AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT
AGREEMENT, effective as of January 1, 2001, by and
between The Xxxxxxx Co., a Florida corporation (the "Company"),
and Franc X. Xxxxxx ("Employee").
W I T N E S S E T H:
WHEREAS, the Employee and the Company are parties to
a certain Employment Agreement (the "Employment Agreement"),
dated as of January 1, 1996 and Amendment No. 1 effective as of
January 1, 1998; and
WHEREAS, the Employee and the Company wish to amend
the Employment Agreement, to revise the term and renewal
provisions, as set forth herein.
NOW THEREFORE, for good and valuable consideration,
the sufficiency of which is hereby acknowledged by the parties
hereto, and in consideration of the mutual covenants contained
herein, the parties hereto hereby agree as follows. The
definitions utilized in the Employment Agreement shall be
utilized herein.
4. Amendments of Employment Agreement. The
Employment Agreement is hereby amended by revising Section 1.2
to read in its entirety as follows:
"1.2 Term. Subject to the provisions of this Agreement, as
amended, the term of employment shall be three (3) years
commencing on January 1, 2001."
The Employment Agreement is hereby amended by revising
Section 1.3 to read in its entirety as follows:
"1.3 Renewals of Term. This Agreement shall be renewed for
successive terms of three (3) years each if, at least thirty
(30) days prior to the end of each term of this Agreement,
Employee gives written notice of his election to renew this
Agreement for another term. Upon any such automatic renewal
term of this agreement, the Base EPS shall be equal to the
EPS of the Company on the year before the expiration of the
agreement. For example, January 1, 2001 renewal term will
use the December 31, 2000 EPS for the purpose of such bonus
computations."
5. Binding Effect. This Agreement will inure to the
benefit of, and be binding upon, the parties hereto and their
respective heirs, legal representatives, permitted assigns and
successors (including any successors by merger, consolidation
and acquisition of all or a substantial portion of the assets of
the Company).
6. Effect on Employment Agreement. Except as
epressly amended hereby, the Employment Agreement and
amendments shall remain in full force and effect.
IN WITNESS WHEREOF, this Agreement has been executed
and delivered by the parties hereto as of the date written
below.
Dated: August ___, 2000
THE XXXXXXX CO.
By:____________________________
Xxxxx X. Xxxxxxx, CFO
EMPLOYEE
_______________________________
FRANC X. XXXXXX
EMPLOYMENT AGREEMENT
This Agreement is effective as of January 1, 1996 (the
"Effective Date") by and between Franc Xxxxxx (the "Employee")
and The Xxxxxxx Company (the "Company").
WHEREAS, the Company recognizes the Employee's past
and potential contribution to the growth and success of the
Company and desires to assure the Company of the Employee's
employment in an executive capacity as Vice President/Operations
and to compensate him therefore; and
WHEREAS, the Employee is desirous of continuing to be
employed by the Company and committing himself to serve the
Company in accordance with the terms herein provided;
NOW, THEREFORE, in consideration of the foregoing and
of the respective covenants and agreements of the parties
contained herein, the parties agree as follows:
1. Position. Responsibilities and Term of Employment.
1.1 Employment and Duties. Subject to the terms and
conditions of this Agreement, the Company employs the Employee
to serve in an executive and managerial capacity as the Vice
President/Operations of the Company and the Employee accepts
such employment and agrees to perform such reasonable
responsibilities and duties commensurate with such position as
set forth in the Certificate of Incorporation and the Bylaws of
the Company.
1.2 Initial Term. Subject to the provisions of this
Agreement, the initial term of this Agreement shall be three (3)
years commencing with the Effective Date hereof.
1.3 Renewals of Term. This Agreement shall be renewed
for successive terms of three (3) years each if, at least thirty
(30) days prior to the end of each term of this Agreement,
Employee gives notice of his election to renew this Agreement
for another term.
2. Compensation .
2.1 Annual Base Salary. During the term of this
Agreement, the Company shall pay Employee an annual base salary,
before deducting all applicable withholdings, of $77,765 per
year, payable at the times and in the manner provided by the
Company's standard payroll policies. Such annual base salary
shall be increased annually by an amount equal to 10% of the
previous year's base salary.
