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EXHIBIT 10.1
October 25, 1996
Xx. Xxxxx X. Xxxxxx, XX
0000 Xxxxxxxx Xxxx
Xxxxx Xxxxxx, XX 00000
Dear Xx. Xxxxxx:
This letter (the "Agreement") will amend and restate the
agreement between you and Xxxxxx & Xxxxx Corporation (the "Company"), originally
effective October 1, 1991. The effective date of this amendment and restatement
is October 1, 1996.
1. EMPLOYMENT. The Company will employ you and you agree to serve as
its Chairman and Chief Executive Officer on a continuing basis but in no event
for a period shorter than five years nor longer than the period ending on the
sixty-fifth (65th) anniversary of your birth. On each October 1, commencing
October 1, 1997, this agreement will be automatically extended for an additional
one year so that it will continue to be in effect for five years from the date
of such extension unless either you or the Company give to the other written
notice of termination at least six (6) months prior to the anniversary of your
employment in which event this Agreement will terminate at the expiration of the
five year term then in effect. You will receive an annual salary of not less
than $322,500.00, payable in equal bi-weekly installments. Your base salary will
be reviewed annually by the Company's compensation committee. You will
participate in all incentive compensation and benefit plans hereafter offered by
the Company to its senior executives.
2. DUTIES DURING EMPLOYMENT. During your employment by the Company, you
will devote your best efforts and substantially all of your business time and
attention to the Company's affairs, including those of subsidiary and affiliated
companies, except that you may be a director of other non-competitive companies
as you and the Company may agree. You shall have such duties and
responsibilities as are customary for the chief executive officer of companies
similar in size and character to the Company and as shall be determined and
assigned to you by the Board of Directors of the Company.
3. BONUSES DURING EMPLOYMENT. In addition to your annual base salary,
the Company shall pay you such bonuses as the Board of Directors of the Company
may, in its discretion, deem appropriate and commensurate with your performance
and that of the Company.
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4. HEALTH AND OTHER FRINGE BENEFITS DURING EMPLOYMENT. During the term
of your employment, in addition to the payments provided herein, you may
participate in such other fringe benefit plans or programs as the Company may
from time to time sponsor, provided that you meet the participation and
eligibility requirements thereof.
5. LIABILITY INSURANCE DURING EMPLOYMENT. During the term of your
employment hereunder, the Company shall provide to you director and officer
liability insurance coverage with coverage limits not less than that provided to
directors and officers of companies similar in size and character to the
Company. In addition, the Company shall provide you indemnification from
liability and costs of defense relating to your service as a director and
officer to the maximum extent permitted under the General Corporation Law of the
State of Ohio.
6. TERMINATION OF EMPLOYMENT UPON DEATH, DISABILITY OR FOR CAUSE.
Notwithstanding any other provision of this Agreement, your employment with the
Company will terminate in the event of your death or in the event of your total
and permanent disability which shall be defined as a disability which shall
qualify you for long term total and permanent disability benefits under the
Company's disability insurance policy. The Company shall provide and keep in
force a policy of insurance to provide disability benefits to you equivalent to
that provided to senior executives of companies similar in size and character to
the Company. Your employment may be terminated by the Company immediately and
without any liability to you whatever if such termination shall occur for
"cause". For purposes of this Agreement, termination shall be deemed to have
been for "cause" only if based on the fact that you have committed any of the
following acts and such has been materially harmful to the Company:
(a) An act of fraud, embezzlement or theft constituting a
felony and resulting or intended to result directly or
indirectly in substantial personal gain to you at the
expense of the Company; or
(b) You have failed to devote a substantial portion of your
business time (that is time after giving effect to illness,
vacations and other customary absences) during normal business
hours to the business and affairs of the Company.
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7. RIGHT TO TERMINATE EMPLOYMENT AND SEVERANCE BENEFITS.
