and representatives of the Executive and the successors
and assigns of the Corporation. The Corporation shall require any successor
(whether direct or indirect, by purchase, merger, reorganization,
consolidation, acquisition of property or stock, liquidation, or otherwise)
to all or a substantial portion of its assets, by agreement in form and
substance reasonably satisfactory to the Executive, expressly to assume and
agree to perform this Agreement in the same manner and to the same extent
that the Corporation would be required to perform this Agreement if no such
succession had taken place. Regardless of whether such an agreement is
executed, this Agreement shall be binding upon any successor of the
Corporation in accordance with the operation of law, and such successor shall
be deemed the "Corporation" for purposes of this Agreement.
10. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed within the continental United States by first
class certified mail, return receipt requested, postage prepaid, addressed as
follows:
(a) If to the Board or the Corporation, to:
Dames & ▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Human Resources Officer
(b) If to the Executive, to:
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If delivered by hand, a notice shall deemed to be delivered when received; if
delivered by first class certified mail as described above, a notice shall be
deemed to be delivered three (3) days following the date it was mailed. Such
addresses may be changed by written notice sent to the other party at the
last recorded address of that party.
11. Tax Withholding. The Corporation shall provide for the withholding of
any taxes required to be withheld by federal, state, or local law with
respect to any payment in cash, shares of stock and/or other property made by
or on behalf of the Corporation to or for the benefit of the Executive under
this Agreement or otherwise. The Corporation may, at its option: (a) withhold
such taxes from any cash payments owing from the Corporation to the Executive,
(b) require the Executive to pay to the Corporation in cash such amount as may
be required to satisfy such withholding obligations and/or (c) make other
satisfactory arrangements with the Executive to satisfy such withholding
obligations.
12. Arbitration. Except as to actions described in Paragraph 6.2, any
controversy or claim arising out of or relating to this Agreement or the
breach hereof shall be settled by arbitration in Los Angeles, California in
accordance with the laws of the State of California. The arbitration shall
be conducted in accordance with the rules of the American Arbitration
Association. The costs and expenses of the arbitrator(s) shall be borne
equally by the Corporation and the Executive. The award of the arbitrator(s)
shall be binding upon the parties. Judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction.
13. No Assignment. Except as otherwise expressly provided herein, this
Agreement is not assignable by any party and no payment to be made hereunder
shall be subject to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance or other charge.
14. Execution in Counterparts. This Agreement may be executed by the
parties hereto in two (2) or more counterparts, each of which shall be deemed
to be an original, but all such counterparts shall constitute one and the same
instrument, and all signatures need not appear on any one counterpart.
15. Jurisdiction and Governing Law. Except as provided in Paragraph 12,
jurisdiction over disputes with regard to this Agreement shall be exclusively
in the courts of the State of California located in the county of Los Angeles,
and this Agreement shall be construed and interpreted in accordance with and
governed by the laws of the State of California, other than the conflict of
laws provisions of such laws. Each party agrees that venue will be proper in
the courts described in the previous sentence and waives any objection based
upon forum non conveniens. The choice of forum set forth in this Paragraph
shall not be deemed to preclude the enforcement of any judgment so obtained
in any other forum.
16. Severability. If any provision of this Agreement shall be adjudged
by any court of competent jurisdiction to be invalid or unenforceable for any
reason, such judgment shall not affect, impair or invalidate the remainder of
this Agreement. Furthermore, if the scope of any restriction or requirement
contained in this Agreement is too broad to permit enforcement of such
restriction or requirement to its full extent, then such restriction or
requirement shall be enforced to the maximum extent permitted by law, and the
Executive consents and agrees that any court of competent jurisdiction may
so modify such scope in any proceeding brought to enforce such restriction or
requirement.
17. Other Benefits. This Agreement does not provide a pension for
Executive nor shall any payment hereunder be characterized as deferred
compensation. Except as set forth in paragraph 4, neither the provisions of
this Agreement nor the payments provided for hereunder shall reduce any
amounts otherwise payable, or in any way diminish Executive's rights as an
employee, whether existing now or hereafter, under any benefit, incentive,
retirement, stock option, stock bonus or stock purchase plan or any employment
agreement or other plan or arrangement not related to severance. Any such
other amounts or benefits payable shall be included, as necessary, for making
any of the calculations required under paragraph 4.
18. Employment Status. This Agreement does not constitute a contract
of employment or impose on Executive any obligation to remain in the employ
of the Corporation, nor does it impose on the Corporation any obligation to
retain Executive in his present or any other position, or to change the
status of Executive's employment as an employee at will. Nothing in this
Agreement shall in any way require the Corporation to provide Executive with
any severance benefits except as expressly provided herein, nor shall this
Agreement ever be construed in any way as establishing any policies or
requirements of the Corporation for the termination of Executive's employment
or the payment of severance benefits to Executive if Executive's employment
terminates except as expressly provided herein, nor shall anything in this
Agreement in any way affect the right of the Corporation in its absolute
discretion to change one or more benefit plans, including but not limited to
pension plans, dental plans, health care plans, savings plans, bonus plans,
vacation pay plans, disability plans, and the like.
19. Prior Understandings. This Agreement embodies the entire
understanding of the parties hereto and supersedes all other oral or written
agreements or understandings between them regarding the subject matter hereof.
No change, alteration or modification hereof may be made except in a writing,
signed by each of the parties hereto. The headings in this Agreement are for
convenience and reference only and shall not be construed as part of this
Agreement or to limit or otherwise affect the meaning hereof.
20. Termination. This Agreement shall terminate on March 31, 2001;
provided, however, if Executive's employment has terminated prior to such
date, the Corporation's and the Executive's rights and obligations under this
Agreement with respect to such termination (if any) shall survive the
termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the day and year first above written.
DAMES & ▇▇▇▇▇, INC.
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
__________________________
Title: Chief Executive Officer
_______________________
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
______________________________