Exhibit 10(r)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and
entered into as of this 11th day of July, 2000, by and between X. XXXXXXXX,
INC., a Delaware corporation (the "Employer"), and XXXXXXXXXX XXXXXX (the
"Employee").
WHEREAS, the Board of Directors of the Employer desires to
provide for the continued employment of the Employee as a member of the
Employer's management, in the best interest of the Employer and its
stockholders. The Employee is willing to commit himself continue to serve the
Employer, on the terms and conditions herein provided;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants herein contained, the parties hereto agree as follows:
1. DEFINED TERMS
The definitions of capitalized terms used in this Agreement
(unless stated where first used) are provided in the last Section hereof.
2. EMPLOYMENT
The Employer hereby continues to employ the Employee as Vice
President-Technology for the Employer, and the Employee hereby accepts such
continued employment upon the terms and conditions herein contained.
3. DUTIES AND CONDITIONS OF EMPLOYMENT
3.1 DUTIES. The Employee shall devote his entire business
time, attention and energies to the Employer and shall not engage in any conduct
which shall reflect adversely upon the Companies. The Employee shall perform
such duties for the Companies as may be assigned to one in his executive status
and capacity by the Board. The Employee shall serve diligently and to the best
of his ability.
During his employment by the Employer, the Employee shall not,
without the Employer's prior written consent, be engaged in any other business
activity, whether or not such business activity is pursued for gain, profit or
other pecuni-
ary advantage, except that notwithstanding the foregoing, he may invest his
personal funds for his own account; provided that such investment shall be
passive and not controlling in any such investment and subject to the provisions
of Section 13.2 hereof and provided further that he will not be required to
provide any substantial services on behalf of such enterprise. Notwithstanding
the foregoing, the Employee may serve on the Boards of Directors of other
corporations during the Term as long as such service does not interfere with the
performance of his duties hereunder.
3.2 CONDITIONS. The Employee shall be provided with suitable
office space, furnishings, secretarial and administrative assistance. Without
the Employee's consent, the Employee shall not be required to report principally
to an office located more than five hundred (500) miles from his principal
office at the date of this Agreement.
4. TERM OF AGREEMENT; TERMINATION OF EMPLOYMENT; ESCROW
DURING DISPUTE
4.1 TERM OF AGREEMENT. The Employer hereby employs the
Employee for a Term commencing as of the date hereof and ending July 11, 2003.
At the end of August 2000 and at the end of each calendar month thereafter up to
and including the end of the calendar month in which the Employee's 62nd
birthday occurs, this Agreement shall automatically be extended for one (1)
month unless either party shall give notice to the other of non-extension prior
to the end of such calendar month; provided, however, if a Change in Control
shall have occurred during the Term of this Agreement, Sections 7 and 8 and 10
through 20 of this Agreement shall continue in effect until at least the end of
the Change-in-Control Protective Period (whether or not the Term of the
Agreement shall have expired for other purposes).
4.2 TERMINATION OF EMPLOYMENT PRIOR TO A CHANGE IN CONTROL.
Prior to any Change in Control, the Employer may terminate the employment of the
Employee for Cause pursuant to this Agreement. Prior to any Change in Control,
the Employee may terminate his employment pursuant to this Agreement if the
Employer fails to make full and timely payments of all sums provided for in
Sections 5 and 6 hereof (subject to Section 7.2 hereof), or otherwise shall
breach its covenants hereunder in any material respect.
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4.3 ESCROW DURING A TERMINATION DISPUTE. Prior to any Change
in Control, if the Employee shall be terminated for Cause, and, within 30 days
of such termination, shall notify the Employer of his intention to adjudicate
such termination as improper, the Employer agrees that it will deposit with
KeyBank National Association, Cleveland, Ohio, as Escrow Agent the installments
of the Employee's Base Salary (as provided in Section 5 below) as the same would
have become payable but for such termination. In the event of a final
adjudication by a tribunal of competent jurisdiction that such termination was
not for Cause, then the amounts so deposited in escrow, plus any interest earned
by the Escrow Agent thereon, shall be delivered promptly to the Employee. If
such adjudication shall be in favor of the Employer, the Escrow Agent shall
return the sums so deposited, plus such interest, to the Employer.
The escrowed salary shall not be deemed to be liquidated
damages but the Employer shall be entitled to a credit against any such award to
the extent of the sums so delivered to the Employee.
5. COMPENSATION
The Employer agrees to pay to the Employee as compensation for
his services hereunder a Base Salary initially equal to the fixed annual salary
currently being paid to the Employee as shown on the Employer's employment
records, payable in substantially equal weekly, biweekly, bimonthly or monthly
installments, as the case may be, in the manner currently being paid to the
Employee. The Base Salary may be discretionarily increased by the Board from
time to time as the Board deems appropriate in its reasonable business judgment.
The Base Salary in effect from time to time shall not be decreased during the
Term (except as provided in Section 7.2).
It is understood and agreed that the Employee's compensation
may not be limited to his Base Salary and that the Employee may receive an
annual bonus in the amount, if any, determined annually by the Employer.
The Employee shall also participate in employee compensation
and benefit plans available generally to executives of the Employer (including,
without limitation, any tax-qualified profit sharing plan, nonqualified profit
sharing plan, life insurance plan and health insurance plan) on a level
appropriate to his position and shall receive the employee fringe benefits
available generally to executives of the
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Employer (including, without limitation, the use of a company car).
