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Exhibit 10.4
EMPLOYMENT AGREEMENT
This Employment Agreement dated as of June 2, 2001 by and
between Cendant Corporation, a Delaware corporation ("Cendant") and Richard A.
Smith (the "Executive").
WHEREAS, the prior employment agreement by and between Cendant
and the Executive has expired in accordance with its terms and is of no further
force or effect;
WHEREAS, Cendant desires to continue to employ the Executive
as Chairman and Chief Executive Officer, Cendant Real Estate Division, and the
Executive desires to continue to serve Cendant in such capacity.
NOW THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
SECTION I
EMPLOYMENT
Cendant agrees to employ the Executive and the Executive agrees to be
employed by Cendant for the Period of Employment as provided in Section III
below and upon the terms and conditions provided in this Agreement.
SECTION II
POSITION AND RESPONSIBILITIES
During the Period of Employment, the Executive will serve as
Chairman and Chief Executive Officer, Cendant Real Estate Division, and subject
to the direction of the Chief Executive Officer of Cendant (the "CEO"), will
perform such duties and exercise such supervision with regard to the business of
Cendant as are associated with such position, as well as such additional duties
as may be prescribed from time to time by the Board of Directors of Cendant (the
"Board") and/or the CEO. Cendant acknowledges that such position is equivalent
to the position of Vice Chairman of Cendant Corporation for purposes of
compensation, employee benefits, officer perquisites and officer
indemnification. The Executive will, during the Period of Employment, devote
substantially all of his time and attention during normal business hours to the
performance of services for Cendant. The Executive will maintain a primary
office and conduct his business in Parsip-
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pany, New Jersey (the "Business Office"), except for normal and reasonable
business travel in connection with his duties hereunder.
SECTION III
PERIOD OF EMPLOYMENT
The period of the Executive's employment under this Agreement
(the "Period of Employment") will begin on the June 2, 2001 and end on June 30,
2004, subject to extension or termination as provided in this Agreement.
SECTION IV
COMPENSATION AND BENEFITS
A. COMPENSATION.
For all services rendered by the Executive pursuant to this Agreement
during the Period of Employment, including services as an executive, officer,
director or committee member of Cendant or any subsidiary or affiliate of
Cendant, the Executive will be compensated as follows:
i. BASE SALARY.
Cendant will pay the Executive a fixed base salary ("Base
Salary") of not less than $750,000, per annum, and thereafter will be eligible
to receive annual increases as the Board deems appropriate, in accordance with
Cendant's customary procedures regarding the salaries of senior officers, but
with due consideration given to the published Consumer Price Index applicable to
the New York/New Jersey greater metropolitan area. Base Salary will be payable
according to the customary payroll practices of Cendant, but in no event less
frequently than once each month.
ii. ANNUAL INCENTIVE AWARDS
The Executive will be eligible for discretionary annual
incentive compensation awards; PROVIDED, that the Executive will be eligible to
receive an annual bonus for each fiscal year of Cendant during the Period of
Employment based upon a target bonus equal to 100% of Base Salary, subject to
Cendant's attainment of applicable performance targets established and certified
by the Compensation Committee of the Board (the "Committee"). The parties
acknowledge that it is currently contemplated that such performance targets will
be stated in terms of "earnings before interest and taxes" of Cendant, however
such targets may relate to such other financial and business criteria of Cendant
or any of its subsidiaries or business units
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as determined by the Committee in its sole discretion (each such annual bonus,
an "Incentive Compensation Award").
iii. LONG-TERM INCENTIVE AWARDS
The Executive will be eligible for annual stock option awards,
subject to the sole discretion of the Committee.
iv. ADDITIONAL BENEFITS
The Executive will be entitled to participate in all other
compensation and employee benefit plans or programs and receive all benefits and
perquisites for which salaried employees of Cendant generally are eligible under
any plan or program now in effect, or later established by Cendant, on the same
basis as similarly situated senior executives of Cendant with comparable duties
and responsibilities. The Executive will participate to the extent permissible
under the terms and provisions of such plans or programs, and in accordance with
the terms of such plans and program.
v. FURTHER CONSIDERATION
As further consideration for the Executive's execution of this
Agreement, and as an additional incentive to align his interests with those of
Cendant's shareholders, Cendant shall promptly recommend to the Committee that
each of the Executive's outstanding options to purchase Cendant common stock
with an exercise price equal to $22.10 (270,000 shares granted on January 13,
2000) become fully and immediately vested and exercisable, to the extent not
already vested.
