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Exhibit 10(mm)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & SONS, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
As of January 1, 2000
Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇. ▇▇▇▇▇▇▇▇:
This letter agreement (the "Agreement") sets forth the terms and
conditions under which you have agreed to serve as an Executive Vice President
and Chief Financial Officer of The Seagram Company Ltd. ("SCL") and of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ & Sons, Inc. (the "Company") (collectively, "Seagram").
1. Term. The term of this Agreement will commence on January 1, 2000
and continue until December 31, 2004 unless earlier terminated pursuant to the
provisions of Paragraph 4 or 5 (the "Term").
You agree and acknowledge that Seagram has no obligation to extend the
Term or to continue your employment after expiration of the Term, and you
expressly acknowledge that no promises or understandings to the contrary have
been made or reached. You also agree and acknowledge that should Seagram choose
to continue your employment for any period of time following the expiration of
the Term (including any extensions thereof) without a new written agreement,
your employment with Seagram will be "at will;" in other words, during any time
following the expiration of the Term, Seagram may terminate your employment at
any time, with or without reason and with or without notice, and you may resign
at any time, with or without reason and with or without notice.
BCM
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Initials of Employee
2. Duties. You agree to be employed and perform your exclusive services
for the Company or one of its affiliates upon the terms and conditions of this
Agreement. As Executive Vice President and Chief Financial Officer, you will
perform such services consistent with your position as may be requested from
time to time by the Board of Directors of SCL (the "SCL Board"), the Board of
Directors of the Company (the "Company Board") or the Chief Executive Officer of
SCL or the Company. You will report directly to the Chief Executive Officer of
SCL or the Company, the SCL Board and the Company Board. At a minimum, the heads
of the following departments of the Company will report directly to you:
controllers group, treasury, tax, strategic planning, business development and,
as of June 1, 2000, investor relations and
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information technology. The chief financial officers of the principal business
units of Seagram will report directly to you, as well as to one or more
individuals within their business units. You will not be required, without your
consent, to perform your primary duties under this Agreement in a location other
than in New York, New York or Los Angeles, California, except for reasonably
required travel on Seagram's business. If you relocate to New York, the Company
will not require your principal base of operation to be in Los Angeles.
3. Compensation and Related Matters.
(a) Base Salary. For all services rendered under this Agreement,
commencing January 1, 2000, the Company will pay you a base salary at an annual
rate of $1,000,000, payable in accordance with the Company's applicable payroll
practices ("Base Salary").
(b) Annual Bonus. You shall be eligible to receive annual bonus awards,
subject to the terms and conditions set forth below:
(i) Annual Bonus Targets.
(A) For the fiscal year ending June 30, 2000, your annual
bonus target shall be $1.1 million.
(B) For the fiscal year ending June 30, 2001 your annual bonus
target shall equal $1.5 million plus the product of $2.5 million and
the percentage increase, if any, in the Consumer Price Index for all
Urban Consumers for the New York Metropolitan Area (or any successor
Consumer Price Index) (the "CPI") for the period July 1, 1999 through
June 30, 2000.
(C) For each fiscal year ending on or after June 30, 2002
through the fiscal year ending June 30, 2004, your annual bonus target
shall equal your annual bonus target for the prior fiscal year plus the
product of (i) the sum of such prior year's annual bonus target and $1
million and (ii) the percentage increase in the CPI for such prior
fiscal year.
(D) For the period commencing July 1, 2004 and ending December
31, 2004 (the "Final Period"), your annual bonus target shall equal
one-half of the sum of (i) your annual bonus target for the prior
fiscal year plus (ii) the product of (A) the sum of such prior year's
annual bonus target and $1 million times (B) the percentage increase in
the CPI for such prior fiscal year. Each annual bonus target set forth
in (A) through (D) above shall be your "Annual Bonus Target" for the
applicable period.
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(ii) Minimum Bonus.
(A) For the fiscal year ending June 30, 2000 your annual bonus
shall not be less than $737,500.
(B) For each full fiscal year thereafter during the Term and
for the Final Period your annual bonus shall not be less than one-half
of your applicable Annual Bonus Target.
(C) For the Final Period, your bonus shall not be less than
the Annual Bonus Target.
(iii) Relationship to CEO Bonus. For each full fiscal year commencing
July 1, 2000 and thereafter during the Term, your annual bonus shall
not be less, when expressed as a percentage of the applicable Annual
Bonus Target, than the percentage that the annual bonus paid to the
Chief Executive Officer of SCL or the Company for such fiscal year
represents of his annual bonus target.
(iv) Time of Payment. Each annual bonus and the bonus for the Final
Period shall be paid when bonuses are normally paid to the Company's
senior executives, but, unless you otherwise elect, in no event later
than 90 days following the end of the applicable period.
(c) Supplemental Bonus. You shall receive a supplemental bonus of
$500,000 (the "Supplemental Bonus") payable on September 1, 2000, at the
discretion of the Chief Executive Officer of SCL, based on your performance.
(d) Long Term Incentive Plan.
(i) Initial Grant.