2.2 Bonus/Incentive Compensation. In addition to an
annual base salary, the Employee shall receive an annual bonus
for each fiscal year that ends during the term of this
Agreement, which annual bonus shall be based upon increases in
the Company's earnings per share as adjusted from the Company's
certified financial statements on a consolidated basis ("EPS")
from the base year of fiscal 1995 ("Base EPS"), computed as
follows:
a. If the EPS for a particular fiscal year are at
least 10% higher than the Base EPS, then Employee shall receive
the sum of $25,000;
b. In addition to Section 2.2(a), if the EPS for a
particular fiscal year are at least 15%. higher than the Base
EPS, then Employee shall receive an additional sum of $25,000;
C. In addition to Sections 2.2(a) and (b), for each
incremental 1% increase in the EPS above a 10% increase over the
Base EPS, Employee shall receive the additional sum of $5,000
(e.q., if the EPS are 13% above the Base EPS, then Employee
shall receive a bonus equal to $25,000 plus $15,000, for a total
of $40,000);
d. For any fiscal year during this Agreement during
which Employee is not an Employee of the Company for the entire
fiscal year, Employee's annual bonus shall be prorated according
to the number of days during such fiscal year on which Employee
was so employed.
e. The foregoing bonuses shall be paid within ten
(10) days following the issuance of the certified financial
statements, except that any amounts in excess of $75,000 shall
not be payable until January 1 of the following fiscal year.
f. The EPS for any particular year under this section
shall be the EPS of the Company shown on its certified financial
statements on a consolidated basis as adjusted for any increases
or decreases in the number of outstanding shares of the Company
since December 31, 1995. For purposes of this adjustment, the
decimals in a percentage figure shall be rounded up to the next
full percentage amount if the decimal is equal to or greater
than a half a percent and rounded down if it is less than a half
a percent (e.g., if the adjusted EPS is 12.67%, it shall be
rounded up to 13%; if it is 12.49%, it shall be rounded down to
12%).
2.3 Participation in Benefit Plans. The Employee shall
be entitled to participate in, and receive benefits under, all
the,Company's employee benefit plans and arrangements in effect
on the Effective Date for as long as such plans and arrangements
may remain in effect (including, but not limited to,
participation in any pension, profit sharing, stock incentive
plan or stock option plan adopted by the Company, and all group
life, health (including for family members), disability plans
and other insurance) or any substitute or additional plans,
policies or arrangements made available in the future to
similarly situated employees of the Company, subject to and on a
basis consistent with, the terms, conditions and overall
administration of such plans policies and arrangements. The
amount of coverage under life insurance and disability programs
shall be at such levels as are mutually agreeable to the
parties. Nothing paid to the Employee under any plan, policy or
arrangement presently in effect or made available in the future
shall be deemed to be in lieu of other compensation to the
Employee hereunder as described in this Section 2.
2.4 Vacation Days. The Employee shall be entitled to
the number of paid vacation days and paid holidays in each year
as are determined by the Company from time to time as appropriate
for senior executive officers, provided that the aggregate annual
number of such vacations days and paid holidays shall at no time
fall below the number of days per year to which Employee was
entitled as the Effective Date.
2.5 Expenses. During the term of his employment
hereunder, the Employee shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by him (in
accordance with the policies and procedures established by the
Company or the Board for the senior executive officers of the
Company) in performing services hereunder, including, but not by
way of limitation, a reasonable automobile allowance and all
expenses associated with a car or portable phone.
2.6 Stock Options Grants.
(a) Employee is presently a participant under the 1990
Key Employee Stock Incentive Plan (the "1990 Plan") and shall
retain all rights he currently possesses under said plan.
(b) Employee is hereby granted 10,000 additional
options to purchase stock under the 1990 Plan. Notwithstanding
the terms of the 1990 Plan, the option price for each of these
new options granted hereby shall be the closing price of the
stock on the last business day before the Effective Date and the
option term to exercise these new option shall be 10 years.