Notwithstanding any other provisions of this Agreement, you shall have the right
to terminate your employment with the Company and receive the severance benefits
identified in this Section without further obligation on your part to the
Company in the event of the occurrence of any of the following:
(a) The Board of Directors of the Company fails to re-elect you to
the offices of Chairman and Chief Executive Officer of the
Company at any time during the term hereof in which case you
may treat such failure as a termination of your employment by
the Company other than for "cause".
(b) A change of more than fifty (50) miles has occurred in the
location of the Company's principal office without your
consent requiring you to move.
(c) A good faith determination by you that there has occurred a
substantial and adverse change in the conditions of your
employment or a significant reduction in your compensation or
other employee benefits in excess of any such reductions made
effective for key executives of the Company generally.
In the event of the occurrence of any one or more of the
foregoing events and your election to terminate your employment with the Company
as a result thereof, the Company shall pay you in a lump sum an amount equal to
five (5) times the compensation paid to you by the Company during the calendar
year preceding your termination of employment. For purposes hereof, your
compensation shall include all compensation includable in gross income for
federal income tax purposes as required to be reported by the Company on
Internal Revenue Service Form W-2. You shall not be required to mitigate damages
or the amount of such payment or to seek employment elsewhere.
8. TERMINATION OF EMPLOYMENT AND SEVERANCE COMPENSATION FOLLOWING A
CHANGE IN CONTROL.
(a) If, following the occurrence of a Change in Control (defined
below), the Company terminates your employment during the
Severance Period (defined below) other than for "cause" as
described in Section 6, (i) the Company shall pay you in a
lump sum an amount equal to five (5) times the compensation
paid to you by the Company during the calendar year preceding
your termination of
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employment, as such amount is determined under Section 7, (ii)
for a period of three (3) years following your termination of
employment, the Company will arrange to provide you with
health care coverage substantially similar to the coverage
provided to you immediately prior to your termination of
employment, and (iii) all outstanding stock options granted
under the Company's Stock Option Plan shall immediately vest.
If the continued health coverage under clause (ii) of this
Subsection is provided through participation in the Company's
group health plan, then following such period of continued
health care coverage, you will be eligible to elect to
continue, for yourself and your eligible dependents, health
benefits in accordance with the provisions of the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended.
(b) For the purposes of this Section, the term "Change in Control"
means the occurrence during the term of this Agreement of any
of the following events:
(i) The Company is merged, consolidated or reorganized
into or with another corporation or other legal
person, and as a result of such merger,
consolidation or reorganization less than a
majority of the combined voting power of the
then-outstanding voting stock of the corporation
or person surviving such merger, consolidation or
reorganization, immediately after such
transaction, are beneficially held, directly or
indirectly, in the aggregate by the beneficial
holders of voting stock of the Company immediately
prior to such transaction;
(ii) The Company sells or otherwise transfers all or
substantially all of its assets to another
corporation or other legal person, and as a result
of such sale or transfer less than a majority of the
combined voting power of the then-outstanding voting
stock of such corporation or person immediately
after such sale or transfer is held in the aggregate
by the holders of voting stock of the Company
immediately prior to such sale or transfer;
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(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or
any successor schedule, form or report), each as promulgated
pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), disclosing that any person (as the term
"person" is used in Section 13(d)(3) or Section 14(d)(2) of
the Exchange Act) has become the beneficial owner (as the term
"beneficial owner" is defined under Rule 13d-3 or any
successor rule or regulation promulgated under the Exchange
Act) of securities representing 25% or more of the combined
voting power of the then-outstanding voting stock of the
Company;
(iv) The Company files a report or proxy statement with the
Securities and Exchange Commission pursuant to the Exchange
Act disclosing in response to Form 8-K or Schedule 14A (or any
successor schedule, form or report or item therein) that a
change in control of the Company has occurred or will occur in
the future pursuant to any then-existing contract or
transaction; or
(v) If, during any period of two consecutive years, individuals
who at the beginning of any such period constitute the
directors of the Company cease for any reason to constitute at
least a majority thereof; PROVIDED, HOWEVER, that for purposes
of this clause each director who is first elected, or first
nominated for election by the Company's stockholders, by a
vote of at least two-thirds of the directors of the Company
(or a committee thereof) then still in office who were
directors of the Company at the beginning of any such period
will be deemed to have been a director of the Company at the
beginning of such period.
