EXHIBIT 10(cc)
XXXXXX X. XXXXXXX
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT ("Agreement") is made and entered
into as of this 1st day of March, 2004, by and between XXXXXX INTERNATIONAL,
INC., a Delaware corporation (the "Company"), and XXXXXX X. XXXXXXX
("Executive").
W I T N E S S E T H:
WHEREAS, the Company and Executive entered into an Employment Agreement,
dated as of September 11, 2000, which Agreement has previously been amended
(including such prior amendments, the "Prior Employment Agreement"); and
WHEREAS, the parties now desire to amend the Prior Employment Agreement
in a number of respects and to restate such agreement as hereinafter provided;
and
WHEREAS, Executive desires to continue his employment with the Company on
the terms and conditions provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, the parties hereby agree as follows:
1. Employment and Term.
(a) Subject to the terms and conditions of this Agreement, the
Company hereby employs Executive, and Executive hereby accepts employment, as
Senior Vice President, Chief Financial Officer and Treasurer of the Company
and shall have such responsibilities, duties and authority as may from time to
time be assigned to Executive by the Chief Executive Officer (or his
designee). Executive hereby agrees that during the Term of this Agreement he
will devote substantially all his working time, attention and energies to the
diligent performance of his duties for the Company. With the consent of the
Chief Executive Officer (or his
designee), the Executive may serve as a director on the board of directors or
trustees of an additional company or educational organization.
(b) Unless earlier terminated as provided herein, Executive's
employment under this Agreement shall be for a rolling, two-year term (the
"Term") commencing on March 1, 2004 (the "Effective Time"), and shall be
deemed to extend automatically, without further action by either the Company
or Executive, each day for an additional day, such that the remaining term of
the Agreement shall continue to be two years; provided, however, that either
party may, by written notice to the other, cause this Agreement to cease to
extend automatically and, upon such notice, the "Term" of this Agreement shall
be the two-year period following the date of such notice and this Agreement
shall terminate upon the expiration of such Term.
2. Compensation and Benefits. As compensation for Executive's services
during the initial Term of this Agreement, Executive shall be paid and receive
the compensation and benefits set forth in subsections (a) through (g) below:
(a) An annual base salary ("Base Salary") of Two Hundred Sixty
Thousand Dollars ($260,000), prorated for any partial year of employment.
Executive's Base Salary shall be subject to annual review at such time as the
Company conducts salary reviews for its executives generally. Executive's Base
Salary shall be payable in substantially equal installments on a semi-monthly
basis, or in accordance with the Company's regular payroll practices in effect
from time to time for executives of the Company.
(b) Executive shall be eligible to participate in the Executive
Management Annual Incentive Plan ("Incentive Plan") and such other annual
incentive plans as may be established by the Company from time to time for
individuals at Executive's level. The Company will establish individual and
financial performance goals each year under the Incentive
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Program, and Executive's annual Target Bonus shall be 50% of Base Salary. The
annual incentive bonus payable under this subsection (b) shall be payable in
accordance with the provisions of the Incentive Plan at the same time bonuses
are paid to other executives, unless Executive elects to defer all or a
portion of such bonus pursuant to any deferral plan established by the Company
for such purpose.
(c) Executive shall be a participant in the Xxxxxx, Inc. and
Subsidiaries Supplemental Retirement Benefit Plan ("SERP").
(d) Executive shall be entitled to participate in, or receive
benefits under, any "employee benefit plan" (as defined in Section 3(3) of
ERISA) or employee benefit arrangement made generally available by the Company
to its executives, including plans providing retirement, 401(k) benefits
(including the Xxxxxx Excess 401(k) Plan), health care (including
Exec-U-Care), life insurance, disability and similar benefits.
(e) Executive is eligible for vacation in accordance with the
Company's standard vacation policy. Executive will be provided a vehicle in
accordance with the Company's automobile policy. Executive will be provided an
annual physical examination and a financial/tax consultant for financial and
tax planning. Executive will be promptly reimbursed by the Company for all
reasonable business expenses Executive incurs and properly reports in carrying
out Executive's duties and responsibilities under this Agreement. Executive
will be paid a tax gross-up amount by the Company to cover any additional
federal or state income taxes he incurs as a result of being required to
include in income the amount of the costs for, or personal usage of, a vehicle
and financial and tax planning.