6. EXPENSES
The Employee is authorized to incur reasonable expenses for
promoting the business of the Employer, including expenses for entertainment,
travel and similar items. The Employer shall reimburse the Employee for all such
expenses upon the presentation by the Employee, from time to time, of an
itemized account of such expenditures.
7. PRE-TERMINATION COMPENSATION; DISABILITY
7.1 NORMAL PRE-TERMINATION COMPENSATION. If the Employee's
employment shall be terminated for any reason during the Term (or, if later,
prior to the end of the Change-in-Control Protective Period), the Employer shall
pay the Employee's Base Salary to the Employee through the Date of Termination
at the rate in effect at the time the Notice of Termination is given (subject to
Section 7.2 hereof), together with all compensation and benefits payable to the
Employee through the Date of Termination under the terms of any compensation or
benefit plan, program or arrangement maintained by the Employer during such
period. Subject to Sections 8, 9, 10 and 11 hereof, after completing the expense
reimbursements required by Section 6 hereof and making the payments and
providing the benefits required by this Section 7, the Employer shall have no
further obligations to the Employee under this Agreement.
7.2 DISABILITY ADJUSTMENT TO BASE SALARY PAYMENTS. During the
Term (or, if later, at any time prior to the end of the Change-in-Control
Protective Period), during any period that the Employee fails to perform the
Employee's full-time duties with the Employer as a result of incapacity due to
physical or mental illness (but in no event for more than twenty-four (24)
months), the Employer shall pay only sixty percent (60%) of the Employee's Base
Salary to the Employee at the rate in effect at the commencement of any such
period (less amounts, if any, payable to the Employee at or prior to the time of
any such Base Salary payment under disability benefit plans of the Employer or
under the Social Security disability insurance program). After six (6) months of
Disability, the Employer shall have the right to terminate the Employee's
employment pursuant to this Agreement and all Base Salary payments (except the
sixty percent (60%) payments pursuant to the foregoing sentence) shall cease.
Except to the extent
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provided in this Section 7.2, all Base Salary payments to
the Employee shall be abated during the period of Disability. Subject to
Sections 8, 9, 10 and 11 hereof, after completing the expense reimbursements
required by Section 6 hereof and making the payments and providing the benefits
required by this Section 7, the Employer shall have no further obligations to
the Employee under this Agreement.
8. NORMAL POST-TERMINATION PAYMENTS; CONTINUATION PAY;
TERMINATION PAY; PROMPT PAYMENT
8.1 NORMAL POST-TERMINATION PAYMENTS. If the Employee's
employment shall be terminated for any reason during the Term of this Agreement
(or, if later, prior to the end of the Change-in-Control Protective Period), the
Employer shall pay the Employee's normal post-termination compensation and
benefits to the Employee as such payments become due. Subject to Section 10
hereof, such post-termination compensation and benefits shall be determined
under, and paid in accordance with, the Employer's retirement, insurance and
other compensation or benefit plans, programs and arrangements (other than this
Agreement).
8.2 CONTINUATION PAY; TERMINATION PAY. Notwithstanding
anything to the contrary in Section 7.2, 9.1 or 10.1(A) hereof, if the laws
governing this Agreement shall require that the Employer continue to pay or
otherwise compensate the Employee for any period of time following termination
of the Employee's employment ("Continuation Pay") or if such laws require
certain amounts of severance pay, termination compensation or the like
(collectively, "Termination Pay"), then to the fullest extent permitted by law
any payments to the Employee pursuant to Section 7.2, 9.1 or 10.1(A) hereof
shall be included in the calculation of Continuation Pay and Termination Pay and
such payments shall be deducted from the amount of Continuation Pay or
Termination Pay due the Employee.
8.3 PROMPT PAYMENT. Any payments due under Section 5, 6, 7 or
9 hereof or this Section 8 shall be made promptly after the event giving rise to
the obligation and shall be made to the Employee or in accordance with Section
14.2 hereof, as the case may be.
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9. POST-TERMINATION PAYMENTS UPON TERMINATION (PRIOR TO A
CHANGE IN CONTROL) BY DEATH OR BY THE EMPLOYER WITHOUT CAUSE
9.1 DEATH BENEFIT. If the Employee's employment shall be
terminated by death during the Term (or, if later, prior to the end of the
Change-in-Control Protective Period), then, in addition to the compensation and
benefits provided by Sections 7.1 and 8 hereof, the Employer shall pay a lump
sum amount equal to sixty percent (60%) of the Base Salary for twenty-four (24)
months in accordance with Section 14.2.
9.2 TERMINATION BY THE EMPLOYER WITHOUT CAUSE. If the Employer
shall terminate the Employee's employment during the Term and prior to a Change
in Control, without Cause (and not for Disability or in connection with the
Employee's death), the Employer shall pay the Employee his Base Salary
throughout the remaining Term and annual bonuses during the remaining Term, each
of which bonuses shall be equal to one-half (1/2) times the average annual bonus
paid to the Employee during the most recent five (5) calendar years of the
Employee's employment by any of the Companies (prorated for any partial years in
the remaining Term).
10. SEVERANCE PAYMENTS; DEDUCTIBILITY.
10.1 SEVERANCE PAYMENTS.
Subject to Section 10.2 hereof, the Employer shall pay the
Employee the payments described in this Section 10.1 (the "Severance Payments")
upon the termination of the Employee's employment following a Change in Control
and prior to the end of the Change-in-Control Protective Period, in addition to
any payments and benefits to which the Employee is entitled under Sections 5, 6,
7 and 8.1 hereof, unless such termination is (i) by the Employer for Cause, (ii)
by reason of death or Disability, or (iii) by the Employee without Good Reason.
