Exhibit 10.24(a)
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is made
and entered into as of the 24th day of October, 1997, by and between Xxxxx'x
General Stores, Inc., an Iowa corporation (the "Company"), and Xxxx X. Xxxxxx
("Xxxxxx").
WHEREAS, the Board of Directors of the Company (the "Board of
Directors") recognizes that the dedication of Xxxxxx as an officer and director
to the affairs and welfare of the Company has resulted in a long and successful
association; and
WHEREAS, the Board of Directors further recognizes that the Company has
grown and prospered as a result of its association with Xxxxxx, and has
determined that it is in the best interest of the Company and its shareholders
to preserve this association so as to enable the Company to further benefit from
Xxxxxx'x superior knowledge and expertise in all of its present and future
business endeavors; and
WHEREAS, the Company and Xxxxxx are parties to an Employment Agreement
dated as of July 19, 1994, as amended by a First Amendment to Employment
Agreement dated as of January 9, 1997 (together, the "Original Agreement"),
providing for the employment of Xxxxxx to serve as the Corporate Secretary of
the Company under the terms and conditions set forth therein; and
WHEREAS, the Board of Directors has further determined that it is
appropriate and in the best interests of the Company and its shareholders to
enter into written contractual arrangements with respect to Xxxxxx'x employment
by the Company, with the concurrence of Xxxxxx, and to amend and restate the
Original Agreement to reflect the same; and
WHEREAS, the Board of Directors has further determined that it is in
the best interest of the Company and its shareholders to assure that the Company
will have the continued dedication of Xxxxxx, notwithstanding the possibility,
threat or occurrence of a Change of Control (as defined below) of the Company,
and to further encourage Xxxxxx'x full attention and dedication to the Company
currently and in the event of any threatened or pending Change of Control, and
to provide Xxxxxx with compensation arrangements upon a Change of Control which
provide him with compensation for expected losses that he would suffer in the
event of a Change of Control and which are competitive with those of other
corporations, and, in order to accomplish these objectives,
has determined to cause the Company to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. For purposes of this Agreement, and in addition to
the other definitions set forth herein, the following terms shall have the
following meanings:
a) "Change of Control" shall mean:
(i) the acquisition (other than from the Company) by any
Person (as hereinafter defined), entity or "group" within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange
Act"), (excluding for this purpose, the Company or any employee benefit plan of
the Company, which acquires beneficial ownership of voting securities of the
Company) of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of twenty percent (20%) or more of either the then
outstanding shares of Common Stock, no par value, of the Company or the combined
voting power of the Company's then outstanding voting securities entitled to
vote generally in the election of directors (hereinafter referred to as the
"Common Stock"), unless such beneficial ownership was acquired as a result of an
acquisition of shares of Common Stock by the Company which, by reducing the
number of shares outstanding, increases the proportionate number of shares
beneficially owned by such Person, entity or "group" to twenty percent (20%) or
more of the Common Stock of the Company then outstanding; provided, however,
that if a Person, entity or "group" shall become the beneficial owner of twenty
percent (20%) or more of the Common Stock of the Company then outstanding by
reason of share purchases by the Company and shall, after such share purchases
by the Company, become the beneficial owner of any additional shares of Common
Stock of the Company, then such Person, entity or "group" shall be deemed to
have met the conditions hereof; or
(ii) individuals who, as of the date hereof, constitute the
Board of Directors (as of the date hereof, the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board of Directors, provided
that any person becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's shareholders, was approved
by a vote of at least a majority of the directors then comprising the Incumbent
Board (other than an election or nomination of an individual whose initial
assumption of office is in connection with an actual or threatened election
contest relating to the election of the directors of the Company, as such terms
are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act)
shall be, for purposes of this Agreement considered as though such person were a
member of the Incumbent Board; or
(iii) approval by the shareholders of the Company of a
reorganization, merger, consolidation (in each case, with respect to which
persons who were the shareholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter, own more
than fifty percent (50%) of the combined voting power entitled to vote generally
in the election of directors of the reorganized, merged or consolidated
company's then outstanding voting securities) or a liquidation or dissolution of
the Company or of the sale of all or substantially all of the assets of the
Company.
