TERMINATION PROTECTION AGREEMENT
Exhibit 10.1
WHEREAS, a Termination Protection Agreement (the “Agreement”) was entered into between Xxxxxxx
X. Xxxxx (“Executive”) and Xxxxxx and Xxxxx Corporation and its successors and assigns (the
“Company”) effective June 1, 2005;
WHEREAS, the Company and Executive mutually consented to the amendment and restatement of the
Agreement, effective June 1, 2005, to reflect the requirements of Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”) and the related final Treasury Department
regulations;
WHEREAS, the Board approved the terms and provisions of such amended and restated Agreement at
its meeting on September 5, 2007; and
WHEREAS, the Company and Executive mutually consented to a First Amendment to the Termination
Protection Agreement on December 19, 2008 to clarify certain of its provisions that are governed
by, or are otherwise subject to, Section 409A of the Code; and
WHEREAS, the Company and Executive desire to amend and restate the Agreement further or
incorporate the First Amendment and in order to clarify certain of its provisions that are governed
by, or are otherwise subject to, Section 162(m) of the Code;
NOW, THEREFORE, the Company and Executive hereby agree as follows:
1. Defined Terms.
Unless otherwise indicated herein, capitalized terms used in this Agreement which are defined
in Schedule A shall have the meanings set forth in Schedule A.
The Company and Executive both agree that the definition of “Change in Control” listed in
Schedule A shall be used for Executive in any and all plans, programs or agreements in which
Executive participates or to which Executive is a party in lieu of any similar definition used in
such plans, programs or agreements; provided, however, that the definition of
“Change in Control” listed in Schedule A shall not replace any such similar definition that serves
as a “permissible payment event” (within the meaning of Treas. Reg. § 1.409A-3(a)) under any such
plan, program or agreement.
2. Effective Date; Term.
This Agreement commenced on June 1, 2005 (the “Effective Date”) and shall continue in effect
through June 1, 2008; provided, however, that the term of this Agreement shall
automatically be extended for one additional year beyond June 1, 2008 and for successive one year
periods thereafter, unless, not later than January 31 of the third calendar year preceding the year
in which the term would otherwise automatically extend (e.g., 2007 for the 2010 calendar year, 2008
for the 2011 calendar year, etc.), the Company shall have given written notice to Executive that it
does not wish to extend this Agreement for an additional year, in which event this Agreement shall
continue to be effective until June 1 of the calendar year immediately preceding the calendar year
in which the term would have otherwise automatically extended;
provided, further, that, notwithstanding any such notice by the Company not to
extend, if a Change in Control occurs during the original or any extended term of this Agreement,
this Agreement shall remain in effect for a period of three (3) years after such Change in Control.
3. Change in Control Benefits.
Executive shall be entitled to the benefits provided under this Agreement if a Triggering
Event occurs. In the event that Executive’s employment is terminated as a result of death or
Disability, Executive shall not be entitled to the benefits provided in this Section 3; however,
Executive and/or Executive’s family shall be entitled to receive benefits at least equal to the
most favorable benefits provided by the Company under its plans, programs and policies relating to
death and/or disability benefits as in effect at any time during the 90-day period immediately
preceding the earlier of the Change in Control or the Termination Date.
(a) Severance Payment. The Company shall pay Executive the aggregate of the following
amounts in one lump sum on the Payment Date:
(i) to the extent not paid before the Payment Date in accordance with the Company’s ordinary
payroll practices, Executive’s earned but unpaid base salary through the date of the Triggering
Event at the rate in effect on the date of such Triggering Event, or if higher, at the highest rate
in effect at any time within the 90-day period preceding the Change in Control;
(ii) to the extent not paid before the Payment Date in accordance with the terms of the
Company’s bonus plan, any unpaid annual bonus payable to Executive in respect of the calendar year
ending prior to the Triggering Event (but not less than the Average Bonus);
(iii) an amount determined by multiplying the Average Bonus by a fraction, the numerator of
which is the number of days elapsed in the calendar year in which the Triggering Event occurs up to
and including the date of such Triggering Event and the denominator of which is 365;
(iv) a lump sum amount, in cash, equal to three (3) times Executive’s Annual Compensation;
(v) any unpaid earned and/or accrued vacation, and
(vi) interest, for the period beginning on the date of the Triggering Event and ending on the
Payment Date at a rate equal to one hundred twenty (120) percent of the monthly, compounded
applicable federal rate, as in effect under Section 1274(d) of the Code for the month before the
month in which the Triggering Event occurs.
Notwithstanding the foregoing, if the unpaid base salary or any portion thereof or the unpaid
annual bonus or any portion thereof is subject to a deferral election or the bonus is subject to
Section 409A of the Code, such amount shall be paid in accordance with the terms of such election
and/or the terms of the plan pursuant to which such amount was deferred.
(b) Health Care Coverage.