Cendant acknowledges and agrees that in connection with its
prior commitments to the Executive, the Executive has become entitled to the
following benefits, subject to the following conditions. Upon the Executive's
termination of employment from Cendant and its subsidiaries and affiliates, the
Executive and each person who is his covered dependent at such time under each
applicable health, medical, life and disability plan sponsored by Cendant, shall
remain eligible to continue to participate in such plans, subject to the
Executive and such dependents continuing to pay the applicable employee portion
of any premiums, co-payments, deductibles and similar costs, until the end of
the plan year in which the Executive reaches, or would have reached, age
sixty-two (62), or until such dependents would have become ineligible for such
benefits under the terms of such plans, whichever is earlier. Such benefits
shall be provided in the event of the Executive's termination of employment for
any reason.
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SECTION V
BUSINESS EXPENSES
Cendant will reimburse the Executive for all reasonable travel
and other expenses incurred by the Executive in connection with the performance
of his duties and obligations under this Agreement. The Executive will comply
with such limitations and reporting requirements with respect to expenses as may
be established by Cendant from time to time and will promptly provide all
appropriate and requested documentation in connection with such expenses.
SECTION VI
DISABILITY
A. If the Executive becomes Disabled, as defined below, during the
Period of Employment, the Period of Employment may be terminated at the option
of the Executive upon notice of resignation to Cendant, or at the option of
Cendant upon notice of termination to the Executive. Cendant's obligation to
make payments to the Executive under this Agreement will cease as of such date
of termination, except for Base Salary and any Incentive Compensation Awards
earned but unpaid as of the date of such termination. In such event (i) each of
the Executive's then outstanding options to purchase shares of Cendant common
stock which was granted on or after September 3, 1998 will become immediately
and fully vested and exercisable and, notwithstanding any term or provision
relating to such option to the contrary, shall remain exercisable until the
first to occur of the fifth (5th) anniversary of the Executive's termination of
employment by reason of his becoming Disabled, and the original expiration date
of such option and (ii) the Executive and each of his dependents then covered
under applicable health, medical, life and disability insurance benefit plans of
Cendant at the time of the Executive's termination of employment shall remain
eligible to continue to participate in such plans (subject to the Executive or
such dependents continuing to pay the applicable employee portion of any
premiums, co-payments, deductibles and similar costs) until the end of the plan
year in which the Executive reaches, or would have reached, age seventy-five
(75), or until such dependents would otherwise have become ineligible for such
benefits under the terms of such plans, whichever is earlier. For purposes of
this Agreement, "Disabled" means the Executive's inability to perform his duties
hereunder as a result of serious physical or mental illness or injury for a
period of no less than 180 days, together with a determination by an independent
medical authority that (i) the Executive is currently unable to perform such
duties and (ii) in all reasonable likelihood such disability will continue for a
period in excess of an additional 90 days. Such medical authority shall be
mutually and reasonably agreed upon by Cendant and the Executive and such
opinion shall be binding on Cendant and the Executive.
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SECTION VII
DEATH
In the event of the death of the Executive during the Period
of Employment, the Period of Employment will end and Cendant's obligation to
make payments under this Agreement will cease as of the date of death, except
for Base Salary and any Incentive Compensation Awards earned but unpaid as of
the date of death, which will be paid to the Executive's surviving spouse,
estate or personal representative, as applicable. In addition, in such event (i)
each of the Executive's then outstanding options to purchase shares of Cendant
common stock which was granted on or after September 3, 1998 will become
immediately and fully vested and exercisable and, notwithstanding any term or
provision relating to such options to the contrary, shall remain exercisable (by
the Executive's beneficiary or estate, as provided in any applicable option plan
or agreement) until the first to occur of the fifth (5th) anniversary of the
Executive's death, and the original expiration date of such option and (ii) each
of the Executive's dependents then covered under applicable health, medical,
life and disability insurance benefit plans of Cendant at the time of the
Executive's death shall remain eligible to continue to participate in such plans
(subject to such dependents continuing to pay the applicable employee portion of
any premiums, co-payments, deductibles and similar costs) until the end of the
plan year in which the Executive would have reached age seventy-five (75), or
until such dependents would otherwise have become ineligible for such benefits
under the terms of such plans, whichever is earlier.