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3. Termination.
3.1 By Company. The Company shall have the right to terminate Executive's
employment under this Agreement at any time during the Term by Notice of
Termination (as described in Section 6). If the Company terminates Executive's
employment under this Agreement (i) for Cause, as defined in Section 5.2, (ii)
if Executive becomes Disabled, or (iii) upon Executive's death, the Company's
obligations under this Agreement shall cease as of the date of termination;
provided, however, that Executive will be entitled to whatever benefits are
payable to Executive pursuant to the terms of any health, life insurance,
disability, welfare, retirement or other plan or program maintained by the
Company in which Executive participates. If the Company terminates Executive
during the Term of this Agreement other than pursuant to clauses (i) through
(iii) of this Section 3.1, Executive shall be entitled to receive the
compensation and benefits provided in subsections (a) through (d) below.
Unless specified otherwise, the time periods in subsections (a) through (d)
below shall be the lesser of (i) the 12-month period (the 24-month period if
Executive's date of termination of employment is within twelve (12) months
after the date of a Change in Control, as defined in Section 5.3) commencing
on the date of Executive's termination of employment, or (ii) the time period
remaining from the date of Executive's termination until the date he attains
age 65 (such time period under (i) or (ii) is hereinafter referred to as the
"Severance Period"). Except as otherwise provided herein (including Section
3.1(b)), the Company agrees that if Executive's employment is terminated and
he is entitled to compensation and benefits under this Section 3.1, he shall
not be required to mitigate damages by seeking other employment, nor shall any
compensation or benefit he receives reduce the amount payable by the Company
hereunder. Executive agrees that the compensation and benefits provided
pursuant to Sections 3.1 and 3.2 shall be the only severance
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benefits payable to Executive by the Company and its affiliates as a result of
Executive's termination of employment and Executive hereby waives his rights
(if any) to any severance benefits under any other plan or program of the
Company and its affiliates. The compensation and benefits payable or to be
provided under subsections (a) through (d) below shall cease in the event of
Executive's death after termination of employment.
(a) Base Salary - Executive will continue to receive his Base Salary
as then in effect (subject to withholding of all applicable taxes) for the
Severance Period in the same manner as it was being paid as of the date of
termination; provided, however, that the salary payments provided for
hereunder shall be paid in a single lump sum payment, to be paid not later
than 30 days after his termination of employment; provided, further, that the
amount of such lump sum payment shall be determined by taking the salary
payments to be made and discounting them to their Present Value (as defined in
Section 5.11) on the date Executive's employment under this Agreement is
terminated.
(b) Bonuses and Incentives - Executive shall receive bonus payments
from the Company for each month of the Severance Period in an amount for each
such month equal to one-twelfth of the average of the bonuses earned by him
for the two fiscal years in which bonuses were paid (ignoring any fiscal year
in which a bonus was not paid) immediately preceding the fiscal year in which
such termination occurs. Any bonus amounts that Executive had previously
earned from the Company but which may not yet have been paid as of the date of
termination shall be payable on the date such amounts are payable to other
executives and Executive's termination shall not affect the payment of such
bonus. Executive shall also receive a prorated bonus for any uncompleted
fiscal year at the date of termination (assuming the Target Award level has
been achieved for such year), based upon the number of days that he was
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employed during such fiscal year. The bonus amounts determined herein shall be
paid in a single lump sum payment, to be paid not later than 30 days after
termination of employment; provided, that the amount of such lump sum payment
representing the monthly bonus payments shall be determined by taking the
monthly bonus payments to be made and discounting them to their Present Value
on the date Executive's employment under this Agreement is terminated.
