EX-10.1 2 klx-20160430ex101b175bb.htm EX-10.1 AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (this “Agreement”) dated as of May 25, 2016 (the “Effective Date”), is by and between KLX Inc., a Delaware corporation (the “Company”), and Xxxx X. Xxxxxx (“Executive”).
WHEREAS, Executive and the Company entered into an Amended and Restated Employment Agreement dated as of February 27, 2015 (the “Prior Agreement”); and
3.Capacity, Services and Performance.
and Chief Executive Officer, and, subject to the provisions of Section 5 below, Executive may engage in other business activities during the Employment Term, including, without limitation, serving as Executive Chairman of B/E Aerospace, Inc., a Delaware corporation (“B/E”), as a member of the board of directors of and as a consultant to B/E.
4.3Benefits. Except to the extent equivalent benefits are provided by B/E (including post-retirement benefits), during the Employment Term, Executive shall participate in all employee benefit plans, life insurance plans, disability income plans, incentive compensation plans and other benefit plans, as may be from time to time in effect for executives of the Company. In addition, Executive shall be entitled to all rights and benefits pursuant to the Company’s travel policy, which shall be no less favorable for Executive than his rights and benefits pursuant to B/E’s travel policy as of July 1, 2014.
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5.1Confidentiality. Executive will maintain in confidence and will not disclose or use, either during or after the Employment Term, any proprietary or confidential information or know-how belonging to the Company (“Proprietary Information” hereinafter defined), whether or not in written form, except to the extent required to perform duties on behalf of the Company. For purposes of this Agreement, “Proprietary Information” shall mean any information, not generally known to the relevant trade or industry, which was obtained from the Company, or which was learned, discovered, developed, conceived, originated or prepared by Executive in connection with this Agreement (or any predecessor agreement with the Company). Such Proprietary Information includes, without limitation, software, technical and business information relating to the Company’s inventions or products, research and development, production processes, manufacturing and engineering processes, machines and equipment, finances, customers, marketing and production and future business plans, information belonging to customers or suppliers of the Company disclosed incidental to Executive’s performance under this Agreement, and any other information which is identified as confidential by the Company, but only so long as the same is not generally known in the relevant trade or industry.
5.2Inventions.
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Company’s written consent, which consent shall not be unreasonably withheld; provided, however, that nothing in this Section 5.4 shall preclude Executive from serving as an employee or director of B/E, a consultant for B/E, a director of any other corporation, or a partner or investor in a private equity firm.
5.6Acts to Secure Proprietary Rights.
5.7No Conflicting Obligations. Executive’s performance of this Agreement does not breach and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by him.
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6.Termination and Change of Control.
6.1Termination Date; Termination or Resignation other than Death. Incapacity or in connection with a Change of Control or Good Reason.
6.2.1Executive’s employment hereunder shall terminate upon his death. In such event, the Company shall, within thirty (30) days following the date of death, pay to such Person as Executive shall have designated in a notice filed with the Company, or if no such Person shall have been designated, to his estate, a lump-sum amount equal to the Termination Amount.
6.2.2The Company shall, within thirty (30) days following Executive’s date of death, also pay to such Person as Executive shall have designated in a notice filed with the Company, or if no such Person shall have been designated, to his estate, a lump-sum amount equal to (i) any accrued and unpaid Salary and benefits through his date of death, and (ii) any earned but unpaid bonuses payable to Executive as determined by the Compensation Committee for any fiscal periods of the Company ending prior to the date of death.
6.2.3Upon Executive’s death, any Equity Awards granted to Executive that would not vest on or prior to the Termination Date shall vest and, if applicable, be exercisable immediately and, notwithstanding any termination of employment provisions set forth in the applicable agreement or related plan, all Equity Awards shall continue to be exercisable until their original stated expiration date.
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6.2.4Upon Executive’s death on or after February 1, 2017, whether during or after the Employment Term, the Company shall, no later than ninety (90) days following the date of death, also pay to such beneficiary as Executive shall have designated in a notice filed with the Company, or if no such beneficiary shall have been designated, to his estate, a lump sum death benefit in an amount equal to three million five hundred thousand dollars ($3,500,000), which shall be funded from the proceeds of a life insurance policy to be held in trust by the Company. The terms and conditions of such death benefit shall be set forth in a Death Benefit Agreement substantially in the form attached hereto as Exhibit A, which is hereby incorporated by reference.