(b) "Annual Increase" shall take effect on each January 1 for which the
benefit at issue is payable and shall mean fifty percent (50%) of the annual
increase in the National Consumer Price Index for the City of Des Moines, Iowa,
as published by the United States Bureau of Labor Statistics.
(c) "Annual Bonus" shall mean any bonus payable at the discretion of
the Board of Directors of the Company, on such terms and in such amounts as it
shall determine.
(d) "Employment Period" shall mean the term of Xxxxxx'x employment
under this Agreement, as set forth in Section 2 hereof.
(e) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(f) "Accrued Obligations" shall mean (i) Xxxxxx'x Salary through the
Date of Termination at the rate in effect on the Date of Termination, (ii) the
product of the Annual Bonus paid to Xxxxxx for the last full fiscal year and a
fraction, the numerator of which is the number of days in the current fiscal
year through the Date of Termination, and the denominator of which is 365 and
(iii) any compensation previously deferred (together with any accrued interest
thereon) and not yet paid by the Company and any accrued vacation pay not yet
paid by the Company.
(g) "Person" shall mean any individual, firm, corporation or other
entity, and shall include any successor (by merger or otherwise) and all
"affiliates" and "associates" of such entity (as those terms are defined in Rule
12b-2 of the General Rules and Regulations under the Exchange Act).
2. EMPLOYMENT AND TERM. The Company agrees to employ Xxxxxx, and Xxxxxx
agrees to serve the Company, as Corporate Secretary of the Company until August
1, 2001, unless his employment is otherwise terminated as provided herein;
provided, however, that in the event of a Change of Control during the foregoing
Employment Period, this Agreement shall continue in full force and effect for an
additional period of three (3) years following the expiration of the Employment
Period
(until August 1, 2004).
3. DUTIES OF XXXXXX. During the period of his employment in the
capacity of Secretary, Xxxxxx agrees to devote his professional skill and energy
to the faithful and full satisfaction of his duties as Corporate Secretary. It
is agreed and understood that Xxxxxx will perform all duties assigned to him,
which shall be substantially the same as those performed by Xxxxxx as Secretary
of the Company prior to the date of this Agreement (including status, offices,
titles and reporting requirements), to the full satisfaction of the Board of
Directors. The Company agrees that Xxxxxx shall have such authority and
discretion as is necessary to fully and faithfully perform his duties in a
proper and efficient manner, subject to review by the Board of Directors.
During the period of his employment, it shall not be a violation of
this Agreement for Xxxxxx to (i) serve on corporate, civil or charitable boards
or committees, (ii) deliver lectures or fulfill speaking engagements and (iii)
manage personal investments, so long as such activities do not significantly
interfere with the performance of Xxxxxx'x responsibilities as an employee of
the Company in accordance with this Agreement. It is expressly understood and
agreed that to the extent that any such activities have been conducted by Xxxxxx
prior to the date hereof, the continued conduct of such activities (or the
conduct of activities similar in nature and scope thereto) subsequent to the
date hereof shall not thereafter be deemed to interfere with the performance of
Xxxxxx'x responsibilities to the Company.
4. COMPENSATION. The Company shall pay to Xxxxxx an annual salary of
One Hundred Thirty-Five Thousand Dollars ($135,000), payable in equal monthly
installments, or such other amount as shall be mutually agreed upon by the
Company and Xxxxxx (the "Salary"). In addition, Xxxxxx and/or Xxxxxx'x family
shall be entitled to receive all benefits presently provided or those which may
hereafter be provided generally by the Company to its employees, officers or
directors, including health insurance and life insurance. With respect to such
health insurance benefits, the Company agrees that at all times the health
insurance coverages available to Xxxxxx and his spouse under such plans shall
include provisions providing for lifetime benefits payable on behalf of Xxxxxx
and his spouse of not less than One Million Dollars ($1,000,000) each, or such
other amount as the Company and Xxxxxx may specifically agree upon in writing,
subject, however, to any limitations, restrictions or conditions that shall from
time to time be necessary to satisfy the requirements of applicable federal or
state laws and regulations.