(A) You were granted, on November 3, 1999, (the "Grant Date")
options to purchase 500,000 common shares without nominal or par value,
of SCL (the "Options"). The Options shall be exercisable at a per share
exercise price equal to $47.0938. The Options shall vest at the rate of
20% per year, commencing January 1, 2000 (i.e. the first 20% will
become vested on such date) and shall be granted pursuant to the terms
of the SCL 1996 Stock Incentive Plan (the "Plan").
(B) Unless earlier terminated pursuant to the terms of such
Plan, the Options shall expire ten years following the Grant Date.
Notwithstanding the foregoing, (I) if your employment hereunder is
terminated due to an involuntary termination without Cause (as defined
in this Agreement) at any time by the Company, or by you for Good
Reason (as defined in this Agreement) the Options
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shall vest and become immediately exercisable in full, and (II) if your
employment hereunder terminates due to your death or Disability (as
defined in this Agreement) the Options shall vest and shall become
exercisable in accordance with their original vesting schedule. Except
as expressly otherwise provided herein, the post-termination exercise
period of the Options shall be governed by the terms of the Plan (it
being agreed that a termination of your employment without Cause (as
defined in this Agreement) will be treated as an involuntary
termination without "Cause" for purposes of the Plan).
(ii) Subsequent Grants. In fiscal year 2000 and during each subsequent
full fiscal year of the Term, the Company will recommend for approval to
the SCL Human Resources Committee, and use its best efforts to cause the
SCL Human Resources Committee to grant to you options at the level of
100,000 options per year (adjusted for any stock splits after the date of
this Agreement) under the Plan (or any plan adopted in replacement thereof)
in accordance with the plan's terms and conditions. The stock options to be
granted to you will fully vest upon involuntary termination of your
employment without Cause or termination for Good Reason at any time or
voluntary termination within 30 days after the end of the Term.
(e) Benefits and Perquisites. You will be entitled to participate in
the benefit plans (including flexible perquisites, currently afforded at the
rate of $16,000 per year) generally available to senior executive employees of
the Company so long as the Company provides such plans and programs and subject
to their terms and conditions, except that you will not participate in any
severance plan of Seagram; provided that under the Company's Retirement Account
Plan the maximum amount that may be taken into account shall be increased from
$400,000 to $1,000,000; and provided further that your years of service with
Universal will be taken into account in computing your benefits under such plans
and programs unless taking such service into account would result in a
duplication of benefits. In addition, you will continue to be entitled to
participate in the Universal Executive Auto Allowance Program, in accordance
with the program's terms and conditions, until you relocate to New York.
Thereafter, the Company will provide to you at the Company's expense a car and
driver. You shall have suitable office space and a secretary in both New York
and Los Angeles, and you shall be provided first class hotel accommodations or
apartment space when you are in New York (or, after relocation to New York, in
Los Angeles) on business trips.
(f) Expense Reimbursements. During your employment, the Company will
reimburse you for your reasonable and necessary business expenses in accordance
with its then prevailing policy for its senior executive employees (which will
include appropriate itemization and substantiation of expenses incurred). In the
event you relocate to New York, you will be reimbursed for your moving expenses
in accordance with then prevailing Company policy for Company's senior executive
employees.
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(g) Withholding. Notwithstanding any other provision of this Agreement,
the Company may withhold from any amounts payable under this Agreement such
federal, state or local taxes as will be required to be withheld pursuant to any
applicable laws or regulations.
4. Compensation Upon Certain Termination Events.
(a) Compensation Payable. Should your employment with Seagram and its
affiliates terminate you will be entitled to the amounts and benefits shown on
the following table, subject to Paragraphs 4(b) through 4(h) and Paragraph 5. In
the event of such termination, and except for payments noted in this Paragraph 4
(or Paragraph 5, if applicable) and the provisions of Paragraph 3(d), Seagram
will have no further obligations to you under this Agreement.
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Involuntary termination
without Cause; Good Reason
Termination; Voluntary
Termination Termination within 30 days
For Cause after the end of the Term Disability Death
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Payment of (1) any accrued Same as for termination Your Base Salary Payment of (1) any accrued
but unpaid Base Salary due for Cause except that your pro-rated Annual Bonus but unpaid Base Salary due
you through termination, and Base Salary, 100% Target will continue you through your date of
(2) other unpaid amounts of each remaining Annual until the earliest of (1) death and pro-rated Annual
then due you under Company Bonus Target, any unpaid the 180th day following Bonus Target, and (2)
benefit plans or programs. Supplemental Bonus and the start of your other unpaid amounts then
your benefits (other than disability absence, or due you under Company
benefits provided under (2) your death and will benefit plans or programs,
(1) any plan qualified be reduced by other except that those payments
under Section 401(a) of Company-provided will be made to your
the Internal Revenue Code disability benefits estate or legal
of 1986, as amended (the available to you. representative, and your
"Code") and (2) any stock Payment of (1) any death benefits payable due
or incentive based plan accrued but unpaid Base to your death under
other than as set forth Salary due you through Company employee benefit
above) will also continue termination, and (2) plans or programs will
through the expiration of other unpaid amounts then also be paid.
the original Term (i.e., due you under Company
Dec. 31, 2004), (or, if benefit plans or programs.
longer, 12 months) subject
(except as described
above) to the terms and
conditions of each benefit
plan; provided further
that your medical coverage
hereunder shall continue
until the earlier of (i)
the original expiration
date of the Term (or, if
later, 12 months after
your termination of
employment) or (ii) the
date you obtain new
employment hereafter.