For purposes of this Agreement, the Employee's employment shall be deemed to
have been terminated by the Employer without Cause following a Change in Control
or by the Employee with Good Reason following a Change in Control, as the case
may be, if (i) the Employee's employment is terminated without Cause prior to a
Change in Control and such termination was at the request or direction of a
Person who has entered into an agreement with the Employer the consummation of
which would constitute a Change in Control, (ii) the Employee terminates his
employment with Good Reason prior to a Change in Control and the circum-
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stance or event which constitutes Good Reason occurs at the request or direction
of such Person, or (iii) the Employee's employment is terminated by the Employer
without Cause prior to a Change in Control (but following a Potential Change in
Control) and such termination is otherwise in connection with or in anticipation
of a Change in Control which actually occurs. For purposes of any determination
regarding the applicability of the immediately preceding sentence, any position
taken by the Employee shall be presumed to be correct unless the Employer
establishes to the Committee by clear and convincing evidence that such position
is not correct.
(A) In lieu of any further salary payments to the Employee for
periods subsequent to the Date of Termination and in lieu of any
severance benefit otherwise payable to the Employee, the Employer
shall pay to the Employee a lump sum severance payment, in cash, equal
to three (3) times the sum of (i) the higher of the Employee's Base
Salary in effect immediately prior to the occurrence of the event or
circumstance upon which the Notice of Termination is based or the
Employee's Base Salary in effect immediately prior to the Change in
Control, and (ii) the higher of the annual bonus earned by the
Employee in respect of the Employer's fiscal year immediately
preceding that in which the Date of Termination occurs or the average
annual bonus so earned in respect of the three fiscal years
immediately preceding that in which the Change in Control occurs.
(B) Notwithstanding any provision of any annual incentive plan to
the contrary, the Employer shall pay to the Employee a lump sum
amount, in cash, equal to the sum of (i) any annual incentive
compensation which has been allocated or awarded to the Employee for a
completed fiscal year preceding the Date of Termination and which, as
of the Date of Termination, is contingent only upon the continued
employment of the Employee to a subsequent date, and (ii) a pro rata
portion to the Date of Termination of a deemed annual bonus for the
Employer's fiscal year in which the Date of Termination occurs,
calculated by multiplying (i) the higher of the annual bonus earned by
the Employee with respect to the immediately preceding fiscal year or
the average annual bonus earned by the Employee with respect to the
immediately preceding three fiscal years of the Employer by (ii) the
fraction obtained by dividing the number of days in the fiscal year of
the
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Employer in which termination occurs up to and including the Date of
Termination by 365.
(C) For the thirty-six (36) month period immediately following
the Date of Termination, the Employer shall arrange to provide the
Employee with life, disability, accident and health insurance benefits
substantially similar to those which the Employee is receiving
immediately prior to the Notice of Termination (without giving effect
to any amendment to such benefits made subsequent to a Change in
Control, which amendment adversely affects in any manner the
Employee's entitlement to or the amount of such benefits); PROVIDED,
HOWEVER, that, unless the Employee consents to a different method
(after taking into account the effect of such method on the
calculation of "parachute payments" pursuant to Section 10.2 hereof),
such health insurance benefits shall be provided through a third-party
insurer. Benefits otherwise receivable by the Employee pursuant to
this Section 10.1(C) shall be reduced to the extent comparable
benefits are actually received by or made available to the Employee
without cost during the thirty-six (36) month period following the
Employee's termination of employment (and any such benefits actually
received by or made available to the Employee shall be reported to the
Employer by the Employee). If the Severance Payments shall be
decreased pursuant to Section 10.2 hereof, and the Section 10.1(C)
benefits which remain payable after the application of Section 10.2
hereof are thereafter reduced pursuant to the immediately preceding
sentence because of the receipt or availability of comparable
benefits, the Employer shall, at the time of such reduction, pay to
the Employee the least of (a) the amount of the decrease made in the
Severance Payments pursuant to Section 10.2 hereof, (b) the amount of
the subsequent reduction in these Section 10.1(C) benefits, or (c) the
maximum amount which can be paid to the Employee without being, or
causing any other payment to be, nondeductible by reason of section
280G of the Code.
10.2 DEDUCTIBILITY.
(A) Notwithstanding any other provisions of this Agreement, in
the event that any payment or benefit received or to be received by the Employee
in connection with a Change in Control or the termination of the Employee's
employment (whether pursuant to the terms of this Agreement or any other plan,
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arrangement or agreement with the Employer, any Person whose actions result in a
Change in Control or any Person affiliated with the Employer or such Person)
(all such payments and benefits, including the Severance Payments, being
hereinafter called "Total Payments") would not be deductible (in whole or part),
by the Employer, an affiliate or Person making such payment or providing such
benefit as a result of section 280G of the Code, then, to the extent necessary
to make such portion of the Total Payments deductible (and after taking into
account any reduction in the Total Payments provided by reason of section 280G
of the Code in such other plan, arrangement or agreement), the cash Severance
Payments shall first be reduced (if necessary, to zero), and the noncash
Severance Payments shall thereafter be reduced (if necessary, to zero);
PROVIDED, HOWEVER, that the Employee may elect (at any time prior to the
delivery of a Notice of Termination hereunder) to have the noncash Severance
Payments reduced (or eliminated) prior to any reduction of the cash Severance
Payments.