5. TERMINATION OF EMPLOYMENT. (a) Death or Disability. Xxxxxx'x employment
under this Agreement shall terminate automatically upon Xxxxxx'x death. If the
Company determines in good faith that the Disability of Xxxxxx has occurred
(pursuant to the definition of "Disability" set forth below), it may give to
Xxxxxx written
notice of its intention to terminate Xxxxxx'x employment as Secretary of the
Company. In such event, Xxxxxx'x employment with the Company shall terminate
effective on the thirtieth (30th) day after receipt of such notice by Xxxxxx
(the "Disability Effective Date"), provided that, within the thirty (30) days
after such receipt, Xxxxxx shall not have returned to full-time performance of
his duties. For purposes of this Agreement, "Disability means disability or
incapacity of Xxxxxx which, at least twenty-six (26) weeks after its
commencement, is determined by the Board of Directors upon competent medical
advice to be such as to prevent Xxxxxx from performing substantially all of the
duties as Secretary of the Company.
Notwithstanding any Disability on the part of Xxxxxx, the Company shall
continue at all times to offer and provide health insurance coverages to Xxxxxx
and his spouse, in accordance with the plans, programs, practices and policies
provided by the Company during the 90-day period immediately preceding the
Disability Effective Date or, if more favorable to Xxxxxx, as in effect at any
time thereafter with respect to other key employees and their families, until
the death of Xxxxxx and his spouse, except to the extent such coverage is or
otherwise becomes available to Xxxxxx and his spouse under the Medicare program
of benefits.
(b) Cause. The Company may terminate Xxxxxx'x employment for "Cause."
For purposes of this Agreement, "Cause" means (i) an act or acts of personal
dishonesty taken by Xxxxxx and intended to result in substantial personal
enrichment of Xxxxxx at the expense of the Company, (ii) repeated violations by
Xxxxxx of Xxxxxx'x obligations under Section 3 of this Agreement which are
demonstratively willful and deliberate on Xxxxxx'x part and which are not
remedied in a reasonable period of time after receipt of written notice from the
Company or (iii) the conviction of Xxxxxx of a felony when such conviction is no
longer subject to direct appeal.
(c) Good Reason. Xxxxxx'x employment may be terminated by Xxxxxx for Good
Reason. For purposes of this Agreement, "Good Reason" means:
(i) the assignment to Xxxxxx of any duties inconsistent in any
respect with Xxxxxx'x position (including status, office, titles and reporting
requirements), authority, duties or responsibilities as contemplated by Section
3 of this Agreement, or any other action by the Company which results in a
diminution in such position, authority, duties or responsibilities, excluding
for this purpose an isolated, insubstantial and inadvertent action not taken in
bad faith and which is remedied by the Company promptly after receipt of notice
thereof given by Xxxxxx;
(ii) Any failure by the Company to comply with the provisions
of Section 4 of this Agreement, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt
of notice thereof given by Xxxxxx;
(iii) the Company's requiring Xxxxxx to be based at any office
or location other than the Company's Corporate Headquarters facility in Ankeny,
Iowa, except for travel reasonably required in the performance of Xxxxxx'x
responsibilities;
(iv) any purported termination by the Company of Xxxxxx'x
employment otherwise than for death, Disability or Cause as expressly
permitted by this Agreement; or
(v) any failure by the Company to comply with and satisfy
Section 13(c) of this Agreement.
For purposes of this Section 5(c), any good faith determination of
"Good Reason" made by Xxxxxx shall be conclusive.
(d) Notice of Termination. Any termination by the Company for Cause or
by Xxxxxx for Good Reason shall be communicated by Notice of Termination to the
other party hereto given in accordance with Section 14(b) of this Agreement. For
purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of Xxxxxx'x employment under the provision so
indicated and (iii) if the Date of Termination (as defined below) is other than
the date of receipt of such notice, specifies the termination date (which date
shall be not more than fifteen (15) days after the giving of such notice). The
failure by Xxxxxx to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason shall not waive any
right of Xxxxxx hereunder or preclude Xxxxxx from asserting such fact or
circumstance in enforcing his rights hereunder.
(e) Date of Termination. "Date of Termination" means the date of
receipt of the Notice of Termination or any later date specified therein, as the
case may be; provided, however, that (i) if Xxxxxx'x employment is terminated by
the Company other than for Cause or Disability, the Date of Termination shall be
the date on which the Company notifies Xxxxxx of such termination and (ii) if
Xxxxxx'x employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of Xxxxxx or the Disability Effective
Date, as the case may be.