(c) Health and Life Insurance Coverage - The health care (including
Exec-U-Care) and group term life insurance benefits coverages provided to
Executive at his date of termination shall be continued for the Severance
Period at the same level and in the same manner as then provided to actively
employed executive participants as if his employment under this Agreement had
not terminated. Any additional coverages Executive had at termination,
including dependent coverage, will also be continued for such period on the
same terms, to the extent permitted by the applicable insurance policies or
contracts. Any costs Executive was paying for such coverages at the time of
termination shall be paid by Executive by separate check payable to the
Company each month in advance. If the terms of any benefit plan referred to in
this Section, or the laws applicable to such plan, do not permit continued
participation by Executive, then the Company will arrange for other coverage
at its expense providing substantially similar benefits (including the same
deductible and co-payment levels provided under the Company's policy). The
benefits provided in this subsection (c) shall cease if Executive obtains
other employment and, as a result of such other employment, health care and
life insurance benefits are available to Executive.
(d) Employee Retirement Plans - To the extent permitted by the
applicable plan, Executive will be entitled to continue to participate,
consistent with past practices, in all employee retirement and deferred
compensation plans maintained by the Company in effect as of
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his date of termination, including, to the extent such plans are still
maintained by the Company, the Xxxxxx Retirement Plan, the Xxxxxx 401(k) Plan,
the Xxxxxx Excess 401(k) Plan, and the SERP. Executive's participation in such
retirement plans shall continue for the Severance Period and the compensation
payable to Executive under (a) and (b) above shall be treated (unless
otherwise excluded) as compensation under the plan as if it were paid on a
monthly basis. For purposes of the Xxxxxx 401(k) Plan and the Xxxxxx Excess
401(k) Plan, he will receive an amount equal to the Company's contributions to
the plan, assuming Executive had participated in such plan at the maximum
permissible contributions level. If continued participation in any plan is not
permitted by the plan or by applicable law, the Company shall pay to Executive
or, if applicable, his beneficiary a supplemental benefit equal to the present
value on the date of termination of employment under this Agreement
(calculated as provided in the plan) of the excess of (i) the benefit
Executive would have been paid under such plan if he had continued to be
covered for the Severance Period (less any amounts Executive would have been
required to contribute), over (ii) the benefit actually payable under such
plan. The Company shall pay the present value of such additional benefits (if
any) in a lump sum within 30 days of Executive's termination of employment.
(e) Effect of Lump Sum Payment. The lump sum payments under
subsections (a) and (b) above shall not alter the amounts Executive is
entitled to receive under the benefit plans described in subsections (c) and
(d). Benefits under such plans shall be determined as if Executive had
received such payments monthly over the Severance Period.
(f) Stock Options. As of Executive's date of termination, the
vesting and exercisability of all outstanding Time Options and Performance
Options held by Executive, (and
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any other outstanding stock options granted to Executive by the Company) shall
be determined in accordance with the stock option agreements for such options.
3.2 By Executive. Executive shall have the right to terminate his
employment hereunder at any time by Notice of Termination (as described in
Section 6). If Executive terminates his employment other than for Good Reason,
the Company's obligations under this Agreement shall cease as of the date of
such termination. If Executive terminates his employment for Good Reason (as
defined in Section 5.7), Executive shall be entitled to receive the
compensation and benefits set forth in subsections (a) through (d) of Section
3.1 for the Severance Period, subject to the other provisions of such section.
3.3 Release of Claims. To be entitled to any of the compensation and
benefits described above in this Section 3, Executive shall sign a release of
claims in the form required by the Company. No payments shall be made under
this Section 3 until such release has been properly executed and delivered to
the Company and until the expiration of the revocation period, if any,
provided under the release. If the release is not properly executed by
Executive and delivered to the Company within the reasonable time periods
specified in the release, the Company's obligations under this Section 3 will
terminate.
4. Confidentiality and Noncompetition.
(a) Executive acknowledges that, prior to and during the Term of
this Agreement, the Company has furnished and will furnish to Executive
Confidential Information which could be used by Executive on behalf of a
competitor of the Company to the Company's substantial detriment. Moreover,
the parties recognize that Executive during the course of his employment with
the Company may develop important relationships with customers and others
having valuable business relationships with the Company. In view of the
foregoing, Executive
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acknowledges and agrees that the restrictive covenants contained in this
Section are reasonably necessary to protect the Company's legitimate business
interests and good will.
