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EXHIBIT 10.13
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of August 1, 1998, is by and between Zale
Corporation, a Delaware corporation ("Company"), and Beryl B. Raff
("Executive").
WHEREAS, Executive and Company desire to enter into an employment
agreement which sets forth the terms and conditions for Executive's continued
employment with the Company;
NOW, THEREFORE, in consideration of the foregoing recital and of the
mutual covenants set forth herein, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. Employment. Executive agrees to enter into the continued employment
of the Company, and the Company agrees to employ Executive, on the terms and
conditions set forth in this Agreement. Executive agrees during the Term (as
hereinafter defined) to devote substantially all of her business time, efforts,
skills and abilities to the performance of her duties as stated in this
Agreement and to the furtherance of the Company's business. Executive's job
title will be President and Chief Operating Officer and her duties will be those
as are designated by the Chief Executive Officer ("CEO") and/or Board of
Directors of the Company ("Board"), consistent with this position. Executive
further agrees to serve, without additional compensation, as an officer or
director, or both, of any subsidiary, division or affiliate of the Company or
any other entity in which the Company holds an equity interest, provided,
however, that (a) the Company shall indemnify Executive from liabilities in
connection with serving in any such position to the same extent as her
indemnification rights pursuant to the Company's Certificate of Incorporation,
Bylaws and applicable Delaware law, and (b) such other position shall not
materially detract from the responsibilities of Executive pursuant to this
Section 1 or her ability to perform such responsibilities.
2. Compensation.
(a) Base Salary. During the Term of Executive's employment
with the Company pursuant to this Agreement, the Company shall pay to Executive
as compensation for her services an annual base salary of not less than
$400,000.00 payable semi-monthly ("Base Salary"). Executive's Base Salary will
be payable in arrears in accordance with the Company's normal payroll procedures
and will be reviewed annually and subject to upward adjustment at the discretion
of the CEO and/or the Board or an authorized Committee or representative
thereof.
(b) Incentive Bonus. Executive's incentive compensation
program for the term of this Agreement shall be determined under the Company's
Executive Bonus Program, established by the Board in its discretion. Executive
is eligible to receive up to 75% of her Base Salary in accordance with the terms
and conditions of the Executive Bonus Program.
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(c) Vacation. Executive shall be entitled to a reasonable
vacation of not less than three (3) paid weeks each year of the term of this
Agreement.
(d) Executive Perquisites. Executive shall be entitled to
receive such executive perquisites and fringe and other benefits as are provided
to the senior most executives and their families under any of the Company's
plans and/or programs in effect from time to time and such other benefits as are
customarily available to executives of the Company and their families.
(e) Tax Withholding. The Company has the right to deduct from
any compensation payable to Executive under this Agreement social security
(FICA) taxes and all federal, state, municipal or other such taxes or charges as
may now be in effect or that may hereafter be enacted or required.
3. Term. Unless sooner terminated pursuant to Section 4 of this
Agreement, and subject to the provisions of Section 5 hereof, the term of this
Agreement shall commence as of the date hereof and shall continue for an initial
period of three (3) years (the "Initial Term"). At the end of the Initial Term
and each subsequent "Renewal Term" (as hereinafter defined), the term of this
Agreement shall be automatically renewed and extended for a period of three (3)
years ("Renewal Term"), unless either party hereto delivers a written
termination notice to the other party at least ninety (90) days prior to the end
of the Initial Term or the then current Renewal Term (as the case may be).
4. Termination. Notwithstanding the provisions of Section 3 hereof, but
subject to the provisions of Section 5 hereof, this Agreement (and Executive's
employment hereunder) shall terminate as follows:
(a) Death. This Agreement shall terminate upon the death of
Executive; provided, however, that the Company shall continue to pay (in
accordance with its normal payroll procedures) the Base Salary to Executive's
estate for a period of twelve (12) months after the date of Executive's death.
(b) Termination for Cause. The Company may terminate this
Agreement at any time for "Cause" (as hereinafter defined) by delivering a
written termination notice to Executive. For purposes of this Agreement, "Cause"
shall mean any of: (i) Executive's conviction of a felony or a crime involving
moral turpitude; (ii) Executive commits an act constituting fraud, deceit or
material misrepresentation with respect to the company; (iii) Executive
embezzles funds or assets from the Company; (iv) Executive becomes addicted to
any alcoholic, controlled or illegal substance or drug; or (v) Executive commits
any act or omission which would give the Company the right to terminate
Executive's employment under applicable law; or (vi) Executive fails to correct
or cure any material breach of or default under this Agreement within ten (10)
days after receiving written notice of such breach or default from the Company.
