EMPLOYMENT AGREEMENT
Exhibit 10.1
THIS
EMPLOYMENT AGREEMENT (this “Agreement”) is made and
entered into as of November 11, 2020, by and between Xxxxx-Midland
Corporation, a Delaware corporation (the “Company”), and
Xxxxxx X. Xxxxx (the
“Executive”).
WHEREAS, the
Company is desirous of continuing to employ the Executive in an
executive capacity on the terms and conditions, and for the
consideration, hereinafter set forth, and the Executive is desirous
of being employed by the Company on such terms and conditions and
for such consideration; and
NOW,
THEREFORE, in consideration of the mutual covenants and agreements
set forth below, and for other good and valuable consideration, it
is hereby covenanted and agreed by the Executive and the Company as
follows:
1. Effective Date. This Agreement
shall become binding and enforceable when accepted by the Executive
in the manner set forth for acceptance below, and the provisions of
this Agreement shall become effective as of the date first written
above (the “Effective
Date”).
2. Employment Period. The Company
agrees to employ Executive, and Executive agrees to serve the
Company and its Affiliates (as defined below), subject to the terms
and conditions of this Agreement, for the period commencing on the
Effective Date and ending on the third anniversary of the Effective
Date (the “Employment Period”);
provided,
however, that
commencing on the first anniversary of the Effective Date, and on
each annual anniversary thereafter (such date and each annual
anniversary thereof shall be hereinafter referred to as the
“Renewal
Date”), unless previously terminated, the Employment
Period shall be automatically extended so as to terminate three
years from such Renewal Date, unless at least 180 days prior to the
Renewal Date the Company shall give notice to Executive, or the
Executive shall give notice to the Company, that the Employment
Period shall not be so extended (a “Notice of Non-Renewal”).
For purposes of this Agreement, the term “Affiliate”
means an entity controlled by, controlling or under common control
with the Company.
3. Position and
Duties.
(a) During the
Employment Period, the Executive shall (i) serve as Chief
Executive Officer and President of the Company, with such
authority, power, duties and responsibilities as are commensurate
with such position and as are customarily exercised by a person
holding such position in a company of the size and nature of the
Company and (ii) report directly to the Board of Directors of
the Company (the “Board”).
(b) The Executive,
during the Employment Period, shall devote his full business time,
energies and talents to serving in the position described in
Section 3(a) of this Agreement and he shall perform his duties
faithfully and efficiently subject to the directions of the Board.
Notwithstanding the foregoing, nothing herein shall preclude the
Executive (i) from participating in or serving on the board of
directors or similar governing body of charitable, religious,
social or educational organizations or (ii) from participating
or serving on the board of directors or similar governing body of
up to two public companies; provided that such company is
not a competitor of the Company and such participation does not
reflect negatively on the Company and that the Executive provides
the Company with advance written notice of such participation; and
provided,
further, that in
the case of the Executive’s board participation pursuant to
either clause (i) or (ii) above, the Board determines in its
good faith discretion that such participation or service does not
unreasonably interfere, individually or in the aggregate, with the
Executive’s performance of his obligations to the
Company.
Subject
to the terms of this Agreement, during the Employment Period, while
the Executive is employed by the Company, the Company shall
compensate the Executive for his services as follows:
(a) Base Salary. The Executive
shall receive an annual base salary (“Annual Base Salary”) of
no less than $300,000.00, with an increase no less than 3% per
annual. The Executive’s Annual Base Salary shall be reviewed
annually by the Compensation Committee of the Board (the
“Compensation
Committee”) pursuant to its normal performance review
policies for senior executives and may be increased but not
decreased. The term “Annual Base Salary” as utilized in
this Agreement shall refer to Annual Base Salary as in effect from
time to time. Such Annual Base Salary shall be payable in monthly
or more frequent installments in accordance with the
Company’s payroll policies.
(b) Annual Incentive Payment. With
respect to each fiscal year or portion of a fiscal year of the
Company ending during the Employment Period, the Executive shall be
eligible to receive an annual bonus incentive payment (the
“Incentive Bonus
Payment”) as determined by the Compensation Committee
in its discretion and, if applicable, in accordance with the terms
of any applicable incentive plan of the Company and subject to the
achievement of any performance goals established by the
Compensation Committee with respect to such fiscal year. The
Executive’s target Incentive Bonus Payment opportunity under
the incentive plan applicable to the Executive for each fiscal year
during the Employment Period shall be determined by the
Compensation Committee in its discretion with respect to each such
fiscal year of the Company (the “Target Incentive Bonus
Payment”). Any earned Incentive Bonus Payment shall be
paid to the Executive pursuant to the terms of the applicable
incentive plan; provided, however, that any such
Incentive Bonus Payment for a fiscal year shall be paid to the
Executive no later than the 90th day following the close of such
fiscal year, unless the Company or the Executive shall elect to
defer the receipt of such Incentive Bonus Payment pursuant to an
arrangement that meets the requirements of Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”).
(c) Long-Term Incentive Awards.
Executive shall be eligible to participate in long-term cash and
equity incentive plans, practices, policies and programs applicable
generally to other senior executives of the Company, provided that Executive shall
be treated similarly to other senior executives of the Company with
respect to the grant timing and terms of such long-term incentive
awards.
(d) Employee Benefits. During the
Employment Period, the Executive shall be provided with employee
benefits on a basis no less favorable than such benefits are
provided by the Company from time to time to the Company’s
other senior executives.
(e) Expense Reimbursement. During
the Employment Period, the Company will reimburse the Executive for
all reasonable expenses incurred by him in the performance of his
duties in accordance with the Company’s policies applicable
to senior executives and in accordance with the requirements of
Section 8(a)(ii) of this Agreement.
5. Termination
of Employment
(a) Death or Disability. The
Executive’s employment shall terminate automatically upon the
Executive’s death during the Employment Period. If the
Executive incurs a Disability (as defined below) during the
Employment Period, the Company may provide the Executive with
written notice in accordance with Section 12(g) of this Agreement
of its intention to terminate the Executive’s employment. In
such event, the Executive’s employment with the Company shall
terminate effective on the 30th day after receipt of such notice by
the Executive (the “Disability Effective
Date”); provided that, within
30 days after such receipt, the Executive shall not have
returned to continued full-time performance of the
Executive’s duties. For purposes of this Agreement,
“Disability” shall mean
the inability of the Executive to perform the Executive’s
duties with the Company on a full-time basis as a result of
incapacity due to mental or physical illness, which inability
exists for 180 days during any consecutive 12-month period, as
determined by a physician selected by the Company or its insurers
and acceptable to the Executive or the Executive’s legal
representative.