(b) Executive agrees that he shall protect the Company's
Confidential Information and shall not disclose to any Person, or otherwise
use, except in connection with his duties performed in accordance with this
Agreement, any Confidential Information at any time, including following the
termination of his employment with the Company for any reason; provided,
however, that Executive may make disclosures required by a valid order or
subpoena issued by a court or administrative agency of competent jurisdiction,
in which event Executive will promptly notify the Company of such order or
subpoena to provide the Company an opportunity to protect its interests.
Executive's obligations under this Section 4(b) shall survive any expiration
or termination of this Agreement for any reason, provided that Executive may
after such expiration or termination disclose Confidential Information with
the prior written consent of the Board.
(c) Upon the termination or expiration of his employment hereunder,
Executive agrees to deliver promptly to the Company all Company files,
customer lists, management reports, memoranda, research, Company forms,
financial data and reports and other documents supplied to or created by him
in connection with his employment hereunder (including all copies of the
foregoing) in his possession or control, and all of the Company's equipment
and other materials in his possession or control. Executive's obligations
under this Section 4(c) shall survive any expiration or termination of this
Agreement.
(d) Upon the termination or expiration of his employment under this
Agreement, Executive agrees that for a period of one (1) year from his date of
termination or until the end of the period for which he is entitled to receive
compensation under Section 3.1 or
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3.2 above, whichever is longer, he shall not (i) enter into or engage in the
design, manufacture, marketing or sale of any products similar to those
produced or offered by the Company or its affiliates in the area of North
America, either as an individual, partner or joint venturer, or as an
employee, agent or salesman, or as an officer, director, or shareholder of a
corporation, (ii) divert or attempt to divert any person, concern or entity
which is furnished products or services by the Company from doing business
with the Company or otherwise change its relationship with the Company, or
(iii) solicit, lure or attempt to hire away any of the employees of the
Company with whom the Executive interacted directly or indirectly while
employed with the Company.
(e) Executive acknowledges that if he breaches or threatens to breach
this Section 4, his actions may cause irreparable harm and damage to the
Company which could not be compensated in damages. Accordingly, if Executive
breaches or threatens to breach this Section 4, the Company shall be entitled
to seek injunctive relief, in addition to any other rights or remedies of the
Company. The existence of any claim or cause of action by Executive against
the Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of Executive's
agreement under this Section 4(e).
5. Definitions. For purposes of this Agreement the following terms shall
have the meanings specified below: 5.1 "Board" or "Board of Directors". The
Board of Directors of Xxxxxx International, Inc. 5.2 "Cause". The involuntary
termination of Executive by the Company for the following reasons shall
constitute a termination for Cause:
(a) If the termination shall have been the result of an act or acts
by Executive which have been found in an applicable court of law to constitute
a felony;
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(b) If the termination shall have been the result of an act or acts
by Executive which are in the good faith judgment of the Chief Executive
Officer (or his designee) to be in violation of law or of policies of the
Company and which result in material damage to the Company;
(c) If the termination shall have been the result of an act or acts
of proven dishonesty by Executive resulting or intended to result directly or
indirectly in significant gain or personal enrichment to the Executive at the
expense of the Company; or (d) Upon the willful and continued failure by the
Executive substantially to perform his duties with the Company (other than any
such failure resulting from incapacity due to mental or physical illness not
constituting a Disability, as defined herein), after a demand in writing for
substantial performance is delivered by the Chief Executive Officer (or his
designee), which demand specifically identifies the manner in which the Chief
Executive Officer (or his designee) believes that Executive has not
substantially performed his duties.
With respect to clauses (b), (c) or (d) above of this Section, Executive
shall not be deemed to have been involuntarily terminated for Cause unless and
until a notice is delivered to Executive by the Chief Executive Officer (or
his designee) setting forth (i) the conduct deemed to qualify as Cause, (ii)
reasonable action that would remedy such objectionable conduct, and (iii) a
reasonable time (not less than thirty days) within which Executive may take
such remedial action, and Executive shall not have taken such specified
remedial action within such specified reasonable time. For purposes of this
Agreement, no act or failure to act by Executive shall be deemed to be
"willful" unless done or omitted to be done by Executive not in good faith and
without reasonable belief that Executive's action or omission was in the best
interests of the Company.