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(i) The Company shall provide medical, prescription drug and dental coverage at the Company’s
expense to Executive and, if applicable, to Executive’s family members eligible for such coverage
under the Xxxxxx & Xxxxx Welfare Benefit Plan, until the third anniversary of the Termination Date
(the “Initial Coverage Period”). The level of coverage to be provided hereunder shall in no event
be less than the level of coverage provided immediately before the earlier of the Termination Date
or the Change in Control.
(ii) The following provisions shall apply if the coverage is self-insured by the Company. The
fair market value of coverage for each month included in the Initial Coverage Period shall be
deemed to consist of the related monthly premium as would be determined for purposes of COBRA under
Section 4980B of the Code (the “Fair Market Value”). If the Delayed Payment Date applies,
commencing with the month immediately following the month in which his Termination Date occurs and
ending as of the last day of the month in which the Delayed Payment Date occurs (the “Direct
Payment Period”), Executive shall be required to pay to the Company at the same time that COBRA
premium payments are otherwise due for that month an amount equal to the monthly Fair Market Value.
On the first day of the first month following the Delayed Payment Date, the Company shall reimburse
Executive for the aggregate amount paid by him during the Direct Payment Period (the “Aggregate
Premium Payment”). Effective with respect to the first month following the Direct Payment Period
and continuing through the end of the Initial Coverage Period or during the entire Initial Coverage
Period if the Delayed Payment Date does not apply, the Company shall cover Executive (and his
family members, if applicable) at its sole expense each month, but the Fair Market Value of such
coverage shall constitute imputed income to Executive. The Company shall make tax gross-up
payments with respect to such reimbursement for the Direct Payment Period and Company-paid coverage
during the Initial Coverage Period including (A) Company payment of any required withholding with
respect to the reimbursement and with respect to the Fair Market Value of the monthly Company-paid
coverage plus the amount of additional withholding due each month as a result of the Company’s
payment of such initial withholding amount and (B) Company payment to Executive of an amount equal
to any additional federal, state and local tax imposed on Executive with respect to income
recognized by Executive pursuant to the foregoing payments, including the amount of additional tax
imposed on Executive as a result of Company’s payment of such initial tax. The payment of such
additional tax pursuant to (B) shall be made no later than the end of the taxable year following
the taxable year in which Executive remits the related taxes.
(iii) Following the Initial Coverage Period and for a period of eighteen months thereafter,
the Company shall permit Executive to elect to continue coverage at Executive’s expense by paying
the monthly COBRA premium, as directed by the Company. Notwithstanding the foregoing, the COBRA
continuation period that is mandated by Section 4980B of the Code shall be deemed to have run
concurrently with the Initial Coverage Period.
(iv) If Executive becomes employed by a new employer, the coverage provided by Company under
this Section 3(b) shall terminate on the date Executive becomes eligible for the coverage provided
by Executive’s new employer.
(v) For purposes of Section 409A of the Code, coverage provided hereunder during the period of
time that Executive would be entitled to continuation coverage
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pursuant to COBRA is intended to qualify for the exception from “deferred compensation” as a
medical benefit provided in accordance with Treas. Reg. § 1.409A-1(b)(9)(v)(B). Any additional
coverage hereunder shall be provided in accordance with the Reimbursement and In-Kind Benefit Rule
and the tax gross-up payments shall be provided in accordance with Treas. Reg. §1.409A-3(i)(v).
(c) Other Welfare Benefits. The Company shall provide disability, group term life and
accidental death and dismemberment insurance at the Company’s expense to Executive until the third
anniversary of his Termination Date. The level of coverage to be provided shall be no less than
the level of coverage provided immediately before the earlier of the Termination Date or the Change
in Control. To the extent that any such benefit is subject to Section 409A of the Code and to the
Delayed Payment Date, Executive shall be responsible for the payment of all expenses, including,
but not limited to, the cost of the premiums for such coverage until the Delayed Payment Date. The
Company shall reimburse Executive on the Delayed Payment Date for all such costs and expenses
incurred prior to such Delayed Payment Date, provided proof of payment has been provided
and shall assume the obligation to pay all future costs and expenses until the third anniversary of
the Termination Date. The Reimbursement and In-Kind Benefit Rule shall apply to amounts subject to
Section 409A of the Code.
(d) Full Vesting of All Stock Options and Restricted Shares. Notwithstanding any
provision to the contrary in the Company’s equity incentive plans (the “Equity Plans”) or any award
agreement under the Equity Plans, (i) any outstanding, unexercisable stock options or unvested
restricted shares shall become fully exercisable and vested as of the Termination Date and (ii) all
stock options, whether or not such stock options first become exercisable pursuant to this
Agreement, shall remain exercisable until the earlier of (A) the third anniversary of the
Termination Date or (B) the latest date upon which the option could have expired by its original
terms under any circumstances; provided, however, that this sentence shall not
restrict the Company’s ability to adjust or settle outstanding stock options pursuant to the terms
of the Equity Plans, so long as Executive is treated in any such adjustment or settlement no less
favorably than any other employee of the Company; and further provided that
if Executive is, or ever has been, a “covered employee” (within the meaning of Section 162(m) of
the Code), only a pro-rata portion of any unvested restricted shares that are intended to
constitute “performance-based compensation” shall vest incident to an Anticipatory Termination
Triggering Event, and solely if the related performance conditions are fully met in accordance with
the certification required of the Company’s Compensation Committee by Section 162(m) of the Code.