SECTION VIII
EFFECT OF TERMINATION OF EMPLOYMENT
A. WITHOUT CAUSE TERMINATION AND CONSTRUCTIVE DISCHARGE. If
the Executive's employment terminates during the Period of Employment due to
either (i) a Without Cause Termination or (ii) a Constructive Discharge (each
such capitalized term as defined below), (a) Cendant will pay the Executive (or
his surviving spouse, estate or personal representative, as applicable) a lump
sum amount equal to 300% of the sum of the Executive's then current Base Salary
plus then current target Incentive Compensation Award, (b) each of the
Executive's then outstanding options to purchase shares of Cendant common stock
which were granted on or after June 1, 2001 will become immediately and fully
vested and exercisable and, notwithstanding any term or provision relating to
such options to the contrary, shall remain exercisable until the first to occur
of the fifth (5th) anniversary of the Executive's termination of employment and
the original expiration date of such option and (c) the Executive and each of
his dependents then covered under applicable health, medical, life and
disability insurance benefit plans of Cendant at the time of
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the Executive's termination of employment shall remain eligible to continue to
participate in such plans (subject to the Executive or such dependents
continuing to pay the applicable employee portion of any premiums, co-payments,
deductibles and similar costs) until the end of the plan year in which the
Executive reaches, or would have reached, age seventy-five (75), or until such
dependents would otherwise have become ineligible for such benefits under the
terms of such plans, whichever is earlier; PROVIDED, HOWEVER, that once the
Executive or his dependents become eligible for Medicare or any other
government-sponsored medical insurance plan, the Executive or his dependents
shall utilize such government plan, and Cendant's insurance obligations
hereunder shall become secondary to such government plan, and; FURTHER,
PROVIDED, that Cendant's obligation to provide such benefits shall terminate in
the event the Executive shall accept employment with any entity which is in
competition with Cendant's Real Estate Division.
Further, with respect to any split-dollar insurance policies
relating to the life of the Executive, such policies shall be treated in
accordance with their existing terms, or, if more favorable to the Executive,
shall be treated in a manner no less favorable than the terms applicable to any
other senior officer of Cendant (other than the Chief Executive Officer)
relating to a severance event.
Further, if the Executive's employment terminates by reason of
(i) Without Cause Termination or Constructive Discharge during the Period of
Employment or (ii) a Resignation at any time during or after the expiration of
the Period of Employment, each of the Executive's then outstanding options to
purchase shares of Cendant common stock which were granted on or after September
3, 1998 and prior to December 31, 2000 will become immediately and fully vested
and exercisable, and notwithstanding any term or provision relating to such
options to the contrary, shall remain exercisable until the first to occur of
the fifth (5th) anniversary of the Executive's termination of employment and the
original expiration date of such option.
B. TERMINATION FOR CAUSE; RESIGNATION. If the Executive's
employment terminates due to a Termination for Cause or a Resignation, Base
Salary and any Incentive Compensation Awards earned but unpaid as of the date of
such termination will be paid to the Executive in a lump sum. Each outstanding
stock options held by the Executive as of the date of termination will be
treated in accordance with its terms (except as provided in the preceding
paragraph). In addition, in the event the Executive's employment terminates due
to a Resignation within six months following the expiration of the Period of
Employment, as extended from time to time, Cendant shall pay the Executive a
lump sum severance payment equal to the then current Base Salary. Except as
provided in this paragraph, Cendant will have no further obligations to the
Executive hereunder.
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C. For purposes of this Agreement, the following terms have
the following meanings:
i. "Termination for Cause" means (i) the Executive's willful failure to
substantially perform his duties as an employee of Cendant or any subsidiary
(other than any such failure resulting from incapacity due to physical or mental
illness), (ii) any act of fraud, misappropriation, dishonesty, embezzlement or
similar conduct against Cendant or any subsidiary, (iii) the Executive's
conviction of a felony or any crime involving moral turpitude (which conviction,
due to the passage of time or otherwise, is not subject to further appeal) or
(iv) the Executive's gross negligence in the performance of his duties.
ii. "Constructive Discharge" means (i) any material failure of Cendant
to fulfill its obligations under this Agreement (including without limitation
any reduction of the Base Salary, as the same may be increased during the Period
of Employment, or other element of compensation), (ii) the Business Office is
relocated to any location which is more than 30 miles from the city limits of
Parsippany, New Jersey or (iii) the Executive no longer reports directly to the
CEO. The Executive will provide Cendant a written notice which describes the
circumstances being relied on for the termination with respect to this Agreement
within thirty (30) days after the event giving rise to the notice. Cendant will
have thirty (30) days after receipt of such notice to remedy the situation prior
to the termination for Constructive Discharge.
iii. "Without Cause Termination" or "Terminated Without Cause" means
termination of the Executive's employment by Cendant other than due to death,
disability, or Termination for Cause.
iv. "Resignation" means a termination of the Executive's employment by
the Executive, other than in connection with a Constructive Discharge.