(i)the Company shall give prompt notice to Executive of any such termination;
(ii)the Company shall pay to Executive within thirty (30) days following the Termination Date, a lump-sum amount equal to the Termination Amount;
(iii)the Company shall pay to Executive within ten (10) business days after the Termination Date a lump-sum amount equal to (A) any accrued and unpaid Salary and benefits through the Termination Date and (B) any earned but unpaid bonuses payable to Executive as determined by the Compensation Committee for any fiscal periods of the Company ending prior to the Termination Date; and
(iv)any Equity Awards granted to Executive that would not vest on or prior to the Termination Date shall vest and, if applicable, be exercisable immediately and, notwithstanding any termination of employment provisions set forth in the applicable agreement or related plan, such Equity Awards shall continue to be exercisable until their original stated expiration date.
Any dispute between the Compensation Committee and Executive with respect to Executive’s Incapacity shall be settled by reference to a competent medical authority mutually agreed to by the Compensation Committee and Executive or his personal representative, whose decision shall be binding on all parties.
6.4Change of Control; Good Reason; Definitions.
(i)any accrued and unpaid Salary and benefits through the Change of Control Date;
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(ii)any earned but unpaid bonuses payable to Executive for any fiscal periods of the Company ending prior to the Change of Control Date;
(iii)a lump-sum amount equal to the Termination Amount; provided, that the Termination Amount shall be calculated using rates as in effect on the Change of Control Date; and
(iv)any Equity Awards granted to Executive that would not vest on or prior to the Change of Control Date shall vest and be exercisable immediately upon the date immediately preceding the Change of Control Date, and, notwithstanding any termination of employment provisions set forth in the applicable agreement or related plan, all Equity Awards shall continue to be exercisable until their original stated expiration date.
(i)any accrued and unpaid Salary and benefits through the Termination Date, as such term is defined in Section 6.1.1, above;
(ii)any earned but unpaid bonuses payable to Executive for any fiscal periods of the Company ending prior to the Termination Date;
(iii)a lump-sum amount equal to the Termination Amount; and
(iv)any Equity Awards granted to Executive that would not vest on or prior to the Termination Date shall vest and be exercisable immediately, and, notwithstanding any termination of employment provisions set forth in the applicable agreement or related plan, all Equity Awards shall continue to be exercisable until their original stated expiration date.
The payments described in this Section 6.4.3 shall be made on the Termination Date.
(i)For purposes of this Agreement, a “Change of Control” means:
(A)Individuals who, as of the Effective Date constitute the Board (the “Incumbent Board “) cease for any reason to constitute at least a majority of the Board, provided that any Person becoming a director subsequent to the Effective Date whose election, or nomination for election by the Company’s stockholders, 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 Securities Exchange Act) shall be, for purposes of this Agreement, considered as though such Person were a member of the Incumbent Board;
(B)a transaction or other event occurs such that any Person or Persons acting as a group acquires ownership of stock of the Company that, together with stock held by such Person or group, constitutes more than 50% of the total fair market value or total voting power of the stock of the Company;
(C)a transaction or other event occurs such that any one Person or group acquires (or has acquired during the twelve (12)-month period ending on the date of the most recent
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acquisition by such Person or group) ownership of stock of the Company possessing 35% or more of the total voting power of the stock of the Company; or
(D)a transaction or other event occurs such that any one Person or group acquires (or has acquired during the twelve (12)-month period ending on the date of the most recent acquisition by such Person or group) ownership of assets of the Company that have a total gross fair market value equal to or more than 40% of the total gross fair market value of all of the assets of the Company immediately prior to such acquisition or acquisitions; provided, however, that no acquisition of ownership of the assets of the Company shall be deemed a Change of Control if the acquiring Person or group is:
(1)A stockholder of the Company in exchange for or with respect to its stock;
(2)Any Majority Owned Entity, as defined below, of the Company;
(3)A Person or group of which the Company is a Majority Owned Entity; or
(4)A Majority Owned Entity of any Person or group described by (3), above.
(ii)For the purposes of this Section 6.4.4, Persons will not be considered to be acting as a group solely because they purchase or own stock of the same corporation at the same time, or as the result of the same public offering. However, Persons will be considered to be acting as a group if they are owners of a Person that enters into a merger, consolidation, purchase or acquisition of stock or assets or similar business transaction with the Company.