6. OBLIGATIONS OF THE COMPANY UPON TERMINATION OF EMPLOYMENT. (a) Death of
Xxxxxx. In the event of the death of Xxxxxx during the term hereof, the Company
shall pay to Xxxxxx'x spouse, commencing on the first day of the month following
his death and continuing for a period of twelve (12) months thereafter, benefits
equal to the monthly installments of Salary which was then being paid
to Xxxxxx pursuant to Section 4 herein. Immediately following such one-year
period, the Company shall commence the payment of monthly benefits to Xxxxxx'x
spouse equal in amount to one-fourth (1/4) of the monthly installments of Salary
which was being paid to Xxxxxx at the time of his death under Section 4 herein,
which monthly benefits shall be paid for a period of twenty (20) years or until
the death of Xxxxxx'x spouse, whichever occurs first. In addition, the Company
shall continue at all times to offer and provide health insurance coverage to
Xxxxxx'x spouse, in accordance with the plans, programs, practices and policies
provided by the Company under the terms of this Agreement at the time of
Xxxxxx'x death, until the death of Xxxxxx'x spouse, except to the extent such
coverage is or otherwise becomes available to Xxxxxx'x spouse under the Medicare
program of benefits.
(b) Cause; Other than for Good Reason. If Xxxxxx'x employment shall be
terminated for Cause, Xxxxxx'x employment under this Agreement shall terminate
without further obligations to Xxxxxx (other than the obligation to pay to
Xxxxxx his Salary through the Date of Termination plus the amount of any
compensation previously deferred by Xxxxxx, together with accrued interest
thereon). If Xxxxxx terminates employment other than for Good Reason, this
Agreement shall terminate without further obligations to Xxxxxx, other than
those obligations accrued or earned and vested (if applicable) by Xxxxxx through
the Date of Termination, including for this purpose, all Accrued Obligations.
All such Accrued Obligations shall be paid to Xxxxxx in a lump sum in cash
within thirty (30) days of the Date of Termination.
(c) Good Reason; Other than for Cause or Disability. If the Company
shall terminate Xxxxxx'x employment other than for Cause, Disability, or death
or if Xxxxxx shall terminate his employment for Good Reason at any time during
the Employment Period, except during a three-year period following any Change of
Control (in which case the provisions of Section 6(d) shall apply), then in such
event:
(i) the Company shall pay to Xxxxxx in a lump sum in cash
within thirty (30) days after the Date of Termination the aggregate of the
following amounts:
A. to the extent not theretofore paid, Xxxxxx'x
Salary through the Date of Termination; and
B. the product of (x) the highest Annual Bonus
paid to Xxxxxx during the three (3) fiscal years preceding the fiscal year in
which the Date of Termination occurs (the "Recent Bonus") and (y) a fraction,
the numerator of which is the number of days in the current fiscal year
through the date of Termination and the denominator of which is 365; and
C. the product of (x) two (2.0) and (y) the
sum of (i) the Salary
and (ii) the Recent Bonus; and
D. in the case of compensation previously
deferred by Xxxxxx, all amounts previously deferred (together with any accrued
interest thereon) and not yet paid by the Company, and any accrued vacation
pay not yet paid by the Company; and
(ii) for a two-year period following the Date of Termination,
the Company shall continue benefits to Xxxxxx and/or Xxxxxx'x family at least
equal to those which would have been provided to them in accordance with the
plans, programs, practices and policies provided under this Agreement if
Xxxxxx'x employment had not been terminated, including health insurance and life
insurance, in accordance with the most favorable plans, practices, programs or
policies provided by the Company and its subsidiaries during the 90-day period
immediately preceding the Date of Termination or, if more favorable to Xxxxxx,
as in effect at any time thereafter with respect to other key employees and
their families. Notwithstanding the foregoing, however, the Company shall
continue at all times to offer and provide the above-described health insurance
coverages to Xxxxxx and his spouse until their respective dates of death, except
to the extent such coverage is or otherwise becomes available to Xxxxxx and his
spouse under the Medicare program of benefits.
