EXHIBIT 10.59
EMPLOYMENT AGREEMENT
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AGREEMENT, dated as of October 7, 2002 (the "Effective Date") between,
PANAMCO, L.L.C., a limited liability company organized under the laws of the
State of Delaware (together with its successors and assigns, the "Company")
and XXXXXXX XXXXXXX (the "Executive").
W I T N E S S E T H :
WHEREAS, the Executive has been employed by the Company since April 1,
2001 as Vice President Corporate Finance;
WHEREAS, the Company has promoted the Executive to the position of Vice
President, Chief Financial Officer and Treasurer of the Company;
WHEREAS, the Company desires to enter into an agreement embodying the new
terms of such employment;
WHEREAS, the Executive desires to accept employment with the Company,
subject to the terms and provisions of this Agreement;
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, the Parties agree as follows:
1. Definitions. Capitalized terms not otherwise defined herein shall have
the meanings set forth in Exhibit A.
2. Term. The term of the Executive's employment hereunder (the "Term")
shall be for a period commencing on October 7, 2002 (the "Commencement Date")
and ending October 6, 2005, provided, however, that the Term shall thereafter
be automatically and indefinitely extended for additional one-year periods
unless either the Company or the Executive gives the other written notice at
least six (6) months prior to the then-scheduled date of expiration of the
Term that such Party is electing not to so extend the Term. Notwithstanding
the foregoing, the Term may be earlier terminated in strict accordance with
the provisions of Section 11 below. Non-renewal shall not be considered a
termination for Cause.
3. Positions, Duties and Location.
(a) During the Term, the Executive shall serve as Vice President and
Chief Financial Officer of the Company and Panamerican Beverages, Inc.
("Panamco"). The Executive shall report solely and directly to the Chief
Executive Officer (the "CEO") of the Company. The Executive shall have all
authorities, duties and responsibilities customarily exercised by an
individual serving as Vice President and Chief Financial Officer in a
corporation of the size and nature of the Company and/or Panamco.
(b) During the Term, the Executive shall devote
substantially all of her business time and efforts to the affairs of the
Company and Panamco; provided that nothing herein shall preclude the Executive
from: (i) serving on the boards of a reasonable number of business entities,
trade associations and charitable organizations as reasonably permitted by the
Board (which permission has been given to the one board the Executive is
currently serving on), (ii) engaging in other charitable activities and
community affairs and (iii) managing her personal investments and affairs,
provided that such activities do not materially interfere with the proper
performance of her duties and responsibilities hereunder.
(c) During the Term, the Executive's principal office, and principal
place of employment, shall be in the Miami, Florida area or such other place
that the Executive consents to in writing.
4. Base Salary. Executive shall receive an annual base salary of $325,000
("Base Salary"), which shall be paid in accordance with the customary payroll
practices of Panamco, but in no event less frequently than monthly. During the
Term, the Executive's Base Salary shall be reviewed at least annually by the
Compensation Committee of the Board ("Compensation Committee") and may be
increased from time to time as shall be determined by the Compensation
Committee, provided however, that the next review of the Executive's Base
salary shall be made no later than April 1, 2003. Upon any such increase, the
term "Base Salary" as utilized in this Agreement shall thereafter refer to the
increased amount. Base Salary shall not be reduced at any time without the
express written consent of the Executive.
5. Bonus. For 2002, Executive will be eligible to receive an annual
performance-based bonus award ("Bonus"). For the period January 1 through
October 6, 2002, the target will be thirty five percent (35%) of Executive's
Base Salary in effect on October 6, 2002 (i.e.$296,600.00). For the period
from October 7 through December 31, 2002 the target will be fifty percent
(50%) of the new annual Base Salary mentioned in section 4 above ("Target
Bonus"). Beginning 2003 and for the Term of the Agreement, the Executive shall
be eligible to receive a Bonus with a Target Bonus of no less than fifty
percent (50%) of Executive's then current Base Salary pursuant to the terms
and conditions of Company's annual incentive plan. During the Term, the
Executive's Target Bonus shall be reviewed at least annually by the
Compensation Committee and may be increased from time to time as shall be
determined by the Compensation Committee. After any such increase, the term
"Target Bonus" as utilized in this Agreement shall thereafter refer to the
increased amount.