(b) Termination for Cause. The Company may terminate your employment
for Cause at any time without advance notice. If you are terminated for Cause,
the Company shall have no obligation to make any payments under this Agreement,
except for the Accrued Benefits as defined herein at Paragraph 5(d). "Cause" is
defined as:
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(i) your material failure to perform your material duties or
your material breach of the terms of this Agreement which is not
remedied by you within 30 days after receipt of written notice from the
Company specifically delineating each claimed failure or breach and
setting forth the Company's intention to terminate your employment if
the failure or breach is not duly remedied, provided that if the
specified failure or breach cannot reasonably be remedied within said
30-day period and you commence reasonable steps within said 30-day
period to remedy such failure or breach and diligently continue such
steps thereafter until a remedy is effected, such failure or breach
will not constitute "Cause";
(ii) your material failure to comply with Company policies,
including, without limitation those set forth in the Policies and
Procedures for Worldwide Business Conduct of SCL and Affiliates and the
SCL Discrimination and Sexual Harassment Policy, copies of which are
attached as Schedule 1 to this Agreement as determined by the Company's
Human Resources or Internal Audit Departments following a full, good
faith investigation (provided that this Paragraph 4(b)(ii) shall not
apply after a Change of Control as defined in Paragraph 5); or
(iii) your conviction of a felony or crime of moral turpitude.
(c) Involuntary Termination. The Company may terminate your employment
other than for Cause or on account of Disability, as defined in Paragraph 4(d),
in which case you will receive continuation of Base Salary, 100% of each
remaining Annual Bonus Target, the unpaid Supplemental Bonus, if any, and
benefits as specified in Paragraphs 4(a) and (h). You agree that you will have
no rights or remedies in the event of your termination without Cause other than
those set forth in this Agreement.
(d) Termination for Disability. The Company may terminate your
employment on account of a Disability and the payments required by Paragraph
4(a) will be made. You will be deemed to have a "Disability" if you are
incapacitated by a physical or mental condition, illness or injury which has
prevented you from being able to perform the essential duties of your position
under this Agreement in a satisfactory fashion for all of a consecutive 180-day
period.
(e) Death. If you die while employed under this Agreement, the payments
required by Paragraph 4(a) will be made.
(f) Voluntary Termination within 30 Days after the End of the Term.
Notwithstanding Paragraph 1 or any other provision of this Agreement to the
contrary, you may voluntarily terminate your employment, with or without reason,
at any time within 30 days after the end of the Term. In such event, you will be
entitled to receive the payments and benefits provided under Paragraphs 4(a) and
(h) for "Voluntary Termination within 30 days after the end of the Term."
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(g) Termination for Good Reason. You shall be entitled to terminate
employment for "Good Reason," for purposes of this Paragraph 4, in the event of
a material breach of this Agreement by Seagram, any material reduction of your
title or duties, any reduction of your Base Salary or Annual Bonus Target or
Minimum Bonus, any requirement to report to someone other than the Chief
Executive Officer of the Company or SCL or any successor thereof pursuant to
Paragraph 11 or any requirement to move to a location other than Los Angeles,
California or New York, New York (provided that if you relocate to New York, the
Company may not require you to move back to Los Angeles) if, in the event of any
of the foregoing, such circumstance is not remedied within 30 days after receipt
of written notice from you specifically delineating each act giving rise to Good
Reason and setting forth your intention to terminate your employment if such
breach is not duly remedied, provided that if the specified circumstance cannot
reasonably be remedied within said 30-day period and the Company commences
reasonable steps within said 30-day period to remedy said breach and diligently
continues such steps thereafter until a remedy is effected, such circumstance
will not constitute "Good Reason." In the event of your voluntary termination
for Good Reason, you shall be entitled to the payments and benefits provided
under Paragraphs 4(a) and (h) for involuntary termination without Cause or Good
Reason termination.
(h) Lump Sum Severance Payment. Notwithstanding any provision of this
Agreement to the contrary, any severance payments as set forth in 4(a)
attributable to your Base Salary and/or Annual Bonus Target and/or Supplemental
Bonus which become payable to you will be paid in a lump sum payment, discounted
as set forth below, within 30 days after your termination of employment. Should
the Company fail to make payment within 30 days after your termination of
employment as required by the preceding sentence, interest on such unpaid amount
shall accrue at the prime rate charged from time to time by the Company's
principal outside lending institution. Any lump sum payments required to be made
to you hereunder will be discounted to present value from the time at which such
amounts (including a projected CPI adjustment to the Annual Bonus Target based
on the most recent CPI used under Paragraph 3(b) prior to your termination or
calculated at the date of termination if in the first year of the Agreement)
would have been paid absent any accelerated payment at an annual discount rate
for the relevant periods equal to the "mid-term applicable Federal rate" (within
the meaning of Section 1274(d) of the Code), compounded annually, in effect on
the date of such termination.
