(PAGE NUMBERS REFER TO PAPER DOCUMENT ONLY)
EXHIBIT (10.23)
EMPLOYMENT AGREEMENT
AGREEMENT, dated March 12, 1999, between CONSUMER PROGRAMS
INCORPORATED, a Missouri corporation (the "Corporation"), and
Xxxxxxx X. Xxxxxx (the "Executive").
WHEREAS, the Corporation currently employs the Executive
in the capacity of Chief Technology Officer, and the Executive
is one of the key executives of the Corporation;
WHEREAS, there is much competition for the type of
business performed by the Corporation in the locales in which
the Corporation operates, and the Corporation and Executive
acknowledge that the Corporation is active in the product
markets in which it competes;
WHEREAS, Executive, during his or her employment, has been
and will be entrusted with confidential information;
WHEREAS, Executive and the Corporation recognize and
acknowledge that, to ensure the continued growth and stability
of the Corporation, it is necessary to obtain an agreement from
Executive not to compete with the Corporation and not to
disclose confidential information of the Corporation; and
WHEREAS, the Corporation desires that the Executive
continue in the employ of the Corporation as a result of his or
her experience with the Corporation and his or her potential
for making future contributions to the Corporation, and the
Executive is willing to make a commitment to remain in such
employ upon the terms and subject to the conditions of this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises
contained herein and other good and valuable consideration, the
parties hereto hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "Affiliated Companies" shall mean any
corporation (or other business entity) controlling, controlled
by or under common control with the Corporation.
(b) "Beneficiary" shall mean the person designated
in writing by the Executive as his or her beneficiary under
this Agreement, or in the absence of such designation, his or
her estate.
(c) "Cause" shall mean:
(1) prior to a Change of Control, (i) conduct or
activity of the Executive materially detrimental to the
Corporation's reputation or business (including financial)
operations; (ii) gross or habitual neglect or breach of duty or
misconduct of the Executive in discharging the duties of his or
her position; or (iii) prolonged absence by the Executive from
his or her duties (other than on account of illness or
disability) without the consent of the Corporation.
(2) after a Change of Control, (i) an act or
acts of dishonesty on the Executive's part which are intended
to result in his or her substantial personal enrichment at the
expense of the Corporation; (ii) any material violation by the
Executive of his or her obligations and covenants pursuant to
this Agreement which is demonstrably willful and deliberate on
the Executive's part and which results in material injury to
the Corporation; or
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(iii) the conviction of Executive of a felony or of a crime
involving moral turpitude.
(d) A "Change of Control" shall mean a change in
control of a nature that would be required to be reported in
response to Item 1(a) of the Current Report on Form 8-K, as in
effect on the date hereof, pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended ("Exchange
Act") or would have been required to be so reported but for the
fact that such event had been "previously reported" as that
term is defined in Rule 12b-2 of Regulation 12B of the Exchange
Act unless the transactions that give rise to the change in
control are approved or ratified by a majority of the members
of the Incumbent Board of CPI Corp. who are not employees of
the Corporation; provided that, without limitation,
notwithstanding anything herein to the contrary, such a change
in control shall be deemed to have occurred if (a) any Person
is or becomes the beneficial owner (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities
of CPI Corp. representing 40% or more of the combined voting
power of CPI Corp.'s then outstanding securities ordinarily
(apart from rights accruing under special circumstances) having
the right to vote at elections of directors ("Voting
Securities"), (b) individuals who constitute the Board of CPI
Corp. on the date hereof (the "Incumbent Board") cease for any
reason to constitute at least a majority thereof, provided that
any person becoming a director subsequent to the date hereof
whose election, or nomination for election by CPI Corp.'s
shareholders, was approved by a vote of at least three-quarters
of the directors comprising the Incumbent Board (either by a
specific vote or by approval of the proxy statement of CPI
Corp. in which such person is named as a nominee for director,
without objection to such nomination) shall be, for
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purposes of this clause (b), considered as though such person
were a member of the Incumbent Board, or (c) approval by the
stockholders of CPI Corp. of a reorganization, merger
or consolidation, in each case, with respect to which persons
who were the stockholders of CPI Corp. immediately prior to
such reorganization, merger or consolidation do not,
immediately thereafter, own, directly or indirectly, more than
50% of the combined voting power entitled to vote generally in
the election of directors of the reorganized, merged or
consolidated company's then outstanding voting securities, or a
liquidation or dissolution of CPI Corp. or of the sale of all
or substantially all of the assets of CPI Corp. For purposes
of this Agreement, the term "Person" shall mean and include any
individual, corporation, partnership, group, association or
other "person," as such term is used in Section 14(d) of the
Exchange Act, other than CPI Corp., the Corporation or an
Affiliated Company or any employee benefit plan(s) sponsored or
maintained by the Corporation or any Affiliated Company.
(e) "Code" shall mean the Internal Revenue Code of
1986, as may be amended from time to time.
(f) "Continuing Directors" shall have the meaning
set forth in Paragraph 3(G) of Article Ten of CPI Corp.'s
Certificate of Incorporation.
(g) "Fiscal Year" shall mean the Fiscal Year of the
Corporation.
