Employment Agreement - Grey Advertising Inc. and Barbara S. Feigin
EMPLOYMENT AGREEMENT
AGREEMENT, made as of January 1, 1993, by and between GREY ADVERTISING
INC. ("Company"), a Delaware corporation having its principal office at 777
Third Avenue, New York, New York 10017, and BARBARA S. FEIGIN ("Executive"),
an individual residing at 535 East 86th Street, New York, New York 10028.
WHEREAS, Executive is presently employed as Executive Vice President
of the Company; and
WHEREAS, Executive has agreed to continue employment with the Company
on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing and of the
respective agreements contained herein, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. Term. The term of this Agreement shall commence on
the date hereof and shall end on December 31, 1995 (the "Term"), unless
extended or sooner terminated as hereinafter provided. The Term shall
be extended automatically on January 1, 1994 and on January 1, 1995
for an additional period of each year in the event that the Company
does not give Executive notice of non-extension on or prior to
November 30, 1993 or November 30, 1994, respectively, as the case may
be.
2. Employment. During the Term, the Company shall employ
Executive, and Executive shall serve the Company, as an Executive
Vice President of the Company or in such
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other position (but not less senior) of the Company to which Executive
shall be appointed from time to time by the Board of Directors of the
Company (the "Board").
3. Duties. Executive shall perform such services and duties in
the New York City metropolitan area (including reasonable travel
consistent with a person of her position) as shall be reasonably
assigned or delegated to her by the Board and/or the chief
executive officer of the Company (the "Chief Executive Officer"),
which shall, in any event, be consistent with her responsibilities as
a senior executive officer of the Company. During her employment
hereunder, Executive shall devote her full time to the performance of
her duties hereunder.
4. Compensation and Employee Benefits.
(a) Salary. During the Term, the Company shall pay to
Executive a salary at an annual rate of $331,000 per year, or
such greater sum as may from time to time be fixed by the Chief
Executive Officer. Executive shall be entitled to a compensation
review no less frequently than someone of her salary level and
seniority in accordance with the policies of the Company in place at
such time. Payments of salary shall be subject to such payroll
deductions as are required by law or otherwise agreed to by Executive
and the Company and shall be payable in such installments as are
customary from time to time for executive officers of the Company.
(b) Bonus Compensation. The Chief Executive Officer may,
in his sole discretion, award Executive bonus compensation from
time to time during the Term.
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(c) Employee Benefits. During the Term, Executive shall
continue to participate in all of the Company's compensation
and benefit plans and programs, in each instance to the extent such
plans and programs are available generally by their terms to employees
of her seniority, office, nature of responsibilities and length of
service. In addition, during the first twelve years pursuant to which
benefits are payable to Executive in accordance with the terms of the
Company's Senior Executive Officer Pension Plan, Executive shall be
entitled to receive $50,000 per year in addition to the amounts
otherwise payable to Executive pursuant to the terms of such Plan
provided Executive is then entitled to receive a pension thereunder.
(d) Expense Reimbursement. The Company shall reimburse
Executive for ordinary and reasonable business expenses incurred
by Executive on behalf of the Company in accordance with customary
Company policies.
(e) Vacation. Executive shall be entitled to the vacation
time afforded to executive officers of her position and tenure,
in accordance with the Company's general vacation policy.
(f) Health Insurance Benefits. During the Term, and
during any period subsequent thereto while Executive is either
an employee of the Company or a consultant to the Company in
accordance with Sections 1 and 6 hereof, but in no event beyond the
later of (i) the date upon which Executive shall attain 65 years of
age and (ii) the date upon which Executive shall cease to be an
employee of or a consultant to the Company pursuant to Section 6 here-
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of, the Company shall continue to provide Executive and her eligible
dependents with full health insurance benefits under the Company's
group plans on the same basis as are then available generally to
senior executive officers of the Company.