(b) Cause. The Company may
terminate the Executive’s employment during the Employment
Period either with or without Cause. For purposes of this
Agreement, “Cause” shall
mean:
(i) willful misconduct
or willful neglect by the Executive in the performance of his
duties to the Company;
(ii) the
Executive’s willful failure to adhere materially to the clear
directions of the Board or to adhere materially to the
Company’s material written policies;
(iii) the
Executive’s conviction of or formal admission to or plea of
guilty or nolo contendere to a charge of commission
of a felony; or
(iv) the
Executive’s willful breach of any of the material terms and
conditions of this Agreement.
For
purposes of this provision, no act or failure to act, on the part
of the Executive, shall be considered “willful” unless
it is done, or omitted to be done, by the Executive in bad faith or
without reasonable belief that the Executive’s action or
omission was in the best interests of the Company. Any act or
failure to act based upon authority given pursuant to a resolution
duly adopted by the Board or upon the advice of counsel for the
Company shall be conclusively presumed to be done, or omitted to be
done, by the Executive in good faith and in the best interests of
the Company. To invoke a termination with Cause, the Company shall
provide written notice to the Executive of the existence of one or
more of the conditions described in clauses (i) through (iv)
within 30 days following the Board’s actual knowledge of
the existence of such condition or conditions, specifying in
reasonable detail the conditions constituting Cause, and the
Executive shall have 30 days following receipt of such written
notice (the “Executive Cure Period”)
during which it may remedy the condition if such condition is
reasonably subject to cure. In addition, in the case of a
termination of the Executive’s employment with Cause other
than as described in clause (iii) above, the cessation of
employment of the Executive shall not be deemed to be with Cause,
unless and until there shall have been delivered to the Executive a
copy of a resolution duly adopted by the affirmative vote of not
less than a majority of the members of the Board other than the
Executive at a meeting of the Board called and held for such
purpose (after reasonable notice is provided to the Executive and
the Executive is given an opportunity, together with counsel, to be
heard before the Board), finding that, in the good faith opinion of
the Board, the Executive is guilty of the conduct described in
clauses (i), (ii) or (iv) above, and specifying the
particulars thereof in detail.
(c) Good Reason. The
Executive’s employment may be terminated by the Executive
during the Employment Period with or without Good Reason. For
purposes of this Agreement, “Good Reason” shall mean,
in the absence of the written consent of the
Executive:
(i) a material
diminution in the Executive’s Annual Base Salary or Target
Incentive Bonus Payment during the Employment Period;
(ii) a material
diminution in the position, authority, duties or responsibilities
of the Executive from those described in Section 3(a) of this
Agreement; provided that, following a
Change in Control, this clause (ii) shall relate to the
Executive’s position(s), authority, duties and
responsibilities as in effect immediately prior to the Change in
Control;
(iii) any material
failure by the Company to comply with the material terms of
Section 2 of this Agreement
during the Employment Period;
(iv) any relocation of
the Executive’s principal place of business to a location
more than 30 miles from the Executive’s principal place
of business prior to such relocation; or
(v) any other material
breach of this Agreement by the Company.
To
invoke a termination with Good Reason, the Executive shall provide
written notice to the Company of the existence of one or more of
the conditions described in clauses (i) through (v) within
90 days following the Executive first becoming aware of the
initial existence of such condition or conditions, specifying in
reasonable detail the conditions constituting Good Reason, and the
Company shall have 30 days following receipt of such written
notice (the “Company
Cure Period”) during which it may remedy the condition
if such condition is reasonably subject to cure. If the Company
fails to remedy the condition constituting Good Reason during the
applicable Company Cure Period, the Executive’s
“separation from service” (within the meaning of
Section 409A of the Code) must occur, if at all, within
60 days following such Company Cure Period for such
termination as a result of such condition to constitute a
termination with Good Reason. Notwithstanding anything to the
contrary in this Agreement, a temporary suspension of the
Executive’s duties, authorities, employment or other roles
hereunder not in excess of 90 days by the Board based upon the
Board’s good faith judgment that such suspension is warranted
pending investigation of any material allegations relating to the
conduct of the Executive or the conduct of the Company that may
implicate the Executive shall not give rise to Good
Reason.
(d) Notice of Termination. Any
termination by the Company with Cause, or by the Executive with
Good Reason, shall be communicated by Notice of Termination to the
other party hereto given in accordance with Section 12(g) of this
Agreement. For purposes of this Agreement, a “Notice of Termination”
means a written notice that (i) indicates the specific
termination provision in this Agreement relied upon, (ii) to
the extent applicable, sets forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the
Executive’s employment under the provision so indicated, and
(iii) if the Date of Termination (as defined below) is other
than the date of receipt of such notice, specifies the termination
date (which date shall be not more than 30 days after the
giving of such notice or 30 days after the end of the Company
Cure Period, if applicable, in the case of a termination by the
Executive with Good Reason). The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason or Cause
shall not waive any right of the Executive or the Company,
respectively, hereunder or preclude the Executive or the Company,
respectively, from asserting such fact or circumstance in enforcing
the Executive’s or the Company’s rights
hereunder.
(e) Date of Termination. For
purposes of this Agreement, “Date of Termination”
means (i) if the Executive’s employment is terminated by
the Company without Cause, or by the Executive without Good Reason,
the date of receipt of the Notice of Termination or any later date
specified therein within 30 days of such notice, as the case
may be, (ii) if the Executive’s employment is terminated
by the Executive with Good Reason, a date that is no later than
30 days after the Company Cure Period, if applicable,
(iii) if the Executive’s employment is terminated by the
Company with Cause, the Date of Termination shall be the date on
which the Company notifies the Executive of such termination (which
shall not be until after the expiration of the Executive Cure
Period); and (iv) if the Executive’s employment is
terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Executive or the
Disability Effective Date, as the case may be.
6. Obligations
of the Company upon Termination of Employment.