(e) Retirement Benefits. Executive shall be entitled to receive retirement benefits
in accordance with the provisions of the Company’s Executive Retirement Plan.
(f) Outplacement Services. The Company shall pay the reasonable expenses incurred
with respect to executive outplacement services by any one qualified outplacement agency selected
by Executive and reasonably satisfactory to the Company from the Termination Date until the first
anniversary of the Termination Date; provided, however, that (i) such services are
directly related to Executive’s Separation from Service, and (ii) the period during which they are
covered and the payments made do not extend beyond the period described in Treas. Reg. §
1.409A-1(b)(9)(v)(E).
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(g) Grantor Trust. Within ninety (90) days following execution of this Agreement, the
Company shall establish a grantor trust, known as a rabbi trust, which shall provide for the
Company to make an irrevocable contribution to fully fund the cash payments provided for under this
Agreement in the event of a Change in Control. Notwithstanding the foregoing, such funding shall
not be required if it would result in the imposition of additional tax under Section 409A(b)(5) of
the Code.
4. Mitigation.
Executive shall not be required to mitigate damages or the amount of any payment provided for
under this Agreement by seeking other employment or otherwise, and compensation earned from such
employment or otherwise shall not reduce the amounts otherwise payable under this Agreement. No
amounts payable under this Agreement shall be subject to reduction or offset in respect of any
claims which the Company (or any other person or entity) may have against Executive.
5. Code Section 4999 Tax Gross-Up.
(a) In the event that any payment or benefit received or to be received by Executive pursuant
to the terms of this Agreement (the “Contract Payments”) or otherwise in connection with
Executive’s termination of employment or contingent upon a change in ownership or control pursuant
to any plan or arrangement or other agreement with the Company (or any affiliate), (“Other
Payments” and, together with the Contract Payments, the “Payments”) would be subject to the excise
tax (the “Excise Tax”) imposed by Section 4999 of the Code, as determined as provided below, the
Company shall pay to Executive, at the time specified in Section 5(b) below, an additional amount
(the “Gross-Up Payment”) such that the net amount retained by Executive, after deduction of the
Excise Tax on the Payments and any federal, state and local income or other tax and excise tax upon
the payment provided for by this Section 5(a), and any interest, penalties or additions to tax
payable by Executive with respect thereto, shall be equal to the total value of the Payments at the
time such Payments are to be made. For purposes of determining whether any of the Payments will be
subject to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments
shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and
all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be
treated as subject to the Excise Tax, except to the extent that, in the opinion of independent tax
counsel selected by the Company’s independent auditors and reasonably acceptable to Executive (“Tax
Counsel”), a Payment (in whole or in part) does not constitute a “parachute payment” within the
meaning of Section 280G(b)(2) of the Code, or such “excess parachute payments” (in whole or in
part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as
subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or
(B) the amount of “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code
(after applying clause (1) hereof), and (3) the value of any non-cash benefits or any deferred
payment or benefit shall be determined by Tax Counsel in accordance with the principles of Sections
280G(d)(3) and (4) of the Code. For purposes of this Section 5, any additional tax under Section
409A of the Code shall not be taken into account for purposes of determining the amount of any
payment due to or on behalf of Executive.
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(b) The Gross-Up Payments provided for in Section 5(a) hereof shall be made upon the earlier
of (i) the payment to Executive of any Payment or (ii) the imposition upon Executive or payment by
Executive of any Excise Tax, provided, however, if the Gross-Up Payment is subject to the Delayed
Payment Date, the Gross-Up Payments shall be made on the Delayed Payment Date, if later. In no
event shall any amount due to Executive under this Section 5 be paid later than the end of the
Executive’s taxable year following Executive’s taxable year in which such taxes are remitted..