The Executive shall be paid her Bonus when other senior executives of the
Company are paid their annual bonuses, but in no event later than ninety (90)
days after the end of the bonus period for which it is payable.
6. Equity and Long-Term Incentive Awards. During the Term, the Executive
shall be eligible to participate in the Company's Equity Incentive Plan and
any other equity or long-term incentive plans of the Company on at least as
favorable basis as other similarly-situated executives. In any event, for
2002, the Executive shall be granted an annual stock option award, to be made
at the same time other equity awards are granted to other similarly-situated
executives, to purchase no less than 70,000 shares of the Company's common
stock.
7. Retirement and Savings Plans.
(a) Retirement and Savings Plans. The Executive shall be eligible to
participate in all pension (including any 401(k) plan), savings,
profit-sharing and deferred compensation plans presently and hereinafter
offered by the Company to its senior executives, subject to general
eligibility and participation provisions set forth in such plans or otherwise
provided herein.
8. Executive Benefits and Perquisites.
(a) Executive Benefits. During the Term, the Executive and her
eligible dependents shall be eligible to participate in all Executive benefit
programs applicable to senior executives generally, including as applicable
medical/dental and hospitalization plans, life insurance, short- and long-term
disability programs, accidental death and dismemberment protection and travel
accident insurance, in each case at a level, and on terms and conditions
consistent with her position.
(b) Automobile Allowance. The Executive shall receive an automobile
allowance of $900.00 per month minus applicable withholding taxes, which
amount shall be payable at the same time and in the same manner as the
Executive's Base Salary, as described in Section 4 hereof.
9. Reimbursement of Business Expenses and Relocation.
The Executive shall be promptly reimbursed for all reasonable business
expenses incurred by her, subject to documentation in accordance with the
Company's policy.
10. Termination of Employment.
(a) Termination Due to Death. In the event that the Executive's
employment hereunder is terminated due to his death, her estate or her
beneficiaries (as the case may be) shall be entitled to:
(i) Base Salary through the Termination Date;
(ii) a pro-rata Bonus for the year of death, based on the Target
Bonus for the year of death, payable when the bonus is paid
to other executives, but in no event later than 90 days
after the end of such year;
(iii) accelerated vesting of (A) any outstanding stock options,
each option (including already vested options) to remain
exercisable for 36 months following the Termination Date and
(B) any other equity awards (if any) not yet vested at the
Termination Date;
(iv) any amounts earned, accrued or owing to the Executive but
not yet paid; and
(v) other benefits, if any, in accordance with applicable plans,
programs and arrangements of the Company and its Affiliates.
(b) Termination Due to Disability. In the event that the Executive's
employment hereunder is terminated due to Disability, she shall be entitled
to:
(i) Base Salary through the Termination Date;
(ii) a pro-rata Bonus for the year of termination, based on the
Target Bonus for the year of termination, payable when the
bonus is paid to other executives, but in no event later
than 90 days after the end of such year;
(iii) accelerated vesting of (A) any outstanding stock options,
each option (including already vested options) to remain
exercisable for 36 months following the Termination Date and
(B) any other equity awards (if any) not yet vested at the
Termination Date;
(iv) continued participation for 12 months in all medical,
dental, hospitalization and life insurance coverages and in
all other employee welfare plans and programs in which she
and her eligible dependents were participating on the
Termination Date, provided, however, that in the event that
any of the benefit plans do not permit her continued
participation, Panamco shall provide her with the economic
equivalent on an after-tax basis;
(v) any amounts earned, accrued or owing to the Executive but
not yet paid; and
(vi) other benefits, if any, in accordance with applicable plans,
programs and arrangements of the Company, and its
Affiliates.
No termination of the Executive's employment hereunder for Disability shall be
effective unless the Party terminating his employment first gives 30 days'
written notice of such termination to the other Party.
(c) Termination by the Company for Cause, Voluntary Termination by the
Executive or Termination upon Non-Renewal of the Term.