(a) Resignation by the Executive with
Good Reason or Termination by the Company without Cause. If,
during the Employment Period, the Executive’s employment is
terminated (i) by the Executive with Good Reason, or
(ii) by the Company without Cause, and, except with respect to
the payment of Accrued Obligations and Other Benefits (as such
terms are defined below), the Executive shall have executed and
delivered to the Company within 30 days of the Date of
Termination a release of claims against the Company and its
Affiliates substantially in the form attached as Exhibit B and not revoked
such release within the day revocation period described in such
release, the Company shall pay to the Executive within 45 days
after the Date of Termination (except as otherwise required by law
or provided below) or provide, as applicable, the
following:
(A) lump sum cash
payment consisting of: (1) the Executive’s Annual Base
Salary pro rated through the Date of Termination to the extent not
theretofore paid; (2) any annual Incentive Bonus Payment
earned by the Executive for a prior award period, but not yet paid
to the Executive (other than any portion of such annual Incentive
Bonus Payment that was previously deferred, which portion shall
instead be paid in accordance with the applicable deferral
arrangement and any election thereunder); (3) any accrued
vacation or paid time off to the extent not theretofore paid; and
(4) any unreimbursed business expenses incurred prior to the
Date of Termination (the sum of the amounts described in
clauses (1), (2), (3), and (4) shall be hereinafter referred
to as the “Accrued
Obligations”);
(B) If such
termination occurs within two years following a Change in Control,
a lump sum cash payment equal to the product of (1) 2.99
multiplied by (2) the
sum of the Executive’s Annual Base Salary in effect
immediately prior to such termination of employment and the Target
Incentive Bonus Payment (whether payable in cash or equity) for the
year of termination of employment (or, if higher, or if no Target
Incentive Bonus Payment has been established for such year, the
Incentive Bonus Payment paid or payable to the Executive in respect
of the completed fiscal year of the Company immediately prior to
the Date of Termination);
(C) If such
termination does not occur within two years following a Change of
Control, an aggregate amount, payable in equal monthly cash
payments over a period of 24 months, equal to the product of (1)
2.0 multiplied by (2) the sum of the Executive’s Annual Base
Salary in effect immediately prior to such termination of
employment and the Target Incentive Bonus Payment (whether payable
in cash or equity) for the year of termination of employment (or,
if higher, or if no Target Incentive Bonus Payment has been
established for such year, the Incentive Bonus Payment paid or
payable to the Executive in respect of the completed fiscal year of
the Company immediately prior to the Date of
Termination);
(D) To the extent not
theretofore paid or provided, the Company shall timely pay or
provide to the Executive any other amounts or benefits required to
be paid or provided or which the Executive is eligible to receive
under any plan, program, policy, practice, contract or agreement of
the Company and its Affiliates through the Date of Termination
(such other amounts and benefits shall be hereinafter referred to
as the “Other
Benefits”); and
(E) The Company shall
provide the Executive and the Executive’s dependents with
continued coverage under any health, medical, dental, vision or
life insurance program or policy in which the Executive was
eligible to participate as of the time of the Executive’s
employment termination, for 24 months following such termination on
terms no less favorable to the Executive and the Executive’s
dependents (including with respect to payment for the costs
thereof) than those in effect for employees generally, which
coverage shall become secondary to any coverage provided to the
Executive by a subsequent employer and to any Medicare coverage for
which the Executive becomes eligible. In the event COBRA is no
longer available, the Company pay for equivalent
coverage.
(b) Termination by the Company with
Cause; Resignation by the Executive without Good Reason;
Death. If, during the Employment Period, the
Executive’s employment is terminated by the Company with
Cause or by the Executive without Good Reason, or due to the death
of Executive, this Agreement shall terminate without further
obligations to the Executive, other than the obligation to pay or
provide (i) the Accrued Obligations (paid as set forth in
Section 6(a)(A) of this Agreement) and (ii) the Other Benefits
(paid in accordance with the provisions of the applicable
plans).
(c) Termination due to Disability.
If, during the Employment Period, the Executive’s employment
is terminated by the Company due to Disability, the Company shall
pay to the Executive after the Date of Termination (i) the
Executive’s Base Salary, in equal monthly payments for a
period of one year commencing on the Date of Termination, (ii) an
amount equal to the Target Incentive Bonus Payment (whether payable
in cash or equity) for the year of Termination of Employment (or,
if no Target Incentive Bonus Payment has been established for such
year, the Incentive Bonus Payment paid or payable to the Executive
in respect of the completed fiscal year of the Company immediately
prior to the Date of Termination), (iii) the Accrued Benefits (paid
as set forth in Section 6(a)(A) of this Agreement and (iv) the
Other Benefits (paid in accordance with the provisions of the
applicable plans).
(d) Effect of Termination on Other
Positions. If, on the Date of Termination, the Executive is
a member of the Board or the board of directors of any of the
Company’s subsidiaries, or holds any other position with the
Company or its subsidiaries, the Executive shall be deemed to have
resigned from all such positions as of the Date of Termination. The
Executive agrees to execute such documents and take such other
actions as the Company may request to reflect such
resignation.
(e) Full Settlement; Legal Fees Following
a Change in Control. The payments and benefits provided
under this Section 6 (including, without limitation, the Other
Benefits) shall be in full satisfaction of the Company’s
obligations to the Executive upon his termination of employment,
notwithstanding the remaining length of the Employment Period, and
in no event shall the Executive be entitled to severance benefits
(or other damages in respect of a termination of employment or
claim for breach of this Agreement) beyond those specified in this
Section 6. The Company agrees to pay as incurred (within
10 days following the Company’s receipt of an invoice
from the Executive), at any time from the occurrence of a Change in
Control through the Executive’s remaining lifetime (or, if
longer, through the 20th anniversary of the Change in Control) to
the full extent permitted by law, all legal fees and expenses that
the Executive may reasonably incur as a result of any contest by
the Company, the Executive, or others of the validity or
enforceability of, or liability under, any provision of this
Agreement or any guarantee of performance thereof (including as a
result of any contest by the Executive about the amount of any
payment pursuant to this Agreement), plus, in each case, interest
on any delayed payment at the applicable federal rate provided for
in Section 7872(f)(2)(A) of the Code based on the rate in
effect for the month in which such legal fees and expenses were
incurred.
(f) Non-Exclusivity of Rights.
Nothing in this Agreement shall prevent or limit the
Executive’s continuing or future participation in any plan,
program, policy or practice provided by the Company or any of its
affiliates and for which the Executive may qualify, nor shall
anything herein limit or otherwise affect such rights as the
Executive may have under any other contract or agreement with the
Company or any of its affiliates. Without limiting the generality
of the foregoing, the Executive’s resignation under this
Agreement with or without Good Reason shall in no way affect the
Executive’s ability to terminate employment by reason of the
Executive’s “retirement” under, or to be eligible
to receive benefits under, any compensation and benefits plans,
programs or arrangements of the Company or any of its affiliates,
including, without limitation, any retirement or pension plans or
arrangements or substitute plans adopted by the Company or any of
its affiliates or their respective successors, and any termination
that otherwise qualifies as Good Reason shall be treated as such
even if it is also a “retirement” for purposes of any
such plan.
7. No
Mitigation; No Offset.