(iii)For the purposes of this Section 6.4.4, a “Majority Owned Entity” of any Person is any entity, 50% or more of the total value or voting power of which is owned, directly or indirectly, by such Person.
(iv)A Change of Control shall occur on the effective date of any event specified in Section 6.4.4(i) above. In connection with any determination of ownership for purposes of Section 6.4.4(i) above, the attribution rules of Section 318(a) of the Internal Revenue Code of 1986, as amended (the “Code”), shall apply.
(v)For purposes of this Agreement, “Good Reason” means:
(A)Any decrease in Executive’s Salary or a failure by the Company to pay any material compensation due and payable to Executive in connection with his employment;
(B)Any change in Executive’s responsibilities, positions, duties, status, title or reporting relationships;
(C)Executive ceasing to be the Chief Executive Officer of the Company;
(D)Requiring Executive to be based at any office or location other than Executive’s principal place of employment; or
(E)A material breach by the Company of any term of this Agreement;
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provided that Executive has given notice thereof to the Company and the Company has not cured the Good Reason within thirty (30) days after receiving such notice.
6.6.1Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution, benefit, equity-based or other compensation or other transfer or action by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (a “Payment”) would be subject to an excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), the Accounting Firm (as defined below) shall, in consultation with Executive’s legal counsel or other advisor designated by Executive (“Executive’s Advisor”), calculate whether to reduce any of the Payments to Executive so that the Parachute Value (as defined below) of all Payments to Executive, in the aggregate, equals the applicable Safe Harbor Amount (as defined below). Payments shall be so reduced only if the Accounting Firm determines, subject to the approval of Executive’s Advisor, with such approval not to be unreasonably withheld or delayed, that Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Payments were so reduced.
6.6.2If the Accounting Firm determines that the aggregate Payments to Executive should be reduced so that the Parachute Value of all Payments to Executive, in the aggregate, equals the applicable Safe Harbor Amount, and Executive’s Advisor approves such determination, the Company shall promptly give Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm and approved by Executive’s Advisor under this Section 6.6 shall be binding upon the Company and Executive and shall be made as soon as reasonably practicable and in no event later than 15 days following the date of Executive’s termination of employment.
6.6.3The reduction contemplated by this Section 6.6, if applicable, shall be made by reducing payments and benefits (to the extent such amounts are considered Payments) under the following sections in the following order: (i) any Payments as a result of the acceleration of the vesting of performance-based Equity Awards pursuant to Section 6.4.2(iv), (ii) any Payments under Section 6.4.2(iii) that are “parachute payments” within the meaning of Section 280G of the Code, (iii) any other cash Payments that are “parachute payments” that would be made upon a Change of Control, beginning with payments that would be made last in time and (iv) any Payments as a result of accelerated vesting of Equity Awards for which the amount considered contingent on the change in ownership or control is determined in accordance with Treasury Regulation 1.280G-1, Q&A 24(c).
6.6.4As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that amounts will have
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been paid or distributed by the Company to or for the benefit of Executive pursuant to this Agreement that should not have been so paid or distributed (each, an “Overpayment”) or that additional amounts that will have not been paid or distributed by the Company to or for the benefit of Executive pursuant to this Agreement could have been so paid or distributed (each, an “Underpayment”), in each case consistent with the calculation of the applicable Safe Harbor Amount hereunder. In the event that the Accounting Firm, based on the assertion of a deficiency by the Internal Revenue Service against the Company or Executive which the Accounting Firm believes, and Executive’s Advisor agrees, has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of Executive shall be repaid by Executive to the Company; provided, however, that (i) no such repayment shall be required if and to the extent such deemed repayment would not either reduce the amount on which Executive is subject to tax under Sections 1 or 4999 or generate a refund of such taxes; and (ii) to the extent such repayment would generate a refund of such taxes, Executive shall only be required to pay to the Company the Overpayment less the amount of tax to be refunded and to transfer the refund of such taxes to the Company when received. In the event that the Accounting Firm, based on controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive, together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code.
6.6.5All fees and expenses of the Accounting Firm in implementing the provisions of this Section 6.6 shall be borne by the Company, and the Company shall reimburse Executive for all reasonable advisory fees incurred with respect to this Section 6.6(including for any services provided by Executive’s Advisor) and any legal and accounting fees incurred with respect to disputes related thereto (including for any services provided by Executive’s Advisor).