5. Change of Control Benefits. If your employment with the Company is
terminated at any time within the three years following a Change of Control by
the Company due to involuntary termination without Cause, or by you for Good
Reason (as defined below) (the effective date of either such termination
hereafter referred to as the "Termination Date"), you shall, subject to the
terms and conditions of this Paragraph 5, be entitled to the payments and
benefits provided hereafter in this Paragraph 5. If your employment by the
Company is terminated prior to a Change of Control by the Company (i) at the
request of a party (other than the Company or SCL) involved in the Change of
Control or (ii) otherwise in connection with or in anticipation of a Change of
Control that subsequently occurs, you shall be entitled to the benefits provided
hereafter in this Paragraph 5 and as set forth in this Agreement, and your
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Termination Date shall be deemed to have occurred immediately following the
Change of Control. Notwithstanding the foregoing, in the event you are otherwise
entitled to termination payments or benefits under Paragraph 4 of this
Agreement, that are greater than the applicable payments and benefits provided
in any of subsections (a) through (g) of this Paragraph 5 (the "Other
Benefits"), then you shall receive the Other Benefits in lieu of any payments or
benefits under such subsection. For example, if you are entitled to a higher
amount of cash severance under Paragraph 4 in the event you are terminated by
the Company without Cause, than that provided by Paragraph 5(a) hereof, such
higher amount of cash severance would be payable in lieu of the cash severance
set forth in Paragraph 5(a), but the payments and benefits set forth in
Paragraph 5(b) through (g) would remain applicable. If the Other Benefits are
not greater than the benefits under this Paragraph 5, you shall receive benefits
under this Paragraph 5 in lieu of the Other Benefits, the intent of this
provision being to avoid duplication of benefits. Notice of termination without
Cause or for Good Reason shall be given in accordance with Paragraph 12, and
shall indicate the specific termination provision hereunder relied upon, the
relevant facts and circumstances and the Termination Date. Notwithstanding
anything in this Agreement to the contrary, this Paragraph 5 shall not be
effective to the degree necessary to preserve "pooling of interests" accounting
treatment (as reasonably determined by the Company).
"Change of Control" is defined as the first to occur of any of the
following:
(i) any "person" or "group" (as described in the Act) becomes
the beneficial owner of 25% or more of the combined voting power of the
then outstanding voting securities with respect to the election of the
SCL Board of Directors, and also holds more than any group or person
who is the beneficial owner, on the Effective Date, of over 20% of SCL
common shares. "Person" does not include any SCL or Company employee
benefit plan, any company the shares of which are held by SCL's
shareholders in substantially the same proportion as they held SCL
stock, or any testamentary trust or estate;
(ii) any merger, consolidation, amalgamation, plan of
arrangement, reorganization or similar transaction involving SCL, other
than, in the case of any of the foregoing, a transaction in which SCL
shareholders immediately prior to the transaction hold immediately
thereafter, in the same proportion as immediately prior to the
transaction, not less than 50.1% of the combined voting power of the
then outstanding voting securities with respect to the election of the
board of directors of the resulting entity;
(iii) any change in a majority of SCL's Board of Directors
within a 24-month period unless the change was approved by a majority
of the "Incumbent Directors" (defined as members of SCL's Board of
Directors at the beginning of the period in question, including any
directors who were not members of SCL's Board of Directors at the
beginning of such period but were elected or nominated to the Board of
Directors by, or on the
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recommendation of or with the approval of, at least two-thirds of the
directors who then qualified as Incumbent Directors (so long as such
directors were not nominated by a person who has expressed an intent to
effect a Change of Control or engage in a proxy or other control
contest);
(iv) any liquidation or sale of all or substantially all of
the assets of SCL; or
(v) any other transaction so denominated by SCL's Board of
Directors.
"Good Reason," for purposes of this Paragraph 5, is defined as
any of the following actions on or after a Change of Control, without your
express prior written approval, other than due to your Permanent Disability or
death:
(i) any decrease in, or any failure to increase in accordance
with this Agreement, Base Salary or Target Bonus;
(ii) any decrease in your pension benefit opportunities or any
material diminution in the aggregate employee benefits, in each case,
afforded to you immediately prior to the Change of Control; for this
purpose employee benefits shall include, but not be limited to life
insurance, medical and disability benefits, flexible perquisites and
matching gifts;
(iii) any diminution in your title or reporting relationship,
or substantial diminution in duties or responsibilities (other than
solely as a result of a Change of Control in which SCL immediately
thereafter is no longer publicly held);
(iv) any requirement to move to a location other than Los
Angeles, California or New York, New York, other than normal travel
consistent with past practice (provided that if you relocate to New
York, the Company may not require you to move back to Los Angeles); or
(v) notice of termination of employment given by you within
the thirty-day period following the first day of the 14th month
following the Change of Control (the "First Day"), unless either (a)
the Chief Executive Officer of SCL immediately prior to the Change of
Control is still the Chief Executive Officer of SCL (or a company that
directly or indirectly owns at least 50.1% of the combined voting power
of the then outstanding voting securities with respect to the election
of the board of directors of SCL or its successor (a "Parent Company"))
on the First Day (or he fails to be the Chief Executive Officer by
reason of death or Permanent Disability) or (b) you are serving as an
officer of SCL, and SCL is a Publicly Traded Company (defined as a
company whose common equity securities (including American Depositary
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Shares or American Depositary Receipts relating to such equity
securities) are traded or quoted on a principal United States, Canadian
or European stock market or trading system, and are owned by more than
1,000 shareholders) (or, if SCL is not a Publicly Traded Company, then
of a Parent Company that is a Publicly Traded Company), without having
experienced a diminution in title or reporting relationship or a
substantial diminution in duties or responsibilities in such capacity.