The
Company’s obligation to make the payments provided for in
this Agreement and otherwise to perform its obligations hereunder
shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action that the Company may have
against the Executive or others. In no event shall the Executive be
obligated to seek other employment or take any other action by way
of mitigation of the amounts payable to the Executive under any of
the provisions of this Agreement, and such amounts shall not be
reduced whether or not the Executive obtains other
employment.
8. Section 409A;
Forfeiture
(a) Section 409A.
(i) General. It is intended that
this Agreement shall comply with the provisions of
Section 409A of the Code and the Treasury regulations relating
thereto, or an exemption to Section 409A of the Code. Any
payments that qualify for the “short-term deferral”
exception or another exception under Section 409A of the Code
shall be paid under the applicable exception. For purposes of the
limitations on nonqualified deferred compensation under
Section 409A of the Code, each payment of compensation under
this Agreement shall be treated as a separate payment of
compensation. To the extent required to avoid taxes and penalties
under Section 409A of the Code, all payments to be made upon a
termination of employment under this Agreement shall be made upon a
“separation from service” under Section 409A of
the Code.
(ii) In-Kind Benefits and
Reimbursements. Notwithstanding anything to the contrary in
this Agreement, all (A) reimbursements and (B) in-kind
benefits provided under this Agreement that are subject to
Section 409A of the Code shall be made or provided in
accordance with the requirements of Section 409A of the Code,
including, where applicable, the requirement that (1) the
amount of expenses eligible for reimbursement, or in-kind benefits
provided, during a calendar year may not affect the expenses
eligible for reimbursement, or in-kind benefits to be provided, in
any other calendar year; (2) the reimbursement of an eligible
expense will be made no later than the last day of the calendar
year following the year in which the expense is incurred; and
(3) the right to reimbursement or in-kind benefits is not
subject to liquidation or exchange for another
benefit.
(iii) Delay of Payments.
Notwithstanding anything to the contrary in this Agreement, to the
extent required to avoid taxes and penalties under
Section 409A of the Code, if the Executive is considered a
“specified employee” for purposes of Section 409A
of the Code (as determined in accordance with the methodology
established by the Company as in effect on the date of
termination), any payment that constitutes nonqualified deferred
compensation within the meaning of Section 409A of the Code
that is otherwise due to the Executive under this Agreement during
the six-month period following his separation from service (as
determined in accordance with Section 409A of the Code) on
account of his separation from service shall be accumulated and
paid to the Executive on the first business day of the seventh
month following his separation from service (the
“Delayed Payment
Date”). The Executive shall be entitled to interest on
any delayed cash payments from the date of termination to the
Delayed Payment Date at a rate equal to the applicable federal
short-term rate in effect under Section 1274(d) of the Code
for the month in which the Executive’s separation from
service occurs. If the Executive dies during the postponement
period, the amounts and entitlements delayed on account of
Section 409A of the Code shall be paid to the personal
representative of his estate on the first to occur of the Delayed
Payment Date or 30 days after the date of the
Executive’s death.
(iv) Special Rule for
Severance. If the Executive is eligible to receive severance under
Section 6(a) and if the 37 day period following the
Executive’s termination ends in a calendar year after the
year in which the Executive’s employment terminates, the
payments and benefits under Section 6(a) shall commence or be made
no earlier than the first day of such later calendar
year.
(b) Forfeiture. Notwithstanding
anything to the contrary in this Agreement:
(i) If the Company is
required to prepare an accounting restatement due to material
noncompliance of the Company as a result of misconduct, with any
financial reporting requirement under the federal securities laws,
the Executive shall reimburse the Company for all amounts received
under any incentive compensation plans from the Company during the
12-month period following the first public issuance or filing with
the Securities and Exchange Commission (whichever first occurs) of
the financial document embodying such financial reporting
requirement, and any profits realized from the sale of securities
of the Company during that 12-month period, unless the application
of this provision has been exempted by the Securities and Exchange
Commission;
(ii) If the Executive
is found guilty of material misconduct by any judicial or
administrative authority in connection with any (A) formal
investigation by the Securities and Exchange Commission or
(B) other federal or state regulatory investigation, the
Compensation Committee may require the repayment of any gain
realized on the exercise of an award under any equity compensation
plan; and
(iii) The parties agree
that any compensation under this Agreement shall also be subject to
clawback/forfeiture provisions required by any law applicable to
the Company, including, without limitation, the Xxxx-Xxxxx Xxxx
Street Reform and Consumer Protection Act and/or any applicable
regulations.
9. Treatment of Certain
Payments.
(a) If any payment or
distribution 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 pursuant to or by reason
of any other agreement, policy, plan, program or arrangement or the
lapse or termination of any restriction on or the vesting or
exercisability of any payment or benefit (each a
“Payment”),
would be subject to the excise tax imposed by Section 4999 of the
Code (or any successor provision thereto) or to any similar tax
imposed by state or local law (such tax or taxes are hereafter
collectively referred to as the “Excise Tax”), then the
aggregate amount of Payments payable to Executive shall be reduced
to the aggregate amount of Payments that may be made to the
Executive without incurring an excise tax (the “Safe-Harbor Amount”) in
accordance with the immediately following sentence; provided that
such reduction shall only be imposed if the aggregate after-tax
value of the Payments retained by Executive (after giving effect to
such reduction) is equal to or greater than the aggregate after-tax
value (after giving effect to the Excise Tax) of the Payments to
Executive without any such reduction. Any such reduction shall be
made in the following order: (i) first, any future cash payments
(if any) shall be reduced (if necessary, to zero); (ii) second, any
current cash payments shall be reduced (if necessary, to zero);
(iii) third, all non-cash payments (other than equity or equity
derivative related payments) shall be reduced (if necessary, to
zero); and (iv) fourth, all equity or equity derivative payments
shall be reduced. All reasonable fees and expenses incurred in
respect of this determination shall be borne solely by the
Company.
(b) The provisions of
this Section 9 shall survive the expiration of this
Agreement.
(a) Return of Company Property.
Upon his termination of employment for any reason, the Executive
shall promptly return to the Company any keys, credit cards,
passes, confidential documents or material, or other property
belonging to the Company, and the Executive shall also return all
writings, files, records, correspondence, notebooks, notes and
other documents and things (including any copies thereof)
containing confidential information or relating to the business or
proposed business of the Company or its affiliates or containing
any trade secrets relating to the Company or its affiliates, in
each case, in the Executive’s possession, except for any
personal diaries, calendars, rolodexes or personal notes or
correspondence. For purposes of the preceding sentence, the term
“trade secrets” shall have the meaning ascribed to it
under the Uniform Trade Secrets Act. The Executive agrees to
represent in writing to the Company upon termination of employment
that he has complied with the foregoing provisions of this
Section 8(a).