(c) Termination Without Cause. The Company may terminate this
Agreement
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at any time by delivering a written termination notice to Executive.
(d) Termination by Executive. Executive may terminate this
Agreement at any time by delivering a written termination notice to the Company;
provided, however, that Executive shall receive the benefits specified in
Section 5 hereof if such termination is made for any of the following reasons:
(i) a reduction by the Company in the Executive's base salary
or the Company's failure to increase (within 12 months of Executive's
last increase in base salary) the Executive's base salary, unless such
failure is the result of (A) a hiring or salary freeze uniformly
applied to all employees or (B) Executive's failure to meet
preestablished and objective performance criteria;
(ii) Company's principal executive offices shall be moved to a
location outside Dallas County, Texas or Executive is required to be
based anywhere other than the Company's principal executive offices;
(iii) the assignment to the Executive by the Company of duties
inconsistent with, or the reduction of the powers and functions
associated with, Executive's position, duties, responsibilities and
status with the Company or an adverse change in Executive's titles or
offices, unless such action is the result of Executive's failure to
meet preestablished and objective performance criteria or termination
of employment for Disability or Cause; and
(iv) any material breach by the Company of any provision of
this Agreement.
(e) Termination Following Disability. In the event, Executive
becomes mentally or physically impaired or disabled and is unable to perform his
material duties and responsibilities hereunder for a period of at least ninety
(90) days in the aggregate during any one hundred twenty (120) consecutive day
period, the Company may terminate this Agreement by delivering a written
termination notice to Executive. Notwithstanding the foregoing, Executive shall
continue to receive his full salary and benefits under this Agreement for a
period of twelve (12) months after the effective date of such termination.
(f) Payments. Following any expiration or termination of this
Agreement, and in addition to any amounts owed pursuant to Section 5 hereof, the
Company shall pay to Executive all amounts earned by Executive hereunder prior
to the date of such expiration or termination.
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5. Certain Termination Benefits. Notwithstanding anything else
contained herein to the contrary, in the event (i) the Company elects not to
renew the term of this Agreement pursuant to Section 3 hereof, (ii) the Company
terminates this Agreement pursuant to Section 4(c), or (iii) Executive
terminates this Agreement pursuant to Section 4(d) for Good Reason, then
Executive shall be entitled to the following benefits:
(a) Severance. The Company shall continue to pay (in
accordance with its normal payroll procedures) the Base Salary to Executive (or
Executive's estate if Executive dies) for a thirty-six (36) month period (the
"Severance Period") after the effective date of such expiration or termination.
(b) Benefits. During the first twelve (12) months of the
Severance Period, the Executive shall continue to receive all fringe benefits
provided under Sections 2(b), 2(c) and 2(d) hereof.
(c) Offset. The payments which would have been due and payable
in accordance with Section 5(a) hereof shall be reduced by an amount equal to
any amounts that Executive receives in connection with any other employment
during the Severance Period. Any fringe benefits received by Executive in
connection with any other employment that are reasonably comparable, but not
necessarily as beneficial, to Executive as the fringe benefits then being
provided by the Company pursuant to Section 5(b) hereof, shall be deemed to be
the equivalent of, and shall terminate the Company's responsibility to continue
providing the fringe benefits then being provided by the Company pursuant to
Section 5(b) hereof. The Company acknowledges that, if Executive's employment
with the Company is terminated, Executive shall have no duty to mitigate
damages.
(d) General Release. Acceptance by Executive of any amounts
pursuant to this Section 5 shall constitute a full and complete release by
Executive of any and all claims Executive may have against the Company, its
officers, directors and affiliates, including, but not limited to, claims she
might have relating to Executive's cessation of employment with the Company;
provided, however, that there may properly be excluded from the scope of such
general release the following:
(i) claims that Executive may have against the
Company for reimbursement of ordinary and necessary business expenses
incurred by her during the course of her employment;
(ii) claims that may be made by the Executive for
payment of Base Salary, fringe benefits or stock options properly due
to her; or
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(iii) claims respecting matters for which the
Executive is entitled to be indemnified under the Company's Certificate
of Incorporation or Bylaws, respecting third party claims asserted or
third party litigation pending or threatened against the Executive.