Notwithstanding the foregoing provisions of clause (iii) or clause (iv)
of this Section, unless otherwise determined in a specific case by
majority vote of the board of directors of the Company, a "Change in
Control" shall not be deemed to have occurred for purposes of clause
(iii) or clause (iv) of this Section solely because (A) the Company,
(B) a subsidiary, (C) any Company-sponsored employee stock ownership
plan or any other employee benefit plan of the Company or any
subsidiary, (D) any person or group of which employees of the Company
or a subsidiary control a greater
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than 25% interest unless the board of directors of the Company
determines that such person or group is making a "hostile acquisition",
or (E) any person or group of which you are an affiliate either files
or becomes obligated to file a report or a proxy statement under or in
response to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or
any successor schedule, form or report or item therein) under the
Exchange Act disclosing beneficial ownership by it of shares of voting
stock, whether in excess of 25% or otherwise, or because the Company
reports that a change in control of the Company has occurred or will
occur in the future by reason of such beneficial ownership.
(c) For purposes of this Section, the term "Severance
Period" means the period of time commencing on the date
of the first occurrence of a Change in Control and
continuing until the earliest of (i) the third
anniversary of the occurrence of the Change in Control
(ii) your death, or (iii) your attainment of age 65;
PROVIDED, HOWEVER, that commencing on each anniversary
of the Change in Control, the Severance Period will
automatically be extended for an additional year
unless, not later than 90 calendar days prior to such
anniversary date, either you or the Company has given
written notice to the other that the Severance Period
is not to be so extended.
(d) Notwithstanding anything contained in this Agreement to the
contrary, in the event of a Change in Control during the term
of your employment pursuant to Section 1, you may terminate
employment with the Company and any subsidiary for any reason,
or without reason, with the right to severance compensation as
provided in Subsection (a) of this Section.
9. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY. Notwithstanding any
other provision hereof, unless such action would be expressly prohibited by
applicable law, if any payment of distribution by the Company or any of its
affiliates to or for your benefit, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise pursuant to
or by reason of any other agreement, policy, plan, program or arrangement,
including without limitation any stock option, stock appreciation right or
similar right, or the lapse or termination of any restriction on or the vesting
or exercisability of any of the foregoing (a "Payment"), would be subject to the
excise tax imposed by Section 4999 of the
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Internal Revenue Code of 1986, as amended (the "Code") by reason of being
considered "contingent on a change in ownership or control" of the Company,
within the meaning of Section 280G of the Code (or any successor provision
thereto) or to any similar tax imposed by state or local law, or any interest or
penalties with respect to such tax (such tax or taxes, together with any such
interest and penalties, being hereafter collectively referred to as the "Excise
Tax"), then you shall be entitled to receive an additional payment or payments
(collectively, a "Gross-Up Payment"); PROVIDED, HOWEVER, that no Gross-Up
Payment shall be made with respect to the Excise Tax, if any, attributable to
(a) any incentive stock option, as defined by Section 422 of the Code ("ISO")
granted prior to the execution of this Agreement, or (b) any stock appreciation
or similar right, whether or not limited, granted in tandem with any ISO
described in clause (a). The Gross-Up Payment shall be in an amount such that,
after you pay all taxes (including any interest or penalties imposed with
respect to such taxes), including any Excise Tax imposed upon the Gross-Up
Payment, you retain an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payment.