(i) In the event the Executive is terminated by the Company for Cause,
the Executive voluntarily terminates her employment (other than upon death,
Disability or a Constructive Termination without Cause) or the Company
terminates the Executive's employment by providing a notice of non-renewal in
accordance with Section 2 above, the Executive shall be entitled to:
(a) Base Salary through the Termination Date;
(b) forfeiture of any unvested stock options, and any other
unvested equity awards (if any), if not vested by the
Termination Date;
(c) 90 days in which to exercise any vested options;
(d) any amount earned, accrued or owing to the Executive but not
yet paid; and
(e) other benefits, if any, in accordance with applicable plans,
programs and arrangements of the Company and its Affiliates.
(ii) No termination of the Executive's employment hereunder by the
Company for Cause shall be effective as a termination for Cause unless the
provisions of this Section 10(c)(ii) shall first have been complied with. The
Executive shall be given written notice by the Board, with such notice stating
in detail the particular circumstances that constitute the grounds on which
the proposed termination for Cause is based. The Executive shall have at least
fifteen (15) days after receipt of such notice to fully cure such alleged
violation. If she fails to cure such alleged violation within such fifteen
(15)-day period, the Executive shall then be entitled to a hearing before the
Board. If after such hearing, the Board gives written notice to the Executive
confirming that a majority of the members of the Board voted after the hearing
to terminate her for Cause, the Executive's employment shall thereupon be
terminated for Cause.
(d) Termination Without Cause or Constructive Termination without
Cause. In the event that (x) the Executive's employment hereunder is
terminated by the Company (other than upon death, upon Disability above or for
Cause or non-renewal in accordance with Section
10(b) above), or (y) a Constructive Termination Without Cause occurs, the
Executive shall be entitled to:
(i) Base Salary through the Termination Date;
(ii) a pro-rata Bonus for the year of termination, based on the
Target Bonus for the year of termination, payable when the
bonus is paid to other executives, but in no event later
than 90 days after the end of such year;
(iii) an amount equal to one and a half (1.5) times the
Executive's Base Salary, at the annualized rate in effect on
the Termination Date, payable in 18 equal monthly
installments commencing promptly (but not more than 15 days)
after the Termination Date;
(iv) an amount equal to one and a half (1.5) times the Bonus,
based on the Target Bonus for the year of termination,
payable in 18 equal monthly installments commencing promptly
(but not more than 15 days) after the Termination Date;
(v) accelerated vesting of (A) any outstanding stock options,
each option (including already vested options) to remain
exercisable for 12 months following the Termination Date and
(B) any other equity awards (if any) not yet vested at the
Termination Date;
(vi) continued participation in all medical, dental,
hospitalization and life insurance coverages and in all
other Executive welfare plans and programs in which she and
her eligible dependents were participating on the
Termination Date (not including any disability plan) until
the earlier of (x) the end of the 18-month period following
the Termination Date or (y) the date, or dates, that she
receives like coverages and benefits under the plans and
programs of a subsequent employer (determined on a benefit
by benefit basis), provided, however, that in the event
that any of the benefit plans do not permit her
continued participation, the Company shall provide her with
the economic equivalent on an after-tax basis;
(vii) any amounts earned, accrued or owing to the Executive but
not yet paid; and
(viii) other benefits, if any, in accordance with applicable
plans, programs and arrangements of the Company and its
Affiliates.
11. General Release Requirement. All payments or benefits to Executive
under Section 10 above (other than payments or benefits already accrued and
otherwise due under the Company's employee, executive or fringe benefit plans
or programs) will not be given unless
Executive executes (and does not rescind) a written employment termination
agreement incorporating a general release, in a form prescribed by the
Company, of all claims against the Company and related parties with respect to
all matters occurring to the date of the release, including (but not limited
to) employment matters or matters in connection with Executive's termination,
except for matters relating to benefits or payments already accrued and
otherwise due under the Company's employee, executive or fringe benefit plans
or programs.
12. Change in Control.
(a) Entitlements. Upon a Change in Control (as defined in the Equity
Incentive Plan), any outstanding stock options shall vest and shall remain
exercisable in accordance with the Equity Incentive Plan and other equity
awards (if any) shall fully vest. In the event of any termination of the
Executive's employment upon or following a Change in Control (as defined
herein), the Executive shall continue to have the entitlements provided for in
Section 10(d) above.