(B) For purposes of this limitation, (i) no portion of the
Total Payments the receipt or enjoyment of which the Employee shall have
effectively waived in writing prior to the delivery of a Notice of Termination
shall be taken into account, (ii) no portion of the Total Payments shall be
taken into account which in the opinion of tax counsel (the "Tax Counsel")
reasonably acceptable to the Employee and selected by the accounting firm which
was, immediately prior to the Change in Control, the Employer's independent
auditor (the "Auditor") does not constitute a "parachute payment" within the
meaning of section 280G(b)(2) of the Code, including by reason of section
280G(b)(4)(A) of the Code, (iii) the Severance Payments shall be reduced only to
the extent necessary so that the Total Payments (other than those referred to in
clauses (i) or (ii)) in their entirety constitute reasonable compensation for
services actually rendered within the meaning of section 280G(b)(4)(B) of the
Code or are otherwise not subject to disallowance as deductions by reason of
section 280G of the Code, in the opinion of the Tax Counsel, and (iv) the value
of any noncash benefit or any deferred payment or benefit included in the Total
Payments shall be determined by the Auditor in accordance with the principles of
sections 280G(d)(3) and (4) of the Code.
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(C) If it is established pursuant to a final determination of
a court or an Internal Revenue Service proceeding that, notwithstanding the good
faith of the Employee and the Employer in applying the terms of this Section
10.2, the aggregate "parachute payments" paid to or for the Employee's benefit
are in an amount that would result in any portion of such "parachute payments"
not being deductible by reason of section 280G of the Code, then the Employee
shall have an obligation to pay the Employer upon demand an amount equal to the
sum of (i) the excess of the aggregate "parachute payments" paid to or for the
Employee's benefit over the aggregate "parachute payments" that could have been
paid to or for the Employee's benefit without any portion of such "parachute
payments" not being deductible by reason of section 280G of the Code; and (ii)
interest on the amount set forth in clause (i) of this sentence at one hundred
twenty percent (120%) of the rate provided in section 1274(b)(2)(B) of the Code
from the date of the Employee's receipt of such excess until the date of such
payment.
10.3 The payments provided in Sections 10.1(A) and (B) hereof
shall be made not later than the fifth day following the Date of Termination;
PROVIDED, HOWEVER, that if the amounts of such payments, and the limitation on
such payments set forth in Section 10.2 hereof, cannot be finally determined on
or before such day, the Employer shall pay to the Employee on such day an
estimate, as determined in good faith by the Employer, in accordance with
Section 10.2 hereof, of the minimum amount of such payments to which the
Employee is clearly entitled and shall pay the remainder of such payments
(together with interest at one hundred twenty percent (120%) of the rate
provided in section 1274(b)(2)(B) of the Code) as soon as the amount thereof can
be determined but in no event later than the thirtieth (30th) day after the Date
of Termination. In the event that the amount of the estimated payments exceeds
the amount subsequently determined to have been due, such excess shall
constitute a loan by the Employer to the Employee, payable on the fifth (5th)
business day after demand by the Employer (together with interest at one hundred
twenty percent (120%) of the rate provided in section 1274(b)(2)(B) of the
Code). At the time that payments are made under this Section, the Employer shall
provide the Employee with a written statement setting forth the manner in which
such payments were calculated and the basis for such calculations including,
without limitation, any opinions or other advice the Employer has received from
outside counsel, auditors or consultants (and any such opinions or advice which
are in writing shall be
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attached to the statement). In the event the Employer should fail to pay when
due the amounts described in Sections 10.1(A), (B) and (C) hereof or in Section
10.2 hereof, the Employee shall also be entitled to receive from the Employer an
amount representing interest on any such unpaid amounts from the due date, as
determined under this Section 10.3 (without regard to any extension of the Date
of Termination pursuant to Section 11.3 hereof), to the date of payment at one
hundred twenty percent (120%) of the rate provided in section 1274(b)(2)(B) of
the Code.
10.4 The Employer also shall pay to the Employee all legal
fees and expenses incurred by the Employee (i) in disputing in good faith any
issue relating to the termination of the Employee's employment following a
Change in Control and prior to the end of the Change-in-Control Protective
Period, (ii) in seeking in good faith to obtain or enforce any benefit or right
provided by this Agreement, or (iii) in connection with any tax audit or
proceeding to the extent attributable to the application of section 4999 of the
Code to any payment or benefit provided hereunder. Such payments shall be made
within five (5) business days after delivery of the Employee's written requests
for payment accompanied with such evidence of fees and expenses incurred as the
Employer reasonably may require.
11. TERMINATION PROCEDURES AND COMPENSATION DURING DISPUTE.
11.1 NOTICE OF TERMINATION. During the Term (and, if longer,
until the end of the Change-in-Control Protective Period), any purported
termination of the Employee'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 with Section 15 hereof. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which shall indicate
the specific termination provision in this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Employee's employment under the provision so
indicated. Further, with respect to any purported termination of the Employee's
employment after a Change in Control and prior to the end of the
Change-in-Control Protective Period, a Notice of Termination for Cause is
required to include a copy of a resolution duly adopted by the affirmative vote
of not less than three-quarters (3/4) of the entire membership of the Board at a
meeting of the Board which was called and held for the purpose of considering
such termi-
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nation (after reasonable notice to the Employee and an opportunity for the
Employee, together with the Employee's counsel, to be heard before the Board)
finding that, in the good faith opinion of the Board, the Employee was guilty of
conduct set forth in clause (i) or (ii) of the definition of Cause herein, and
specifying the particulars thereof in detail.