(c) Executive shall notify the Company in writing of any claim by the Internal Revenue Service
that, if successful, would require the payment by the Company of a Gross-Up Payment. Such
notification shall be given as soon as practicable but no later than 10 business days after
Executive is informed in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. Executive shall not pay such claim
prior to the expiration of the 30-day period following the date on which Executive gives such
notice to the Company (or such shorter period ending on the date that any payment of taxes with
respect to such claim is due). If the Company notifies Executive in writing prior to the
expiration of such period that it desires to contest such claim, Executive shall:
(i) give the Company any information reasonably requested by the Company relating to
such claim;
(ii) take such action in connection with contesting such claim as the Company shall
reasonably request in writing from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney reasonably selected by the
Company and reasonably satisfactory to Executive;
(iii) cooperate with the Company in good faith in order to effectively contest such
claim; and
(iv) permit the Company to participate in any proceedings relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including, but not limited to, additional interest and penalties and related legal,
consulting or other similar fees) incurred in connection with such contest and shall indemnify and
hold Executive harmless, on an after-tax basis, for any Excise Tax or other tax (including interest
and penalties with respect thereto) imposed as a result of such representation and payment of costs
and expenses. All such costs and expenses incurred due to a tax audit or litigation addressing the
existence of or amount of a tax liability under this Section 5 shall be paid by the Company within
thirty (30) days of the date payment of such expenses is due or if such payment is subject to the
Delayed Payment Date, on the Delayed Payment Date, if later, but in any event not later than (A)
December 31 of the year following the year in which the taxes are remitted to the taxing authority,
or (B) where as a result of such audit or litigation no taxes are remitted, December 31 of the year
following the year in which the audit is complete or there is a final and nonappealable settlement
or other resolution of the litigation. Any Gross-Up Payment as a result of any Excise Tax or other
tax (including interest and penalties with respect thereto) imposed shall be paid at
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the time of imposition of such Excise Tax or other tax or if such amount is subject to the Delayed
Payment Date, on the Delayed Payment Date, if later.
(d) The Company shall control all proceedings taken in connection with such contest and, at
its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its sole option, either
direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any
permissible manner, and Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as
the Company shall determine; provided, however, that if the Company directs
Executive to pay such claim and xxx for a refund, the Company shall reimburse the Executive the
amount of the claimed tax within five (5) days of remittance of such amount to the Internal Revenue
Service or, if such reimbursement is subject to the Delayed Payment Date, on the Delayed Payment
Date, if later and shall indemnify and hold Executive harmless, on an after-tax basis, from any
Excise Tax or other tax (including interest or penalties with respect thereto) imposed with respect
to such reimbursement and such additional amount shall be paid at the time of imposition of such
Excise Tax or other tax or if such amount is subject to the Delayed Payment Date, on the Delayed
Payment Date, if later; and provided, further, that if Executive is required to
extend the statute of limitations to enable the Company to contest such claim, Executive may limit
this extension solely to such contested amount. The Company’s control of the contest shall be
limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive
shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal
Revenue Service or any other taxing authority. In addition, no position may be taken nor any final
resolution be agreed to by the Company without Executive’s consent if such position or resolution
could reasonably be expected to adversely affect Executive (including any other tax position of
Executive unrelated to the matters covered hereby).
(e) As a result of any uncertainty in the application of Section 4999 of the Code at the time
of the initial determination by the Company or the Tax Counsel hereunder, it is possible that
Gross-Up Payments which will not have been made by the Company should have been made
(“Underpayment”), consistent with the calculations required to be made hereunder. In the event
that the Company exhausts its remedies and Executive thereafter is required to pay to the Internal
Revenue Service an additional amount in respect of any Excise Tax, the Company or the Tax Counsel
shall determine the amount of the Underpayment that has occurred and any such Underpayment shall
promptly be paid by the Company to or for the benefit of Executive, subject, however, to the
requirements of Section 5(b) regarding time of payment.
(f) If, after the receipt by Executive of the Gross-Up Payment or an amount reimbursed by the
Company under Section 5(d) in connection with the contest of an Excise Tax claim, Executive
receives any refund with respect to such claim, Executive shall promptly pay to the Company the
amount of such refund (together with any interest paid or credited thereon after taxes applicable
thereto). If after the receipt by Executive of an amount reimbursed by the Company in connection
with an Excise Tax claim, a determination is made that Executive shall not be entitled to any
refund with respect to such claim and the Company does not notify Executive in writing of its
intent to contest the denial of such refund prior to the expiration of 30 days after such
determination, such reimbursement shall not be required to be repaid.
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6. 409A Gross-Up Payment.
(a) Subject to the requirements stated in this Section 6, in the event that amounts hereunder
become subject to the additional tax and interest under Section 409A of the Code (“409A additional
tax”) as a result of a plan document failure or an operational failure caused solely by the action
or inaction of the Company (and not at the request of Executive), the Company shall pay to
Executive an amount equal to such 409A additional tax and any additional taxes imposed upon
Executive due to the Company’s payment of such 409A additional tax (a “409A Gross-Up Payment”). In
no event, however, shall any amounts become payable under this Section 6 as a result of
compensation required to be included in gross income by reason of Section 409A(b)(3) of the Code.