The Executive shall also be entitled to any compensation, benefit or
entitlement provided in accordance with any other agreement with the Company,
or any Company and/or Panamco plan, policy or arrangement, relating to a
Change in Control (as such term is defined in this Agreement or in such other
agreement, plan, policy or arrangement) of either the Company or Panamco (with
such other agreement, plan, policy or arrangement collectively referrred to as
the "Change in Control Policy"), provided that if any item of compensation or
benefit or any entitlement is provided under this Agreement which is more
favorable to the Executive than the corresponding item of compensation or
benefit or entitlement under the Change in Control Policy, or if an item of
compensation or benefit or any entitlement is provided under this Agreement,
but not under the Change in Control Policy, such item of compensation or
benefit or such entitlement, as the case may be, shall be provided in
accordance with the terms of this Agreement. In no event, however, shall the
Executive be entitled to duplication as to any item of compensation or benefit
or as to any entitlement that is provided under both this Agreement and the
Change in Control Policy. In the event of any inconsistency between any
provision of this Agreement and any provision of the Change in Control Policy,
the provision most favorable to the Executive shall govern.
(b) Parachute Payment Protection. In the event that any payment or
benefit made or provided to or for the benefit of the Executive in connection
with this Agreement or her employment with the Company or the termination
thereof (a "Payment") is determined to be subject to any excise tax ("Excise
Tax") imposed by Section 4999 of the Code (or any successor to such Section),
the Company shall pay to the Executive, prior to the time any Excise Tax is
due in respect of such Payment (through withholding or otherwise), an
additional amount which, after the imposition of all income, employment,
excise and other taxes thereon, is equal to the sum of (i) the Excise Tax on
such Payment plus (ii) any penalty and interest assessments associated with
such Excise Tax. The amount and timing of any payment shall promptly be
determined by an independent accounting firm selected by the Parties and paid
for by the Company.
13. Indemnification.
(a) If the Executive is made a party, or is threatened to be made a
party, to any Proceeding by reason of the fact that she is or was an officer,
Executive, agent, manager, consultant or representative of the Company or any
of their Affiliates or is or was serving at the request of the Company or any
of their Affiliates, or in connection with her service hereunder, as an
officer, member, Executive, agent, manager, consultant or representative of
another Person, or if any Claim is made, or is threatened to be made, that
arises out of or relates to the Executive's service in any of the foregoing
capacities, then the Executive shall promptly be indemnified and held harmless
(and shall be entitled to prompt advancement of expenses, including without
limitation attorneys' fees and other charges of counsel) in each case to the
fullest extent provided under the Company's charter documents and officers'
and directors' liability insurance policies and programs.
(b) During the Term and for a period of six years thereafter, a
directors' and officers' liability insurance policy (or policies) shall be
kept in place providing coverage to the Executive that is no less favorable to
her in any respect (including without limitation, with respect to scope,
exclusions, amounts, and deductibles) than (x) the coverage then being
provided to any other present or former senior executive or director of the
Company and (y) the coverage provided to her as of the Commencement Date.
14. Confidentiality. The Executive hereby agrees that, other than in the
ordinary course of performing her duties for the Company or any Affiliate, she
shall not divulge to any person or entity other than the Company or any
Affiliate, without the Company's express written authorization, any
information constituting trade secrets or proprietary information belonging to
the Company, or other confidential information, including operating budgets,
strategic plans, or research methods, projects or plans of the Company,
received by her in the course of her employment by the Company or in
connection with her duties with the Company ("Confidential Information").
Anything herein to the contrary notwithstanding, the provisions of this
Section 14 shall not apply (i) when disclosure is required by law or by any
court, arbitrator, mediator or administrative or legislative body (including
any committee thereof) with apparent jurisdiction to order the Executive to
disclose or make accessible any information, provided that, unless otherwise
prohibited by law and provided such information is not related to any illegal
activities of the Company, the Executive shall provide Company with immediate
notice of any such requested or required disclosure and shall fully cooperate
with the Company in any effort to prevent or otherwise contest such
disclosure, (ii) with respect to any other litigation, arbitration or
mediation involving this Agreement, including, but not limited to, the
enforcement of this Agreement or (iii) as to Confidential Information that
becomes generally known to the public or within the relevant trade or industry
other than due to the Executive's violation of this Section 14.