(h) "Permanent Disability" shall mean the inability
of Executive to perform the services contemplated by Section 4
hereof for a period of at least one hundred eighty (180)
consecutive calendar days or for thirty-five (35) weeks
(whether or not consecutive) in any twelve (12) month period on
account of any sickness, injury or other infirmity or
disability.
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(i) "Retirement" shall mean the Executive's
voluntary or involuntary termination of employment with the
Corporation except for termination on account of (A) Cause as
defined in Subsection 6(b) hereof, (B) death or (C) Permanent
Disability before attaining age sixty-five (65).
(j) "Term of Employment" shall have the meaning set
forth in Section 3 hereof.
(k) "Vesting Percentage" shall mean the percentage
of Supplemental Retirement Benefits, death benefits, and
disability benefits in which Executive has a nonforfeitable
interest (except in the event of termination for Cause) based
upon the number of Years of Service Executive has completed,
determined as follows:
Completed Years Vesting
of Service Percentage
--------------- ----------
0 0%
1 10%
2 20%
3 30%
4 40%
5 50%
6 60%
7 70%
8 80%
9 90%
10 100%
Notwithstanding anything herein to the contrary, if Executive's
employment with the Corporation terminates following a Change
of Control, unless such termination is for Cause, for purposes
of Subsections 5(g), 5(h), and 5(i) of this Agreement Executive
shall be deemed to have completed ten (10) Years of Service and
his or her Vesting Percentage shall be deemed to be 100%.
(l) "Year of Service" shall mean any Fiscal Year
during which the Executive has worked for the Corporation at
least one thousand (1,000)
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hours, including Fiscal Years prior to the effective date of
this Agreement.
2. EMPLOYMENT. The Corporation hereby employs and
engages the services of the Executive as one of its key
executives initially in the position of Chief Technology
Officer of the Corporation for the Term of Employment set forth
in Section 3. The Executive agrees to serve the Corporation
for the Term of Employment as provided herein.
3. TERM OF EMPLOYMENT. The Executive's Term of
Employment shall be a period commencing on the date hereof and
ending one (1) year thereafter; provided, however, that upon the
expiration of the aforesaid period (the "Expiration Date") and
upon each anniversary of the Expiration Date, the Term of
Employment shall automatically be extended for an additional one
(1) year period unless Executive or the Corporation notifies the
other in writing at least sixty (60) days prior to the
commencement of such one (1) year period of an intention to
terminate this Agreement. Notwithstanding anything herein to the
contrary, the Term of Employment shall terminate upon Executive's
death or Permanent Disability as set forth in subsection 6(a)
hereof or upon the Corporation's termination of Executive's
employment for Cause pursuant to subsection 6(b) hereof.
4. POSITION AND DUTIES.
(a) Prior to a Change of Control, during the Term of
Employment, the Executive shall serve the Corporation in such
capacity as the Corporation may determine. After a Change of
Control, during the Term of Employment, the Executive's
position, authority and responsibilities, the type of work he
or she is asked to perform, and the status and stature of the
people with whom he or she is asked to work, shall be
comparable to that existing with respect to the Executive as of
the date immediately prior to the Change of Control, and
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after a Change of Control the Executive's services shall be
performed at the location where the Executive was employed as
of the date immediately prior to the Change of Control, or at
such other location as may be mutually agreed between the
Corporation and the Executive.
(b) The Executive agrees to devote his or her full
business time during normal business hours to the business and
affairs of the Corporation (except as otherwise provided
herein) and to use his or her best efforts to promote the
interests of the Corporation and its Affiliated Companies and
to perform faithfully and efficiently the responsibilities
assigned to him or her in accordance with the terms of this
Agreement to the extent necessary to discharge such
responsibilities, except for (i) service on corporate, civic or
charitable boards or committees not significantly interfering
with the performance of such responsibilities and (ii) periods
of vacation and sick leave to which he or she is entitled. It
is expressly understood and agreed that the Executive's
continuing service on any boards and committees with which he
or she shall be connected, as a member or otherwise, as of the
date hereof, or any such service approved by the Corporation
during the Term of Employment, shall not be deemed to interfere
with the performance of the Executive's services to the
Corporation pursuant to this subparagraph 4(b).
5. COMPENSATION AND OTHER CONDITIONS OF EMPLOYMENT.
(a) BASE SALARY. During the Term of Employment, the
Executive shall receive an annual base salary (the "Base
Salary"), in equal installments payable weekly or at such other
intervals as salary is normally paid by the Corporation to its
employees, at an annual rate established by the Corporation and
any Affiliated Companies as of the date hereof. The Base
Salary shall be reviewed at least once each year and may be
increased at any time and from
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time to time by action of the Board of Directors of CPI Corp.,
any committee thereof or any individual having authority to
take such action, in accordance with the Corporation's regular
practices. Any increase in the Base Salary shall not serve to
limit or reduce any other obligation of the Corporation
hereunder, and after such increase the Base Salary shall not be
reduced from such increased level.