(d) Good Reason; Other than for Cause or Disability, following a Change
of Control. If, during a three year period following any Change of Control, the
Company shall terminate Xxxxxx'x employment other than for Cause, Disability, or
death or if Xxxxxx shall terminate his employment for Good Reason:
(i) the Company shall pay to Xxxxxx in a lump sum in cash on
the thirtieth (30th) day following after the Date of Termination the aggregate
of the following amounts:
A. to the extent not theretofore paid, Xxxxxx'x
Salary through the Date of Termination; and
B. the product of (x) the Recent Bonus and (y)
a fraction, the numerator of which is the number of days in the current fiscal
year through the date of Termination and the denominator of which is 365; and
C. the product of (x) three (3.0) and (y) the
sum of (i) the Salary and (ii) the Recent Bonus; and
D. in the case of compensation previously
deferred by Xxxxxx, all amounts previously deferred (together with any accrued
interest thereon) and not yet paid by the Company, and any accrued vacation
pay not yet paid by the Company; and
(ii) for a three-year period following the Date of
Termination, the Company shall continue benefits to Xxxxxx and/or Xxxxxx'x
family at least equal to those which would have been provided to them in
accordance with the plans, programs, practices and policies provided under this
Agreement if Xxxxxx'x employment had not been terminated, including health
insurance and life insurance, in accordance with the most favorable plans,
practices, programs or policies provided by the Company and its subsidiaries
during the 90-day period immediately preceding the Date of Termination or, if
more favorable to Xxxxxx, as in effect at any time thereafter with respect to
other key employees and their families. Notwithstanding the foregoing, however,
the Company shall continue at all times to offer and provide the above-described
health insurance coverages to Xxxxxx and his spouse until their respective dates
of death, except to the extent such coverage is or otherwise becomes available
to Xxxxxx and his spouse under the Medicare program of benefits.
(e) Alternative Excise Tax Cap. Notwithstanding the provisions of
Section 6(d) hereof, if any payments or benefits received or to be received by
Xxxxxx (whether pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company, any person whose actions result in a
Change of Control or any person affiliated with the Company or such person)
constitute "parachute payments" within the meaning of Section 280G(b)(2)(A) of
the Code and the value thereof exceeds 2.99 times Xxxxxx'x "base amount," as
defined in Section 280G(b)(3) of the Code, then, in lieu thereof, the Company
shall pay to Xxxxxx, as soon as practicable following the Date of Termination
but in no event later than thirty (30) days thereafter, a lump sum cash payment
equal to 2.99 times his "base amount" (the "Alternative Severance Payment"),
reduced as provided below. The value of the payments to be made under Section
6(e) and Xxxxxx'x base amount shall be determined in accordance with temporary
or final regulations, if any, promulgated under Section 280G of the Code and
based upon the advice of the tax counsel referred to below.
The Alternative Severance Payment shall be reduced by the amount of any
other payment or the value of any benefit received or to be received by Xxxxxx
in connection with a Change of Control of the Company or his termination of
employment unless (i) Xxxxxx shall have effectively waived his receipt or
enjoyment of such payment or benefit prior to the date of payment of the
Alternative Severance Payment, (ii) in the opinion of tax counsel selected by
the Company's independent auditors, such other payment or benefit does not
constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the
Code, or (iii) in the opinion of such tax counsel, the Alternative Severance
Payment plus all other payments or benefits which constitute "parachute
payments" within the meaning of Section 280G(b)(2) of the Code are reasonable
compensation for services actually rendered within the meaning of Section
280G(b)(4) of the Code or are otherwise not subject to disallowance as a
deduction by reason of Section 280G of the Code. The value of any non-cash
benefit or any deferred payment or benefit
shall be determined in accordance with the principles of Section 280G(d)(3) and
(4) of the Code.
(f) Section 162(m) Limitation. In the event that the payments due to
Xxxxxx under this Section 6 exceed the "reasonable compensation" limitations of
Section 162(m) of the Code, that portion thereof that would not be deductible by
the Company in the taxable year in which the payment is due shall be deferred by
the Company and paid to Xxxxxx on the date that is sixteen (16) months following
the Date of Termination, together with interest thereon at the rate provided in
Section 7872(f)(2) of the Code.
7. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent
or limit Xxxxxx'x continuing or future participation in any benefit, bonus,
incentive or other plans, programs, policies or practices, provided by the
Company and for which Xxxxxx may qualify, including but not limited to the
Non-Qualified Supplemental Executive Retirement Plan of the Company (the "SERP")
(or any successor plan), nor shall anything herein limit or otherwise affect
such rights as Xxxxxx may have under the SERP or any stock option or other
agreements with the Company. Amounts which are vested benefits or which Xxxxxx
is otherwise entitled to receive under any plan, policy, practice or program of
the Company at or subsequent to the Date of Termination, including but not
limited to the SERP, shall be payable in accordance with the SERP or such plan,
policy, practice or program.
8. FULL SETTLEMENT. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against
Xxxxxx or others. In no event shall Xxxxxx be obligated to seek other employment
or take any other action by way of mitigation of the amounts payable to Xxxxxx
under any of the provisions of this Agreement, but such payments shall be
reduced to the extent of Xxxxxx'x other earned income (if any) during any
remaining portion of the Employment Period. Following any Change of Control, the
Company agrees to pay, to the full extent permitted by law, all legal fees and
expenses which Xxxxxx may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Company or others (including Xxxxxx)
of the validity or enforceability of, or liability under, any provision of this
Agreement or any guarantee of performance thereof, plus in each case interest at
the applicable Federal rate provided for in Section 7872(f)(2) of the Code.
9. RETIREMENT OF XXXXXX. Provided that this Agreement or an extension
thereof remains in effect, it is understood that Xxxxxx shall retire on the last
day of the calendar year during which he reaches sixty-five (65) years of age.
In such event, the Board of Directors of the Company, at its sole option, may
offer to extend Xxxxxx'x employment on a year-to-year basis after the calendar
year in which Xxxxxx
reaches age sixty-five (65). At the conclusion of each year it will be presumed
that Xxxxxx will retire unless the Board of Directors determines to offer to
extend Xxxxxx'x employment for an additional year.
Following the retirement of Xxxxxx, the Company shall continue at all
times to offer and provide health insurance coverages to Xxxxxx and his spouse,
in accordance with the most favorable plans, programs, practices and policies
provided by the Company during the 90-day period immediately preceding the
effective date of Xxxxxx'x retirement or, if more favorable to Xxxxxx, as in
effect and any time thereafter with respect to other key employees and their
families, until the death of Xxxxxx and his spouse, except to the extent such
coverage is or otherwise becomes available to Xxxxxx and his spouse under the
Medicare program of benefits, and provided further that Xxxxxx and his spouse
shall pay the same contribution as that required of other Company employees
receiving such benefits until they reach sixty-five (65) years of age.
10. AVAILABILITY OF XXXXXX AFTER RETIREMENT. Following his retirement,
Xxxxxx shall at reasonable times and insofar as his physical condition may
permit, hold himself available at the written request of the Board of Director's
of the Company to consult with and advise the officers, directors, and other
representatives of the Company. Such requests for Xxxxxx'x service shall,
however, be structured so that reasonable allowances are made for Xxxxxx'x needs
for vacation time and for other considerations of his physical well-being. All
such services shall be provided by Xxxxxx at his place of residence unless
otherwise agreed to by Xxxxxx. Xxxxxx shall not be required to devote any
prescribed hours to consulting with and giving advice to the officers,
directors, and other representatives of the Company in order to be eligible to
receive any benefits that may be available to him under the SERP or any other
plan or program of the Company.
If Xxxxxx'x physical condition shall prevent him from consulting and
advising with the officers, directors or other representatives of the Company,
the benefits that may be available to Xxxxxx under the SERP or any other plan or
program of the Company shall nonetheless be paid as and to the extent therein
provided.
Xxxxxx shall be reimbursed by the Company for all reasonable expenses
incurred as a consultant and advisor, including expenses for travel,
communication, entertainment and similar items, upon presentation of itemized
accounts of such expenditures.