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5.3 "Change in Control". For purposes of this Agreement, Change in
Control shall mean (a) the acquisition, directly or indirectly, by any
"person" (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act), other than any member of the Xxxxxx Group, of securities of Xxxxxx
International, Inc. representing an aggregate of more than 50% of the combined
voting power of Xxxxxx International, Inc.'s then outstanding securities
(excluding acquisitions by persons who acquire such amount through
inheritance); (b) during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board, cease for any reason to
constitute at least a majority thereof, unless the election of each new
director was approved in advance by a vote of at least a majority of the
directors then still in office who were directors at the beginning of the
period; (c) consummation of (i) a merger, consolidation or other business
combination of Xxxxxx International, Inc. with any other "person" (as such
term is used in Sections 13(d) and 14(d) of Exchange Act) or affiliate
thereof, other than a merger, consolidation or business combination which
would result in the outstanding common stock of Xxxxxx International, Inc.
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into common stock of the surviving entity or
a parent or affiliate thereof) more than 50% of the outstanding common stock
of Xxxxxx International, Inc. of such surviving entity or partners or
affiliate thereof, outstanding immediately after such merger, consolidation or
business combination, or (ii) a plan of complete liquidation of Xxxxxx
International, Inc. or an agreement for the sale or disposition by Xxxxxx
International, Inc. of all or substantially all of Xxxxxx International,
Inc.'s assets; or (d) a sale of more than 50% of the assets of Xxxxxx
International, Inc.; provided that none of the events described in clauses (b)
through (d) shall be deemed a Change in Control if, immediately
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following such event, the Xxxxxx Group owns 50% or more of the combined voting
power of Xxxxxx International, Inc.'s then outstanding securities.
5.4 "Code". The Internal Revenue Code of 1986, as it may be amended from
time to time.
5.5 "Confidential Information". All technical, business, and other
information relating to the business of the Company or its subsidiaries or
affiliates, including, without limitation, technical or nontechnical data,
formulae, compilations, programs, devices, methods, techniques, processes,
financial data, financial plans, product plans, and lists of actual or
potential customers or suppliers, which (i) derives economic value, actual or
potential, from not being generally known to, and not being readily
ascertainable by proper means by, other Persons, and (ii) is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy or
confidentiality. Such information and compilations of information shall be
contractually subject to protection under this Agreement whether or not such
information constitutes a trade secret and is separately protectable at law or
in equity as a trade secret. Confidential Information does not include
confidential business information which does not constitute a trade secret
under applicable law two years after any expiration or termination of this
Agreement.
5.6 "Disability" or "Disabled". Executive's inability as a result of
physical or mental incapacity to substantially perform Executive's duties for
the Company on a full-time basis for a period of six (6) consecutive months.
5.7 "Good Reason". A "Good Reason" for termination by Executive of
Executive's employment shall mean the occurrence during the Term (without the
Executive's express written consent) of any one of the following acts by the
Company, or failures by the Company to
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act, and such act or failure to act has not been corrected within thirty (30)
days after written notice of such act or failure to act is given by Executive
to the Company:
(i) a material adverse change in the nature or status of Executive's
job responsibilities from those set forth in Section 1(a), except in
connection with (A) a job change of Executive that is necessitated by changes
in the operation of the business; or (B) a performance-related job change of
Executive that the Company deems necessary to the operation of the business;
(ii) a reduction by the Company in Executive's Base Salary as in
effect on the date hereof or as the same may be increased from time to time,
except in connection with (A) an across-the-board pay reduction for executives
of similar status, or (B) a change described in (i)(A) or (i)(B) above;
(iii) the failure by the Company to continue to provide Executive
with compensation and benefits substantially similar in the aggregate to those
enjoyed by Executive on the date hereof under the Company's retirement,
401(k), incentive compensation, life insurance, health and accident or
disability plans, or the taking of any action by the Company which would
directly or indirectly materially reduce any of such compensation or benefits,
except in connection with (A) an across-the-board reduction that impacts
executives at Executive's level generally, or (B) a change described in (i)(A)
or (i)(B) above; or
(iv) any purported termination of Executive's employment which is
not effected pursuant to a Notice of Termination satisfying the requirements
of Section 6 (for purposes of this Agreement, no such purported termination
shall be effective).