(b) ANNUAL BASIS. After a Change of Control, in
addition to the Base Salary, the Executive shall be awarded for
each Fiscal Year during the Term of Employment an annual bonus
(the "Annual Bonus") (pursuant to any bonus plan or program of
the Corporation, any incentive plan or program of the
Corporation, or otherwise) in cash at least equal to the
highest bonus paid or payable to the Executive in respect of
any of the Fiscal Years during the three Fiscal Years
immediately prior to the date of the Change of Control. Prior
to a Change of Control, the amount of the Executive's Annual
Bonus shall be determined in accordance with the
Corporation's regular practice.
(c) OTHER COMPENSATION PLANS. After a Change of
Control, in addition to the Base Salary and Annual Bonus
payable as hereinabove provided, during the Term of Employment,
the Executive shall be entitled to participate in all other
compensation plans and programs, including, without limitation,
savings plans, stock option plans, and retirement plans of the
Corporation and its Affiliated Companies (collectively, the
"Savings Plans"), on a basis at least equivalent to that
provided by the Corporation and its Affiliated Companies to the
Executive under such programs immediately prior to the date of
the Change of Control. Prior to a Change of Control, the
Executive's entitlement to participate in the Savings Plans
shall be determined in accordance with the Corporation's
regular practice. Prior to a Change of
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Control, nothing herein shall be construed to prevent the
Corporation from amending or altering any such plans in
accordance with the terms thereof. All agreements between the
Corporation and the Executive existing on the date hereof
providing for special pension, retirement or similar benefits
are continued by this Agreement.
(d) BENEFIT PLANS. After a Change of Control,
during the Term of Employment, the Executive, his or her
spouse, or his or her dependents, as the case may be, shall be
entitled to receive all amounts which he or she, his or her
spouse or his or her dependents are or would have been entitled
to receive as benefits under all other benefit plans of the
Corporation and its Affiliated Companies, including, without
limitation, medical, dental, disability, group life, accidental
death and travel accident insurance plans and programs
(collectively, the "Benefit Plans") on a basis at least as
favorable to the Executive as on the date immediately prior to
the date of the Change of Control. Prior to a Change of
Control, the Executive's and such other persons' entitlement to
participate in the Benefit Plans shall be determined in
accordance with the Corporation's regular practice.
(e) EXPENSES. During the Term of Employment, the
Executive shall be entitled to receive prompt reimbursement for
all reasonable expenses incurred by the Executive in accordance
with the regular policies and procedures of the Corporation.
(f) OFFICE AND SUPPORT STAFF. After a Change of
Control the Executive shall be entitled to an office or offices
of a size and with furnishings and other appointments, and to
secretarial and other assistance, at least equal to those
provided to the Executive as of the date immediately prior to
the date of the Change of Control.
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(g) DEATH BENEFITS. In the event of Executive's
death after completion of at least ten (10) Years of Service,
unless (1) Executive's employment with the Corporation was
terminated for Cause or (2) Executive (or his or her
Beneficiary) is entitled to receive Supplemental Retirement
Benefits pursuant to subsection 5(i), the Corporation shall pay
to Executive's Beneficiary an annual death benefit equal to
forty percent (40%) (but not to exceed $150,000) of the highest
annual Base Salary paid to Executive from and after fiscal year
1997 (as defined in subsection 5(a) hereof) for the Fiscal Year
of his or her termination of employment with the Corporation,
payable in equal monthly installments, commencing with the
month following the month of Executive's death and ending with
the later of (i) the month in which Executive would have
reached age sixty-five (65) or (ii) the two-hundred fortieth
(240th) month following the month of Executive's death. In the
event that Executive dies before age 65 but has not completed
at least ten (10) Years of Service with the Corporation, death
benefits shall be reduced to an amount equal to the benefits
determined under the preceding sentence multiplied by the
Vesting Percentage applicable to Executive.
(h) DISABILITY BENEFITS. In the event of
Executive's Permanent Disability prior to attaining age 65 and
prior to termination of employment with the Corporation, unless
Executive's employment with the Corporation was terminated for
Cause, the Corporation shall pay Executive annual disability
benefits equal to forty percent (40%) (but not to exceed
$150,000) of the highest annual Base Salary paid to Executive
from and after fiscal year 1997 for the Fiscal Year in which
the Executive terminated employment with the Corporation,
payable in equal monthly installments, commencing with the
month following the month in which Executive terminated
employment as a result of
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Permanent Disability and ending on the earlier of (i) the month
in which Executive reaches age 65 or (ii) the month of his or
her death. In the event that at the time of Permanent
Disability Executive has not completed at least ten (10) Years
of Service, the disability benefits shall be reduced to an
amount equal to the benefits determined under the preceding
sentence multiplied by the Vesting Percentage applicable to
Executive. Disability benefits pursuant to this subsection (h)
shall be reduced by any amounts paid to Executive under the
Corporation's long-term disability insurance policy, but shall
not be reduced for any payments received by Executive from
Social Security or from any disability insurance coverage
individually owned by Executive.
(i) SUPPLEMENTAL RETIREMENT BENEFITS.