(g) Special Insurances. During the Term, the Company
shall maintain in force at its cost (i) a policy of long-term
disability income insurance on Executive's behalf as described
on Schedule A to this Agreement (the "Disability Insurance Policy")
and (ii) policies of life insurance on Executive's behalf as described
on Schedule B to this Agreement (the "Life Insurance Policy"). The
Disability Insurance Policy and the Life Insurance Policy to be
obtained hereunder shall be in addition to any other insurance which
may be maintained by the Company from time to time under
Company-sponsored insurance benefit programs. The Company shall, in
good faith, review the possibility of extending the Disability
Insurance Policy or implementing a replacement policy upon its
expiration. The review will take into account the cost of such a
replacement policy at the time and other factors then deemed relevant
by the Company or you.
(h) ERISA Make-up. Commencing with respect to calendar
year 1993 and for each completed calendar within the Term, the
Company will accrue for Executive in an unfunded deferred compensation
account, an amount equal to such amount as would have been allocated
for each such year to Executive's account under the Company's Profit
Sharing and Employee Stock Ownership Plans but for the limitation on
contributions to qualified plans currently mandated under the Employee
Retirement Income Security Act
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of 1976, as amended (as such current limitation amount may be adjusted
in the future by reason of increasing the amount of compensatio in
respect of which contributions may be made to qualified plans), less
any amount so allocated to such plans. Allocations under thi paragraph
shall thereafter be credited with a return equal to the return the
contributions for each such year would have earned in the Fixed Income
Fund of the Company's Profit Sharing Plan. Funds so allocated,
credited and deferred shall be paid to you at such time as the funds
in your account under the Company's Profit Sharing Plan are paid to
you
5. Termination. Executive's employment under this Agreement may
be terminated upon the occurrence of any one of the
circumstances described in subsections (a), (b), (c) or (d) of this
Section 5:
(a) Death. This Agreement shall be terminated upon
Executive's death. Upon such termination, the Company shall pay
to the estate of Executive in a lump sum all amounts due to Executive
which were earned pursuant to Section 4 hereof prior to Executive's
death, such amount, to be paid within 30 days of such termination.
(b) Disability. The Company may terminate Executive's
employment hereunder at any time because of Disability and
Executive shall be entitled to benefits under the terms of the
Disability Insurance Policy and the Company's long term disability
policy (if any) in effect from time to time. Upon such termination,
the Company shall also pay to Executive in a lump sum all amounts due
to Executive which were earned pursuant to Section 4
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hereof prior to the termination of Executive's employment
hereunder because of Executive's Disability, such amount to be paid
within 30 days of such termination. As used in this Agreement,
"Disability" shall mean Executive's physical or mental incapacity
which, in the reasonable, good faith determination of the Board,
renders her incapable of carrying out her duties under this Agreement
for a period of 120 calendar days in any six month period.
(c) Cause. The Company may terminate Executive's
employment hereunder for "Cause" in accordance with the
procedure set forth in Subsection (e) of this Section 5. For purposes
of this Agreement, "Cause" shall be defined as follows: (i) the
repeated and willful failure by Executive, after warning,
substantially to perform her duties hereunder (other than any such
failure resulting from Disability), (ii) the willful engaging by
Executive in any other conduct designed to be injurious, in any
material way, to the reputation, business or business relationships of
the Company, (iii) the conviction of Executive for any crime involving
moral turpitude, fraud or misrepresentation, (iv) after notice, (a)
drunkenness which affects Executive's ability to perform her
obligations hereunder, or (b) the illegal use of drugs interfering
with performance of Executive's obligations under this Agreement or
(v) the knowing and willful violation, in any material way, by
Executive of the provisions of Sections 7 or 8 hereof. If Executive's
employment should be terminated by the Company for Cause, the Company
shall have no further obligations to Executive hereunder following the
date of termination; provided, however, that the Company shall pay or
provide all vested or earned rights, payments, benefits and
entitlements then
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due and payable to Executive including, without limitation, all
amounts which were earned pursuant to Section 4 hereof prior to the
date of Executive's termination of employment.