(b) Mutual Nondisparagement. The
Executive and the Company each agree that, following the
Executive’s termination of employment, neither the Executive,
nor the Company will make any public statements that materially
disparage the other party. The Company shall not be liable for any
breach of its obligations under this Section 10(b) if it informs
its directors and executive officers, as such term is defined in
Rule 3b-7 promulgated under the Exchange Act (as defined in
Exhibit A
hereto), of the content of its covenant hereunder and takes
reasonable measures to ensure that such individuals honor the
Company’s agreement. Notwithstanding the foregoing, nothing
in this Section 10(b) shall prohibit any person from making
truthful statements when required by order of a court or other
governmental or regulatory body having jurisdiction or to enforce
any legal right, including, without limitation, the terms of this
Agreement.
(c) Confidential Information. The
Executive agrees that, during his employment with the Company and
at all times thereafter, he shall hold for the benefit of the
Company all secret or confidential information, knowledge or data
relating to the Company or any of its affiliates, and their
respective businesses, which shall have been obtained by the
Executive during the Executive’s employment by the Company or
during his consultation with the Company after his termination of
employment, and which is not public knowledge (other than by acts
by the Executive or representatives of the Executive in violation
of this Agreement). Except in the good faith performance of his
duties for the Company, the Executive shall not, without the prior
written consent of the Company or as may otherwise be required by
law or legal process, communicate or divulge any such information,
knowledge or data to anyone other than the Company and those
designated by it.
(d) Nonsolicitation. The Executive
agrees that, while he is employed by the Company and during the
two-year period following his termination of employment with the
Company (the “Restricted Period”), the
Executive shall not, directly or indirectly, (i) solicit any
individual who is, on the Date of Termination (or was, during the
six-month period prior to the Date of Termination), employed by the
Company or its Affiliates to terminate or refrain from renewing or
extending such employment or to become employed by or become a
consultant to any other individual or entity other than the Company
or its Affiliates or (ii) induce or attempt to induce any
customer or investor (in each case, whether former, current or
prospective), supplier, licensee or other business relation of the
Company or any of its Affiliates to cease doing business with the
Company or such Affiliate, or in any way interfere with the
relationship between any such customer, investor, supplier,
licensee or business relation, on the one hand, and the Company or
any of its Affiliates, on the other hand.
(e) Noncompetition. The Executive
agrees that, during the Restricted Period, he will not engage in
Competition (as defined below). The Executive shall be deemed to be
engaging in “Competition” if he,
directly or indirectly, anywhere in the continental United States
in which the Company conducts business or has plans to conduct
business, owns, manages, operates, controls or participates in the
ownership, management, operation or control of or is connected as
an officer, employee, partner, director, consultant or otherwise
with, or has any financial interest in, any business (whether
through a corporation or other entity) engaged in the precast
concrete products and services business or in any other related
business that is competitive with any portion of the business
conducted by the Company or any of its affiliates. Ownership for
personal investment purposes only of less than 2% of the voting
stock of any publicly held corporation shall not constitute a
violation hereof. Notwithstanding the foregoing, the restriction
above shall not prohibit the Executive from entering into
employment with, or providing services to, any subsidiary,
division, affiliate or unit of an entity (a “Related Unit”) if that
Related Unit does not engage in business that is in Competition
with the Company, irrespective of whether some other Related Unit
of that entity is in Competition with the Company (as long as the
Executive does not engage in or assist in the activities of any
Related Unit that is in Competition with the Company).
(f) Equitable Remedies. The
Executive acknowledges that the Company would be irreparably
injured by a violation of Section 10(b), 10(c), 10(d) or 10(e) and
he agrees that the Company, in addition to any other remedies
available to it for such breach or threatened breach, on meeting
the standards required by law, shall be entitled to a preliminary
injunction, temporary restraining order, or other equivalent
relief, restraining the Executive from any actual or threatened
breach of Section 10(b), 10(c), 10(d) or 10(e). If a bond is
required to be posted in order for the Company to secure an
injunction or other equitable remedy, the parties agree that said
bond need not be more than a nominal sum.
(g) Severability; Blue Pencil. The
Executive acknowledges and agrees that he has had the opportunity
to seek advice of counsel in connection with this Agreement and the
restrictive covenants contained herein are reasonable in
geographical scope temporal duration and in all other respects. If
it is determined that any provision of this Section 10 is invalid
or unenforceable, the remainder of the provisions of this Section
10 shall not thereby be affected and shall be given full effect,
without regard to the invalid portions. If any court or other
decision-maker of competent jurisdiction determines that any of the
covenants in this Section 8 is unenforceable because of the
duration or geographic scope of such provision, then after such
determination becomes final and unappealable, the duration or scope
of such provision, as the case may be, shall be reduced so that
such provision becomes enforceable, and in its reduced form, such
provision shall be enforced. Notwithstanding any provision of this
Agreement to the contrary, the covenants set forth in this Section
10 are not intended to, and shall be interpreted in a manner that
does not, limit or restrict the Executive from exercising any
legally protected whistleblower rights (including pursuant to
Rule 21F under the Exchange Act).
(h)
Indemnification.
The Company shall cover Executive under directors’ and
officers’ liability insurance both during and, while
potential liability exists, after employment in the same amount and
to the same extent as the Company covers its other officers and
directors. These obligations shall survive the termination of
Executive’s employment with the Company and its
Affiliates.
11. Successors.
(a) This Agreement is
personal to the Executive and without the prior written consent of
the Company shall not be assignable by the Executive. This
Agreement and any rights and benefits hereunder shall inure to the
benefit of and be enforceable by the Executive’s legal
representatives, heirs or legatees. This Agreement and any rights
and benefits hereunder shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
(b) The Company will
require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company to assume expressly and
agree to satisfy all of the obligations under this Agreement in the
same manner and to the same extent that the Company would be
required to satisfy such obligations if no such succession had
taken place. As used in this Agreement, “Company” shall mean the
Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid that assumes and agrees to perform this
Agreement by operation of law or otherwise.
12. Miscellaneous.
(a) Amendment. This Agreement may
not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors and
legal representatives; provided, however, that, notwithstanding
the foregoing, the Company may amend or modify this Agreement if it
determines in good faith that it is necessary to do so in order to
comply with applicable legal and/or regulatory requirements or
guidance, or in the formal and conclusive interpretation thereof by
any regulator or agency of competent jurisdiction (it being
understood that any such amendment will not decrease in any
material manner the economic value of the incentive compensation
opportunities currently provided for in this
Agreement).