(1) In the event of Executive's Retirement after
completion of at least ten (10) Years of Service, unless
Executive's employment with the Corporation was terminated for
Cause, the Corporation shall pay Executive retirement benefits
for twenty (20) years in an annual amount equal to forty
percent (40%) (but not to exceed $150,000) of the highest
annual Base Salary paid to Executive from and after fiscal year
1997 for the Fiscal Year of his or her Retirement
("Supplemental Retirement Benefits"). In the event of
Executive's Retirement before completion of ten (10) Years of
Service, Corporation shall pay Executive retirement benefits on
the same terms as set forth in the preceding sentence except
that retirement benefits shall be reduced to an amount equal to
Supplemental Retirement Benefits multiplied by the Vesting
Percentage.
(2) Supplemental Retirement Benefits shall be
payable in two hundred forty (240) equal monthly installments
commencing with the month
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following the later of (i) the month of Executive's Retirement
or (ii) the month during which Executive reaches age sixty-five
(65).
If Executive dies prior to the end of the two hundred forty
(240) month period during which Supplemental Retirement
Benefits are payable, Supplemental Retirement Benefits shall be
payable during the remainder of such 240-month period to his or
her Beneficiary.
(3) Notwithstanding anything herein to the
contrary, in the event of Executive's termination of employment
with the Corporation prior to attaining age 65 as a result of
Permanent Disability, if Executive attains age 65 and his or
her employment with the Corporation was not terminated for
Cause, the Corporation shall pay to Executive the Supplemental
Retirement Benefits set forth in this Subsection 5(i) in
accordance with Executive's Vesting Percentage, commencing as
of the month following the month in which Executive attains age
65; provided, however, that any Supplemental Retirement
Benefits paid pursuant to this sentence shall be reduced by any
amounts paid to Executive under the Corporation's long-term
disability insurance policy (but shall not be reduced for any
payments received by Executive from Social Security or from any
disability insurance coverage individually owned by Executive)
for the same period.
(j) SURVIVABILITY OF DEATH AND SUPPLEMENTAL
RETIREMENT BENEFITS. In the event of Executive's Retirement or
death, Executive's entitlement to death benefits pursuant to
Subsection 5(g) hereof and Supplemental Retirement Benefits
pursuant to Subsection 5(i) hereof shall survive the Term of
Employment and Executive or his or her Beneficiary shall be
entitled to such death benefits and Supplemental Retirement
Benefits based on the same terms and conditions as would have
been applicable had his or her death or
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Retirement, as the case may be, occurred during the Term
of Employment.
6. TERMINATION OF EMPLOYMENT.
(a) DEATH OR PERMANENT DISABILITY. Except for the
obligations of the Corporation set forth in this Subsection
6(a), this Agreement shall terminate automatically upon the
Executive's death or Permanent Disability. In the event of
such termination, the Corporation shall pay to the Executive's
Beneficiary or, in the event of Permanent Disability, the
Executive or his or her legal representative, all benefits and
Base Salary accrued through the date of termination, including,
without limitation, amounts payable under any plan referred to
in Subsection 5(d) plus any benefits to which Executive may be
entitled pursuant to Subsection 5(g), Subsection 5(h) or
Subsection 5(i) hereof.
(b) CAUSE. The Corporation may terminate the
Executive's employment for Cause. If the Executive's
employment is terminated for Cause, the Corporation shall pay
the Executive his or her full accrued Base Salary through the
effective date of the termination of his or her employment
(which shall be no earlier than the date of receipt of notice
thereof) at the rate in effect at the time of such termination,
and the Corporation shall have no further obligations to the
Executive under this Agreement.
(c) NOTIFICATION PRIOR TO ONE YEAR EXTENSION.
Either Executive or the Corporation may terminate this
Agreement by notifying the other party in writing of an
intention to do so at least sixty (60) days prior to the
commencement of a one-year extension period described in
Section 3 hereof.
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(d) PAYMENTS FOR INVOLUNTARY TERMINATION WITHOUT
CAUSE.
(1) If prior to a Change of Control (i) the
Corporation terminates Executive's employment (other than for
Cause pursuant to subsection 6(b) hereof), or (ii) the
Executive's employment terminates by reason of the
Corporation's termination of this Agreement pursuant to
subsection 6(c) hereof, the Corporation shall pay Executive
following such involuntary termination his or her full accrued
Base Salary through the date of termination of employment plus
an amount, if any, to be determined by the Board of Directors,
any committee thereof or any individual having authority
to approve such payment, payable in equal weekly installments
or at such other intervals as salary is normally paid by the
Corporation to its employees. Executive acknowledges that any
payment in the event of termination of his or her employment
prior to Change of Control, other than accrued Base Salary, is
not required, but is within the sole discretion of the Board of
Directors, any committee thereof or any individual having
authority to approve such payment. The payment pursuant to
this Subsection 6(d)(1), if any, and any payments to which
Executive may be entitled pursuant to Subsections 5(g), 5(h),
and 5(i) shall be in full discharge of any claims, actions,
demands or damages of every nature and description which
Executive might have or might assert against the Corporation or
any Affiliated Company in connection with or arising from the
termination of Executive's employment or the termination of
this Agreement.