15. Non-Competition and Non-Solicitation.
Upon the termination of the Executive's employment, for a period of
eighteen (18) months following the Termination Date, the Executive shall not
provide services, as an Executive, officer, consultant or director of, to any
company or other entity primarily engaged in the carbonated soft drink, juice
or water business in the same geographic areas as the Company ("Competitor"),
provided that the Executive may provide such services to any division,
subsidiary or Affiliate of such a company or entity if the Executive does not
have direct responsibility for any carbonated soft drink, juice or water
business. Notwithstanding the foregoing, the Executive may serve as an
Executive, officer, consultant or director of any company or other entity that
provides investment, financial or consulting services to a Competitor,
provided that the Executive does not have direct responsibility for or direct
involvement in the provision of any such advice or services to such
Competitor.
(b) Upon the termination of the Executive's employment, for a period
of eighteen (18) months following the Termination Date, the Executive shall
not without the prior written consent of the Chairman of the Board, directly
or indirectly solicit for employment, either for herself or on behalf of any
company or other entity in which she is an officer, director, Executive or
consultant, any Executive of the Company or any Affiliate, provided that
nothing in this Section 15(b) shall prohibit the Executive from providing
employment or personal references for any such Executive.
(c) Executive acknowledges and confirms that (a) the restrictive
covenants contained in this Section 15 are reasonably necessary to protect the
legitimate business interests of the Company, and (b) the restrictions
contained in this Section 15 (including without limitation the length of the
term of the provisions of this Section 15) are not overbroad, overlong, or
unfair and are not the result of overreaching, duress or coercion of any kind.
Executive further acknowledges and confirms that her full, uninhibited and
faithful observance of each of the covenants contained in this Section 15 will
not cause her any undue hardship, financial or otherwise. Executive
acknowledges and confirms that her special knowledge of the business of the
Company is such as would cause the Company serious injury or loss if she were
to use such ability and knowledge to the benefit of a competitor or were to
compete with the Company in violation of the terms of this Section 15.
Executive further acknowledges that the restrictions contained in this Section
15 are intended to be, and shall be, for the benefit of and shall be
enforceable by, the Company's successors and assigns.
(d) In the event that a court of competent jurisdiction shall
determine that any provision of this Section 15 is invalid or more restrictive
than permitted under the governing law of such jurisdiction, then only as to
enforcement of this Section 15 within the jurisdiction of such court, such
provision shall be interpreted and enforced as if it provided for the maximum
restriction permitted under such governing law.
(e) If the Executive shall be in violation of any provision of this
Section 15, then each time limitation set forth in this Section 15 shall be
extended for a period of time equal to the period of time during which such
violation or violations occur. If the Company seeks injunctive relief from
such violation in any court, then the covenants set forth in this Section 15
shall be extended for a period of time equal to the pendency of such
proceeding including all appeals by the Executive.
16. Assignability; Binding Nature.
(a) This Agreement shall be binding upon and inure to the benefit of
the Parties and their respective successors, heirs (in the case of the
Executive) and assigns.
(b) No rights or obligations of the Company under this Agreement may
be assigned or transferred by the Company, except that such rights or
obligations may be assigned or transferred pursuant to a merger, consolidation
or other combination, reconstruction or amalgamation in which the Company is
not the continuing entity, or a sale or liquidation of all or substantially
all of the business and assets of the Company; provided that the assignee or
transferee is the successor to all or substantially all of the business and
assets of the Company and such assignee or transferee expressly assumes the
liabilities, obligations and duties of the Company as set forth in this
Agreement. In the event of any merger, consolidation, other combination,
reconstruction or amalgamation, or sale or liquidation of business and assets
as described in the preceding sentence, the Company shall, if deemed to be in
the best interest of the Company, use its best efforts to cause such assignee
or transferee to promptly and expressly assume the liabilities, obligations
and duties of the Company and Panamco hereunder.