10. OTHER BENEFITS. If your employment is terminated pursuant to
Section 8, the Company, at its sole expense for a period of up to three (3)
years following the date of your termination of employment, shall provide you
with up to 1,200 square feet of usable office space at a location you select,
including rent, utilities and escalation, but not in the Company's home office
building. The office space shall be furnished with your current office furniture
and shall be equipped with other reasonable furnishings, including computer,
telephone and photocopy equipment and shall be staffed by a full-time salaried
qualified executive secretary with appropriate fringe benefits. Ownership of the
furnishings and equipment or leasehold interests therein owned or leased and
furnished by the Company shall be retained by the Company and at the end of the
three (3) year period possession thereof shall be delivered to the Company. The
Company shall pay all other operating expenses of the office including, without
limitation, the cost of telephone service. You may at any time deliver
possession of this office space and the furnishings to the Company, at which
time the Company's obligations under this Section shall cease.
11. LEGAL FEES AND EXPENSES. It is the intent of the Company that you
not be required to incur the expenses associated with the enforcement of your
rights under this Agreement by litigation or other legal action because the cost
and expense
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thereof would substantially detract from the benefits intended to be extended to
you hereunder. Accordingly, if it should appear to you that the Company has
failed to comply with any of its obligations under this Agreement or in the
event that the Company or any other person takes any action to declare this
Agreement void or unenforceable, or institutes any litigation designed to deny,
or to recover from, you the benefits intended to be provided to you hereunder,
the Company irrevocably authorizes you from time to time to retain counsel of
your choice, at the expense of the Company as hereafter provided, to represent
you in connection with the initiation or defense of any litigation or other
legal action, whether by or against the Company or any director, officer,
stockholder or other person affiliated with the Company, in any jurisdiction.
Notwithstanding any existing or prior attorney-client relationship between the
Company and such counsel, the Company irrevocably consents to your entering into
an attorney-client relationship with such counsel, and in that connection the
Company agrees with you that a confidential relationship shall exist between you
and such counsel. The Company shall pay or cause to be paid and shall be solely
responsible for any and all attorneys' and related fees and expenses you incur
as a result of the Company's failure to perform this Agreement or any provision
hereof or as a result of the Company or any person contesting the validity or
enforceability of this Agreement or any provision hereof as aforesaid.
12. SECURITY FOR PAYMENT. To ensure that you can enforce the provisions
of this Agreement, two agreements ("Trust Agreement" and "Trust Agreement No.
2"; collectively, the "Trusts") will be established between the Company and a
trustee appointed by the Company (the "Trustee"). The Trust Agreement sets forth
the terms and conditions relating to payment from the Trust Agreement of the
amounts and the other benefits provided pursuant to this Agreement and owed by
the Company and Trust Agreement No. 2 sets forth the terms and conditions
relating to payment from Trust Agreement No. 2 of attorneys' and related fees
and expenses pursuant to Section 11 owed by the Company. You shall make demand
on the Company for any payments due you pursuant to Section 11 prior to making
demand therefor on the Trustee under Trust Agreement No. 2. Payments by such
Trustee shall discharge the Company's liability under Section 11 only to the
extent that trust assets are used to satisfy such liability.
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13. OBLIGATION OF THE COMPANY TO FUND TRUSTS. Upon the earlier to occur
of (a) a Change in Control that involves a transaction that was not approved by
the board of directors of the Company (the "Board"), and was not recommended to
the Company's shareholders by the Board, (b) a declaration by the Board that the
Trusts should be funded in connection with a Change in Control that involves a
transaction that was approved by the Board, or was recommended to shareholders
by the Board, or (c) a declaration by the Board that a Change in Control is
imminent, the Company shall promptly to the extent it has not previously done
so, and in any event within five (5) business days:
(i) transfer to the Trustee to be added to the principal of the
trust under the Trust Agreement a sum equal to the aggregate
value on the date of the Change in Control of the payment
provided for under Section 7 or Section 8 and other benefits
provided hereunder which could become payable to you;
PROVIDED, HOWEVER, that the Company shall not be required to
transfer, in the aggregate, to the trust under the Trust
Agreement a sum in excess of $12,000,000. Any payment by the
Trustee pursuant to the Trust Agreement shall, to the extent
thereof, discharge the Company's obligation to pay the payment
provided for under Section 7 or Section 8 and other benefits
provided hereunder which become payable to you, it being the
intent of the Company that assets in such Trust be held as
security for the Company's obligation to pay the payment
provided for under Section 7 or Section 8 and other benefits
provided hereunder; and
(ii) transfer to the Trustee to be added to the principal of the
trust under Trust Agreement No. 2 the sum of $250,000. Any
payments of attorneys' and related fees and expenses, which
are the obligation of the Company under Section 11, by the
Trustee pursuant to Trust Agreement No. 2 shall, to the extent
thereof, discharge the Company's obligation hereunder, it
being the intent of the Company that such assets in such Trust
be held as security for the Company's obligation under Section
11.