(2) If following a Change of Control (i) the
Corporation terminates Executive's employment (other than for
Cause pursuant to Subsection 6(b) hereof), or (ii) the
Executive's employment terminates by reason of the
Corporation's termination of this Agreement pursuant to
subsection (c) hereof, the Corporation shall, at the time of
such involuntary termination, make a
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lump sum cash payment to Executive equal to 200% of his or her
Base Salary for the Fiscal Year of termination. In addition to
the payment pursuant to this Subsection 6(d)(2) and any
payments to which Executive may be entitled pursuant to
Subsections 5(g), 5(h) and 5(i), Executive shall be entitled to
all remedies available under this Agreement or at law in
respect of any damages suffered by Executive as a result of an
involuntary termination of employment without Cause.
7. GROSS-UP FOR PARACHUTE TAX.
(a) GENERAL. In the event that following a Change
of Control Executive becomes entitled to any payments (whether
pursuant to this Employment Agreement or any other plan,
arrangement or agreement) from the Corporation in the nature of
compensation ("Parachute Payments") that in the opinion of a
certified public accounting firm (selected in the manner set
forth in Subsection 7(b)) or that under the provisions of a
notice of assessment from the Internal Revenue Service causes
imposition of the tax under Section 4999 of the Code or any
similar tax that may hereafter be imposed (the "Excise Tax"),
the Corporation shall pay Executive, at the time specified in
Subsection 7(d), the Gross-Up Payment (as determined in
accordance with Subsection 7(c)).
(b) SELECTION OF C.P.A. Within fifteen (15) days
after any termination of Executive's employment following a
Change of Control, the majority of the Continuing Directors as
of the date immediately prior to the Change of Control shall
select a certified public accounting firm (the "C.P.A.") to
determine the amount, if any, of the Excise Tax and the
amount, if any, of the Gross-Up Payments.
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(c) AMOUNT OF GROSS UP PAYMENTS.
(1) The Gross-Up Payments shall be in an amount
such that the net amount retained by Executive with respect to
the Parachute Payments and Gross-Up Payments, after deduction
of any Excise Tax to which the Parachute Payments may be
subject and any federal, state, and local income taxes and
Excise Tax upon the Gross-Up Payments, shall be equal to the
gross amount of the Parachute Payments.
(2) For purposes of determining the amount of
the Gross-Up Payments, Executive shall be deemed to pay federal
income taxes at the applicable rate of federal income taxation
for the calendar year in which the Gross-Up Payment is to be
made and state and local income taxes at the applicable rate of
taxation for the calendar year in which the Gross-Up Payment is
to be made.
(3) In the event that the Excise Tax is
subsequently determined to exceed the amount taken into account
at the time the Gross-Up Payment is made pursuant to Subsection
7(d)(1) hereof (including any excess attributable to any
Parachute Payments the existence or amount of which could not
be accurately determined at the time of the Gross-Up Payment),
the Corporation shall make an additional Gross-Up Payment in
respect of such excess (plus any interest and addition to tax
payable with respect to such excess) within fifteen (15) days
after the amount of such excess is determined by the C.P.A. or
by the Internal Revenue Service (the "IRS") in a notice of
assessment.
(d) TIMING OF GROSS-UP PAYMENTS. Gross-Up Payments
other than Gross-Up Payments pursuant to Subsection 7(c)(3)
shall be paid not later than forty-five (45) days following
payment of any Parachute Payments to which the
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Gross-Up Payments are attributable; provided, however, that if
the amount of such Gross-Up Payment or portion thereof cannot
be finally determined on or before such day, the Corporation
shall pay to Executive on such day an estimate, as determined
in good faith by the Corporation, of the minimum amount of such
payments and shall pay the remainder of such payments (together
with interest at the applicable federal rate provided in
Section l274(d) of the Code) as soon as the amount thereof can
be determined by the C.P.A., but in no event later than
forty-five (45) days after payment of such Parachute Payments.
(e) CORPORATION'S RIGHT TO DESIGNATE TAX
REPRESENTATIVE; ASSIGNMENT OF REFUND PROCEEDS. If the IRS
proposes an assessment of the Excise Tax against Executive or
proposes an additional assessment of Excise Tax in excess of
the amount previously reported by Executive:
(1) Executive shall within five (5) days after
receipt from the IRS of notice of the proposed Excise Tax
assessment notify the Corporation in writing and furnish the
Corporation with copies of all correspondence from the IRS
relating to the proposed Excise Tax assessment.
(2) The Corporation shall be authorized to
designate an attorney and/or accountant (the "Tax
Representative") to serve as Executive's exclusive
representative with respect to all proceedings with the IRS
relating to the proposed Excise Tax assessment, including but
not limited to negotiating a settlement or compromise of the
proposed Excise Tax assessment, filing a claim for refund with
respect thereto, and seeking judicial review of any
disallowance of a claim for refund. Executive hereby agrees to
execute an appropriate power of attorney authorizing the Tax
Representative to represent Executive with respect to the
Excise Taxes. Executive further agrees to take
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any other appropriate actions reasonably requested by the Tax
Representative in connection therewith; provided, however, that
the Corporation shall reimburse Executive for any expenses
incurred by Executive as a result of compliance with such
requests.