(c) No rights or obligations of the Executive under this Agreement may
be assigned or transferred by the Executive other than her rights to
compensation and benefits, which may be transferred only by will or operation
of law, except as provided in Section 20(d) below.
17. Representations.
(a) The Company represents and warrants that, to the best of its
knowledge and belief, (i) it will be fully authorized by action of its Board
(and of any other Person or body whose action is required) to enter into this
Agreement and to perform its obligations under it; (ii) the execution,
delivery and performance of this Agreement by it does not violate any
applicable law, regulation, order, judgment or decree or any agreement, plan
or corporate governance document to which it is a party or by which it is
bound; and (iii) upon the execution and delivery of this Agreement by the
Parties, this Agreement shall be a valid and binding obligation of the
Company, enforceable against it in accordance with its terms, except to the
extent that enforceability may be limited by applicable bankruptcy, insolvency
or similar laws affecting the enforcement of creditors' rights generally.
(b) The Executive represents and warrants that, to the best of her
knowledge and belief, (i) delivery and performance of this Agreement by her
does not violate any applicable law, regulation, order, judgment or decree or
any agreement to which the Executive is a party or by which she is bound and
(ii) upon the execution and delivery of this Agreement by the Executive and
the Company, this Agreement shall be a valid and binding obligation of the
Executive, enforceable against her in accordance with its terms, except to the
extent that enforceability may be limited by applicable bankruptcy, insolvency
or similar laws affecting the enforcement of creditors' rights generally.
18. Resolution of Disputes. Any Claim arising out of or relating to this
Agreement, any other agreement between the Executive and the Company or any of
their Affiliates, or the Executive's employment with the Company or the
termination thereof (collectively, "Covered Claims") shall be resolved by
binding arbitration, to be held in the city in which the Company's principal
offices are then located, in accordance with the Commercial Arbitration Rules
(and not the National Rules for the Resolution of Employment Disputes) of the
American Arbitration Association and this Section 18. Judgment upon the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof. The Parties shall be responsible for their own costs and expenses,
including, without limitation, attorneys' fees. Pending the resolution of any
Covered Claim, the Executive (and her beneficiaries) shall, except to the
extent that the arbitrator(s) otherwise expressly provide, continue to receive
all payments and benefits due under this Agreement or otherwise. The foregoing
notwithstanding, in the event of any actual, threatened or suspected breach by
any Party, the non-breaching Party shall be entitled to obtain injunctive and
such other equitable relief with respect to such breach.
19. Notices. Any notice, consent, demand, request, or other communication
given to a Person in connection with this Agreement shall be in writing and
shall be deemed to have been given to such Person (a) when delivered
personally to such Person or (b), provided that a written acknowledgment of
receipt is obtained, three days after being sent by prepaid certified or
registered mail, or two days after being sent by a nationally recognized
overnight courier, to the address (if any) specified below for such Person (or
to such other address as such Person shall have specified by ten days' advance
notice given in accordance with this Section 19) or (c), in the case of the
Company only, on the first business day after it is sent by facsimile to the
facsimile number set forth below (or to such other facsimile number as the
Company shall have specified by ten days' advance notice given in accordance
with this Section 19), with a confirmatory copy sent by certified or
registered mail or by overnight courier in accordance with this Section 19.
If to the Company: General Counsel
c/o Panamco, LLC
000 Xxxxxxxxx Xxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
If to the Executive: The address of her principal residence as it
appears in the Company's records, with a copy
to her (during the Term) at her office in the
Miami, Florida area.
If to a beneficiary
of the Executive: The address most recently specified by the
Executive or beneficiary.
20. Miscellaneous.
(a) Entire Agreement. This Agreement contains the entire understanding
and agreement between the Parties concerning the subject matter hereof and
supersedes all prior agreements, understandings, term sheets, discussions,
negotiations and undertakings, whether written or oral, between them relating
to the subject matter of this Agreement. In the event of any inconsistency
between any provision of this Agreement and any provision of any plan,
Executive handbook, personnel manual, program, policy, arrangement or
agreement of the Company or any of their Affiliates, the provisions of this
Agreement shall control.
