Employment Agreement - Berlitz International Inc. and Frank Garton
March 13, 1995
Mr. Frank Garton
42 Caleb-Brester Road
East Setauket, NY 11733
Dear Mr. Garton:
This letter agreement (the "Agreement") will constitute the agreement
relating to your employment as Vice President - Franchising of Berlitz
International, Inc. (the "Company").
1. Employment. Your employment under this Agreement shall commence
March 20, 1995. You agree that you shall devote your full business time,
attention, energy and skills to serve as Vice President - Franchising of the
Company. You shall render your services to the Company in Princeton, New Jersey.
2. Compensation. You will receive an annual salary of $160,000 payable
$6,154 every other week commencing on March 31, 1995, and you will be eligible
to participate in the Company's Short-Term Executive Incentive Compensation Plan
and Long-Term Incentive Plan (collectively the "Plans). You will be reimbursed
for reasonable expenses incurred in moving your residence to Princeton, New
Jersey from Long Island to the extent provided under the Company's moving
expense policy. You shall also participate in all of the Company's employee
benefit plans, policies and programs provided to its executives including, but
not limited to, health and life insurance policies, disability programs, pension
plans, 401(k) plans, and the Company's vacation program, in each instance as the
same may be modified by the Company from time to time.
3. Termination.
(a) Death. In the event of your death, your employment and the
obligations of the Company under this Agreement shall cease and terminate, but
the amount of any compensation accrued and due and payable hereunder calculated
through to the last day of the month in which your death occurs shall be paid to
your heirs and legal representatives.
(b) Disability. In the event you become substantially unable
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to perform your duties hereunder as a result of illness or other disability
which renders you unfit or incapable of performing such duties, and such
disability or incapacity continues for 120 consecutive days or a period of 180
days in any twelve month period, the Company shall have the right to terminate
your employment. In such event, the obligations of the Company under this
Agreement shall cease, provided that the Company gives you not less than thirty
days prior written notice specifying the termination date. Upon such
termination, you shall be paid the amount of any compensation accrued and due
and payable to you hereunder through the date of such termination.
(c) Without Cause.
In the event you are involuntarily terminated without Cause at
any time, the Company agrees to pay you a severance payment equal to one year's
salary at the rate in effect on the date of your termination. Your severance
payment shall be paid in 26 equal installments commencing on the next regular
pay period after your termination. The period during which you are entitled to
payment is defined as your "Severance Period". As a condition to your receiving
such severance payment, you agree to deliver a general release of the Company
containing substantially the terms set forth in Exhibit 1 hereto.
In addition, if you are involuntarily terminated without
Cause, to the extent such continued participation is permissible under the
general terms and conditions of such plans or programs, you shall also have the
right to continue to participate in all health insurance, life insurance,
pension, 401(k), and disability plans or programs of the Company, for the
earlier of the period ending on (A) the termination of your Severance Period or
(B) the date on which you obtain new employment in a comparable position.
(d) With Cause. In the event you are terminated with Cause (as
hereinafter defined) at any time, all obligations of the Company under this
Agreement shall cease and terminate on the last day of the month in which your
termination with Cause occurs.
4. Definitions. As used throughout this Agreement, "Cause" shall mean
(i) serious and repeated willful misconduct in respect of your duties under this
Agreement which has resulted in material, economic damages to the Company, and,
to the extent such misconduct is susceptible to being cured, such misconduct
continues for thirty days following written notice to you detailing such
misconduct, all as determined by the President or Board of Directors of the
Company, (ii) the final, unappealable conviction in a court of law of any crime
or offense (A) for which you are imprisoned for a term of six months or more of
(B) that involves the commission of fraud or theft against, or embezzlement
from, the Company, or (iii) chronic alcoholism or abuse of controlled
substances.
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5. Indemnification. To the extent permitted or required by the laws of
the State of New York or the By-Laws of the Company, the Company shall indemnify
and provide reasonable advances for expenses to you, in accordance with the
terms of such laws, if you are made a party, or threatened to be made a party,
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that you
are, or were, an officer or director of the Company or any subsidiary or
affiliate of the Company, in which capacity you are, or were, serving at the
Company's best interest, against expenses (including reasonable attorneys'
fees), judgments, fines and amounts in settlement actually and reasonably
incurred by you in connection with such action, suit or proceeding.
6. Enforcement. The Company agrees to pay reasonable legal fees and
expenses incurred by you in enforcing or defending any of your rights under this
Agreement, provided that you prevail in such enforcement or defense.
7. Confidentiality. Following termination of employment, you shall keep
secret and retain in strictest confidence, and shall not use for the benefit of
yourself or others, except in connection with the business and affairs of the
Company, all confidential matters of the Company, including, without limitation,
"know-how", trade secrets, consultant contracts, customer lists, subscription
lists, pricing policies, operational methods, market plans or strategies,
language development techniques or plans, business acquisition plans, new
personnel acquisition plans, designs and design projects, research projects and
other business affairs of the Company learned by you heretofore or hereafter,
and shall not disclose them to anyone outside the company, except as required in
the course of performing duties hereunder or with the Company's express written
consent. All memoranda, notes, lists, records and other documents (and all
copies thereof) made or compiled by you or made available to you concerning the
business of the Company shall remain the Company's property and shall be
delivered to the Company promptly upon your termination.
8. Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York.
9. Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter hereof, and
supersedes all prior agreements, arrangements and understandings, written or
oral, relating to the subject matter hereof. No representation, promise of
inducement has been made by either party that is not embodied in this Agreement,
and neither party shall be bound by, or liable for, any alleged representation,
promise or inducement not so set forth.
10. Assignment. This Agreement, and your rights and obligations
hereunder, may not be assigned by you.
11. Amendments. This Agreement may be amended, modified, superseded,
cancelled, renewed or extended, and the terms or covenants hereof may be waived,
only by a written instrument executed by both of the parties hereto.
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12. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
Sincerely,
BERLITZ INTERNATIONAL, INC.
By : __________________________________
Name: Hiromasa Yokoi
Title: Chief Executive Officer
Executive Vice President
Vice Chairman
Accepted and Agreed to:
By:____________________
FRANK GARTON