(3) If the Tax Representative files a claim for
refund of Excise Taxes with respect to which the Corporation
has made a Gross-Up Payment and such refund claim is allowed by
the IRS or by the final judgment of a court of competent
jurisdiction, Executive shall endorse the refund check payable
to the Corporation and shall send the refund check to the
Corporation not later than five (5) days after receipt from the
IRS.
(4) If the Corporation designates a Tax
Representative, the Corporation shall pay all of his or her
professional fees and expenses and hold Executive harmless from
any claims in connection therewith. The Tax Representative
shall keep Executive timely informed of all significant
developments in the Excise Tax matter and shall send to
Executive copies of all correspondence relating thereto.
(5) Notwithstanding anything herein to the
contrary, if the Corporation is in material breach of any of
its obligations pursuant to this Agreement, the Corporation's
rights pursuant to this Subsection 7(e) shall be extinguished
and Executive shall have the right to revoke any power of
attorney executed pursuant to this Subsection 7(e).
8. NO OBLIGATION TO MITIGATE DAMAGES. The Executive
shall not be obligated to mitigate any damages by seeking other
employment or otherwise, and no amount payable hereunder and no
benefit or service credit for benefits shall be reduced in the
event that the Executive shall accept alternative employment.
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9. BENEFITS PAYABLE ONLY FROM CORPORATE ASSETS.
(a) NO TRUST. Nothing contained in this Agreement,
and no action taken pursuant to its provisions by either party
hereto shall create, or be construed to create, a trust of any
kind, or a fiduciary relationship between the Corporation and
the Executive or his or her Beneficiary.
(b) EXECUTIVE'S STATUS AS UNSECURED GENERAL
CREDITOR. The payment of any benefits hereunder to the
Executive or his or her Beneficiary shall be made from assets
which shall continue, for all purposes, to be a part of the
general assets of the Corporation; no person shall have or
acquire any interest in such assets by virtue of the provisions
of this Agreement. To the extent that the Executive or his or
her Beneficiary acquires a right to receive payments from the
Corporation under the provisions hereof, such right shall be no
greater than the right of any unsecured general creditor of the
Corporation.
(c) RECOVERY OF COST OF PROVIDING BENEFITS. In the
event that, in its discretion, the Corporation purchases an
insurance policy insuring the life of the Executive to enable
the Corporation to recover, in whole or in part, the cost of
providing any benefits hereunder, neither the Executive nor his
or her Beneficiary under this Agreement shall have or acquire
any rights whatsoever therein. The Corporation shall be the
sole owner and beneficiary of any such policy and, as such,
shall possess and may exercise all incidents of ownership
therein.
10. DETERMINATION OF BENEFITS AND CLAIMS PROCEDURE. The
Corporation shall make all determinations as to rights to
benefits under this Agreement. Subject to and in compliance
with the specific procedures contained in the
19
applicable regulations promulgated under the Employee
Retirement Income Security Act of 1974, as amended: (i) any
decision by the Corporation denying a claim for benefits under
this Agreement by the Executive or his or her Beneficiary shall
be stated in writing by the Corporation and delivered or mailed
to the claimant; (ii) each such notice shall set forth the
specific reasons for the denial, written to the best of the
Corporation's ability in a manner that may be understood
without legal or actuarial counsel; and (iii) the Corporation
shall afford a reasonable opportunity to the claimant whose
claim for benefits has been denied for a review of the decision
denying such claim.
11. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement
shall prevent or limit the Executive's continuing or future
participation in any benefit, bonus, incentive or other plan or
program provided by the Corporation or any Affiliated Companies
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 agreements with the Corporation or any
Affiliated Companies. Amounts which are vested benefits or
which the Executive is otherwise entitled to receive under any
plan or program of the Corporation or any Affiliated Companies
shall be payable in accordance with the terms of such plan or
program.
12. FULL SETTLEMENT. After a Change of Control, the
Corporation's obligation to make the payments provided for
herein and otherwise to perform its obligations hereunder shall
not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or
other right which the Corporation may have against the
Executive or others. Unless it is finally determined by a court
of competent jurisdiction after all
20
available appeals that the Corporation has validly terminated
the Executive's employment for Cause, the Corporation agrees to
pay, to the full extent permitted by law, all legal fees and
expenses which the Executive may reasonably incur as a result
of any contest (regardless of the outcome thereof) by the
Corporation or others of the validity or enforceability of, or
liability under, any provision of this Agreement or any
guarantee of performance thereof, plus, in each case, interest
compounded quarterly, on the total unpaid amount determined to
be payable hereunder, such interest to be calculated on the
basis of the prime commercial lending rate announced by
Mercantile Bank, N.A. in effect from time to time, for the
period commencing on the date of such contest and ending on the
date on which the Corporation shall pay such amount.
13. COVENANTS.
(a) NON-COMPETITION.