A condition to Executive's receipt of any amounts pursuant to this Section 5
shall be Executive's execution and delivery of a general release as described
above. In exchange for such release, the Company shall, if Executive's
employment is terminated without Cause, provide a release to Executive, but only
with respect to claims against Executive which are actually known to the Company
as of the time of such termination.
6. Effect of Change of Control.
(a) If within two years following a "Change of Control" (as
hereinafter defined ), Executive terminates her employment with the Company for
Good Reason (as hereinafter defined) or the Company terminates Executive's
employment for any reason other than Cause or disability, the Company shall pay
to the Executive: (1) an amount equal to three times the Executive's Base Salary
as of the date of termination; (2) an amount equal to three times the average
annual cash bonus paid to Executive for the two fiscal years immediately
preceding the date of termination; (3) all benefits under the Company's various
benefit plans, including group healthcare, dental and life, for the period equal
to thirty-six (36) months from the date of termination; and (4) a lump sum
payment equal to the actuarial equivalent (determined by the Company in good
faith with assistance of its accountants or actuaries), of the benefit which
would have accrued under the Zale Delaware, Inc. Supplemental Executive
Retirement Plan ("SERP") if (i) Executive remained a participant in the SERP for
the three (3) year period commencing on the first day of the SERP's plan year
("Plan Year") in which the Executive's employment with the Company terminated
("Measurement Period"), (ii) during each Plan Year in the Measurement Period the
Executive earned benefit points equal to the highest number of the benefit
points earned by such Executive in a Plan Year during the three (3) year period
ending on the last day of the Plan Year immediately preceding the Plan Year in
which her employment with the Company terminated, and (iii) the Executive's
final average pay during the Measurement Period is the greater of her monthly
Base Salary on the date of (a) a Potential Change of Control, (b) the Change of
Control or (c) the date of her termination of employment.
(b) "Change of Control" shall mean the date as of which: (i)
there shall be consummated (1) any consolidation or merger of the Company in
which the Company is not the continuing or surviving corporation or pursuant to
which shares of the Company's common stock would be converted into cash,
securities or other property, other than a merger of the Company in which the
holders of the Company's common stock immediately prior to the merger have the
same proportionate ownership of common stock of the surviving corporation
immediately after the merger, or (2) any sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company; or (ii) the stockholders of the
Company approve any plan or proposal for the liquidation or dissolution of the
Company; or (iii) any person ( as such term is used in Sections 13(d) and
14(d)(2) of the
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Securities Exchange Act of 1934, as amended (the "Exchange Act")), shall become
the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act)
of 30% of the Company's outstanding common stock; or (iv) during any period of
two consecutive years, individuals who at the beginning of such period
constitute the entire board of directors of the Company shall cease for any
reason to constitute a majority thereof unless the election, or the nomination
for election by the Company's stockholders, of each new director was approved by
a vote of at least two-thirds of the directors then still in office who were
directors at the beginning of the period.
(c) "Good Reason" shall mean any of the following actions
taken by the Company without the Executive's written consent after a Change of
Control:
(i) the assignment to the Executive by the Company of
duties inconsistent with, or the reduction of the powers and functions
associated with, the Executive's position, duties, responsibilities and
status with the Company immediately prior to a Change of Control or
Potential Change of Control (as defined below), or an adverse change in
Executive's titles or offices as in effect immediately prior to a
Change of Control or Potential Change of Control, or any removal of the
Executive from or any failure to re-elect Executive to any of such
positions, except in connection with the termination of her employment
for Disability or Cause or as a result of Executive's death or by the
Executive other than for Good Reason;
(ii) A reduction by the Company in the Executive's
base salary as in effect on the date of a Change of Control or
Potential Change of Control, or as the same may be increased from time
to time during the term of her Agreement, or the Company's failure to
increase (within 12 months of Executive's last increase in base salary)
the Executive's base salary after a Change of Control or Potential
Change of Control, unless such failure is the result of (A) a hiring or
salary freeze uniformly applied to all employees or (B) Executive's
failure to meet preestablished and objective performance criteria;
(iii) Company's principal executive offices shall be
moved to a location outside Dallas County, Texas;
(iv) Company shall require the Executive to be based
anywhere other than at the Company's principal executive offices or the
location where the Executive is based on the date of a Change of
Control or Potential Change of Control, or if Executive agrees to such
relocation, the Company fails to reimburse the Executive for moving and
all other expenses incurred with such move;
(v) The Company shall fail to continue in effect any
Company- sponsored plan or benefit that is in effect on the date of a
Change of Control or Potential Change of Control, and provides (A)
incentive or bonus compensation, (B) fringe benefits such as vacation,
medical benefits, life insurance and accident insurance, (C)
reimbursement for reasonable expenses incurred by the Executive in
connection with the
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performance of duties with the Company, and (D) pension benefits such
as a Code Section 401(k) plan;
(vi) Any material breach by the Company of any
provision of this Agreement; and
(vii) Any failure by the Company to obtain the
assumption of this Agreement by any successor or assign of the Company
effected in accordance with the provisions of Section 6.