(b) Withholding. The Company may
withhold from any amounts payable under this Agreement such
federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(c) Applicable Law. The provisions
of this Agreement shall be construed in accordance with the
internal laws of the State of Virginia, without regard to the
conflict of law provisions of any state.
(d) Dispute Resolution. Any
controversy or claim arising out of or relating to this Agreement
or the breach of this Agreement (other than a controversy or claim
arising under Section 8 of this
Agreement) that is not resolved by the Executive and the Company
shall be submitted to arbitration in Virginia in accordance with
Virginia law and the procedures of the American Arbitration
Association. The determination of the arbitrator shall be
conclusive and binding on the Company and the Executive and
judgment may be entered on the arbitrator(s)’ awards in any
court having competent jurisdiction.
(e) Severability. The invalidity
or unenforceability of any provision of this Agreement will not
affect the validity or enforceability of any other provision of
this Agreement, and this Agreement will be construed as if such
invalid or unenforceable provision were omitted (but only to the
extent that such provision cannot be appropriately reformed or
modified).
(f) Waiver of Breach. No waiver by
any party hereto of a breach of any provision of this Agreement by
any other party, or of compliance with any condition or provision
of this Agreement to be performed by such other party, will operate
or be construed as a waiver of any subsequent breach by such other
party of any similar or dissimilar provisions and conditions at the
same or any prior or subsequent time. The failure of any party
hereto to take any action by reason of such breach will not deprive
such party of the right to take action at any time while such
breach continues.
(g) Notices. Notices and all other
communications provided for in this Agreement shall be in writing
and shall be delivered personally or sent by registered or
certified mail, return receipt requested, postage prepaid, or
prepaid overnight courier to the parties at the addresses set forth
below (or such other addresses as shall be specified by the parties
by like notice):
to the
Company:
Xxxxx-Midland
Corporation
0000
Xxxxxxx Xxxx
X.X.
Xxx 000
Xxxxxxx, Xxxxxxxx
00000
Facsimile:
Attention: Chief
Financial Officer
with a
copy to the Chairman of the Compensation Committee of the Board of
Directors at the address last on the records of the
Company
or to
the Executive:
At the
address last on the records of the Company
Each
party, by written notice furnished to the other party, may modify
the applicable delivery address, except that notice of change of
address shall be effective only upon receipt. Such notices,
demands, claims and other communications shall be deemed given in
the case of delivery by overnight service with guaranteed next day
delivery, the next day or the day designated for delivery; or in
the case of certified or registered U.S. mail, five days after
deposit in the U.S. mail; provided, however, that in no event shall
any such communications be deemed to be given later than the date
they are actually received.
(h) Survivorship. Upon the
expiration or other termination of this Agreement, the respective
rights and obligations of the parties hereto shall survive such
expiration or other termination to the extent necessary to carry
out the intentions of the parties under this
Agreement.
(i) Entire Agreement. From and
after the Effective Date, this Agreement shall supersede any other
employment agreement or understanding between the parties with
respect to the subject matter hereof. The obligations under this
Agreement are enforceable solely against the Company and its
successors and assigns.
(j) Counterparts. This Agreement
may be executed in separate counterparts, each of which is deemed
to be an original and all of which taken together constitute one
and the same agreement.
[Signature
Page Follows]
IN
WITNESS THEREOF, the Executive has hereunto set his hand, and the
Company has caused these presents to be executed in its name and on
its behalf, all as of the day and year first above
written.
XXXXX-MIDLAND
CORPORATION
By:
/s/ Xxxxxxx X.
Xxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Chairman, Compensation Committee
EXECUTIVE
By:
/s/ Xxxxxx X.
Xxxxx
Xxxxxx
X. Xxxxx
EXHIBIT A
Certain
Definitions
For
purposes of this Agreement, the following terms have the meanings
set forth below:
“Change in Control”
means:
(a) the
acquisition by any Person of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of
40% or more of either (i) the then-outstanding shares of
common stock of the Company (the “Outstanding Company Common
Stock”), or (ii) the combined voting power of the
then-outstanding voting securities of the Company entitled to vote
generally in the election of directors (the “Outstanding Company Voting
Securities”). provided, however, that the following
acquisitions shall not constitute a Change in Control: (A) any
acquisition by the Company, (B) any acquisition directly from
the Company, (C) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the Company or any of
its affiliates, or (D) any acquisition pursuant to a
transaction that complies with clauses (i), (ii), and (iii) of
subsection (c) below.
(b) individuals
who, on the date hereof, constitute the Board (the
“Incumbent
Directors”) 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 was approved by a vote of at least
two-thirds of the Incumbent Directors then on the Board (either by
a specific vote or by approval of the proxy statement of the
Company in which such person is named as a nominee for director,
without written objection to such nomination), shall be an
Incumbent Director, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of
an actual or threatened election contest with respect to the
election or removal of directors or as a result of any other actual
or threatened solicitation of proxies or consents by or on behalf
of any Person other than the Board.
(c) the
consummation of a reorganization, merger, statutory share exchange,
or consolidation or similar transaction involving the Company or
any of its subsidiaries, a sale or other disposition of all or
substantially all of the assets of the Company, or the acquisition
of assets or stock of another entity by the Company or any of its
subsidiaries (each, a “Business Combination”),
in each case, unless, following such Business Combination,
(i) all or substantially all of the individuals and entities
that were the beneficial owners of the Outstanding Company Common
Stock and the Outstanding Company Voting Securities immediately
prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of the then-outstanding shares of common
stock (or, for a non-corporate entity, equivalent securities) and
the combined voting power of the then-outstanding voting securities
entitled to vote generally in the election of directors (or, for a
non-corporate entity, equivalent governing body), as the case may
be, of the entity resulting from such Business Combination
(including, without limitation, an entity that, as a result of such
transaction, owns the Company or all or substantially all of the
Company’s assets either directly or through one or more
subsidiaries) in substantially the same proportions as their
ownership immediately prior to such Business Combination of the
Outstanding Company Common Stock and the Outstanding Company Voting
Securities, as the case may be, (ii) no Person (excluding any
corporation resulting from such Business Combination or any
employee benefit plan (or related trust) of the Company or such
corporation resulting from such Business Combination) beneficially
owns, directly or indirectly, 40% or more of, respectively, the
then-outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined voting
power of the then-outstanding voting securities of such
corporation, except to the extent that such ownership existed prior
to the Business Combination, and (iii) at least two-thirds of
the members of the board of directors (or, for a non-corporate
entity, equivalent governing body) of the entity resulting from
such Business Combination were Incumbent Directors at the time of
the execution of the initial agreement or of the action of the
Board providing for such Business Combination; or
(d) approval
by the stockholders of the Company of a complete dissolution or
liquidation of the Company.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
“Person” means any
individual, entity, or group (within the meaning given in
Sections 13(d)(3) and 14(d)(2) of the Exchange
Act).