(1) Executive recognizes that during the course
of Executive's employment with the Corporation, Executive has
been and will be instructed about and become acquainted with
confidential information of the Corporation, including, without
limitation, customer lists, methods of sales, the existence and
contents and terms of this Agreement, methods of sales
procurement, sales procurement techniques, sales procedures and
equipment/supply information, equipment and supply acquisition
procedures and processes and sources, customer evaluation
procedures, customer maintenance and supply maintenance
procedures and corresponding information relating to persons,
firms and corporations which are or may become customers of the
Corporation and, further, companies from which the Corporation
obtains various products and supplies for sale, resale and
distribution to customers of the
21
Corporation. This confidential information further includes,
but is not limited to, customer identity, supplier identity and
terms, purchase terms, sales techniques, purchase conditions
and rates, customer needs, billing procedures and processes,
contacts and customer information. Further, Executive agrees
and acknowledges that the development and assemblage and
maintenance of the customer base has taken extraordinary time,
money, resources, training, and effort by the Corporation and
its employees.
(2) Executive agrees that he or she will not
during the Term of Employment and for a period of two (2) years
following cessation of his or her employment at the Corporation
("Restricted Period"), for any cause or reason, directly or
indirectly:
(A) engage in any business in competition
with the Corporation and its Affiliates or supply and sell to
present customers, former customers and prospects of the
Corporation and its Affiliates; or
(B) own, manage, operate, control, advise,
be employed by, consult, or materially participate in, or be
materially involved in any manner with the ownership,
management, operation or control of, individually or through
any other entity or device, any business that competes with the
business then conducted by the Corporation or any Affiliate;
provided, however, that mere ownership as an investor of not
more than five percent (5%) of the securities of a corporation
or other business enterprise shall not in and of itself be
deemed to violate this Section 13(b)(2)(B).
(b) NONDISCLOSURE OF CONFIDENTIAL INFORMATION.
(1) Executive will not, except as authorized by
the Corporation in writing, during or at any time after the
termination of
22
Executive's employment with the Corporation, directly or
indirectly, use for himself or herself or others, or disclose,
communicate, divulge, furnish to, or convey to any other
person, firm, or corporation, any secret or confidential
information, knowledge or data of the Corporation or that of
third parties obtained by Executive during the period of his or
her employment with the Corporation. Such information,
knowledge or data includes, without limitation, the following:
(A) Secret or confidential matters of a
technical nature such as, but not limited to, methods,
know-how, formulations, compositions, processes, discoveries,
machines, inventions, computer programs, and similar items or
research projects involving such items,
(B) Secret or confidential matters of a
business nature such as, but not limited to, marketing policies
or strategies, information about costs, price lists, purchasing
and purchasing policies, profits, market, sales or lists of
customers, customer history information, and
(C) Secret or confidential matters
pertaining to future developments such as, but not limited to,
research and development or future marketing or merchandising.
(2) Executive, upon termination of his or her
employment with the Corporation, or at any other time upon the
Corporation's request, shall deliver promptly to the
Corporation all manuals, letters, notes, notebooks, reports,
formulations, computer programs and similar items, memoranda,
lists of customers, customer history information and all other
materials and copies thereof relating in any way to the
Corporation's business and in any way obtained by Executive
during the term of employment with the
23
Corporation which are in his or her possession or under his or
her control; and Executive will not make or retain any copies
of any of the foregoing and will so represent to the
Corporation upon termination of his or her employment.
(c) INDUCEMENT.
(1) Executive agrees that during the
Term of Employment and during the Restricted Period, Executive
shall not use any confidential information for the purposes of
inducing or attempting to induce any present, former, or
prospective customer of the Corporation or its Affiliates to
become a customer of Executive or any person, firm, or
corporation, or business association with which Executive is
affiliated in any capacity with respect to the markets supplied
by the Corporation or its Affiliates.
(2) Executive agrees that during the
Term of Employment and during the Restricted Period, Executive
shall not directly or indirectly solicit for employment or
employ any of the Corporation's employees to work for Executive
or any business association with which/whom Executive is
affiliated, or to work for any other company in the markets
supplied by the Corporation or its Affiliates.
(d) INTEREST OF PARTIES. Executive agrees
that the duration of the limitations set forth in this Section
13 are reasonable under the circumstances, considering
Executive's position with the Corporation and other relevant
factors, and that this will not constitute a serious handicap
to Executive in securing future employment.
(e) DISCLOSURE TO CORPORATION. Executive
shall promptly communicate and disclose to the Corporation all
information, observations and data obtained by Executive in the
course of Executive's employment. All
24
written materials, records and documents made by Executive or
coming into Executive's possession during the Term of
Employment concerning any inventions, products, processes or
equipment, manufactured, used, developed, investigated or
considered by the Corporation or any Affiliated Companies shall
be the property of the Corporation, and upon termination of the
Term of Employment, or upon request of the Corporation during
the Term of Employment, Executive shall promptly deliver the
same to the Corporation. Executive agrees to render to the
Corporation such reports of the activities of the business
undertaken by Executive or conducted under Executive's
direction during the Term of Employment as the Corporation may
reasonably request.
(f) INVENTIONS.