14. SUCCESSOR AND BINDING AGREEMENT. Your rights under this agreement
shall inure to the benefit of your executors, administrators, personal
representatives and assigns in the event of your death. This agreement shall be
binding upon and inure to
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the benefit of the Company and any successor of the Company, including, without
limitation, any person, firm or corporation acquiring directly or indirectly all
or substantially all the assets or capital stock of the Company (and such
successor shall thereafter be deemed the "Company" for the purpose of this
agreement).
15. AUTOMOBILE. During the term of your employment, the Company shall
provide to you biennially, a new passenger automobile suitable to the
performance of your duties and appropriate to your office.
16. NON-COMPETITION. During the term of your employment with the
Company and for a period of two years thereafter, you will refrain from engaging
in a competing business without having first obtained the written consent of the
Company. For the purpose of this Agreement, you will be considered to be
"engaging in a competing business" if you participate in the management of any
business enterprise if such enterprise engages in substantial and direct
competition with the Company and such enterprise's sales of any product or
service competitive with any product or service of the Company amounted to 10%
of such enterprise's net sales for its most recently completed fiscal year and
if the Company's net sales of said product or service amount to 10% of the
Company's net sales for its most recently completed fiscal year. Notwithstanding
the foregoing, for the purposes of this Agreement, "engaging in a competing
business" will not include (a) the mere ownership of securities in any such
enterprise and the exercise of rights appurtenant thereto, (b) participation in
the management of any such enterprise other than in connection with the
competitive operations of such enterprise or (c) exploration of or the
production from properties or interests you own.
17. MISCELLANEOUS. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by you and the Company. No waiver by either party hereto at
any time of any breach by the other party hereto or compliance with any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied with respect to the subject matter hereof
have been made by any of the parties that are not set forth expressly in this
Agreement and every one of them (if, in
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fact, there have been any) is hereby terminated without liability or any other
legal effect whatsoever.
18. ENTIRE AGREEMENT. This Agreement shall constitute the entire
agreement among the parties hereto with respect to the subject matter hereof and
shall supersede all prior verbal or written agreements, covenants,
communications, understandings, commitments, representations or warranties,
whether oral or written, by any party hereto or any of its representatives
pertaining to such subject matter.
19. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the substantive laws of the
State of Ohio, without giving effect to the principles of conflict of laws of
such State.
20. VALIDITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement which shall nevertheless remain in full force and
effect.
21. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same Agreement.
22. CAPTIONS AND PARAGRAPH HEADINGS. Captions and paragraph headings
used herein are for convenience and are not part of this Agreement and shall not
be used in construing it.
23. FURTHER ASSURANCES. Each party hereto shall execute such additional
documents, and do such additional things, as may reasonably be requested by the
other party to effectuate the purposes and provisions of this Agreement.
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In order to formalize this amendment and restatement of the
agreement between you and the Company expressed in this letter, please sign and
return the enclosed copy of this letter.
Very truly yours,
XXXXXX & BLAKE CORPORATION
By: /s/ X. X. Xxxxxxx
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Agreed:
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, XX