6.6.6In connection with making determinations under this Section 6.6, the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by Executive before or after the Change of Control, including any agreement not to render services to competitors pursuant to the non-competition provisions applicable to Executive under Section 5 of this agreement and any other non-competition provisions that may apply to Executive, and the Company shall cooperate in the valuation of any such services, including any non-competition provisions.
6.6.7The following terms shall have the following meanings for purposes of this Section 6.6:
(A)“Accounting Firm” shall mean a mutually agreed upon nationally recognized accounting firm (a “Big Four” accounting firm) that is not serving as accountant or auditor for the Company or the individual, entity or group effecting the Change of Control.
(B)“Net After-Tax Receipt” shall mean the Present Value of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state, local, and foreign laws, determined by applying the highest marginal rate under Section 1 of the Code and under state, local, and foreign laws that applied to Executive’s taxable income for the immediately preceding taxable year, or such other rate as such Executive shall certify, in Executive’s sole discretion, as likely to apply to Executive in the relevant tax year.
(C)“Parachute Value” of a Payment shall mean the present value as of the date of the change in control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment.
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(D)“Present Value” of a Payment shall mean the economic present value of a Payment as of the date of the change in control for purposes of Section 280G of the Code, as determined by the Accounting Firm using the discount rate required by Section 280G(d)(4) of the Code.
(E)“Safe Harbor Amount” means (x) 3.0 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code, minus (y) $1.00.
11.1If any amounts that become due under Section 6 of this Agreement constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code, payment of such amounts shall not commence until Executive incurs a “Separation from Service” (as defined below) if and only if necessary to avoid accelerated taxation or tax penalties in respect of such amounts.
11.2Notwithstanding any provision of this Agreement to the contrary, if Executive is a “Specified Employee” (as defined below) he shall not be entitled to any payments upon a Separation from Service until the earlier of (i) the date which is the first (1st) business day following the date that is six (6) months after Executive’s Separation from Service for any reason other than death or (ii) Executive’s date of death. The Company shall establish a trust pursuant to Rev. Proc. 92-64, promulgated under subpart E, part I, subchapter J, chapter 1, subtitle A of the Code, as modified by Notice 2000-56, and fund any such payments that are deferred pursuant to this Section 11.2 that otherwise would be immediately payable to Executive. The provisions of this Section 11.2 shall only apply if required to comply with Section 409A of the Code.
11.3For purposes of this Agreement, “Separation from Service” shall have the meaning set forth in Section 409A(a)(2)(A)(i) of the Code and determined in accordance with the default rules under Section 409A of the Code. ”Specified Employee” shall have the meaning set forth in Section
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409A(a)(2)(B)(i) of the Code, as determined in accordance with the uniform methodology and procedures adopted by the Company and then in effect.
11.4It is intended that the terms and conditions of this Agreement comply with Section 409A of the Code. If any provision of this Agreement contravenes any regulations or Treasury guidance promulgated under Section 409A of the Code, or could cause any amounts or benefits hereunder to be subject to taxes, interest and penalties under Section 409A of the Code, this Agreement or any provision hereof may be reformed by Executive, subject to the consent of the Company (which consent shall not be unreasonably withheld) to: (i) comply with, or avoid being subject to, Section 409A of the Code, (ii) avoid the imposition of taxes, interest and penalties under Section 409A of the Code, and/or (iii) maintain, to the maximum extent practicable, the original intent of the applicable provision without violating the provisions of Section 409A of the Code, provided, however, that no such amendment shall have the effect of reducing the amount of any payment or benefit payable to Executive pursuant to this Agreement.
11.5Anything in this Agreement to the contrary notwithstanding, no reimbursement payable to Executive pursuant to any provisions of this Agreement or pursuant to any plan or arrangement of the Company or its subsidiary or affiliate covered by this Agreement shall be paid later than the last day of the calendar year following the calendar year in which the related expense was incurred, except to the extent that the right to reimbursement does not provide for a “deferral of compensation” within the meaning of Section 409A of the Code. No amount reimbursed during any calendar year shall affect the amounts eligible for reimbursement in any other calendar year.
If to Executive, to him at:
Xxxx X. Xxxxxx
000 Xxxxx Xxxxx Xxxx
Xxxx Xxxxx, XX 00000
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If to the Company, to it at:
KLX Inc.