(c) Employee shall be granted additional options to
purchase stock under the 1990 Plan or under a substitute plan or
directly from the Company (in the event no further stock or an
insufficient amount of stock is available under the 1990 Plan or
a substitute plan) on each anniversary date of the Effective
Date. Each such annual grant shall be in an amount which is not
less than options for 10,000 shares and may in the discretion of
the Compensation Committee be greater based upon the Company's
performance during the most recent fiscal year. This amount of
the grants under this section shall be adjusted accordingly for
any stock splits, reverse stock splits, or other stock
adjustments.
3. Termination.
3.1 Termination by Company without Cause.
If, during the term of this Agreement, the Company
terminates the employment of the Employee and such termination is
without "cause" (as defined in Section 3.2) or this Agreement is
not renewed by the Company for a three year term on the same
terms set forth in this Agreement, this Agreement, except for the
provisions of Sections 4.2 and 4.3, shall terminate and the
Company shall pay and provide the Employee the following:
(1) The Company shall immediately pay to the Employee
an amount equal to the Employee's monthly base salary (to be
determined by dividing the annual base salary specified in
Section 2.1 then in effect on the date of termination by twelve)
multiplied by the sum of the number of months remaining in the
term of this Agreement plus Twelve (12) (e.g., if three months
remain under the term of this Agreement on the date of
termination, then Employee shall be paid an amount equal to
fifteen times his monthly base salary);
(2) The Company shall provide the Employee, throughout
a period not to exceed the greater of eighteen months or the
remaining term of this Agreement, such benefits as are provided
to the Employee pursuant to Sections 2.3 and 2.5, including a car
allowance, except where continuation of benefits cannot be
provided as contemplated by this Section 3.1 by reason of a
prohibition in the terms of the benefit plan. For purposes of
determining the amount of benefits to which the Employee shall
continue to be entitled to pursuant to Sections 2.3 and 2.5, the
Employee shall be deemed, throughout the period of his
entitlement pursuant to this Section 3.1, to have continued to
have performed services for the Company at a rate of total
compensation equal to the rate in effect on the date of his
termination of employment;
(3) The Company shall immediately pay to the Employee
an amount equal to the most recent annual bonus previously paid
to Employee under Section 2.2 multiplied by the sum of the number
of years (including any fractions thereof) remaining in the term
of this Agreement plus one (1) (e.g., if one year remains under
the term of this Agrb@effient on the date of termination, then
Employee shall be paid an amount equal to two times his last
annual bonus); and
(4) The Company agrees that under the 1990 Key
Employee Stock Incentive Plan and any other plan under which
Employee is a participant, with respect to all grants made to
Employee (a) all stock options, no matter the terms of the grant,
shall be fully vested and may thereafter be exercised by Employee
at any time for a period of five (5) years from the date of
termination; (b) all restrictions on Restricted Stock shall
immediately be removed; (c) all conditions under which receipt of
Deferred Stock was or is deferred shall immediately be deemed
fulfilled or waived; and (d) all conditions with respect to
receipt, vesting, and transferability of Stock-Based awards shall
immediately be waived, fulfilled or lapsed.
3.2 Termination by the Company for Cause.
(a) The Company shall have the right to terminate the
employment of the Employee for cause. Effective as of the date
that the employment of the Employee terminates by reason of
cause, this Agreement, except for the provisions of Sections 4.2
and 4.3, shall terminate and no further payments of the
Compensation described in Section 2 shall be made, except for
such remaining payments of base salary under Section 2.1 relating
to periods during which the Employee was employed by the Company,
benefits under Section 2.3 which are required by applicable law
to be continued, and reimbursement of proper expenses under
Section 2.5.
(b) For the purposes of this Section, "cause" shall
mean willful or gross neglect of duties for which the Employee is
employed (other than on account of a medically determinable
disability which renders the Employee incapable of performing
such services); conviction of fraud, misappropriation or
embezzlement in the performance of duties as an employee of the
Company; conviction of a felony involving a crime of moral
turpitude in the performance of duties as an employee of the
Company; or willfully engaging in conduct materially injurious to
the Company and in violation of the covenants contained in
Section 4. For purposes of this paragraph, no act or failure to
act on the Employee's part shall be considered "willful" unless
done or omitted to be done by him not in good faith and without
reasonable belief that his act or omission was in the best
interest of the Company.