(b) Amendment or Waiver. No provision in this Agreement may be amended
unless such amendment is set forth in a writing and that is signed by the
Executive and by an authorized officer of the Company. No waiver by any Person
of any breach of any condition or provision contained in this Agreement shall
be deemed a waiver of any similar or dissimilar condition or provision at the
same or any prior or subsequent time.
(c) Headings. The headings of the Sections and sub-sections contained
in this Agreement are for convenience only and shall not be deemed to control
or affect the meaning or construction of any provision of this Agreement.
(d) Beneficiaries/References. The Executive shall be entitled, to the
extent permitted under applicable law, to select and change a beneficiary or
beneficiaries to receive any compensation or benefit hereunder following the
Executive's death by giving the Company written notice thereof. In the event
of the Executive's death or a judicial determination of her incompetence,
references in this Agreement to the Executive shall be deemed, where
appropriate, to refer to her beneficiary, estate or other legal
representative.
(e) Non-Exclusivity of Rights. Nothing in this Agreement shall prevent
or limit the Executive's continuing or future participation in, or
entitlements under, any benefit, bonus, incentive or other plan or program of
the Company, Panamco or any of their Affiliates for which Executive may
qualify, nor shall anything herein limit or reduce such rights as Executive
may have under any other agreement with the Company, Panamco or any of their
Affiliates.
(f) Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason,
the remaining provisions or portions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
(g) Survivorship. Except as otherwise set forth in this Agreement, to
the extent necessary to carry out the intentions of the Parties hereunder the
respective rights and obligations of the Parties hereunder shall survive any
termination of the Executive's employment.
(i) Withholding Taxes. The Company may withhold from any amounts or
benefits payable under this Agreement taxes that are required to be withheld
pursuant to any applicable law or regulation.
(j) Governing Law. This Agreement shall be governed, construed,
performed and enforced in accordance with its express terms, and otherwise in
accordance with the laws of the State of Florida, without reference to
principles of conflict of laws.
(k) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall be deemed to be one and the same instrument. Signatures
delivered by facsimile shall be valid and binding for all purposes.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
PANAMCO, L.L.C.
By:
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Xxxxx X. Xxxx
Chief Executive Officer
By:
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Xxxxxx Xxxxxxxx
Vice President, Human Resources
The Executive
By:
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Xxxxxxx Xxxxxxx
Exhibit A
DEFINITIONS
a. "Affiliate" of a Person shall mean any Person that directly or
indirectly controls, is controlled by, or is under common control with, such
Person.
b. "Agreement" shall mean this Employment Agreement, which includes
for all purposes its Exhibits.
c. "Board" shall mean the board of directors of the Company.
d. "Cause" shall mean:
(i) the Executive is convicted of any crime under United States
Federal, state or local law involving moral turpitude, fraud, embezzlement or
dishonesty; or
(ii) in carrying out her duties, the Executive engages in conduct
that constitutes willful gross neglect or willful gross misconduct resulting,
in either case, in material economic harm to the Company, unless she believed
in good faith that such action or non-action was in, or not opposed to, the
best interests of the Company.
e. "Change in Control" shall mean the occurrence of any of the
following events:
(i) any "person" (other than under any Executive benefit plan of the
Company and excluding any shareholders (including indirectly
through the Voting Trust) of the Company on the Commencement
Date), as such term is used in Sections 3(a)(9) and 13(d) of the
Securities Exchange Act of 1934, becomes a "beneficial owner," as
such term is used in Rule 13d-3 promulgated under such Act, of 50%
or more of the securities of the Company representing 50% or more
of the combined voting power of the Company's then outstanding
securities;
(ii) the majority of the Board of Directors consists of individuals
other than Incumbent Directors, which term means the members of
the Board on the date of the Employment Agreement; provided that
any person becoming a director subsequent to such date whose
election or nomination for election was supported by a majority of
the directors who then comprised the Incumbent Directors shall be
considered to be an Incumbent Director;
(iii) the Company adopts any plan of liquidation providing for the
distribution of all or substantially all of its assets;
(iv) the sale of all or substantially all of the assets of the Company;
or
(v) a reorganization, merger, consolidation or other form of corporate
transaction or series of transactions, in each case, with respect
to which persons who were the shareholders with Voting Stock
immediately prior to such reorganization, merger or consolidation
or other transaction do not, immediately thereafter, own more than
50.1% of the Voting Stock of the reorganized, merged or
consolidated company's then outstanding voting securities.