Subject to the notification requirements set forth in Section 6(b) in the event the 409A additional
tax is not remitted by withholding, the 409A Gross-Up Payment shall be paid to Executive within
five business days of the date such taxes are remitted to the applicable taxing authority, or, if
the 409A Gross-Up Payment is subject to the Delayed Payment Date, on the Delayed Payment Date, if
later. In no event shall any amount due to Executive under this Section 6 be paid later than the
end of Executive’s taxable year following Executive’s taxable year in which such taxes are
remitted.
(b) Executive shall notify the Company in writing of any claim by the Internal Revenue Service
that, if successful, would require the payment by the Company of the 409A Gross-Up Payment. Such
notification shall be given as soon as practicable but no later than (10) ten business days after
Executive is informed in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. Executive shall not pay such claim
prior to the expiration of the 30-day period following the date on which he gives such notice to
the Company (or such shorter period ending on the date that any payment of taxes with respect to
such claim is due). If the Company notifies Executive in writing prior to the expiration of such
period that it desires to contest such claim, or if the Company notifies Executive at the time of
payment of the 409A Gross-Up Payment under Section 6(a) that it desires to contest the application
of the 409A additional tax (in either case, a “claim”), Executive shall (i) give the Company any
information reasonably requested by the Company relating to such claim, (ii) take such action in
connection with contesting such claim as the Company shall reasonably request in writing from time
to time, including ,without limitation, accepting legal representation with respect to such claim
by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith
in order effectively to contest such claim, and (iv) permit the Company to participate in any
proceeding relating to such claim; provided, however, that the Company shall bear
and pay directly all costs and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold Executive harmless, on an after-tax
basis, for any income tax (including interest and penalties with respect thereto) imposed as a
result of such representation and payment of costs and expenses. All such costs and expenses
incurred due to a tax audit or litigation addressing the existence of or amount of a tax liability
under this Section 6 shall be paid by the Company within thirty (30) days of the date payment of
such expenses is due or, if such payment is subject to the Delayed Payment Date, on the Delayed
Payment Date, if later, but in any event not later than (A) December 31 of the year following the
year in which the taxes are remitted to the taxing authority, or (B) where as a result of such
audit or litigation no taxes are remitted, December 31 of the year following the year in which the
audit is complete or there is a final and nonappealable settlement or other resolution of the
litigation. Without limitation on the
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foregoing provisions of this Section 6(b), the Company shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the taxing authority in respect
of such claim, and Executive shall prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as
the Company shall determine; provided, however, that any extension of the statute
of limitations relating to payment of taxes for the taxable year of Executive with respect to which
such contested amount is claimed to be due is limited solely to such contested amount.
Furthermore, the Company’s control of the contest shall be limited to issues with respect to which
a 409A Gross-Up Payment would be payable hereunder, and Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue Service or any other
taxing authority.
(c) If Executive becomes entitled to receive one or more refunds of all or any part of the
409A additional tax with respect to which a 409A Gross-Up Payment was made, Executive shall pay the
refund to the Company within five business days of the receipt of any such refund.
7. Employment Status; No Effect Prior to Change in Control; Termination for Cause.
(a) Executive and the Company acknowledge and agree that prior to a Change in Control,
Executive’s employment is “at will” and may be terminated at any time, by the Company with or
without Cause or by Executive with or without Good Reason, subject to applicable law. In the event
Executive’s employment is terminated for any reason prior to a Change in Control, other than an
Anticipatory Termination Triggering Event, Executive shall have no rights to any payments or
benefits under this Agreement and after any such termination, this Agreement shall be of no further
force or effect.
(b) In the event Executive is terminated for Cause following a Change in Control, Executive
shall have no rights to any payments or benefits under this Agreement.
8. Indemnification; Director’s and Officer’s Liability Insurance.
Until the sixth anniversary of the Termination Date and for so long thereafter as any claim
for indemnification asserted on or prior to such date has not been fully adjudicated (the
“Indemnification Period”), the Company shall indemnify, defend, and hold harmless Executive against
all losses, damages, costs, expenses (including attorneys’ fees) or liabilities (including
attorneys’ fees) with respect to bona fide claims regarding actions or omissions or alleged actions
or omissions arising out of or relating to performance by Executive of services for, or in the
capacity of Executive as director, officer or employee of, the Company or any affiliate of the
Company which have occurred on or prior to the Termination Date to the same extent and on the same
terms and conditions (including with respect to advancement of expenses) as permitted under
applicable law and the Company’s certificate of incorporation and by-laws as in effect immediately
prior to the earlier of the Termination Date or the Change in Control. In addition, the Company
shall maintain Director’s and Officer’s liability insurance (from an insurance company rated not
less than A by A.M. Best Company) and, if Executive served or has served
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as a fiduciary of any pension or benefit plan, ERISA fiduciary insurance, on behalf of
Executive, at the level in effect immediately prior to the earlier of the Termination Date or the
Change in Control, for the Indemnification Period.