11.2 DATE OF TERMINATION. "Date of Termination," with respect
to any purported termination of the Employee's employment during the Term (and,
if longer, prior to the end of the Change-in-Control Protective Period), shall
mean (i) if the Employee's employment is terminated for Disability, thirty (30)
days after Notice of Termination is given (provided that the Employee shall not
have returned to the full-time performance of the Employee's duties during such
thirty (30) day period), and (ii) if the Employee'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 Employer, 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 Employee, shall not be less than fifteen (15) days nor more
than sixty (60) days, respectively, from the date such Notice of Termination is
given).
11.3 DISPUTE CONCERNING TERMINATION. With respect to any
purported termination of the Employee's employment after a Change in Control and
prior to the end of the Change-in-Control Protective Period, if within fifteen
(15) days after any Notice of Termination is given, or, if later, prior to the
Date of Termination (as determined without regard to this Section 11.3), the
party receiving such Notice of Termination notifies the other party that a
dispute exists concerning the termination, the Date of Termination shall be
extended until the date on which the dispute is finally resolved, either by
mutual written agreement of the parties or by a final judgment, order or decree
of a court of competent jurisdiction (which is not appealable or with respect to
which the time for appeal therefrom has expired and no appeal has been
perfected); PROVIDED, HOWEVER, that the Date of Termination shall be extended by
a notice of dispute given by the Employee only if such notice is given in good
faith and the Employee pursues the resolution of such dispute with reasonable
diligence.
11.4 COMPENSATION DURING DISPUTE. If a purported termination
occurs following a Change in Control and prior to the end of the
Change-in-Control Protective Period and the Date of Termination is extended in
accordance with Section 11.3
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hereof, the Employer shall continue to pay the Employee the full compensation in
effect when the notice giving rise to the dispute was given (including, but not
limited to, salary) and continue the Employee as a participant in all
compensation, benefit and insurance plans in which the Employee was
participating when the notice giving rise to the dispute was given, until the
Date of Termination, as determined in accordance with Section 11.3 hereof.
Amounts paid under this Section 11.4 are in addition to all other amounts due
under this Agreement (other than those due under Section 7.1 hereof) and shall
not be offset against or reduce any other amounts due under this Agreement.
12. NO MITIGATION
The Employer agrees that, if the Employee's employment with
the Employer terminates following a Change in Control and prior to the end of
the Change-in-Control Protective Period, the Employee is not required to seek
other employment or to attempt in any way to reduce any amounts payable to the
Employee by the Employer pursuant to Section 10 hereof or Section 11.4 hereof.
Further, the amount of any payment or benefit provided for in this Agreement
(other than Section 10.1(C) hereof) shall not be reduced by any compensation
earned by the Employee as the result of employment by another employer, by
retirement benefits, by offset against any amount claimed to be owed by the
Employee to the Employer, or otherwise.
13. CONFIDENTIALITY; NON-COMPETITION AND NON-SOLICITATION
13.1 CONFIDENTIALITY. The Companies' methods, plans for doing
business, processes, pricing, compounds, customers and supplies are vital to the
Companies and, to the extent not made public by the Companies, constitute
confidential information subject to the Companies' proprietary rights therein.
The Employee covenants and agrees that during the Term and at all times
thereafter, the Employee will not, directly or indirectly, make known, divulge,
furnish, make available or use, otherwise than in the regular course of the
Employee's employment by the Employer, any invention, product, process,
apparatus or design of any of the Companies, or any knowledge or information in
respect thereof (including, but not limited to, business methods and
techniques), or any other confidential or so-called "insider" information of any
of the Companies. This
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covenant shall apply without regard to the time or circumstances of any
termination of the Employee's employment.
13.2 NON-COMPETITION AND NON-SOLICITATION. The Employee
covenants and agrees that during the period of one (1) year following any
termination of the Employee's employment which occurs prior to a Change in
Control, the Employee will not, directly or indirectly, either as an individual
for the Employee's own account or as an investor, or other participant in, or as
an employee, agent, or representative of, any other business enterprise:
(i) solicit, employ, entice, take away or interfere with,
or attempt to solicit, employ, entice, take away or
interfere with, any employee of the Employer or the
Companies; or
(ii) engage or participate in or finance, aid or be
connected with any enterprise which competes with the
business of the Companies, or any of them.
The geographical limitations of the foregoing shall include any country in which
the Companies or any of them shall be doing business as of such date of such
termination. This covenant shall apply without regard to the circumstances of
any termination of the Employee's employment which occurs prior to a Change in
Control.
13.3 The Employee acknowledges that the covenants contained in
this Section 13 are of the essence of this Agreement and said covenants shall be
construed as independent of any other provisions of this Agreement. Recognizing
the irreparable nature of the injury that could result from the Employee's
violation of any of the covenants and agreement to be performed and/or observed
by the Employee pursuant to the provisions of this Section 13, and that damages
would be inadequate compensation, it is agreed that any violations by the
Employee of the provisions of this Section 13, shall be the proper subject for
immediate injunctive and other equitable relief to the Employer.
14. SUCCESSORS; BINDING AGREEMENT
14.1 In addition to any obligations imposed by law upon any
successor to the Employer, the Employer will require any successor (whether
direct or indirect, by purchase, merger,
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consolidation or otherwise) to all or substantially all of the business and/or
assets of the Employer to expressly assume and agree to perform this Agreement
in the same manner and to the same extent that the Employer would be required to
perform it if no such succession had taken place. Failure of the Employer to
obtain such assumption and agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement and shall entitle the Employee to
compensation from the Employer in the same amount and on the same terms as the
Employee would be entitled to hereunder if the Employee were to terminate the
Employee's employment for Good Reason after a Change in Control, except that,
for purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of Termination. Except as
provided in this Section 14.1, this Agreement shall not be assignable by either
party without the written consent of the other party hereto.