For purposes of the Change in Control definition, "the Company" shall include
any entity that succeeds to all or substantially all of the business of the
Company and "Voting Stock" shall mean securities of any class or classes
having general voting power under ordinary circumstances, in the absence of
contingencies, to elect the directors of a corporation.
f. "Claim" shall mean any claim, demand, request, investigation,
dispute, controversy, threat, discovery request, or request for testimony or
information.
g. "Code" shall mean the Internal Revenue Code of 1986, as amended.
Any reference to a particular section of the Code shall include any provision
that modifies, replaces or supersedes such section.
h. "Constructive Termination Without Cause" shall mean a termination
by the Executive of her employment hereunder by providing 30 days' written
notice, describing the basis for the termination, to the Company following the
occurrence of any of the following events without her express prior written
consent:
(i) a material diminution in the Executive's duties; or assignment to
her of duties that are materially inconsistent with her duties or
materially impair her ability to function as Vice President and
Chief Financial Officer of the Company (or in any other position
the Executive is appointed to);
(ii) any reduction in the Executive's then current Base Salary or
target bonus opportunity as a percentage of Base Salary; or any
material diminution of the benefits provided to her under the
Company's benefit plans or the perquisites enjoyed by her;
(iii) a change in the reporting structure so that the Executive no
longer reports directly to the Chief Executive Officer of the
Company (except to the extent she herself is appointed to such
position);
(iv) relocation of the Executive's principal place of employment to a
location other than the United States or, if her principal place
of employment shall have been relocated with her consent outside
the United States, her relocation to a location other than such
country;
(v) any other material breach by the Company of any provision of this
Agreement; or
(vi) the failure of the Company to obtain the assumption in writing of
its obligations under this Agreement by any successor to all or
substantially all of the business or assets of the Company within
fifteen (15) days after a merger, consolidation, sale or similar
transaction.
There shall be no Constructive Termination without Cause if the Company shall
have fully cured all grounds for such termination within 30 days after the
Executive gives notice thereof.
i. "Disability" shall mean the Executive's inability, due to
physical or mental incapacity, substantially to perform her duties and
responsibilities under the Employment Agreement for a period of 270
consecutive days as determined by a medical doctor selected by the Company and
the Executive. If the Company and the Executive cannot agree on a medical
doctor, each shall select a medical doctor and the two doctors shall select a
third who shall be the approved medical doctor for this purpose.
j. "Parties" shall mean the Company, Panamco and the Executive.
k. "Person" shall mean any individual, corporation, partnership,
limited liability company, joint venture, trust, estate, board, committee,
agency, body, Executive benefit plan, or other person or entity.
l. "Proceeding" shall mean any threatened or actual action, suit or
proceeding, whether civil, criminal, administrative, investigative, appellate
or other.
m. "Termination Date" shall mean:
(i) in the case of death, the date of death;
(ii) in the case of Disability, 30 days after the written notice is
given as specified in Section 11(b) above;
(iii) in the case of a termination by the Company for Cause, the date
the Executive receives the notice as specified in Section 11(b)
that a majority of the members of the Board voted after the
hearing to terminate her for Cause;
(iv) in the case of a voluntary termination or Termination without
Cause by the Company, the last day of the Executive's employment;
(v) in the case where the Executive's employment is terminated by the
Company after providing a notice of non-renewal in accordance with
Section 2 of the Agreement, the end of the Term; and
(vi) in the case of a Constructive Termination without Cause, 30 days
after the Executive gives the notice provided in this Exhibit A,
subclass (h), unless the Company has fully cured all alleged
grounds for such termination within 30 days after the Executive
gives such notice.