11. DISCRETION OF BOARD OF DIRECTORS. Notwithstanding any other term or
provision of this Agreement to the contrary, nothing stated herein is intended
to, nor shall it be construed, to abrogate, limit, alter or affect the
authority, rights and privileges of the Board of Directors of the Company to
remove Xxxxxx as Corporate Secretary of the Company, without Cause, or during
the term of this Agreement to elect
as Corporate Secretary of the Company a person other than Xxxxxx, as provided by
the laws of the State of Iowa; provided, however, it is expressly agreed and
understood that, in the event any one or any combination of such events occurs,
unless Xxxxxx is terminated for Cause as defined in Section 5(b) hereof, Xxxxxx
shall be entitled to terminate his employment for Good Reason (as defined in
Section 5(c) hereof) and receive the benefits described in either Section 6(c)
or Section 6(d) of this Agreement, as applicable, in consideration thereof.
12. CONFIDENTIAL INFORMATION; RESTRICTIVE COVENANT. (a) During the
period of his employment, Xxxxxx shall hold in fiduciary capacity for the
benefit of the Company all secret or confidential information, knowledge or data
relating to the Company or any of its subsidiaries, and their respective
businesses, which shall have been obtained by Xxxxxx during Xxxxxx'x employment
by the Company or any of its subsidiaries and which shall not be or become
public knowledge (other than by acts by Xxxxxx or his representatives in
violation of this Agreement). During a three (3) year period following
termination of Xxxxxx'x employment with the Company, Xxxxxx shall not, without
the prior written consent of the Company, communicate or divulge any such
information, knowledge or data to anyone other than the Company and those
designated by it.
(b) While this Agreement remains in effect and Xxxxxx is entitled to
compensation or benefits pursuant to Sections 4 through 6 hereof (or, in the
event of termination of his employment for Good Reason, for a period of three
(3) years thereafter), Xxxxxx shall not directly or indirectly associate with,
participate in or render service to, whether as an employee, officer, director,
consultant, independent contractor or otherwise, any organization that is
engaged in business in competition with the Company, and he shall not himself
engage in any such business on his own account.
(c) In the event of a demonstrated breach of this Section 12, the
parties agree that the Company shall be entitled to seek equitable relief in a
court of competent jurisdiction to prevent any anticipated continuing breach of
the terms and conditions of this Section 12 and to secure the enforcement
thereof. The foregoing remedy shall be exclusive and in lieu of any other remedy
otherwise available to the Company under law.
13. SUCCESSORS. (a) This Agreement is personal to Xxxxxx and without the
prior written consent of the Company shall not be assignable by Xxxxxx otherwise
than by will or the laws of descent and distribution. This Agreement shall inure
to the benefit of and be enforceable by Xxxxxx'x legal representatives.
(b) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
(c) The Company agrees and covenants to require (i) any successor or
assignee (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company through a Change of Control or otherwise, and, (ii) within its lawful
power to do so, any party effecting or taking steps to accomplish a Change of
Control, to assume expressly 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 or Change of Control had taken place. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
14. MISCELLANEOUS. (a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Iowa, without reference to principles
of conflict of laws. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect. This Agreement may not be
amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If the Company, to Xxxxx'x General Stores, Inc., P. O. Xxx 0000, Xxx Xxxxxxxxxxx
Xxxx., Xxxxxx, Xxxx 00000, Attention: President; and if to Xxxxxx, to his
address appearing on the books of the Company, or to his residence, or to such
other address as either party shall have furnished to the other in writing in
accordance herewith. Notice and communications shall be effective when actually
received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
(e) The Company's or Xxxxxx'x failure to insist upon strict compliance
with any provision hereof shall not be deemed to be a waiver of such provision
or any other provision thereof.
(f) This Agreement contains the entire understanding of the Company and
Xxxxxx with respect to the subject matter hereof. The Original Agreement between
the Company and Xxxxxx, as defined in the preambles hereof, is hereby terminated
and shall be of no further force or effect.
(g) No change, amendment or modification of this Agreement shall be
valid unless the same be in writing and signed by the Company and Xxxxxx.
(h) This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument with the same force and effect as if all
the parties had executed the same document.
IN WITNESS WHEREOF, the respective parties have caused this Agreement
to be executed as of the day and year first above written.
XXXXX'X GENERAL STORES, INC.
By: /s/ Xxxxxx X. Xxxx
------------------------------
Xxxxxx X. Xxxx, President
ATTEST:
/s/ Xxx X. Xxxxx
------------------------------
Xxx X. Xxxxx, Assistant Secretary
/s/ Xxxx X. Xxxxxx
----------------------------
Xxxx X. Xxxxxx