14.2 This Agreement shall inure to the benefit of and be
enforceable by the Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Employee shall die while any amount would still be payable to the Employee
hereunder (other than amounts which, by their terms, terminate upon the death of
the Employee) if the Employee 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 the
Employee's estate.
15. NOTICES
For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed, if to the
Employee, to the address shown for the Employee in the personnel records of the
Employer and, if to the Employer, to the address set forth below, or to such
other address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective
only upon actual receipt:
15
To the Employer:
Xxxxxx X. Xxxxxxxx
Chief Financial Officer and Executive
Vice President-Finance and Administration
X. Xxxxxxxx, Inc.
P. O. Xxx 0000
Xxxxx, Xxxx 00000-0000
With a copy to:
Xxxxx X. Xxxxxx, Esq.
Berick, Xxxxxxxx & Xxxxx Co., L.P.A.
1350 Xxxxx Center
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
16. MISCELLANEOUS
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 Employee and such officer as may be specifically designated by
the Board. No waiver by either party hereto at any time of any breach by the
other party hereto of, 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. This Agreement supersedes the Employment Agreement between the
Employer and the Employee dated as of December 28, 1990 and any other agreements
or representations, oral or otherwise, express or implied, with respect to the
subject matter hereof which have been made by either party, except as expressly
set forth in this Agreement. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Ohio. All references to sections of the Exchange Act or the Code shall be deemed
also to refer to any successor provisions to such sections. 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 the
Employee has agreed. The obligations of the Employer and the Employee under this
Agreement which by their nature may require (partial or total) performance after
the expiration of the Term or the Change-in-Control Protective Period
(including, without limitation, those under Sections 5 through 11 and Section 13
hereof) shall survive such expiration.
16
17. 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 remain in full force and effect.
18. 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.
19. SETTLEMENT OF DISPUTES AFTER CHANGE IN CONTROL;
ARBITRATION
After a Change in Control and prior to the end of the
Change-in-Control Protective Period, all claims by the Employee for benefits
under this Agreement shall be directed to and determined by the Committee and
shall be in writing. Any denial by the Committee of a claim for benefits under
this Agreement shall be delivered to the Employee in writing and shall set forth
the specific reasons for the denial and the specific provisions of this
Agreement relied upon. The Committee shall afford a reasonable opportunity to
the Employee for a review of the decision denying a claim and shall further
allow the Employee to appeal to the Committee a decision of the Committee within
sixty (60) days after notification by the Committee that the Employee's claim
has been denied. Any further dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Akron, Ohio, 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. Notwithstanding any provision of this Agreement
to the contrary, the Employee shall be entitled to seek specific performance of
the Employee's right to be paid until the Date of Termination during the
pendency of any dispute or controversy arising under or in connection with this
Agreement.
20. DEFINITIONS
For purposes of this Agreement, the following terms shall have
the meanings indicated below:
(A) "Beneficial Owner" shall have the meaning set forth in
Rule 13d-3 under the Exchange Act.
17
(B) "Board" shall mean the Board of Directors of the Employer.
(C) "Cause" for termination by the Employer of the Employee's
employment shall mean the following:
(I) with respect to a termination as to
which the Notice of Termination is duly given prior to a
Change in Control, the Employee's breach of his covenants
herein contained, the Employee's gross neglect of his duties
hereunder, the Employee's knowingly committing misfeasance or
knowingly permitting nonfeasance of his duties in any material
respect, or the Employee's committing a felony; and
(II) with respect to a termination as to
which the Notice of Termination is duly given following a
Change in Control, (i) the willful and continued failure by
the Employee to substantially perform the Employee's duties
with the Employer (other than any such failure resulting from
the Employee's incapacity due to physical or mental illness or
any such actual or anticipated failure after the issuance of a
Notice of Termination for Good Reason by the Employee pursuant
to Section 11.1 hereof) after a written demand for substantial
performance is delivered to the Employee by the Board, which
demand specifically identifies the manner in which the Board
believes that the Employee has not substantially performed the
Employee's duties, or (ii) the willful engaging by the
Employee in conduct which is demonstrably and materially
injurious to the Employer or its subsidiaries, monetarily or
otherwise. For purposes of clauses (i) and (ii) of this
definition, (x) no act, or failure to act, on the Employee's
part shall be deemed "willful" unless done, or omitted to be
done, by the Employee not in good faith and without reasonable
belief that the Employee's act, or failure to act, was in the
best interest of the Employer and (y) in the event of a
dispute concerning the application of this provision, no claim
by the Employer that Cause exists shall be given effect unless
the Employer establishes to the Committee by clear and
convincing evidence that Cause exists.