9. Confidential Information.
Executive acknowledges that any confidentiality agreement entered into by Executive and the
Company remains in full force and effect and survives the termination of his or her employment with
the Company; provided that nothing contained in such agreement or this Section 9 shall
prevent Executive from being employed by a competitor of any of the Company or utilizing
Executive’s general skills, experience, and knowledge, including those developed while employed by
any of the Company or its affiliates.
10. Disputes.
Any dispute or controversy arising under or in connection with this Agreement shall be settled
exclusively by arbitration in Memphis, Tennessee or, at the option of Executive, in the county
where Executive then resides, in accordance with the Rules of the American Arbitration Association
then in effect, except that Executive may, at Executive’s option, bring that action in a court of
competent jurisdiction, even if the Company has earlier instituted an action hereunder. Judgment
may be entered on an arbitrator’s award relating to this Agreement in any court having
jurisdiction.
11. Costs of Proceedings.
The Company shall pay for all costs and expenses of Executive, at least monthly, including
attorneys’ fees and disbursements, in connection with any legal proceeding (including arbitration),
whether instituted by the Company or by Executive during Executive’s lifetime, relating to the
interpretation or enforcement of any provision of this Agreement, except that if Executive
instituted the proceeding and the judge, arbitrator or other individual presiding over the
proceeding affirmatively finds that Executive instituted the proceeding in bad faith, then
Executive shall be required to pay all costs and expenses of Executive, including attorney’s fees
and disbursements, and shall not be entitled to reimbursement and shall reimburse the Company for
any amounts previously paid by the Company to Executive for such costs and expenses. The
Reimbursement and In-Kind Benefit Rule shall apply and if any payment is subject to the Delayed
Payment Date, it shall not be paid prior to the Delayed Payment Date.
12. Successors and Assigns.
Except as otherwise provided herein, this Agreement shall be binding upon, inure to the
benefit of and be enforceable by the Company and Executive and their respective heirs, legal
representatives, successors and assigns. If the Company shall be merged into or consolidated with
another entity, the provisions of this Agreement shall be binding upon and inure to the benefit of
the entity surviving such merger or resulting from such consolidation. The Company shall require
any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all
or substantially all of the business or assets of the Company, by agreement in form and substance
satisfactory to Executive, to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to
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perform it if no such succession had taken place. The provisions of this Section 12 shall
continue to apply to each subsequent employer of Executive in the event of any subsequent merger,
consolidation or transfer of assets of such subsequent employer.
13. Withholding.
Notwithstanding the provisions of Sections 4, 5 and 6 hereof, the Company may, to the extent
required by law, withhold applicable federal, state and local income and other taxes from any
payments due to Executive hereunder.
14. Compliance with Code Section 409A.
This Agreement is intended to comply with the requirements of Section 409A of the Code and
shall be construed and interpreted in accordance therewith in order to avoid the imposition of
additional tax thereunder.
15. Applicable Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of
Tennessee, without reference to principles of conflicts of law, applicable to contracts made and to
be performed therein.
16. Entire Agreement.
This Agreement constitutes the entire agreement between the parties regarding severance
benefits following a Change in Control and supersedes and overrides any prior agreement entered
into between the Company and Executive regarding severance benefits following a Change in Control
between the Company and Executive. This Agreement may be changed only by a written agreement
executed by the Company and Executive.
17. Notice.
Notices and all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when personally delivered, delivered by a nationally
recognized overnight delivery service, or sent by certified mail, return receipt requested, postage
prepaid, addressed to the respective addresses last given by each party to the other,
provided that all notices to the Company shall be directed to the attention of the Board
with a copy to the Secretary of the Company. All notices and communications shall be deemed to
have been received on the date of delivery thereof or on the third business day after the mailing
thereof, except that notice of change of address shall be effective only upon receipt.
18. Severability.
The provisions of this Agreement shall be deemed severable, and the invalidity or
unenforceability of any provision hereof shall not affect the validity or enforceability of the
other provisions hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the 15th day of January, 2009.
| XXXXXX & XXXXX CORPORATION |
||||
| By: | /s/ X.X. Xxxxxx | |||
| Name: | X.X. Xxxxxx | |||
| Title: | Vice President-General Counsel | |||
| /s/ Xxxxxxx X. Xxxxx | ||||
| Xxxxxxx X. Xxxxx | ||||
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CERTAIN DEFINITIONS
As used in this Agreement, and unless the context requires a different meaning, the following
terms, when capitalized, have the meaning indicated:
“Annual Compensation” means the sum of (i) Executive’s annual rate of base salary in
effect on the date of the Change in Control or, if higher, the Termination Date, (ii) the Average
Bonus and (iii) Executive’s perquisite allowance for the calendar year immediately prior to the
calendar year in which the earlier of the Termination Date or the Change in Control occurs.
“Anticipatory Termination Triggering Event” means the Executive’s Separation from
Service for a reason other than death or Disability before a Change in Control provided
Executive’s employment is terminated by the Company or its affiliates without Cause and Executive
reasonably demonstrates that such Separation from Service was at the request or suggestion of any
individual or entity that is or was attempting to effectuate a Change in Control within the 12
months following such Separation from Service.