(d) "Potential Change of Control" shall mean the date as of
which (1) the Company enters into an agreement the consummation of which, or the
approval by shareholders of which, would constitute a Change of Control; (ii)
proxies for the election of Directors of the Company are solicited by anyone
other than the Company; (iii) any person (including, but not limited to, any
individual, partnership, joint venture, corporation, association or trust)
publicly announces an intention to take or to consider taking actions which, if
consummated, would constitute a Change of Control; or (iv) any other event
occurs which is deemed to be a Potential Change of Control by the Board and the
Board adopts a resolution to the effect that a Potential Change of Control has
occurred.
(e) In the event that (i) Executive would otherwise be
entitled to the compensation and benefits described in Section 6(a) hereof
("Compensation Payments"), and (ii) the Company determines, based upon the
advice of tax counsel selected by the Company's independent auditors and
acceptable to Executive, that, as a result of such Compensation Payments and any
other benefits or payments required to be taken into account under Code Section
280G(b)(2) ("Parachute Payments"), any of such Parachute Payments would be
reportable by the Company as "excess parachute payments", such Compensation
Payments shall be reduced to the extent necessary to cause Executive's Parachute
Payments to equal 2.99 times the "base amount" as defined in Code Section
280G(b)(3) with respect to such Executive. However, such reduction in the
Compensation Payments shall be made only if, in the opinion of such tax counsel,
it would result in a larger Parachute Payment to the Executive than payment of
the unreduced Parachute Payments after deduction of tax imposed on and payable
by the Executive under Section 4999 of the Code ("Excise Tax"). The value of any
non-cash benefits or any deferred payment or benefit for purposes of this
paragraph shall be determined by the Company's independent auditors.
(f) The parties hereto agree that the payments provided under
Section 6(a) above, as the case may be, are reasonable compensation in light of
Executive's services rendered to the Company and that neither party shall
contest the payment of such benefits as constituting an "excess parachute
payment" within the meaning of Section 280G(b)(1) of the Code.
(g) Unless the Company determines that any Parachute Payments
made hereunder must be reported as "excess parachute payments" in accordance
with Section 6(e)
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above, neither party shall file any return taking the position that the payment
of such benefits constitutes an "excess parachute payment" within the meaning of
Section 280G(b)(1) of the Code.
7. Non-Competition. Executive agrees that during the Term and for a
period of the lesser of the balance of the Term or eighteen (18) months from the
date of the termination of Executive's employment with the Company pursuant to
Sections 4(c)(d), 5 and 6 herein, she will not, directly or indirectly, compete
with the Company by providing to any company that is in a "Competing Business"
services substantially similar to the services currently being provided by
Executive. Competing Business shall be defined as any business that engages, in
whole or in part, in the wholesale or retail sale of jewelry in the United
States, and Executive's employment function or affiliation is directly or
indirectly in such business of jewelry. Executive shall not be obligated to
abide by the foregoing covenant if the Company defaults in the payment of any
severance compensation or benefits.
8. Nonsolicitation of Employees. For a period of two years after the
termination or cessation of her employment with the Company for any reason
whatsoever, Executive shall not, on her own behalf or on behalf of any other
person, partnership, association, corporation, or other entity, solicit or in
any manner attempt to influence or induce any employee of the Company or its
subsidiaries or affiliates (known by the Executive to be such) to leave the
employment of the Company or its subsidiaries or affiliates, nor shall she use
or disclose to any person, partnership, association, corporation or other entity
any information obtained while an employee of the Company concerning the names
and addresses of the Company's employees.