D. CONDITIONS TO PAYMENT AND ACCELERATION. All payments due to
the Executive under this Section VIII shall be made as soon as practicable;
PROVIDED, HOWEVER, that such payments, as well as the modification of the terms
of any Cendant options provided under this Section VIII, shall be subject to,
and contingent upon, the execution by the Executive (or his beneficiary or
estate) of a release of claims against Cendant and its affiliates in such
reasonable form determined by Cendant in its sole discretion. The payments due
to the Executive under this Section VIII shall be in lieu of any other severance
benefits otherwise payable to the Executive under any severance plan of Cendant
or its affiliates. To the extent any term
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or condition of any option to purchase Cendant common stock conflicts with any
term or condition of this Agreement applicable to such option, the term or
condition set forth in this Agreement shall govern.
SECTION IX
OTHER DUTIES OF THE EXECUTIVE
DURING AND AFTER THE PERIOD OF EMPLOYMENT
A. The Executive will, with reasonable notice during or after
the Period of Employment, furnish information as may be in his possession and
fully cooperate with Cendant and its affiliates as may be requested in
connection with any claims or legal action in which Cendant or any of its
affiliates is or may become a party. After the Period of Employment, the
Executive will cooperate as reasonably requested with Cendant and its affiliates
in connection with any claims or legal actions in which Cendant or any of its
affiliates is or may become a party. Cendant agrees to reimburse the Executive
for any reasonable out-of-pocket expenses incurred by Executive by reason of
such cooperation, including any loss of salary, and Cendant will make reasonable
efforts to minimize interruption of the Executive's life in connection with his
cooperation in such matters as provided for in this paragraph.
B. The Executive recognizes and acknowledges that all
information pertaining to this Agreement or to the affairs; business; results of
operations; accounting methods, practices and procedures; members; acquisition
candidates; financial condition; clients; customers or other relationships of
Cendant or any of its affiliates ("Information") is confidential and is a unique
and valuable asset of Cendant or any of its affiliates. Access to and knowledge
of certain of the Information is essential to the performance of the Executive's
duties under this Agreement. The Executive will not during the Period of
Employment or thereafter, except to the extent reasonably necessary in
performance of his duties under this Agreement, give to any person, firm,
association, corporation, or governmental agency any Information, except as may
be required by law. The Executive will not make use of the Information for his
own purposes or for the benefit of any person or organization other than Cendant
or any of its affiliates. The Executive will also use his best efforts to
prevent the disclosure of this Information by others. All records, memoranda,
etc. relating to the business of Cendant or its affiliates, whether made by the
Executive or otherwise coming into his possession, are confidential and will
remain the property of Cendant or its affiliates.
C. i. During the Period of Employment and for a two (2) year
period thereafter (the "Restricted Period"), irrespective of the cause, manner
or time of any termination, the Executive will not use his status with Cendant
or any of its affiliates to obtain loans, goods or services from another
organization on terms
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that would not be available to him in the absence of his relationship to Cendant
or any of its affiliates.
ii. During the Restricted Period, the Executive will not make any
statements or perform any acts intended to or which may have the effect of
advancing the interest of any existing or prospective competitors of Cendant or
any of its affiliates or in any way injuring the interests of Cendant or any of
its affiliates. During the Restricted Period, the Executive, without prior
express written approval by the Board, will not engage in, or directly or
indirectly (whether for compensation or otherwise) own or hold proprietary
interest in, manage, operate, or control, or join or participate in the
ownership, management, operation or control of, or furnish any capital to or be
connected in any manner with, any party which competes in any way or manner with
the business of Cendant or any of its affiliates, as such business or businesses
may be conducted from time to time, either as a general or limited partner,
proprietor, common or preferred shareholder, officer, director, agent, employee,
consultant, trustee, affiliate, or otherwise. The Executive acknowledges that
Cendant's and its affiliates' businesses are conducted nationally and
internationally and agrees that the provisions in the foregoing sentence will
operate throughout the United States and the world.