Except as provided in (v) above, you shall have six months from the
time you first become aware of the existence of Good Reason under this Paragraph
5 to resign for Good Reason.
(a) Severance Payments. Within fifteen business days after the
Termination Date, the Company shall pay you a cash lump sum
equal to:
(1) three times your Base Salary in effect on the date of
the Change of Control or the Termination Date,
whichever is higher; provided that if any reduction
of the Base Salary has occurred, then the Base Salary
on either date shall be as in effect immediately
prior to such reduction; and
(2) three times your Target Bonus in effect on the date
of the Change of Control or the Termination Date,
whichever is higher; provided that if any reduction
of the Target Bonus, or any failure to increase the
Target Bonus hereunder has occurred, then the Target
Bonus on either date shall be as in effect
immediately prior to such reduction or after giving
effect to such increase, as the case may be; and
(3) your Target Bonus (as determined in (2), above)
multiplied by a fraction, the numerator of which
shall equal the number of days you were employed by
the Company in the Company fiscal year in which the
Termination Date occurs and the denominator of which
shall equal 365.
(b) Treatment of Stock Options. Any unvested stock options
outstanding on the date of the Change of Control (and any
options into which such options are converted or options
granted in substitution for such unvested options) shall
become fully exercisable, and shall remain exercisable for the
period applicable to vested options under the applicable
option agreement.
(c) Continuation of Benefits. Until the third anniversary of the
Termination Date, the Company shall, at its expense, provide
you and your spouse and dependents with medical, life
insurance and disability coverages at the level provided to
you immediately prior to the Change of Control; provided,
however, that if you become employed by a new employer,
continuing
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coverage from the Company will become secondary to any
coverage afforded by the new employer.
(d) Payment of Earned But Unpaid Amounts. Within fifteen business
days after the Termination Date, the Company shall pay you the
Base Salary through the Termination Date, any Bonus earned but
unpaid as of the Termination Date for any previously completed
fiscal year of the Company, all compensation previously
deferred by you but not yet paid and reimbursement for any
unreimbursed expenses properly incurred by you in accordance
with Company policies prior to the Termination Date. You shall
also receive such employee benefits, if any, to which you may
be entitled from time to time under the employee benefit or
fringe benefit plans, policies or programs of the Company,
other than any Company severance policy (payments and benefits
in this subsection (d), the "Accrued Benefits").
(e) Additional Benefit Plan Service and Age. For purposes of
eligibility for retirement, for early commencement or
actuarial subsidies under any Company pension, medical
reimbursement or life insurance plan (or any such alternative
contractual arrangement that you may have with the Company),
you will be credited with an additional three years of service
and age beyond that accrued as of the Termination Date;
provided that if any benefits afforded by this Agreement,
including the benefits arising from the grant of additional
service and age, cannot be provided under the qualified
pension plan of the Company due to the qualification
provisions of the Code, the benefit, or its equivalent in
value, shall be provided under a nonqualified pension plan of
the Company.
(f) Supplemental Retirement and Profit Sharing Benefits. You will
become fully vested in any unfunded pension benefit provided
under any nonqualified pension plan, program or arrangement in
which you participate (including, without limitation, the
Supplemental Retirement Account Plan of the Company).
(g) Outplacement Counseling. For the three-year period following
the Termination Date, (or, if earlier, the date you first
obtain full-time employment after the Termination Date), the
Company shall reimburse all reasonable expenses you incur for
professional outplacement services by qualified consultants
you select.
6. Mitigation. You shall not be required to mitigate damages or amounts
and benefits payable to you under any of the provisions of this Agreement by
seeking other employment or otherwise, and, subject to Paragraphs 4(a) and 5(c),
compensation or benefits of any kind which are earned or received by you from
such employment, any third party, your self-
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employment or otherwise shall not reduce or offset the amounts and benefits
otherwise payable under this Agreement. No amounts payable under this Agreement
shall be subject to reduction or offset in respect of any claims which the
Company (or any other person or entity) may have against you.
7. Gross-Up.
(a) In the event it shall be determined that any payment, benefit
or distribution (or combination thereof) by the Company, any
of its affiliates, or one or more trusts established by the
Company for the benefit of its employees, to or for your
benefit (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement, or
otherwise) (a "Payment") is subject to the excise tax imposed
by Section 4999 of the Code or you incur any interest or
penalties with respect to such excise tax (such excise tax,
together with any such interest and penalties, hereinafter
collectively referred to as the "Excise Tax"), you shall be
entitled to receive an additional payment (a "Gross-Up
Payment") in an amount such that after your payment 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 the Excise Tax imposed upon the Gross-Up
Payment, you retain an amount of the Gross-Up Payment equal to
the Excise Tax imposed upon the Payments.