The Executive's right to terminate the Executive's employment for
Good Reason shall not be affected by the Executive's incapacity due to
physical or mental illness. Unless
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otherwise agreed to by Executive, the Executive's continued employment shall
not constitute consent to, or a waiver of rights with respect to, any act or
failure to act constituting Good Reason hereunder.
5.8 "Xxxxxx Brothers Merchant Banking Partners". Xxxxxx Brothers Merchant
Banking Partners II, L.P., a Delaware limited partnership.
5.9 "Xxxxxx Group". Xxxxxx Brothers Merchant Banking Partners and (i) any
Affiliate (as defined in the Employee Stockholder Agreement) of Xxxxxx
Brothers Merchant Banking Partners, (ii) any Associates (as defined in the
Employee Stockholder Agreement) of Xxxxxx Brothers Merchant Banking Partners,
(iii) the heirs, executors, administrators, testamentary trustees, legatees or
beneficiaries of any member of the Xxxxxx Group, and (iv) a trust, the
beneficiaries of which, or a corporation or partnership, the stockholders or
general or limited partners of which, include only Xxxxxx Brothers Merchant
Banking Partners, Affiliates and Associates of Xxxxxx Brothers Merchant
Banking Partners, their spouses, their lineal descendants and any other
members of their families, if, in cases of clauses (ii) through (iv) above,
such Person agrees in writing to be bound by the terms of the Employee
Stockholder Agreement as a member of the Xxxxxx Group.
5.10 "Person". Any individual, corporation, bank, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or other entity.
5.11 "Present Value". The term "Present Value" on any particular date
shall have the same meaning as provided in Section 280G(d)(4) of the Code.
6. Termination Procedures. During the Term of this Agreement, any
purported termination of Executive's employment (other than by reason of
death) shall be communicated by written Notice of Termination from one party
hereto to the other party hereto in accordance
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with Section 10. A Notice of Termination for Cause is required to include the
information set forth in Section 5.2. "Date of Termination," with respect to
any purported termination of Executive's employment during the Term of this
Agreement, shall mean (i) if Executive's employment is terminated by his
death, the date of his death, (ii) if Executive's employment is terminated for
Disability, thirty (30) days after Notice of Termination is given (provided
that Executive shall not have returned to the full-time performance of
Executive's duties during such thirty (30) day period), and (iii) if
Executive's employment is terminated for any other reason, the date specified
in the Notice of Termination (which, in the case of a termination by the
Company, shall not be less than thirty (30) days, except in the case of a
termination for Cause; and in the case of a termination by the Executive,
shall not be less than thirty (30) days nor more than sixty (60) days,
respectively, from the date such Notice of Termination is given).
7. Contract Non-Assignable. The parties acknowledge that this Agreement
has been entered into due to, among other things, the special skills of
Executive, and agree that this Agreement may not be assigned or transferred by
Executive, in whole or in part, without the prior written consent of the
Company.
8. Successors; Binding Agreement.
8.1 In addition to any obligations imposed by law upon any successor to,
or transferor of, the Company, the Company will require any successor to, or
transferor of, all or substantially all of the business and/or assets of the
Company (whether direct or indirect, by purchase, merger, reorganization,
liquidation, consolidation or otherwise) to expressly assume and agree to
perform this Agreement, in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
Failure of the Company to obtain such assumption and agreement prior to the
effectiveness of any such succession shall constitute the
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basis for Executive to terminate the Executive's employment for Good Reason
during the 90-day period after such succession and to receive the compensation
and benefits provided in Section 3.1 above.
8.2 This Agreement shall inure to the benefit of and be enforceable by
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees and by the Company's
successors and assigns. If Executive shall die while any amount would still be
payable to Executive hereunder (other than amounts which, by their terms,
terminate upon the death of Executive) if Executive had continued to live, all
such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to the executors, personal representatives or
administrators of Executive's estate.
9. Other Agents. Nothing in this Agreement is to be interpreted as
limiting the Company from employing other personnel on such terms and
conditions as may be satisfactory to the Company.
10. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to
have been duly given if delivered or seven days after mailing if mailed, first
class, certified mail, postage prepaid:
To the Company: Xxxxxx International, Inc.