(d) Change in Control. Following the occurrence of a
"change in control of the Company" (as defined herein), if
during the remaining portion of the Term (i) the Company terminates
the employment of Executive other than for death, Disability or Cause
or (ii) Executive terminates her employment within 90 days following a
breach by the Company of any provision of Sections 2, 3 or 4 hereof,
(x) all the unvested portions of any rights or benefits of Executive
under any stock option or restricted stock plan of the Company or the
Company's Senior Management Incentive Plan which Executive has as of
the date of this Agreement (but not any option or restricted stock of
the Company or any awards under the Company's Senior Management
Incentive Plan, in either instance granted or made available after the
date of this Agreement) shall vest; and (y) the Company shall pay
Executive a lump sum an amount equal to three times the sum of (A) her
annual salary in effect immediately prior to such change in control of
the Company and (B) the most recent bonus paid to Executive prior to
such change in control of the Company; provided, however, that if any
portion of the payment under this Subsection (d) would not be
deductible by the Company by reason of sections 280G and 4999 of the
Internal Revenue Code of 1986, as amended (the "Code"), or any
successor provisions thereto, such payment shall be reduced to the
extent necessary so that the entire payment shall be deductible under
said Code sections. Such payment, as shall be reduced or reserved
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against to ensure its deductibility as contemplated above, shall be
made within 30 days of an occurrence set forth in either sub-clause
(i) or sub-clause (ii) in the previous sentence. For purposes of this
Subsection (d), a "change in control of the Company" shall be deemed
to have occurred if, and only if, Edward H. Meyer ("Meyer"), or the
legal representative of Meyer's estate, if Meyer should not then be
living, should sell all or substantially all of his shares of common
stock of the Company to a person other than Executive (and/or related
parties) or to the Company.
(e) Notice of Termination. Any termination by the Company
pursuant to this Section 5 shall be communicated to Executive
by a written notice of termina- tion and, if curable, the action to be
taken by Executive to cure the event or events giving rise to such
termination by the Company and the Executive shall have a reasonable
period of time to cure such event or events, which, except in unusual
circumstances, shall be not more than 10 days. Such notice of
termination shall be effective on the date on which such notice shall
be deemed given in accordance with Section 10 hereof.
6. Consulting Period. Upon Executive's termination of employment
with the Company, other than as a result of death, Disability
or Cause, if Executive (i) shall then have attained 60 years of age or
older and (ii) shall not then have accepted employment with another
employer, then Executive shall immediately commence service as a
consultant to the Company and shall thereafter continue as such a
consultant until the earliest to occur of (A) the date upon which she
shall have attained 65 years of age,
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or (B) the date upon which Executive becomes employed by another
employer or (C) at Executive's election, such date as she determines
to terminate her consulting arrangement with the Company (the
"Consulting Period"). If at the time of Executive's termination of
employment Executive has not satisfied the conditions set forth in
clauses (i) and (ii) of the preceding sentence hereof, she shall not
be entitled to serve as a consultant to the Company. Dur-ing the
Consulting Period, Executive shall be paid an annual retainer of
$10,000, payable in equal monthly installments and subject to such
payroll deductions as are required by law or otherwise agreed to by
Executive and the Company. During the Consulting Period, Executive
shall provide consulting services to the Company on such terms as are
mutually convenient to Executive and the Company.
7. Trade Secrets. Executive acknowledges that from time to time
she will have knowledge of business matters and affairs of the
Company and its affiliates (collectively, the "Grey Group") not
available to others, and that the work to be performed by her shall
place her in a position of trust with respect to the clients and
business operations of the Grey Group. Executive acknowledges that
such information is a valuable trade secret and is the sole property
of the Grey Group. Accordingly, Executive, other than in the course of
performing her duties hereunder, shall not during the term of this
Agreement, or at any time thereafter (unless the same shall have
otherwise become public knowledge), reveal, divulge or otherwise make
known any of said information to any person other than an officer or
employee of the Company or such other person as the Board may
designate.