(b) All determinations required to be made under this Paragraph 7,
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
PricewaterhouseCoopers or such other nationally recognized
certified public accounting firm as may be designated by the
Company (the "Accounting Firm") which shall provide detailed
supporting calculations both to you and the Company within ten
business days of the receipt of notice from you that there has
been a Payment, or such earlier time as is requested by the
Company; provided that for purposes of determining the amount
of any Gross-Up Payment, you shall be deemed to pay federal
income tax at the highest marginal rates applicable to
individuals in the calendar year in which any such Gross-Up
Payment is to be made and deemed to pay state and local income
taxes at the highest effective rates applicable to individuals
in the state or locality of your residence or place of
employment in the calendar year in which any such Gross-Up
Payment is to be made, net of the maximum reduction in federal
income taxes that can be obtained from deduction of such state
and local taxes, taking into account limitations applicable to
individuals subject to federal income tax at the highest
marginal rates. All fees and expenses of the Accounting Firm
shall be borne solely by the Company. Any Gross-Up Payment, as
determined
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pursuant to this Paragraph 7, shall be paid to you by the
Company (or to the appropriate taxing authority on your
behalf) when due. If the Accounting Firm determines that no
Excise Tax is payable by you, it shall so indicate to you in
writing. Any determination by the Accounting Firm shall be
binding upon you and the Company. As a result of the
uncertainty in the application of Section 4999 of the Code, it
is possible that the amount of the Gross-Up Payment determined
by the Accounting Firm to be due to (or on behalf of) you was
lower than the amount actually due ("Underpayment"). In the
event that the Company exhausts its remedies pursuant to
Paragraph 7(c) and you thereafter are 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 Company to you or
for your benefit.
(c) You shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require
the payment by the Company of any Gross-Up Payment. Such
notification shall be given as soon as practicable but no
later than ten business days after you are informed in writing
of such claim, and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be
paid. You shall not pay such claim prior to the expiration of
the thirty day period following the date on which it gives
such notice to the Company (or such shorter period ending on
the date that any payment of taxes with respect to such claim
is due). If the Company notifies you in writing prior to the
expiration of such period that it desires to contest such
claim, you shall (i) give the Company any information
reasonably requested by the Company relating to such claim,
(ii) take such action in connection with contesting such claim
as the Company 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 Company, (iii) cooperate with the
Company in good faith in order to effectively contest such
claim and (iv) permit the Company to participate in any
proceedings relating to such claim; provided, however, that
the Company 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 you
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 limitation on the foregoing
provisions of this Paragraph 7(c), the Company 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 you to pay the tax claimed and
▇▇▇ for a refund or
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contest the claim in any permissible manner, and you agree 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 Company shall
determine; provided, further, that if the Company directs you
to pay such claim and ▇▇▇ for a refund, the Company shall
advance the amount of such payment to you, on an interest-free
basis, and shall indemnify and hold you 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; provided, further, that if you
are required to extend the statute of limitations to enable
the Company to contest such claim, you may limit this
extension solely to such contested amount. The Company's
control of the contest shall be limited to issues with respect
to which a Gross-Up Payment would be payable hereunder and you
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.
(d) If, after your receipt of an amount paid or advanced by the
Company pursuant to this Paragraph 7, you become entitled to
receive any refund with respect to a Gross-Up Payment, you
shall (subject to the Company's complying with the
requirements of Paragraph 7(c)) promptly pay to the Company
the amount of such refund received (together with any interest
paid or credited thereon after taxes applicable thereto). If,
after your receipt of an amount advanced by the Company
pursuant to Paragraph 7(c), a determination is made that you
shall not be entitled to any refund with respect to such claim
and the Company does not notify you in writing of its intent
to contest such denial of refund prior to the expiration of
thirty 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.
8. Covenants.
(a) Acknowledgment. You acknowledge that you currently possess or will
acquire secret, confidential, or proprietary information or trade secrets
concerning the operations, future plans, or business methods of the Company or
its affiliates. You agree that the Company would be severely damaged if you
misused or disclosed this information. To prevent this harm, you are making the
promises set forth in this Paragraph 8. You acknowledge that the provisions of
this Paragraph 8 are reasonable and necessary to protect the legitimate
interests of the Company and that any violation of such provisions would result
in irreparable injury to the Company. In the event of a violation of the
provisions of this Paragraph 8, you further agree that the Company will, in
addition to all other remedies available to it, be entitled to seek equitable
relief by way of injunction and any other legal or equitable remedies.
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(b) Promise Not to Disclose. You will hold in a fiduciary capacity, for
the benefit of Seagram, all confidential or proprietary information, knowledge
and data of Seagram which you may acquire, learn, obtain or develop during your
employment by Seagram. Further, you will not, during the Term or at any time
thereafter, directly or indirectly use, communicate or divulge for your own
benefit or for the benefit of another any such information, knowledge or data
other than as required by Seagram or as ordered by the court or with respect to
matters that are generally known to the public. You make the same commitments
with respect to the secret, confidential or proprietary information, knowledge
and data of affiliates, customers, contractors and others with whom Seagram has
a business relationship or to whom Seagram or its affiliates owe a duty of
confidentiality, other than as required by Seagram. The information covered by
this protection includes, but is not limited to, matters of a business or
strategic nature such as information about costs and profits, projections,
personnel information, reengineering, records, customer lists, contact persons,
customer data, software, sales data, possible new business ventures and/or
expansion plans or matters of a creative nature, including without limitation,
matters regarding ideas of a literary, creative, musical or dramatic nature, or
regarding any form of product produced, distributed or acquired by Seagram and
its affiliates ("Company Information"). Company Information will be considered
and kept as the private, proprietary and confidential information of the Company
and its affiliates except within the Company and its affiliates as required to
perform services, and may not be divulged without the express written
authorization of the Company or as ordered by the court or with respect to
matters that are generally known to the public. You further agree that you will
neither publicly disclose the terms of this Agreement except as may be required
by law nor publicly discuss Seagram or its affiliates in a manner that tends to
portray any of them in an unfavorable light.