0000 XX Xxxxxxxxxxxxx Xxx
Xxxxxxxx, Xxxxxx 00000
ATTN: Xxxxx Xxxxxxxx
With a copy to: Xxxxxxx X. Xxxxxx, III
Xxxxxx International, Inc.
0000 XX Xxxxxxxxxxxxx Xxx
Xxxxxxxx, Xxxxxx 000000
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To the Executive: Xxxxxx X. Xxxxxxx
0000 Xxxxxxxxxx Xx.
Xxxx Xxxx, Xxxxxx 00000
Any party may change the address to which notices, requests, demands and other
communications shall be delivered or mailed by giving notice thereof to the
other party in the same manner provided herein.
11. Provisions Severable. If any provision or covenant, or any part
thereof, of this Agreement should be held by any court to be invalid, illegal
or unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of
the remaining provisions or covenants, or any part thereof, of this Agreement,
all of which shall remain in full force and effect.
12. Waiver. Failure of either party to insist, in one or more instances,
on performance by the other in strict accordance with the terms and conditions
of this Agreement shall not be deemed a waiver or relinquishment of any right
granted in this Agreement or the future performance of any such term or
condition or of any other term or condition of this Agreement, unless such
waiver is contained in a writing signed by the party making the waiver.
13. Indemnification. During the term of this Agreement and after
Executive's termination for a period of time equal to the Severance Period,
the Company shall indemnify Executive and hold Executive harmless from and
against any claim, loss or cause of action arising from or out of Executive's
performance as an officer, director or employee of the Company or any of its
subsidiaries or other affiliates or in any other capacity, including any
fiduciary capacity, in which Executive serves at the Company's request, in
each case to the maximum extent permitted by law and under the Company's
Articles of Incorporation and By-Laws (the "Governing Documents"), provided
that in no event shall the protection afforded to
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Executive hereunder be less than that afforded under the Governing Documents
as in effect on the date of this Agreement except for changes mandated by law.
During the Term and for a period of time equal to the Severance Period,
Executive shall be covered in accordance with the terms of any policy of
directors and officers liability insurance maintained by the Company for the
benefit of its officers and directors.
14. Amendments and Modifications. This Agreement may be amended or
modified only by a writing signed by both parties hereto.
15. Governing Law. The validity and effect of this Agreement shall be
governed by and construed and enforced in accordance with the laws of the
State of Delaware.
16. Arbitration of Disputes; Expenses. All claims by Executive for
compensation and benefits under this Agreement shall be directed to and
determined by the Board and shall be in writing. Any denial by the Board of a
claim for benefits under this Agreement shall be delivered to Executive in
writing and shall set forth the specific reasons for the denial and the
specific provisions of this Agreement relied upon. The Board shall afford a
reasonable opportunity to Executive for a review of a decision denying a claim
and shall further allow Executive to appeal to the Board a decision of the
Board within sixty (60) days after notification by the Board that Executive's
claim has been denied. Unless prohibited by applicable law, any further
dispute or controversy arising under or in connection with this Agreement
shall be settled exclusively by arbitration in a location selected at the
discretion of the Company (which shall not be unreasonable, taking into
account the business location at which Executive is employed), and shall
proceed in accordance with the rules of the American Arbitration Association
then in effect. Judgment may be entered on the arbitrator's award in any court
having jurisdiction. In the event the Executive incurs legal fees and other
expenses in seeking to obtain or to enforce any rights or
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benefits provided by this Agreement and is successful, in whole or in part, in
obtaining or enforcing any material rights or benefits through settlement,
arbitration or otherwise, the Company shall promptly pay a portion, which
reflects the extent to which Executive has been successful in enforcing such
material rights or benefits, of Executive's reasonable legal fees and expenses
incurred in enforcing this Agreement and the fees of the arbitrator. Except to
the extent provided in the preceding sentence, each party shall pay its own
legal fees and other expenses associated with any dispute.
IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Employment Agreement as of the day and year first above written.
EXECUTIVE:
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XXXXXX X. XXXXXXX
COMPANY:
XXXXXX INTERNATIONAL, INC.
By:
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