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8. Non-Competition. So long as Executive is employed by the
Company hereunder and for a perod of two years following Executive's
termination of employment for any reason, Executive shall not:
(a) persuade or attempt to persuade either
directly or indirectly) any client of the Grey Group to
discontinue using any marketing, advertising, pubic
relations or other services rendered by any member of the
Grey Group to any such client;
(b) except in the performance of her normal and
proper job function for the Company, persuade or
attempt to persuade (either directly or indirectly) any
employee of any member of the Grey Group to terminate his or
her employment with such member of the Grey Group;
(c) without the prior written consent of the
Company (which consent shall not be unreasonably
withheld) render (either directly or indirectly), other than
on behalf of the Company or any member of the Grey Group,
any services (of the nature performed or reasonably capable
of being performed by a member of the Grey Group) to or for
any client of a member of the Grey Group or any person, firm
or corporation which had been a client of any member of the
Grey Group at any time during the one-year period prior to
the termination of her employment hereunder;
(d) solicit (either directly or indirectly),
other than on behalf of the Company or any member of
the Grey Group, any business (of the nature carried on or
reasonably capable of being carried on by a member of the
Grey Group) from any client of any member of the Grey Group,
or any person firm or corporation which had been a client of
any such member at any time during the one-year period prior
to the termination of her employment; or
(e) whether as officer, director, employee or
consultant, be engaged in or
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have any financial interest (other than an interest of less
than 1% of the stock of a publicly traded company) in or
affiliation with or render any services to or for any
advertising agency or public relations agency, or any other
person firm or organization which is in competition with any
member of the Grey Group;
provided, however, that the provisions of Subsection (c) shall be
applicable for six months following Executive's termination and of the
provisions of Subsection (e) of this Section 8 shall not be applicable
to Executive if her employment is terminated by the Company without
Cause prior to expiration of the Term or pursuant to the Company
issuing the notice contemplated in the last sentence of Section 2
hereof.
9. Client Conflict Policy. Executive shall respect and abide by
the Grey Group's client conflict policy as it may be in effect
from time to time.
10. Notice. Any notice, advice or accounting to any party to this
Agreement shall be sufficient if in writing and sent by
certified mail, return receipt requested, to such party's respective
address hereinabove provided or to such other address as may be
designated in writing by such party from time to time. A copy of any
notice given to Executive shall also be given to any legal counsel
designated by Executive in writing to receive such a copy. Notice
given in the manner herein provided shall be deemed to be given when
personally delivered or, if mailed, three days after such mailing.
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11. Waiver. No provisions of this Agreement shall be waived,
altered or amended, except in a writing signed by the parties
hereto. Any such waiver shall be limited to the particular instance
and the particular time when and for which it is given.
12. Specific Performance. If Executive should fail to comply with
the terms of Sections 7 or 8 hereof, the Company may enforce
any right it may have by law for damages, and, in addition, shall be
entitled, as a matter of right, to equitable or other injunctive
relief against Executive to prevent her failing to comply with the
provisions of Sections 7 or 8 hereof. Any rights under this Section 12
may be enforced in the appropriate court in the Borough of Manhattan,
City and State of New York.
13. Entire Agreement. This Agreement constitutes the entire
agreement between the Company and Executive with respect to the
subject matter hereof, supersedes any prior agreement(s) between the
parties with respect to the same subject matter, and may be amended,
modified or changed only by an agreement in writing signed by the
parties hereto.
14. Severability. The provisions of this Agreement are severable
and the invalidity of any one provision shall in no event
affect the validity of any other paragraph, clause or provision
whatsoever.
15. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of
New York.
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16. Assignment. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors, assigns, heirs and personal representatives; provided,
however, that the services to be rendered by Executive hereunder are
to be performed personally by Executive.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
___________________________
BARBARA S. FEIGIN
GREY ADVERTISING INC.
(SEAL) By_________________________
Edward H. Meyer
Chairman and
Chief Executive Officer
Attest:
By_______________________
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