(c) Promise Not to Engage In Certain Activities. You will not at any
time during your employment by the Company be or become (i) interested or
engaged in any manner, directly or indirectly, either alone or with any person,
firm or corporation now existing or hereafter created, in any business which is
or may be competitive with the business of the Company and its affiliates or
(ii) directly or indirectly a stockholder or officer, director, agent,
consultant or employee of, or in any manner associated with, or aid or abet, or
give information or financial assistance to, any such business. The provisions
of this Paragraph will not be deemed to prohibit your purchase or ownership, as
a passive investment, of not more than one percent (1%) of the outstanding
capital stock of any corporation.
(d) Promise to Return Property. All records, files, lists, drawings,
documents, models, equipment, property, computer, software or intellectual
property relating to the Company's business in whatever form (including
electronic) will be returned to the Company upon the termination of your
employment, whether such termination is at your or the Company's request. It is
understood that the obligation in the preceding sentence does not apply to your
personal information.
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(e) Promise Not to Solicit. You will not during (i) the period of your
employment by the Company or (ii) the period ending one (1) year after the
period described in the previous clause (i) induce or attempt to induce any
employees, consultants, contractors or representatives of the Company (or those
of any of its affiliates) to stop working for, contracting with or representing
the Company or any of its affiliates or to work for, contract with or represent
any of the Company's (or its affiliates') competitors.
(f) Company Ownership. The results and proceeds of your services
hereunder, including, without limitation, any works of authorship resulting from
your services during your employment with the Company and/or any of Company's
affiliates and any works in progress, will be works-made-for-hire and the
Company will be deemed the sole owner throughout the universe of any and all
rights of whatsoever nature therein, whether or not now or hereafter known,
existing, contemplated, recognized or developed, with the right to use the same
in perpetuity in any manner the Company determines in its sole discretion
without any further payment to you whatsoever. If, for any reason, any of such
results and proceeds will not legally be a work-made-for-hire and/or there are
any rights which do not accrue to the Company under the preceding sentence, then
you hereby irrevocably assign and agree to assign any and all of your right,
title and interest thereto, including, without limitation, any and all
copyrights, patents, trade secrets, trademarks and/or other rights of whatsoever
nature therein, whether or not now or hereafter known, existing, contemplated,
recognized or developed, to the Company, and the Company will have the right to
use the same in perpetuity throughout the universe in any manner the Company
determines without any further payment to you whatsoever. You will, from time to
time, as may be requested by the Company, do any and all things which the
Company may deem useful or desirable to establish or document the Company's
exclusive ownership of any and all rights in any such results and proceeds,
including, without limitation, the execution of appropriate copyright and/or
patent applications or assignments. To the extent you have any rights in the
results and proceeds of your services that cannot be assigned in the manner
described above, you unconditionally and irrevocably waive the enforcement of
such rights. This Paragraph is subject to and will not be deemed to limit,
restrict, or constitute any waiver by the Company of any rights of ownership to
which the Company may be entitled by operation of law by virtue of the Company
being your employer.
(g) Prior Restrictions. You represent that you are free to enter into
this Agreement and are not restricted in any manner from performing under this
Agreement by any prior agreement, commitment, or understanding with any third
party. If you have acquired confidential or proprietary information in the
course of your prior employment or as a consultant, you will fully comply with
any duties not to disclose such information then applicable to you during the
Term.
9. Service Unique. You recognize that your services hereunder are of a
special, unique, unusual, extraordinary and intellectual character, giving them
a peculiar value, the loss of which the Company cannot be reasonably or
adequately compensated for in damages. In the event of a breach of this
Agreement by you (particularly, but without limitation, with respect to
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the provisions hereof relating to the exclusivity of your services), the Company
will, in addition to all other remedies available to it, be entitled to seek
equitable relief by way of injunction and any other legal or equitable remedies.
This provision will not be construed as a waiver of the rights which the Company
may have for damages under this Agreement or otherwise, and all of the Company
rights and remedies will be unrestricted.
10. Indemnification; Director's and Officer's Liability Insurance. You
shall, after the Termination Date, retain all rights to indemnification under
applicable law or under the Company's Certificate of Incorporation or By-Laws,
as they may be amended or restated from time to time. The Company agrees that,
subject to Paragraph 13(d), to the extent permitted by law, you will be entitled
to indemnification and payment or reimbursement of expenses (including
attorneys' fees and expenses) for all damages, losses and expenses incurred by
you in connection with any claim, action, suit or proceeding which arises from
your services and/or activities as an officer and/or employee of the Company or
any affiliate thereof. In addition, in the event of a Change of Control as
defined in Paragraph 5, the Company shall maintain Director's and Officer's
liability insurance on your behalf, at the level in effect immediately prior to
the Termination Date, for the three year period following the Termination Date,
and throughout the period of any applicable statute of limitations.