“Average Bonus” means the greater of (i) Executive’s target bonus for the calendar
year immediately prior to the calendar year in which the earlier of the Termination Date or the
Change in Control occurs, or (ii) the highest bonus paid or payable to Executive in respect of any
of the five (5) calendar years (annualized with respect to any such calendar year for which
Executive has been employed for only a portion thereof) immediately prior to the calendar year in
which the earlier of the Termination Date or the Change in Control occurs. Notwithstanding the
foregoing, effective with respect to a Termination Date or Change in Control (whichever is earlier)
occurring on or after January 1, 2010, if Executive is or ever has been a “covered employee”
(within the meaning of Section 162(m) of the Code), the amount described in clause (i), above,
shall cease to apply, and shall be replaced by the phrase, “45% of Executive’s annual rate of base
salary for the calendar year immediately prior to the calendar year in which the earlier of the
Termination Date or the Change in Control occurs.”
“Average Long Term Incentive Award” means the sum of (i) the average Black-Scholes
value (as determined by the accountant employed by the Company immediately prior to the Change in
Control) of the annual stock options granted to Executive during the three calendar years
immediately prior to the calendar year in which the earlier of the Termination Date or the Change
in Control occurs and (ii) the average value of the annual restricted stock awards (determined by
reference to the closing values of the restricted shares on the dates on which they were granted)
granted to Executive during the three calendar years immediately prior to the calendar year in
which the earlier of the Termination Date or the Change in Control occurs.
“Board” means the Company’s Board of Directors.
“Cause” shall mean Executive’s termination of employment due to:
(a) Executive’s conviction of, or plea of guilty or nolo contendere to, a felony; or
(b) the willful engaging by Executive in gross misconduct which is materially and
demonstrably injurious to the Company.
For a termination of employment to be for Cause: (i) Executive must receive a written notice
which indicates in reasonable detail the facts and circumstances claimed to provide a basis for the
termination of Executive’s employment for Cause; (ii) Executive must be provided with an
opportunity to be heard no earlier than 30 days following the receipt of such notice (during which
notice period Executive has the opportunity to cure and has failed to cure or resolve the behavior
in question); and (iii) there must be a good faith determination of Cause by at least
three-quarters of the non-employee outside director members of the Board.
“Change in Control” For the purpose of this Agreement, a “Change in Control” shall,
without limitation, be deemed to have occurred if:
(a) A third person, including a “group” as such term is used in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), becomes the beneficial owner,
directly or indirectly, of 25% or more of the combined voting power of the Company’s outstanding
voting securities ordinarily having the right to vote for the election of directors of the Company;
or
(b) Individuals who, as of the date hereof, constitute the Board cease for any reason to
constitute at least a majority of the Board, provided that any person becoming a director
subsequent to the date hereof whose election, or nomination for election by the Company’s
shareholders, was approved by a vote of at least three-quarters of the directors comprising the
Board as of the date hereof (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 directors of the Company) shall be, for purposes of this Agreement, considered as
though such person were a member of the Board as of the date hereof; or
(c) The consummation of (i) any consolidation, share exchange, merger or amalgamation of the
Company as a result of which the individuals and entities who were the respective beneficial owners
of the outstanding common stock of the Company and the voting securities of the Company immediately
prior to such consolidation, share exchange, merger or amalgamation do not beneficially own,
immediately after such consolidation, share exchange, merger or amalgamation, directly or
indirectly, 50% or more, respectively, of the common stock and combined voting power of the voting
securities entitled to vote of the company resulting from such consolidation, share exchange,
merger or amalgamation; or (ii) any sale, lease, exchange or other transfer (in one transaction or
a series of related transactions) of all or substantially all the assets or earning power of the
Company; or
(d) The approval by the shareholders of a plan of complete liquidation or dissolution of the
Company.
“Code” means the Internal Revenue Code of 1986, as amended.
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“Company” means Xxxxxx & Xxxxx Corporation and its successors and assigns.
“Delayed Payment Date” means the first business day following the six-month
anniversary of the Termination Date. A payment or benefit shall not be subject to the Delayed
Payment Date if (i) the payment or benefit is not subject to Section 409A of the Code, (ii) the
payment event with respect to the payment or benefit, for purposes of Section 409A of the Code, is
other than Separation from Service, or (iii) on the Termination Date, no stock of the Company (or
any other entity considered a single employer with the Company under Treas. Reg. §1.409A-1(g) or
any successor thereto) is publicly traded on an established securities market or otherwise.