18
(D) A "Change in Control" shall be deemed to have occurred if
the event set forth in any one of the following paragraphs shall have occurred:
(I) any Person is or becomes the Beneficial
Owner, directly or indirectly, of securities of the Employer
(not including in the securities beneficially owned by such
Person any securities acquired directly from the Employer or
its affiliates other than in connection with the acquisition
by the Employer or its affiliates of a business) representing
25% or more of either the then outstanding shares of common
stock of the Employer or the combined voting power of the
Employer's then outstanding securities; or
(II) the following individuals cease for any
reason to constitute a majority of the number of directors
then serving: individuals who, on the date hereof, constitute
the Board and any new director (other than a director whose
initial assumption of office is in connection with an actual
or threatened election contest, including but not limited to a
consent solicitation, relating to the election of directors of
the Employer) whose appointment or election by the Board or
nomination for election by the Employer's stockholders was
approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors on
the date hereof or whose appointment, election or nomination
for election was previously so approved; or
(III) the stockholders of the Employer
approve a merger or consolidation of the Employer with any
other corporation or approve the issuance of voting securities
of the Employer in connection with a merger or consolidation
of the Employer (or any direct or indirect subsidiary of the
Employer) pursuant to applicable stock exchange requirements,
other than (i) a merger or consolidation which would result in
the voting securities of the Employer outstanding immediately
prior to such merger or consolidation continuing to represent
(either by remaining outstanding or by being converted into
voting securities of the surviving entity or any parent
thereof), in combination with the ownership of any trustee or
other fiduciary holding securities under an employee
19
benefit plan of the Employer or any subsidiary of the
Employer, at least 75% of the combined voting power of the
voting securities of the Employer or such surviving entity
or any parent thereof outstanding immediately after such
merger or consolidation, or (ii) a merger or consolidation
effected to implement a recapitalization of the Employer (or
similar transaction) in which no Person is or becomes the
Beneficial Owner, directly or indirectly, of securities of
the Employer (not including in the securities Beneficially
Owned by such Person any securities acquired directly from
the Employer or its subsidiaries other than in connection
with the acquisition by the Employer or its subsidiaries of
a business) representing 25% or more of either the then
outstanding shares of common stock of the Employer or the
combined voting power of the Employer's then outstanding
securities; or
(IV) the stockholders of the Employer
approve a plan of complete liquidation or dissolution of the
Employer or an agreement for the sale or disposition by the
Employer of all or substantially all of the Employer's assets,
other than a sale or disposition by the Employer of all or
substantially all of the Employer's assets to an entity, at
least 75% of the combined voting power of the voting
securities of which are owned by stockholders in substantially
the same proportions as their ownership of the Employer
immediately prior to such sale.
Notwithstanding the foregoing, no "Change in Control" shall be
deemed to have occurred if there is consummated any transaction or series of
integrated transactions immediately following which the record holders of the
common stock of the Employer immediately prior to such transaction or series of
transactions continue to have substantially the same proportionate ownership in
an entity which owns all or substantially all of the assets of the Employer
immediately following such transaction or series of transactions.
Further, notwithstanding the foregoing, any event or
transaction which would otherwise constitute a Change in Control (a
"Transaction") shall not constitute a Change in Control for purposes of this
Agreement if, in connection with the Transaction, the Employee participates as
an equity investor in the acquiring entity or any of its affiliates (the
20
"Acquiror"). For purposes of the preceding sentence, the Employee shall not be
deemed to have participated as an equity investor in the Acquiror by virtue of
(i) obtaining beneficial ownership of any equity interest in the Acquiror as a
result of the grant to the Employee of an incentive compensation award under one
or more incentive plans of the Acquiror (including, but not limited to, the
conversion in connection with the Transaction of incentive compensation awards
of the Employer into incentive compensation awards of the Acquiror), on terms
and conditions substantially equivalent to those applicable to other executives
of the Employer immediately prior to the Transaction, after taking into account
normal differences attributable to job responsibilities, title and similar
matters, (ii) obtaining beneficial ownership of any equity interest in the
Acquiror on terms and conditions substantially equivalent to those obtained in
the Transaction by all other stockholders of the Employer, or (iii) passive
ownership of less than three percent (3%) of the stock of the Acquiror.
(E) "Change-in-Control Protective Period" shall mean the
period from the occurrence of a Change in Control until the later of the second
anniversary of such Change in Control or, if such Change in Control shall be
caused by the stockholder approval of a merger or consolidation described in
Section 20(E)(III) hereof, the second anniversary of the consummation of such
merger or consolidation.
(F) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
(G) "Committee" shall mean (i) the individuals (not fewer than
three in number) who, immediately prior to a Potential Change in Control,
constitute the Compensation Committee of the Board, plus (ii) in the event that
fewer than three individuals are available from the group specified in clause
(i) above for any reason, such individuals as may be appointed by the individual
or individuals so available (including for this purpose any individual or
individuals previously so appointed under this clause (ii)); provided, however,
that the maximum number of individuals constituting the Committee shall not
exceed five.
(H) "Companies" shall mean, collectively, the Employer and
each corporation which is now and hereafter shall become a subsidiary of, or a
parent of, the Employer, together with their respective successors and assigns.
21
(I) "Continuation Pay" shall mean those payments so described
in Section 8.2 hereof.
(J) "Date of Termination" shall have the meaning stated in
Section 11.2 hereof.
(K) "Disability" shall be deemed the reason for the
termination by the Employer of the Employee's employment, if, as a result of the
Employee's incapacity due to physical or mental illness, the Employee shall have
been absent from the full-time performance of the Employee's duties with the
Employer for a period of six (6) consecutive months, the Employer shall have
given the Employee a Notice of Termination for Disability, and, within thirty
(30) days after such Notice of Termination is given, the Employee shall not have
returned to the full-time performance of the Employee's duties.
(L) "Employee" shall mean the individual named in the first
paragraph of this Agreement.
(M) "Employer" shall mean X. Xxxxxxxx, Inc. and, except in
determining under Section 20(E) hereof whether or not any Change in Control of
the Employer has occurred, any successor to its business and/or assets which
assumes and agrees to perform this Agreement by operation of law, or otherwise.
(N) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time.