0000 Xxxxxxxxx Xxxxxx Xxx,
Xxxxxxxxxx, XX 00000
Attention: General Counsel
17.Miscellaneous. This Agreement, including the attached exhibits, constitutes the entire understanding of the parties with respect to the subject matter hereof, and supersedes all such prior and contemporaneous understandings and agreements, whether oral or written, regarding such subject matter (including, without limitation, the Prior Agreement). This Agreement may be amended or modified only by a written instrument signed by Executive and by a duly authorized representative of the Company. This Agreement may be executed in any number of counterparts, which together shall constitute one and the same instrument. Except as otherwise provided in this Agreement, this Agreement shall be governed by and construed in accordance with the laws (other than the conflicts of law rules) of the State of Florida. The headings in this Agreement are for convenience of reference only and shall not alter or otherwise affect the meaning hereof. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and permitted assigns.
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IN WITNESS WHEREOF, the parties hereto execute this Agreement as of the date first above written.
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EXECUTIVE |
KLX INC. | ||
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Xxxx X. Xxxxxx |
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By: |
/s/ Xxxxxx X. XxXxxxxxx |
Xxxx X. Xxxxxx |
Name: |
Xxxxxx X. XxXxxxxxx | |
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Title: |
President and Chief Operating Officer |
[SIGNATURE PAGE FOR XXXX XXXXXX AMENDED AND RESTATED EMPLOYMENT AGREEMENT]
EXHIBIT A
DEATH BENEFIT AGREEMENT
This Death Benefit Agreement (the “Agreement”) is entered into this 25th day of May, 2016, by and between KLX Inc., a Delaware corporation, hereinafter called the “Corporation,” and Xxxx X. Xxxxxx, hereinafter called the “Executive.”
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Upon the Executive’s death on or after February 1, 2017, whether during his employment with the Corporation or following the termination of his employment for any reason, the Corporation shall pay to the AJK Dynasty Trust dated March 17, 2003 (the “Beneficiary”) a payment of three million five hundred thousand dollars ($3,500,000) (the “Death Benefit”). The Death Benefit shall be paid in a cash lump sum no later than ninety (90) days following the Executive’s death. |
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The Death Benefit shall not be payable if the Executive’s death results from suicide, whether sane or insane, on or before February 1, 2019. |
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shall have any property interest in any specific assets of the Corporation other than the unsecured right to receive payments from the Corporation, as provided in this Agreement.
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The rights of the Executive, the Beneficiary, or any other person claiming through the Executive under this Agreement, shall be solely those of an unsecured general creditor of the Corporation. The Executive, the Beneficiary, or any other person claiming through the Executive, shall have the right to receive those payments specified under this Agreement only from the Corporation, and has no right to look to any specific or special property separate from the Corporation for payments. |
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The Executive agrees that he, the Beneficiary, or any other person claiming through the Executive shall have no right or beneficial ownership interest whatsoever in any general asset used or acquired by the Corporation in connection with the liabilities it has assumed under this Agreement. Such assets shall not be deemed to be held under any trust for the benefit of the Executive or the Beneficiary, nor shall any such general assets be considered security for the performance of the obligations of the Corporation. Any such assets shall remain general, unpledged, and unrestricted assets of the Corporation. |
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The Executive also understands and agrees that his participation in the acquisition of any such general asset for the Corporation shall not constitute a representation to the Executive, the Beneficiary, or any person claiming through the Executive that any of them has a special or beneficial interest in such general asset. |
6.INDEPENDENCE OF BENEFITS. The benefits payable under this Agreement shall be independent of, and in addition to, any other benefits or compensation, whether by salary, or bonus or otherwise, payable under any other employment agreements that now exist or may hereafter exist from time to time between the Corporation and the Executive. This Agreement between the Corporation and the Executive does not involve a reduction in salary or foregoing of an increase in future salary by the Executive. Nor does the Agreement in any way affect or reduce the existing and future compensation and other benefits of the Executive.
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or attachment of any benefits under this Agreement shall be valid or recognized by the Corporation.
0.XXX GOVERNING. This Agreement shall be governed by the laws of the State of Florida. This Agreement is solely between the Corporation and the Executive. Further, the Executive, the Beneficiary or other persons claiming through the Executive shall only have recourse against the Corporation for enforcement of the Agreement. However, it shall be binding upon the Beneficiary and the beneficiaries, heirs, executors and administrators of the Executive and upon the successors and assigns of the Corporation.