“Disability” means total disability or permanent disability as determined under the
Company’s long-term disability plan in which Executive participates, as it exists from time to
time; provided, however, if Executive does not participate in the Company’s
long-term disability plan, then “Disability” means an illness or injury which prevents Executive
from performing his or her duties, as they existed immediately prior to the illness or injury, on a
full time basis for 180 consecutive business days, and is determined to be total and permanent
disability by a physician selected by the Company and acceptable to Executive or Executive’s legal
representative.
“Good Reason” means any of the following actions, without Executive’s express prior
written approval, other than due to Executive’s permanent disability or death:
(i) any reduction in Executive’s annual base salary;
(ii) any failure to pay Executive an annual bonus, in cash, at least equal to the Average
Bonus;
(iii) any failure by the Company to grant Executive with long term incentives annually that
are at least equal to the value of the Average Long Term Incentive Award, where the value of the
long term incentives granted to Executive in any year are determined by the accountants employed by
the Company immediately prior to the Change in Control using a valuation method consistent with the
methodology used to value the Average Long Term Incentive Award;
(iv) Executive’s duties, titles, responsibilities or authority (including offices and
reporting relationships) are diminished in comparison to the duties, titles and responsibilities or
authority enjoyed by Executive immediately prior to the Change in Control, other than as a result
of an insubstantial and inadvertent action which is remedied by the Company promptly after receipt
of notice thereof by Executive;
(v) any material reduction in Executive’s and/or Executive’s family’s eligibility to
participate and his/her/their level of benefit in each of the Company’s welfare benefit plans,
including, without limitation, all medical, prescription, dental, disability, salary continuance,
group life, accidental death and travel accident insurance plans and programs of the Company in
comparison to the highest level of eligibility and level of benefit enjoyed by Executive and
Executive’s family during the 90 day period preceding the Change in Control;
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(vi) any material reduction, in the aggregate, in Executive’s ability to participate in all
incentive, savings and retirement plans or programs applicable to other key executives (including
the Company’s restricted stock and stock option plans), to a level less favorable to Executive than
the highest level enjoyed by Executive in such plans or programs during the 90 day period preceding
the Change in Control;
(vii) the Company’s requiring Executive to be based at any office or location which is located
more than 35 miles from the location where Executive was based immediately prior to the Change in
Control;
(viii) any material reduction of any fringe benefits, including any car allowance enjoyed by
Executive during the ninety (90) day period immediately prior to the Change in Control;
(ix) any material reduction in the level of Executive’s entitlement to a particular office or
office size or to particular furnishings or to secretarial or other assistance as enjoyed by
Executive during the ninety (90) day period immediately prior to the Change in Control;
(x) any reduction in the level of Executive’s entitlement to paid vacation as enjoyed by
Executive during the ninety (90) day period immediately prior to the Change in Control;
(xi) any termination of employment by Executive within the thirty-day period immediately
following the twelve-month anniversary of the Change in Control; or
(xii) the failure of the Company to obtain a satisfactory agreement from any successor to
assume and agree to perform the Agreement, as contemplated in Section 12 of this Agreement.
Executive’s continued employment shall not constitute consent to, or a waiver of rights with
respect to, any circumstances constituting Good Reason hereunder. For purposes of the Agreement,
any good faith determination of “Good Reason” made by Executive shall be conclusive.
“Payment Date” means (i) the Delayed Payment Date, if (A) the payment is subject to
Section 409A of the Code, (B) the payment event for purposes of Section 409A of the Code is
Separation from Service, and (C) on the Termination Date stock of the Company (or any other entity
considered a single employer with the Company under Treas. Reg. §1.409A-1(g) or any successor
thereto) is publicly traded on an established securities market or otherwise, or (ii) in any other
case, the date that is ten (10) days after the Termination Date.
“Reimbursement and In-Kind Benefit Rule” means, with respect to in-kind benefits
provided or expenses eligible for reimbursement which are subject to Section 409A of the Code, that
(i) the benefits provided or the amount of expenses eligible for reimbursement during any calendar
year shall not affect the benefits provided or expenses eligible for reimbursement in any other
calendar year, except as otherwise provided in Treas. Reg. § 1.409A-3(i)(1)(iv)(B), and (ii) the
reimbursement of an eligible expense shall be made as soon as practicable after Executive
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requests such reimbursement, but not later than the December 31 following the calendar year in
which the expense was incurred and if the payment is subject to the Delayed Payment Date, not
earlier than the Delayed Payment Date.
“Separation from Service” means Executive’s separation from service with the Company
and its affiliates within the meaning of Treas. Reg. § 1.409A-1(h) or any successor thereto.
“Separation from Service Triggering Event” means the Executive’s Separation from
Service for a reason other than death or Disability on the date of or within three years following
a Change in Control provided Executive’s employment is terminated by the Company or its
affiliates without Cause or by Executive for Good Reason.
“Termination Date” means the date of Executive’s Separation from Service.
“Triggering Event” means the earlier to occur of (i) a Separation from Service
Triggering Event, or (ii) an Anticipatory Termination Triggering Event.
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