(O) "Good Reason" for termination by the Employee of the
Employee's employment shall mean the occurrence (without the Employee's express
prior written consent) after any Change in Control, or after any Potential
Change in Control under the circumstances described in the second sentence of
Section 10.1 hereof (treating all references in paragraphs (I) through (VII)
below to a "Change in Control" as references to a "Potential Change in
Control"), of any one of the following acts by the Employer, or failures by the
Employer to act, unless, in the case of any act or failure to act described in
paragraph (I), (V), (VI) or (VII) below, such act or failure to act is corrected
prior to the Date of Termination specified in the Notice of Termination given in
respect thereof:
(I) the assignment to the Employee of any
duties inconsistent with the Employee's status as an executive
officer of the Employer or a substantial adverse alteration in
the nature or status of the
22
Employee's responsibilities from those in effect immediately
prior to the Change in Control (other than any such
alteration primarily attributable to the fact that the
Employer may no longer be a public company);
(II) a reduction by the Employer in the
Employee's annual base salary as in effect on the date hereof
or as the same may be increased from time to time except for
across-the-board salary reductions similarly affecting all
executives of the Employer and all executives of any Person in
control of the Employer;
(III) the relocation of the Employer's
principal executive offices to a location more than fifty (50)
miles from the location of such offices immediately prior to
the Change in Control or the Employer's requiring the Employee
to be based anywhere other than the Employer's principal
executive offices except for required travel on the Employer's
business to an extent substantially consistent with the
Employee's present business travel obligations;
(IV) the failure by the Employer, without
the Employee's consent, to pay to the Employee any portion of
the Employee's current compensation, or to pay to the Employee
any portion of an installment of deferred compensation under
any deferred compensation program of the Employer, within
seven (7) days of the date such compensation is due;
(V) the failure by the Employer to continue
in effect any compensation plan in which the Employee
participates immediately prior to the Change in Control which
is material to the Employee's total compensation, including
but not limited to the Employer's 1991 Stock Incentive Plan
and Nonqualified Profit Sharing Plan or any substitute plans
adopted prior to the Change in Control, unless an equitable
arrangement (embodied in an ongoing substitute or alternative
plan) has been made with respect to such plan, or the failure
by the Employer to continue the Employee's participation
therein (or in such substitute or alternative plan) on a basis
not materially less favorable, both in terms of the amount of
benefits provided and the level of the Employee's
23
participation relative to other participants, as existed at
the time of the Change in Control;
(VI) the failure by the Employer to continue
to provide the Employee with benefits substantially similar to
those enjoyed by the Employee under any of the Employer's
pension, life insurance, medical, health and accident, or
disability plans in which the Employee was participating at
the time of the Change in Control, the taking of any action by
the Employer which would directly or indirectly materially
reduce any of such benefits or deprive the Employee of any
material fringe benefit enjoyed by the Employee at the time of
the Change in Control, or the failure by the Employer to
provide the Employee with the number of paid vacation days to
which the Employee is entitled on the basis of years of
service with the Employer in accordance with the Employer's
normal vacation policy in effect at the time of the Change in
Control; or
(VII) any purported termination of the
Employee's employment which is not effected pursuant to a
Notice of Termination satisfying the requirements of Section
11.1 hereof; for purposes of this Agreement, no such purported
termination shall be effective.
The Employee's right to terminate the Employee's employment
for Good Reason shall not be affected by the Employee's incapacity due to
physical or mental illness. The Employee'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.
For purposes of any determination regarding the existence of
Good Reason, any claim by the Employee that Good Reason exists shall be presumed
to be correct unless the Employer establishes to the Committee by clear and
convincing evidence that Good Reason does not exist.
(P) "Notice of Termination" shall have the meaning stated in
Section 11.1 hereof.
(Q) "Person" shall have the meaning given in Section 3(a)(9)
of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof,
except that such term shall not
24
include (i) the Employer or any of its subsidiaries, (ii) a trustee or other
fiduciary holding securities under an employee benefit plan of the Employer or
any of its subsidiaries, (iii) an underwriter temporarily holding securities
pursuant to an offering of such securities, or (iv) a corporation owned,
directly or indirectly, by the stockholders of the Employer in substantially the
same proportions as their ownership of stock of the Employer.
(R) "Potential Change in Control" shall be deemed to have
occurred if the event set forth in any one of the following paragraphs shall
have occurred:
(1) the Employer enters into an agreement,
the consummation of which would result in the occurrence of a
Change in Control;
(2) the Employer or any Person publicly
announces an intention to take or to consider taking actions
which, if consummated, would constitute a Change in Control;
(3) any Person becomes the Beneficial Owner,
directly or indirectly, of securities of the Employer
representing 15% or more of either the then outstanding shares
of common stock of the Employer or the combined voting power
of the Employer's then outstanding securities; or
(4) the Board adopts a resolution to the
effect that, for purposes of this Agreement, a Potential
Change in Control has occurred.
(S) "Severance Payments" shall mean those payments described
in Section 10.1 hereof.
(T) "Term" shall mean the period of time described in Section
4.1 hereof (including any extension or continuation described therein).
25
(U) "Termination Pay" shall mean those payments so described
in Section 8.2 hereof.
(V) "Total Payments" shall mean those payments described in
Section 10.2 hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed (the corporate signatory by the respective officer
duly authorized) as of the day and year first above written.
/s/ Xxxxxxxxxx Xxxxxx
------------------------------------------
Xxxxxxxxxx Xxxxxx
X. XXXXXXXX, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx, Secretary
By /s/ X. X. Xxxxxxxx
----------------------------------------
X. X. Xxxxxxxx, Executive Vice President
26