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CORPORATION: |
KLX, INC., |
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a Delaware corporation |
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Xxxxxx Xxxxx |
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Xxxxxx X. XxXxxxxxx |
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Corporate Counsel, Asst. Secretary |
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Title: |
President and Chief Operating Officer |
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EXECUTIVE: |
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XXXX X. XXXXXX | |
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[SIGNATURE PAGE FOR XXXX XXXXXX DEATH BENEFIT AGREEMENT]
EXHIBIT B
[Insert Date]
Xx. Xxxx X. Xxxxxx
c/o KLX Inc.
0000 Xxxxxxxxx Xxxxxx Xxx,
Xxxxxxxxxx, XX 00000
Consulting Agreement
Dear Xx. Xxxxxx:
This letter agreement (the "Agreement") confirms the agreement between KLX Inc. (the "Company") and you to engage in a consulting arrangement and sets forth the agreement between the Company and you regarding the terms of such consulting arrangement.
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(c) |
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(i)provide you with an office at its Wellington, Florida facility or such other location otherwise reasonably agreed by you and the Company;
(ii)provide you with a full time assistant;
(iii)provide you with travel in accordance with the Company's Aircraft Usage Policy as in effect on the Effective Date; and
(iv)pay or reimburse you for reasonable out-of-pocket expenses incurred in connection with your performance of the Consulting Services in accordance with past practices; provided, however, that (x) in no event shall reimbursement occur later than the last day of the calendar year following the calendar year in which the related expense was incurred and (y) no amount reimbursed during any calendar year shall affect the amounts eligible for reimbursement in any other calendar year.
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with respect to any amount paid to you pursuant to this Agreement. You agree that you are responsible for withholding and paying all employment taxes and income withholding taxes as required, with respect to you.
6.Proprietary Rights and Non-Competition. The restrictive covenant obligations set forth in section 5 of the Amended and Restated Employment Agreement between you and the Company dated May 25, 2016, as may be subsequently amended and restated (the “Employment Agreement”), are incorporated herein by reference and shall have the same legal force and effect as if fully set forth herein; provided, however, that, notwithstanding anything to the contrary in the Employment Agreement, the “Restricted Term” (as defined in the Employment Agreement) shall be amended hereby to include the Consulting Period and a period of two (2) years thereafter (or such other post-termination period set forth in the Employment Agreement, as in effect on the date of the termination of your employment with the Company).
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relating to the Company’s business, including, without limitation, all written and tangible material in your possession incorporating any “Proprietary Information” (as defined in the Employment Agreement).
(c)Governing Law. This Agreement will be governed by and construed in accordance with the laws of Florida, without giving effect to the conflicts of laws principles thereof.
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IN WITNESS WHEREOF, the parties hereto execute this Agreement as of the date first above written.
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EXECUTIVE |
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KLX INC. | |
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[SIGNATURE PAGE FOR XXXX XXXXXX CONSULTING AGREEMENT]
EXHIBIT C
Form of Mutual Waiver Agreement
SEPARATION AGREEMENT AND MUTUAL RELEASE
This Separation Agreement and Mutual Release (the “Agreement”), is made as of ______ __, 20___, by and between KLX Inc., a Delaware corporation (the “Company”) and Xxxx X. Xxxxxx (“Employee”), for the purpose of memorializing the terms and conditions of the Employee’s departure from the Company’s employment.