(1) Executive shall promptly communicate
and disclose in writing to the Corporation all those inventions
and developments whether patentable or not, as well as patents
and patent applications (hereinafter collectively called
"Inventions"), made, conceived, developed or purchased by
Executive, or under which Executive acquires the right to grant
licenses or to become licensed, alone or jointly with others,
during the Term of Employment, which have arisen or may arise
out of Executive's employment, or relate to any matters
pertaining to, applicable to, or useful in connection with, the
business or affairs of the Corporation or any Affiliated
Companies. All of Executive's right, title and interest in, to
and under all such inventions, licenses and rights to grant
licenses shall be the sole property of the Corporation. Any
such inventions disclosed to anyone by Executive within one (1)
year after the termination of the Term of Employment for any
cause whatsoever shall be deemed to have been made or conceived
by Executive during the Term of Employment.
25
(2) As to all such inventions, Executive
shall, upon request of the Corporation, during the Term of
Employment or thereafter:
(A) Execute all documents which the
Corporation shall deem necessary or
proper to enable it to establish title
to such inventions, or other rights, and
to enable it to file and prosecute
applications for letters patent of the
United States and any foreign country;
and
(B) Do all things (including the
giving of evidence in suits and other
proceedings) which the Corporation shall
deem necessary or proper to obtain,
maintain or to assert patents for any
and all such inventions or to assert its
rights in any inventions not patented.
All expenses incident to any action required by the Corporation
or taken on its behalf pursuant to the provisions of this
paragraph shall be borne by the Corporation including without
limitation a reasonable payment for Executive's time and
expenses involved in case he or she is not then in its employ.
(g) LITIGATION. Executive agrees that
during the Term of Employment or thereafter, Executive shall do
all things, including the giving of evidence in suits and other
proceedings, which the Corporation shall deem necessary or
proper to obtain, maintain or assert rights accruing to the
Corporation during the Term of Employment and in connection
with which Executive has knowledge, information or expertise.
All reasonable expenses incurred by Executive during the Term
of Employment or thereafter in fulfilling the duties set forth
in this Section, shall be reimbursed by the Corporation to the
full extent legally appropriate including, without
26
limitation, a reasonable payment for Executive's time in the
event this Agreement has terminated prior to the time Executive
renders such assistance, advice and counsel.
14. EQUITY. The parties hereto agree that the services
to be rendered by Executive are special, unique and of an
extraordinary character. In the event of the breach by
Executive of any of the provisions of this Agreement, the
Corporation, in addition and as a supplement to such other
rights and remedies as may exist in its favor, may apply to any
court of law or equity having jurisdiction to enforce the
specific performance of this Agreement, and/or may apply for
injunctive relief against any act which would violate any of
the provisions of this Agreement.
15. EFFECT ON PRIOR AGREEMENTS. This Agreement shall
supersede and replace any and all prior employment agreements
entered into between Executive and the Corporation or any
Affiliated Company, including but not limited to that certain
Employment Agreement dated June 28, 1993. This Agreement
contains the entire understanding of the parties hereto with
respect to the subject matter hereof.
16. NO ASSIGNMENT.
(a) This Agreement is personal to the Executive and
without the prior written consent of the Corporation shall not
be assignable by the Executive other than by will or the laws
of descent and distribution. This Agreement shall inure to the
benefit of and be enforceable by the Executive's legal
representatives and Beneficiary.
(b) This Agreement shall inure to the benefit of and
be binding upon the Corporation and its successors. The
Corporation shall require any successor to all or substantially
all of the business and/or assets of the
27
Corporation, whether direct or indirect, by purchase, merger,
consolidation, acquisition of stock, or otherwise, by an
agreement in form and substance satisfactory to the Executive,
expressly to assume and agree to perform this Agreement in the
same manner and to the same extent as the Corporation would be
required to perform if no such succession had taken place.
17. SEVERABILITY. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity
or enforceability of any other provision of this Agreement, and
this Agreement shall be construed in all respects as if such
invalid or unenforceable provision or clause were omitted.
18. MISCELLANEOUS.
(a) This Agreement shall be governed by and
construed in accordance with the laws of the State of Missouri,
without reference to principles of conflict of laws. The
captions of this Agreement are not part of the provisions
hereof and shall have no force or effect. This Agreement may
not be amended or modified other than by a written agreement
executed by the parties hereto or their respective successors
and legal representatives.
(b) In the event that litigation is required to
enforce any provision of this Agreement, subject to the
provisions of Section 12 hereof, the prevailing party shall be
entitled to reasonable attorneys fees.
(c) All notices and other communications hereunder
shall be in writing and shall be given by hand delivery to the
other party or by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
28
IF TO THE EXECUTIVE:
Xxxxxxx X. Xxxxxx
0000 Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
IF TO THE CORPORATION:
Consumer Programs Incorporated
0000 Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx, President
or to such other address as either party shall have furnished
to the other in writing in accordance herewith. Notice and
communications shall be effective when actually received by the
addressee.
(d) This Agreement contains the entire understanding of
the parties hereto with respect to the subject matter hereof.
(e) The Corporation may withhold from any amounts payable
under this Agreement such federal, state or local taxes as
shall be required to be withheld pursuant to any applicable law
or regulation.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement in duplicate, all as of the day and year first above
written.
CONSUMER PROGRAMS INCORPORATED
By: /s/ Xxxxxxx Xxxxx
--------------------------
(Xxxxxxx Xxxxx, President)
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
(Xxxxxxx X. Xxxxxx)
29
