AGREEMENT
Exhibit
10.11
This
AGREEMENT (this “Agreement”) is made and entered into as of September 29, 2008
(the “Effective Date”) between Xxxxxxx Corporation, a Delaware corporation
(“Parent”) and its wholly owned subsidiary Xxxxxxx Communications, Inc., a
Georgia corporation (“Subsidiary”) (both hereinafter collectively referred to as
the “Company”), and Xxxxxx X. Xxxxxx, an individual resident of the State of
Georgia (“Xxxxxx”).
WITNESSETH
WHEREAS,
Parent, Subsidiary and Xxxxxx are all parties to that certain agreement, dated
May 2, 2003, whereby Xxxxxx is guaranteed certain rights in conjunction with
a
change in control of the Company (the “Retention Agreement”); and
WHEREAS,
the Company and Xxxxxx have determined that it is in the mutual best interests
of each to terminate the Retention Agreement; and
WHEREAS,
in order to induce Xxxxxx to agree to a termination of the Retention Agreement,
the Company has agreed to certain specified severance payments; and
NOW
THEREFORE, in consideration of the premises, and the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as
follows:
1. Termination
of Retention Agreement.
The
Company and Xxxxxx mutually agree that as of the Effective Date, the Retention
Agreement shall for all purposes be terminated and be of no further force and
effect.
2. Payment
Upon Separation of Employment.
The
Company agrees that upon Xxxxxx’x retirement from employment with the Company,
or any other separation of employment with the Company, including but not
limited to Xxxxxx’x death, the Company shall pay to Xxxxxx an amount in cash
equal to six (6) months of Xxxxxx’x then annual base salary, to be paid in
accordance with the Company’s regular payroll practices; provided,
however,
that
the Company shall have no obligation to pay any amount under this Agreement
if
Xxxxxx is terminated for Cause. The term “Cause” shall be defined as (i)
Xxxxxx’x conviction of a felony or misdemeanor which involves moral turpitude or
which has or can reasonably be expected to have a material adverse effect on
the
Company, its business, reputation or interests; (ii) a material breach of a
fiduciary duty or responsibility to the Company; or (iii) gross negligence
or
gross misconduct which results, or can reasonably be expected to result, in
material damage to the Company, its business, reputation or interests. Any
payments provided for hereunder shall be paid net of any applicable withholding
required under federal, state or local law, and any additional withholding
to
which Xxxxxx has agreed.
3. Successors;
Binding Agreement.
In
addition to any obligations imposed by law upon any successor to or assigns
of
the Company, the Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all
of
the business and/or assets of the Company, or any assign of the Company, 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 or assignment had taken place. The terms and provisions of this
Agreement shall inure to the benefit of and be binding upon the Company and
its
successors and assigns, and upon Xxxxxx and his personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If Xxxxxx shall die while any amount would still be
payable to him hereunder if Xxxxxx 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
Xxxxxx’x estate.
4. Waiver.
The
waiver by any party to this Agreement of a breach of any of the provisions
of
this Agreement shall not operate or be construed as a waiver of any subsequent
or simultaneous breach.
5. Applicable
Law.
This
Agreement has been entered into and shall be governed by and construed under
the
laws of the State of Georgia.
6. Headings
and Captions.
The
headings and captions used in this Agreement are for convenience of reference
only, and shall in no way define, limit, expand or otherwise affect the meaning
or construction of any provision of this Agreement.
7. Notice.
Any
notice required or permitted to be given pursuant to this Agreement shall be
deemed sufficiently given when delivered in person or when deposited in the
United States mail, first class postage prepaid at the respective addresses
set
forth below, or such other address at which either party shall notify the other
in writing:
|
(A)
|
if
to the Company, at the following
address:
|
Xxxxxxx
Corporation and Xxxxxxx Communications, Inc.
00000
Xxxxxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxx 00000
Attn:
Chief Executive Officer
|
(B)
|
if
to Xxxxxx, at the following
address:
|
Xxxxxx
X.
Xxxxxx
00000
Xxxxxxxxx Xx.
Xxxxxxxxxx,
Xxxxxxx 00000-0000
8. Entire
Agreement.
This
Agreement constitutes the entire agreement between the Company and Xxxxxx with
respect to the subject matter of this Agreement and supersedes any prior
agreements or understandings between the Company and Xxxxxx with respect to
such
subject matter. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
and signed by the Company and Xxxxxx.
9. Counterparts.
This
Agreement may be executed in several counterparts, each of which shall be deemed
to be an original but all of which together will constitute one and the same
instrument.
[Signatures
Appear on Following Page]
IN
WITNESS WHEREOF, the parties hereto have set their hands and seals all as of
the
day and year first written above.
|
XXXXXXX
CORPORATION
|
||
|
By:
|
/s/
Xxxxxxx X. Xxxx
|
|
|
Xxxxxxx
X. Xxxx
|
||
|
Chairman
of the Compensation and
|
||
|
Incentive
Plan Committee of the
|
||
|
Board
of Directors
|
||
|
XXXXXXX
COMMUNICATIONS, INC.
|
||
|
/s/
Xxx X. Mountain
|
||
|
By:
Xxx X. Mountain
|
||
|
Title:
President & COO
|
||
|
XXXXXX
X. XXXXXX
|
||
|
/s/
Xxxxxx X. Xxxxxx
|