iii. During the Restricted Period, the Executive, without express prior
written approval from the Board, will not solicit any members or the
then-current clients of Cendant or any of its affiliates for any existing
business of Cendant or any of its affiliates or discuss with any employee of
Cendant or any of its affiliates information or operation of any business
intended to compete with Cendant or any of its affiliates.
iv. During the Restricted Period, the Executive will not interfere with
the employees or affairs of Cendant or any of its affiliates or solicit or
induce any person who is an employee of Cendant or any of its affiliates to
terminate any relationship such person may have with Cendant or any of its
affiliates, nor will the Executive during such period directly or indirectly
engage, employ or compensate, or cause or permit any person with which the
Executive may be affiliated, to engage, employ or compensate, any employee of
Cendant or any of its affiliates. The Executive hereby represents and warrants
that the Executive has not entered into any agreement, understanding or
arrangement with any employee of Cendant or any of its affiliates pertaining to
any business in which the Executive has participated or plans to participate, or
to the employment, engagement or compensation of any such employee.
v. For the purposes of this Agreement, proprietary interest means legal
or equitable ownership, whether through stock holding or otherwise, of an equity
interest in a business, firm or entity or ownership of more than 5% of any class
of eq-
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uity interest in a publicly-held company and the term "affiliate" will include
without limitation all subsidiaries and licensees of Cendant.
D. The Executive hereby acknowledges that damages at law may
be an insufficient remedy to Cendant if the Executive violates the terms of this
Agreement and that Cendant will be entitled, upon making the requisite showing,
to preliminary and/or permanent injunctive relief in any court of competent
jurisdiction to restrain the breach of or otherwise to specifically enforce any
of the covenants contained in this Section IX without the necessity of showing
any actual damage or that monetary damages would not provide an adequate remedy.
Such right to an injunction will be in addition to, and not in limitation of,
any other rights or remedies Cendant may have. Without limiting the generality
of the foregoing, neither party will oppose any motion the other party may make
for any expedited discovery or hearing in connection with any alleged breach of
this Section IX.
E. The period of time during which the provisions of this
Section IX will be in effect will be extended by the length of time during which
the Executive is in breach of the terms hereof as determined by any court of
competent jurisdiction on Cendant's application for injunctive relief.
F. The Executive agrees that the restrictions contained in
this Section IX are an essential element of the compensation the Executive is
granted hereunder and but for the Executive's agreement to comply with such
restrictions, Cendant would not have entered into this Agreement.
SECTION X
INDEMNIFICATION
Cendant will indemnify the Executive to the fullest extent
permitted by the laws of the state of Cendant's incorporation in effect at that
time, or the certificate of incorporation and by-laws of Cendant, whichever
affords the greater protection to the Executive.
SECTION XI
CERTAIN TAXES
Anything in this Agreement or in any other plan, program or
agreement to the contrary notwithstanding and except as set forth below, in the
event that (i) the Executive becomes entitled to any benefits or payments under
Paragraph A of Section VIII hereof and (ii) it shall be determined that any
payment or distribution by Cendant to or for the benefit of the Executive
(whether paid or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise, but determined
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without regard to any additional payments required under this Section XI) (a
"Payment") would be subject to the excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended, or 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, 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 Payments. Notwithstanding the foregoing
provisions of this Section XI, if it shall be determined that the Executive is
entitled to a Gross-Up Payment, but that the Payments do not exceed 110% of the
greatest amount (the "Reduced Amount") that could be paid to the Executive such
that the receipt of Payments would not give rise to any Excise Tax, then no
Gross-Up Payment shall be made to the Executive and the Payments, in the
aggregate, shall be reduced to the Reduced Amount. All determinations required
to be made under this Section XI, 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 Deloitte & Touche
LLP or such other certified public accounting firm as may be designated by
Cendant.
SECTION XII
MITIGATION
The Executive will not be required to mitigate the amount of
any payment provided for hereunder by seeking other employment or otherwise, nor
will the amount of any such payment be reduced by any compensation earned by the
Executive as the result of employment by another employer after the date the
Executive's employment hereunder terminates.
SECTION XIII
WITHHOLDING TAXES
The Executive acknowledges and agrees that Cendant may
directly or indirectly withhold from any payments under this Agreement all
federal, state, city or other taxes that will be required pursuant to any law or
governmental regulation.