11. Assignment. Except as otherwise provided herein, this Agreement
shall be binding upon, inure to the benefit of and be enforceable by you and the
Company and our respective heirs, legal representatives, successors and assigns.
If SCL shall be merged into or consolidated with another entity, the provisions
of this Agreement shall be binding upon and inure to the benefit of the entity
surviving such merger or resulting from such consolidation. SCL shall require
any successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or assets of SCL, by
agreement, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place. The provisions of this Paragraph 11 shall
continue to apply to each of your subsequent employers hereunder in the event of
any subsequent merger, consolidation or transfer of assets of such subsequent
employer.
12. Notices. For the purpose of this Agreement, any notice and all
other communication provided for in this Agreement shall be in writing and shall
be deemed to have been duly given when delivered by hand or overnight courier or
three days after it has been mailed by United States registered mail, return
receipt requested, postage prepaid, addressed to the respective addresses set
forth below, or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of change of address
shall be effective only upon receipt.
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If to Employee:
At the address indicated on the first page hereof.
with a copy to:
Ziffren, Brittenham, Branca & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
If to the Company:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Senior Vice President, Human Resources
with a copy to:
Attention: General Counsel
or to such other address as either party will have furnished to the other in
writing. Notice and communications will be effective when actually received by
the addressee.
13. Arbitration of Disputes.
(a) Arbitrable Disputes. You and the Company agree to use final and
binding arbitration to resolve any dispute (an "Arbitrable Dispute") which you
or the Company may have with the other party or any affiliate in respect of this
Agreement. This arbitration agreement applies to all matters relating to this
Agreement, your employment with and/or termination from the Company, including
disputes about the validity, interpretation, or effect of this Agreement, or
alleged violations of it, and further including all claims arising out of any
alleged discrimination, harassment, retaliation, including, but not limited to
those covered by the California Fair Employment and Housing Act, the 1964 Civil
Rights Act, 42 U.S.C. Section 2000e et seq., the federal Age Discrimination in
Employment Act, and the Americans with Disabilities Act.
(b) Injunctive Relief. Notwithstanding Paragraph 13(a), due to the
irreparable harm that would result from an actual or threatened violation of
Paragraph 8 that involves disclosure or use of confidential information, trade
secrets, or competition with the Company and Paragraphs 3 and 9 that involve
exclusivity of your services with Universal, you agree that the Company may seek
an injunction prohibiting you from committing such a violation.
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(c) The Arbitration. Arbitration will take place in New York, New York
before a single experienced employment arbitrator licensed to practice law in
New York and selected in accordance with the Employment Dispute Resolution Rules
of the American Arbitration Association. The arbitrator may not modify or change
this Agreement in any way.
(d) Fees and Expenses. Each party will pay the fees of their respective
attorneys, the expenses of their witnesses, and any other expenses connected
with the arbitration, but all other costs of the arbitration, including the fees
of the arbitrator, cost of any record or transcript of the arbitration,
administrative fees, and other fees and costs will be paid in equal shares by
the Company and you. However, the Company shall pay your costs and expenses,
including attorneys' fees and disbursements, if you prevail in a proceeding
regarding your termination of employment following a Change of Control, as
determined pursuant to paragraph 5.
(e) Exclusive Forum. Arbitration in this manner will be the exclusive
forum for any Arbitrable Dispute.
14. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without regard to
conflicts of laws principles thereof.
15. Miscellaneous. No provisions of this Agreement may be amended,
modified, waived, or discharged except by a written document signed by you and a
duly authorized officer of the Company. A waiver of any conditions or provisions
of this Agreement in a given instance will not be deemed a waiver of such
conditions or provisions at any other time. The validity, interpretation,
construction, and performance of this Agreement will be governed by the laws of
the State of New York without regard to its conflicts of law principles. This
Agreement will be binding upon, and will inure to the benefit of, you and your
estate and the Company and any successor thereto, but neither this Agreement nor
any rights arising under it may be assigned or pledged by you. The Company shall
reimburse you for reasonable attorneys fees incurred by you in negotiating this
Agreement.
16. Validity. The invalidity or unenforceability of any provisions of
this Agreement will not affect the validity or enforceability of any other
provisions of this Agreement, which will remain in full force and effect.
17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
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18. Entire Agreement. This Agreement sets forth the entire
understanding between us; all oral or written agreements or representations,
express or implied, with respect to the subject matter of this Agreement are set
forth in this Agreement, except for the terms of any applicable stock option
agreement, which shall still apply. All prior employment agreements, agreements
expressly concerning the effect of a Change of Control on the relationship
between the Company and the other members of the Company and you, and
understandings and obligations (whether written, oral, express or implied)
between us, if any, are terminated as of the commencement date of the Term and
are superseded by this Agreement, except as expressly provided herein. The
Company agrees to pay your reasonable attorneys' fees incurred in connection
with entering into this Agreement.
Very truly yours,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & SONS, INC.
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
-------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: President and Chief Executive Officer
ACCEPTED AND AGREED
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