9. Nondisclosure of Trade Secrets. During the term of this Agreement,
Executive will have access to and become familiar with various trade secrets and
proprietary and confidential information of the Company, its subsidiaries and
affiliates, including, but not limited to, processes, computer programs,
compilations of information, records, sales procedures, customer requirements,
pricing techniques, customer lists, methods of doing business and other
confidential information (collectively, referred to as "Trade Secrets") which
are owned by the Company, its subsidiaries and/or affiliates and regularly used
in the operation of its business, and as to which the Company, its subsidiaries
and/or affiliates take precautions to prevent dissemination to persons other
than certain directors, officers and employees. Executive acknowledges and
agrees that the Trade Secrets (1) are secret and not known in the industry; (2)
give the Company or its subsidiaries or affiliates an advantage over competitors
who do not know or use the Trade Secrets; (3) are of such value and nature as to
make it reasonable and necessary to protect and preserve the confidentiality and
secrecy of the Trade Secrets; and (4) are valuable, special and unique assets of
the Company or its subsidiaries or affiliates, the disclosure of which could
cause substantial injury and loss of profits and goodwill to the Company or its
subsidiaries or affiliates. Executive may not use in any way or disclose any of
the Trade Secrets, directly or indirectly, either during the term of this
Agreement or at any time thereafter, except as required in the course of her
employment under this Agreement, if required in connection with a judicial or
administrative proceeding, or if the information becomes public knowledge other
than as a result
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of an unauthorized disclosure by the Executive. All files, records, documents,
information, data and similar items relating to the business of the Company,
whether prepared by Executive or otherwise coming into her possession, will
remain the exclusive property of the Company and may not be removed from the
premises of the Company under any circumstances without the prior written
consent of the Company (except in the ordinary course of business during
Executive's period of active employment under this Agreement), and in any event
must be promptly delivered to the Company upon termination of Executive's
employment with the Company. Executive agrees that upon her receipt of any
subpoena, process or other request to produce or divulge, directly or
indirectly, any Trade Secrets to any entity, agency, tribunal or person,
Executive shall timely notify and promptly hand deliver a copy of the subpoena,
process or other request to the Company. For this purpose, Executive irrevocably
nominates and appoints the Company (including any attorney retained by the
Company), as her true and lawful attorney-in-fact, to act in Executive's name,
place and stead to perform any act that Executive might perform to defend and
protect against any disclosure of any Trade Secrets.
10. Severability. The parties hereto intend all provisions of Sections
7, 8, and 9 hereof to be enforced to the fullest extent permitted by law.
Accordingly, should a court of competent jurisdiction determine that the scope
of any provision of Section 7, 8 or 9 hereof is too broad to be enforced as
written, the parties intend that the court reform the provision to such narrower
scope as it determines to be reasonable and enforceable. In addition, however,
Executive agrees that the non-competition, nonsolicitation and nondisclosure
agreements set forth above each constitute separate agreements independently
supported by good and adequate consideration shall be severable from the other
provisions of, and shall survive, this Agreement. The existence of any claim or
cause of action of Executive against the Company, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement by the
Company of the covenants of Executive contained in the nonsolicitation and
nondisclosure agreements. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable and this Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision never constituted a part of this Agreement; and the remaining
provisions of this Agreement shall remain in full force and effect and shall not
be affected by the illegal, invalid or unenforceable provision or by its
severance here from. Furthermore, in lieu of such illegal, invalid or
unenforceable provision, there shall be added as part of this Agreement, a
provision as similar in its terms to such illegal, invalid or enforceable
provision as may be possible and be legal, valid and enforceable.
11. Arbitration - Exclusive Remedy.
(a) The parties agree that the exclusive remedy or method of
resolving all disputes or questions arising out of or relating to this Agreement
shall be arbitration. Arbitration shall be held in Dallas, Texas by three
arbitrators, one to be appointed by the Company, a second to be appointed by
Executive, and a third to be appointed by those two arbitrators. The third
arbitrator shall act as chairman. Any arbitration may be initiated by either
party by written notice ("Arbitration Notice") to the other party specifying the
subject of the requested arbitration and
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appointing that party's arbitrator.