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SECTION XIV
EFFECT OF PRIOR AGREEMENTS
This Agreement will supersede any prior employment agreement
between Cendant and the Executive hereof (including, without limitation, that
certain letter agreement between Cendant and the Executive dated as of the
September 3, 1998), and any such prior employment agreement will be deemed
terminated without any remaining obligations of either party thereunder.
SECTION XV
CONSOLIDATION, MERGER OR SALE OF ASSETS
Nothing in this Agreement will preclude Cendant from
consolidating or merging into or with, or transferring all or substantially all
of its assets to, another corporation which assumes this Agreement and all
obligations and undertakings of Cendant hereunder. Upon such a consolidation,
merger or sale of assets the term "Cendant" will mean the other corporation and
this Agreement will continue in full force and effect.
SECTION XVI
MODIFICATION
This Agreement may not be modified or amended except in
writing signed by the parties. No term or condition of this Agreement will be
deemed to have been waived except in writing by the party charged with waiver. A
waiver will operate only as to the specific term or condition waived and will
not constitute a waiver for the future or act on anything other than that which
is specifically waived.
SECTION XVII
GOVERNING LAW
This Agreement has been executed and delivered in the State of
New Jersey and its validity, interpretation, performance and enforcement will be
governed by the internal laws of that state.
SECTION XVIII
ARBITRATION
A. Any controversy, dispute or claim arising out of or
relating to this Agreement or the breach hereof which cannot be settled by
mutual agreement (other than with respect to the matters covered by Section IX
for which Cendant
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may, but will not be required to, seek injunctive relief) will be finally
settled by binding arbitration in accordance with the Federal Arbitration Act
(or if not applicable, the applicable state arbitration law) as follows: Any
party who is aggrieved will deliver a notice to the other party setting forth
the specific points in dispute. Any points remaining in dispute twenty (20) days
after the giving of such notice may be submitted to arbitration in New York, New
York, to the American Arbitration Association, before a single arbitrator
appointed in accordance with the arbitration rules of the American Arbitration
Association, modified only as herein expressly provided. After the aforesaid
twenty (20) days, either party, upon ten (10) days notice to the other, may so
submit the points in dispute to arbitration. The arbitrator may enter a default
decision against any party who fails to participate in the arbitration
proceedings.
B. The decision of the arbitrator on the points in dispute
will be final, unappealable and binding, and judgment on the award may be
entered in any court having jurisdiction thereof.
C. Except as otherwise provided in this Agreement, the
arbitrator will be authorized to apportion its fees and expenses and the
reasonable attorneys' fees and expenses of any such party as the arbitrator
deems appropriate. In the absence of any such apportionment, the fees and
expenses of the arbitrator will be borne equally by each party, and each party
will bear the fees and expenses of its own attorney.
D. The parties agree that this Section XVIII has been included
to rapidly and inexpensively resolve any disputes between them with respect to
this Agreement, and that this Section XVIII will be grounds for dismissal of any
court action commenced by either party with respect to this Agreement, other
than post-arbitration actions seeking to enforce an arbitration award. In the
event that any court determines that this arbitration procedure is not binding,
or otherwise allows any litigation regarding a dispute, claim, or controversy
covered by this Agreement to proceed, the parties hereto hereby waive any and
all right to a trial by jury in or with respect to such litigation.
E. The parties will keep confidential, and will not disclose
to any person, except as may be required by law, the existence of any
controversy hereunder, the referral of any such controversy to arbitration or
the status or resolution thereof.
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SECTION XIX
SURVIVAL
Sections IX, X, XI, XII, XIII and XVIII will continue in full
force in accordance with their respective terms notwithstanding any termination
of the Period of Employment.
SECTION XX
SEPARABILITY
All provisions of this Agreement are intended to be severable.
In the event any provision or restriction contained herein is held to be invalid
or unenforceable in any respect, in whole or in part, such finding will in no
way affect the validity or enforceability of any other provision of this
Agreement. The parties hereto further agree that any such invalid or
unenforceable provision will be deemed modified so that it will be enforced to
the greatest extent permissible under law, and to the extent that any court of
competent jurisdiction determines any restriction herein to be unreasonable in
any respect, such court may limit this Agreement to render it reasonable in the
light of the circumstances in which it was entered into and specifically enforce
this Agreement as limited.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.
CENDANT CORPORATION
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By: Thomas D. Christopoul
Title: Senior Executive Vice
President and Chief
Administrative Officer
RICHARD A. SMITH
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