A-1
EXHIBIT B
[COMPANY
LETTERHEAD]
Xxxxxx
X. Xxxxx
Street
Address
City,
State, Zip]
[DATE]
Dear
Xx. Xxxxx:
This
Agreement (this “Agreement”) is made as of
the date listed below, by and between [Xxxxx-Midland Corporation,
or successor] (the “Company”) and Xxxxxx X.
Xxxxx (“Employee”) regarding
Employee’s cessation of employment with the
Company.
Upon
execution, this Agreement shall constitute a binding General
Release. We advise that if you have
any questions regarding your rights and the General Release
contained in this Agreement, you should consult an attorney prior
to executing this document. If you agree to the terms of
this Agreement, you should sign this Agreement and return it to the
individual listed below on or after the Termination Date (as
defined below) but no later than 21 days from the date of this
Agreement.
[Xxxxx-Midland
Corporation or successor]
[ADDRESS
CITY,
STATE ZIP
ATTENTION:
Chief Financial Officer]
Employee’s
employment terminated on [Date] (the “Termination Date”). As of
the Termination Date, the Executive was dismissed as an officer and
director of the Company, as well as an officer and director of any
other company affiliated with the Company. In accordance with the
terms of Employee’s employment agreement with the Company,
dated _______, 2020 (the “Employment Agreement”),
Employee will receive the benefits available to Employee under the
Employment Agreement (“Benefits”) hereto in
exchange for the execution and non-revocation of this Agreement,
which will release all claims which have been or could be made by
Employee relative to Employee’s employment with, or
termination by, the Company.
1.
Restrictions in Employment
Agreement. Notwithstanding anything to the contrary in this
Agreement, Employee acknowledges and agrees that the provisions
relating to restrictions (the “Restrictions”) with
respect to return of property, nondisparagement, confidential
information, nonsolicitation and noncompetition contained in the
Employment Agreement shall remain in full and force and effect in
accordance with the terms of the Employment Agreement. Employee
will forfeit any right to receive the payments or benefits
described in this Agreement if Employee violates any of the
Restrictions; provided that, if the
Termination Date occurs on or after the occurrence of a Change in
Control (as defined in the Employment Agreement), the equitable
remedies set forth in Section 10(f) of the Employment Agreement
shall be the only remedies available to the Company.
2.
Post-Employment Cooperation.
Following the Termination Date, Employee agrees to cooperate with
the Company and its affiliates in the defense or prosecution of any
claims or actions now in existence or which may be brought in the
future against or on behalf of the Company or any of its affiliates
which relate to events or occurrences that occurred while Employee
was employed by the Company. Employee’s cooperation in
connection with such claims or actions shall include, but not be
limited to, being available to meet with counsel to prepare for
discovery or trial and to act as a witness on behalf of the Company
or any of its affiliates at mutually convenient times. Following
the Termination Date, Employee also agrees to cooperate with the
Company or any of its affiliates in connection with any
investigation or review by any federal, state or local regulatory
authority to the extent that such investigation or review relates
to events or issues that occurred while Employee was employed by
the Company. The Company shall, at the request of Employee,
reimburse any reasonable out-of-pocket expenses that Employee
incurs in connection with Employee’s performance of
Employee’s obligations pursuant to this Paragraph 2. The
foregoing obligations shall not apply after a Change in
Control.
3.
Consideration of Agreement.
Employee represents that: (a) Employee has had sufficient time
to consider Employee’s options regarding this Agreement;
(b) Employee has been provided with accurate and complete
information regarding the benefits that are available to Employee
under the terms of this Agreement; (c) Employee has not been
subjected to any threats, intimidation, or coercion by the Company
in connection with this Agreement; and (d) the terms of this
Agreement have been written in a manner that Employee
understands.
B-1
4.
Not an Admission. This
Agreement shall not be construed as an admission by any person or
entity that he, she or it has acted wrongfully with respect to
Employee or any other person, or that Employee has any claims
whatsoever against any person or entity, and the Company
specifically disclaims any liability for wrongful acts against
Employee or any other person, on the part of itself and its
officers, directors, employees or agents.
5.
General Release. Employee, on
behalf of himself, his heirs, beneficiaries, executors,
administrators, attorneys, successors, and assigns, knowingly and
voluntarily hereby irrevocably and unconditionally releases,
acquits, and forever discharges the Company and its current and
former affiliates, and their officers, directors, partners,
members, shareholders, representatives, agents, attorneys, and
employees and each of the affiliates, predecessors, successors and
assigns, and family members of the aforementioned, both
individually and in their business capacities, and their employee
benefit plans and programs and their administrators and fiduciaries
(collectively, the “Releasees”) from any and
all rights, claims, charges, demands, obligations, causes of
action, promises, agreements, controversies, liens, damages and
liabilities of every kind based upon any past action, omission or
event, whether known or
unknown, and whether or not in litigation that Employee may
have or that could be asserted by another on Employee’s
behalf, based on any action, omission or event, including, but not
limited to, any claim that Employee has asserted, now asserts or
could have asserted relating to Employee’s employment with
the Company and/or the cessation thereof through the date Employee
executes this Agreement. This General Release includes, but is not
limited to, actions claiming violation of
a. Title VII of the Civil
Rights Act of 1964, as amended;
b. 42
U.S.C. 2000e et
seq.;
c. The
Americans with Disabilities Act;
d. The
Age Discrimination in Employment Act, as amended by the Older
Workers’ Benefit Protection Act;
e. The
Family and Medical Leave Act of 1993;
f. The
Employee Retirement Income Security Act of 1974;
g. The
Fair Labor Standards Act, the Equal Pay Act;
h. The
Immigration and Reform Control Act;
i. The
Uniform Services Employment and Re-Employment Act;
j. The
Rehabilitation Act of 1973;
k. The
Sarbanes-Oxly Act of 2002;
l. The
Fair Credit Reporting Act;
m. The
Civil Rights Act of 1991;
n.
Virginia Labor and Employment Laws;
o. Any
amendments to the foregoing laws; and
p. Any
other federal, state or local law, regulation, ordinance or common
law, or under any policy, agreement, understanding or promise,
written or oral, formal or informal, between Employee and the
Company or any of the Releasees. This General Release also includes
any claims for wrongful discharge or that the Company or any of the
other Releasees has dealt with Employee unfairly or in bad faith,
and any actions raising tortious claims or any claim of express or
implied contract of employment or any other cause of action or
claims of violation of common law. This General Release is for any
and all relief, without regard to its form or
characterization.