Now, therefore, in consideration of the sum of one dollar ($1.00) and the mutual promises, agreements and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, (the “Settlement Consideration”), the parties hereto, intending to be legally bound, hereby agree as follows:
3.General Release in Favor of the Company: Employee, for himself and for his heirs, executors, administrators, trustees, legal representatives and assigns (collectively, the “Releasers”), hereby forever releases and discharges the Company, its Board of Directors, and any of its past, present, or future parent corporations, subsidiaries, divisions, affiliates, officers, directors, agents, trustees, administrators, attorneys, employees, employee benefit and/or pension plans or funds (including qualified and non-qualified plans or funds), successors and/or assigns and any of its or their past, present or future parent corporations, subsidiaries, divisions, affiliates, officers, directors, agents, trustees, administrators,
attorneys, employees, employee benefit and/or pension plans or funds (including qualified and non-qualified plans or funds), successors and/or assigns (whether acting as agents for the Company or in their individual capacities) (collectively, the “Releasees”) from any and all claims, demands, causes of action, and liabilities of any kind whatsoever (upon any legal or equitable theory, whether contractual, common-law, statutory, federal, state, local, or otherwise), whether known or unknown, by reason of any act, omission, transaction or occurrence which Releasers ever had, now have or hereafter can, shall or may have against Releasees up to and including the date of the execution of this Agreement, except for the Employee Non-Released Company Claims. Without limiting the generality of the foregoing, Releasers hereby release and discharge Releasees from:
(a)any and all claims for backpay, frontpay, minimum wages, overtime compensation, bonus payments, benefits, reimbursement for expenses, or compensation of any kind (or the value thereof), and/or for liquidated damages or punitive damages (under any applicable statute or at common law);
(b)any and all claims, relating to Employee’s employment by the Company, the terms and conditions of such employment, employee benefits related to Employee’s employment, the termination of Employee’s employment, and/or any of the events relating directly or indirectly to or surrounding such termination;
(c)any and all claims of discrimination, harassment, whistle blowing or retaliation in employment (whether based on federal, state or local law, statutory or decisional), including without limitation, all claims under the Age Discrimination in Employment Act of 1967, as amended, Title VII of the Civil Rights Act of 1964, as amended, the Americans with Disabilities Act, the Civil Rights Act of 1991, the Civil Rights Act of 1866, 42 USC §§ 1981-86, as amended, the Equal Pay Act, the Fair Labor Standards Act, the Family and Medical Leave Act, the Employee Retirement Income Security Act, the Florida Civil Rights Act of 1992, the Florida Whistle-Blower Law (Fla. Stat. § 448.101 et seq.), the Florida Equal Pay Act, and waivable rights under the Florida Constitution;
(d)any and all claims under any contract, whether express or implied;
(e)any and all claims for unintentional or intentional torts, for emotional distress and for pain and suffering;
(f)any and all claims for violation of any statutory or administrative rules, regulations or codes;
(g)any and all claims for attorneys’ fees, costs, disbursements, wages, bonuses, benefits, vacation and/or the like;
which Releasers ever had, now have or hereafter can, shall or may have against Releasees for, upon or by reason of any act, omission, transaction or occurrence up to and including the date of the execution of this Agreement, except for the Employee Non-Released Company Claims.
4.General Release in Favor of Employee. The Releasees, and each of them, hereby release Releasers, and each of them, from all claims or causes of action whatsoever, known or unknown, including any and all claims of the common law of the State of Florida, including but not limited to breach of contract (whether written or oral), promissory estoppel, defamation, unjust enrichment, or claims for attorneys’ fees and costs and all claims which were alleged or could have been alleged against the Employee which arose from the beginning of the world to the date of this Agreement, except for the Company Non-Released Employee Claims.
KLX Inc.
0000 Xxxxxxxxx Xxxxxx Xxx,
Xxxxxxxxxx, XX 00000
Attn: General Counsel
In the event that Employee revokes this Agreement prior to the eighth day after his execution thereof, this Agreement, and the promises contained herein, shall automatically be deemed null and void.
Employee further acknowledges that he has read this Agreement in its entirety, that he fully understands all of its terms and their significance, that he has signed it voluntarily and of Employee’s own free will, and that Employee intends to abide by its provisions without exception.
(a)Governing Law; Jurisdiction; Venue. This Agreement shall be enforced, governed and interpreted by the laws of the State of Florida without regard to Florida’s conflict of laws principles. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled in a court of competent jurisdiction in the State of Florida in Palm Beach County. Each party consents to the jurisdiction of such Florida court in any such civil action or legal proceeding and waives any objection to the laying of venue in such Florida court.
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STATE OF FLORIDA |
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I HEREBY CERTIFY, that on this day, before me, an officer duly authorized in the State and County aforesaid to take acknowledgments, personally appeared Xxxx X. Xxxxxx, to me known to be the person described in and who executed the foregoing instrument, and acknowledged to and before me that he/she executed the same. This individual is personally known to me or has produced a ______________________ as identification and did take an oath.
SWORN TO AND SUBSCRIBED before me this _____ day of _________, 20__.
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