(b) If (i) the non-initiating party fails to appoint an
arbitrator by written notice to the initiating party within ten days after the
Arbitration Notice, or (ii) the two arbitrators appointed by the parties fail to
appoint a third arbitrator within ten days after the date of the appointment of
the second arbitrator, then the American Arbitration Association, upon
application of the initiating party, shall appoint an arbitrator to fill that
position.
(c) The arbitration proceeding shall be conducted in
accordance with the rules of the American Arbitration Association. A
determination or award made or approved by at least two of the arbitrators shall
be the valid and binding action of the arbitrators. The costs of arbitration
(exclusive of the expense of a party in obtaining and presenting evidence and
attending the arbitration and of the fees and expenses of legal counsel to a
party, all of which shall be borne by that party) shall be borne by the Company
only if Executive receives substantially the relief sought by her in the
arbitration, whether by settlement, award or judgment; otherwise, the costs
shall be borne equally between the parties. The arbitration determination or
award shall be final and conclusive on the parties, and judgment upon such award
may be entered and enforced in any court of competent jurisdiction.
12. Miscellaneous.
(a) Notices. Any notices, consents, demands, requests,
approvals and other communications to be given under this Agreement by either
party to the other must be in writing and must be either (i) personally
delivered, (ii) mailed by registered or certified mail, postage prepaid with
return receipt requested, (iii) delivered by overnight express delivery service
or same-day local courier service, or (iv) delivered by telex or facsimile
transmission, to the address set forth below, or to such other address as may be
designated by the parties from time to time in accordance with this Section
12(a):
If to the Company: Zale Corporation
901 W. Walnut Hill Lane
Irving, Texas 75038
Attention: Robert J. DiNicola,
Chairman and Chief Executive Officer
If to Executive: Beryl B. Raff
6422 Aberdeen Avenue
Dallas, Texas 75230
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Notices delivered personally or by overnight express delivery
service or by local courier service are deemed given as of actual receipt.
Mailed notices are deemed given three business days after mailing. Notices
delivered by telex or facsimile transmission are deemed given upon receipt by
the sender of the answer back (in the case of a telex) or transmission
confirmation (in the case of a facsimile transmission).
(b) Entire Agreement. This Agreement supersedes any and all
other agreements, either oral or written, between the parties with respect to
the subject matter of this Agreement and contains all of the covenants and
agreements between the parties with respect to the subject matter of this
Agreement.
(c) Modification. No change or modification of this Agreement
is valid or binding upon the parties, nor will any waiver of any term or
condition in the future be so binding, unless the change or modification or
waiver is in writing and signed by the parties to this Agreement.
(d) Governing Law and Venue. The parties acknowledge and agree
that this Agreement and the obligations and undertakings of the parties under
this Agreement will be performable in Irving, Dallas County, Texas. This
Agreement is governed by, and construed in accordance with, the laws of the
State of Delaware. If any action is brought to enforce or interpret this
Agreement, venue for the action will be in Dallas County, Texas.
(e) Counterparts. This Agreement may be executed in
counterparts, each of which constitutes an original, but all of which
constitutes one document.
(f) Costs. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, each party shall bear its own
costs and expenses.
(g) Estate. If Executive dies prior to the expiration of the
term of employment or during a period when monies are owing to her, any monies
that may be due her from the Company under this Agreement as of the date of her
death shall be paid to her estate and as when otherwise payable.
(h) Assignment. The Company shall have the right to assign
this Agreement to its successors or assigns. The terms "successors" and
"assigns" shall include any person, corporation, partnership or other entity
that buys all or substantially all of the Company's assets or all of its stock,
or with which the Company merges or consolidates. The rights, duties and
benefits to Executive hereunder are personal to her, and no such right or
benefit may be assigned by her.
(i) Binding Effect. This Agreement is binding upon the parties
hereto, together with their respective executors, administrators, successors,
personal representatives, heirs and permitted assigns.
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(j) Waiver of Breach. The waiver by the Company or Executive
of a breach of any provision of this Agreement by Executive or the Company may
not operate or be construed as a waiver of any subsequent breach.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
By:/s/ BERYL B. RAFF
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Beryl B. Raff
ZALE CORPORATION
By:/s/ ROBERT J. DINICOLA
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Its:Chairman & CEO
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