Included in this
General Release are any and all claims for attorneys’ fees
and for future damages allegedly arising from the alleged
continuation of the effects of any past action, omission or event.
Notwithstanding the foregoing, this General Release shall not
release the Company from (a) any obligations under this
Agreement or the Employment Agreement; (b) any obligations
regarding any rights of Employee as a current or former officer,
director or employee of the Company or its affiliates to
indemnification under the terms of the Employment Agreement, the
Company’s bylaws or charter or any insurance policy or other
agreement under which Employee is entitled to indemnification or
directors’ and officers’ liability coverage;
(c) any claims or causes of action that cannot legally be
waived, including, but not limited to, any claim for earned but
unpaid wages, workers’ compensation benefits, unemployment
benefits, and vested 401(k) benefits; and (d) any claims as
the holder or beneficial owner of securities (or other rights
relating to securities, including equity awards) of the Company or
its affiliates. By signing this Agreement, Employee represents that
Employee has not commenced or joined in any claim, charge, action
or proceeding whatsoever against the Company or any of the
Releasees arising out of or relating to any of the matters set
forth in this paragraph. Employee further represents that Employee
will not be entitled to or accept any personal recovery in any
action or proceeding that may be commenced on his behalf arising
out of the matters released hereby.
B-2
Employee and the
Company acknowledge that nothing in this Agreement limits or
affects either party’s right, where applicable, to file or
participate in an investigative proceeding conducted by the Equal
Employment Opportunity Commission (“EEOC”), or any federal,
state or local government agency; provided, however, to the extent
permitted by law, Employee agrees that if such an administrative
claim is made, Employee agrees to release, waive, relinquish and
forego all legal relief, equitable relief, statutory relief,
reinstatement, back pay, front pay and any other damages, benefits,
remedies, or relief that Employee may be entitled to as a result of
any prosecution of any administrative agency claim or commission
charge, and Employee shall not be entitled to recover any
individual monetary award or relief or other individual remedies.
Any rights not waivable by law are not waived by this
Agreement.
If
Employee is 40 years of age or older, be advised that Employee has
or may have specific rights and/or claims under the Age
Discrimination in Employment Act of 1967 (“ADEA”) and Employee
agrees that in consideration for the Benefits, Employee
specifically and voluntarily waives such rights and/or claims under
the ADEA which Employee might have against the Releasees to the
extent such rights and/or claims arose prior to the date this
Agreement was executed. Employee understands that rights and/or
claims under the ADEA which may arise after the date this Agreement
is execute are not waived by Employee.
By
signing this Agreement, Employee does not release: (i) any right
Employee may have to challenge the validity of this Agreement under
the ADEA or the OWBPA; or (ii) Employee’s right to enforce
this Agreement.
6. Notification of New Employer.
Employee hereby consents to the notification of any new employer of
Employee’s rights and obligations under this Agreement or the
Employment Agreement.
7. Legal and Equitable Remedies.
Because Employee’s services were personal and unique and
because Employee has had access to and has become acquainted with
the proprietary information of the Company, the Company shall have
the right to enforce this Agreement and any of its provisions by
injunction, specific performance or other equitable relief, without
bond and without prejudice to any other rights and remedies that
the Company may have for a breach of this Agreement.
8. Entire Agreement. Employee
acknowledges and agrees that any prior representations, promises or
agreements between Employee and the Company relating to the subject
matter of this Agreement are hereby extinguished, that there are no
oral or written representations, promises or agreements between the
parties other than those set forth in this Agreement, and that this
constitutes the entire and only agreement on the subject matters
covered in this Agreement. For the avoidance of doubt, this
Agreement is not intended to extinguish any provisions of the
Employment Agreement.
9. Severability. Should any
provision of this Agreement be declared or determined by any court
to be illegal, invalid or unenforceable, the validity of the
remaining parts, terms or provisions shall not be affected and each
remaining part, term or provision shall be legal, valid and
enforceable to the fullest extent permitted by law, and any
illegal, invalid or unenforceable part, term or provision shall be
deemed not to be a part of this Agreement.
10. Jurisdiction/Choice of
Law/Waiver of Jury
Trial. Employee agrees that the provisions of this Agreement
shall be construed in accordance with the internal laws of the
State of Virginia, without regard to the conflict of law provisions
of any state. Both parties hereby
waive any right to a jury trial.
11. Dispute
Resolution. Any controversy or claim arising out of or relating to
this Agreement or the breach of this Agreement that is not resolved
by the Executive and the Company shall be submitted to arbitration
in Virginia in accordance with Virginia law and the procedures of
the American Arbitration Association. The determination of the
arbitrator shall be conclusive and binding on the Company and the
Employee and judgment may be entered on the arbitrator(s)’
awards in any court having competent jurisdiction.
12. Acknowledgement.
By signing this document, in addition to releasing all claims
described herein, in accordance with the Older Workers Benefit
Protection Act of 1990, Employee is aware of and agrees to the
following:
a.
Employee
has been advised to consult with an attorney prior to signing this
Agreement;
b.
Employee
was given at least 21 days to consider the actual terms of this
Agreement; Employee understands that Employee must deliver a signed
copy of this Agreement to the Company in the care of:
[];
c.
Employee
understands that Employee may revoke this Agreement within seven
calendar days from the date of signing, in which case this
Agreement shall be null and void and of no force and effect on the
Company or Employee; and
d.
Employee
understands that this Agreement shall not become effective or
enforceable until the seven-day revocation period has expired.
Employee further understands and acknowledges that, to be
effective, the revocation must be in writing, delivered to [], on
or before the seventh calendar day by 5:00 pm after Employee signs
this Agreement.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A GENERAL RELEASE
OF ALL KNOWN AND UNKNOWN CLAIMS ARISING OUT OF YOUR
EMPLOYMENT.
[EMPLOYER:]
By:
Name:
Title:
Dated:
B-3
I
have read this Agreement, and I am fully aware of the legal effects
of this Agreement. I have chosen to execute this Agreement freely,
without reliance upon any promises or representations made by the
Company other than those contained in this Agreement, and I
understand that, under the terms of this Agreement, I will receive
payments as described in the Employment Agreement, less applicable
tax withholdings in accordance with the terms of the Employment
Agreement following the date on which this Agreement becomes
irrevocable as described above.
EMPLOYEE
Dated:
Xxxxxx X. Xxxxx
B-4