(c) No termination of the employment of the Employee
for cause shall be effective (i) unless the Company shall deliver
written notice of the Employee reasonably specifying the cause
for which it intends to terminate the employment of the Employee
and the date, not, less that 15 days or more than 60 days after
such notice, on which such termination will be effective; (ii) if
the cause specified in the notice is reasonably curable, and if
the Employee diligently seeks to effect such cure prior to the
effective date of termination, so long as such diligent efforts
are proceeding or if such cure is effected prior to the effective
date of termination, the employment of the Employee shall
continue unaffected; and (iii) if the Employee disputes by
written notice that cause exists for termination pursuant to this
Section 3.2, or reasonably believes and asserts in writing that
any such cause has been cured prior to the effective date of
termination, the Employee may submit the matter for arbitration
pursuant to Section 6.6 hereof. If the matter is submitted for
arbitration, then, until the arbitrators render a final decision,
no change in the employment, responsibilities or compensation of
the Employee hereunder shall take place.
3.3 Other Termination. The Employee may terminate this
Agreement by giving 90 days prior written notice to the Company
and this Agreement shall terminate, except for the provisions of
Sections 4.2 and 4.3, as of the date specified by the Employee as
the effective date of such termination.
3.4 Termination by Death or Disability. If the Employee
dies or becomes disabled, this Agreement shall terminate except
for the provisions of Sections 4.2 and 4.3, and the Employee (or
his estate) shall then be entitled to such base salary and
incentive compensation described in Section 2 that relates to the
period that he performed services for the Company, the
acceleration and vesting set forth in Section 3.1(4), and all
applicable benefits (including, as applicable, continued status
as an employee in the event of his disability) to which the
Employee is entitled under the Company's employee benefit plans,
other benefit plans or programs maintained by the Company and all
such other benefits from employment policies and practices of the
Company. In addition, if the Employee dies or becomes disabled,
the Employee or his estate shall receive his Annual Base Salary
prorated for a period of six (6) months. For the purposes of
this Section 3.4, "disability" shall mean the inability of
Employee to perform the duties and responsibilities assigned to
the employee under Section 1.1 by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or to be of long continued and indefinite
duration. The Employee shall not be considered to be disabled
unless he furnishes proof of the existence of such disability in
the form and manner as the Company may reasonably require.
3.5 Termination by Employee Following Certain Corporate
Events.
(a) If the Employee for any reason terminates this
Agreement at any time during the term of this Agreement or any
renewal following (i) a change in control of the Company, (ii)
Xxxxx Xxxxxx, Xx. ceasing for any reason to be either a full time
Chief Executive officer or a director of the Company, (iii) the
takeover, merger or acquisition of the Company, (iv) a sale of
all or substantially all of the assets of the Company or.(v) a
dissolution or liquidation of the Company, the Employee shall be
entitled to receive from the Company all of the amounts and
benefits provided in Section 3.1 of this Agreement.
(b) In the event that the Employee becomes entitled to
compensation pursuant to this Section 3.5 (or any other Section
of this Agreement) and the payment of such compensation
constitutes a "parachute payment" as defined in Section 280G of
the Internal Revenue Code of 1986, as amended (the "Code") and
subject to a tax under Section 4999 of the Code, the Employee
shall be entitled to the greater of: (1) the compensation payable
pursuant to this Section 3.5 (or any other Services of this
Agreement), net any taxes imposed by Section 4999 of the Code; or
(2) the compensation payable pursuant to this Section 3.5 (or any
other Section of this Agreement) reduced to the extent necessary
to ensure that such amount does not constitute a "parachute
payment" as defined in Section 280G of the Code and subject to a
tax under Section 4999 of the Code.
3.6 Termination by Employee due to Breach by Company.
If, during the term of this Agreement, the Company shall breach
any of its material obligations hereunder, including without
limitation the obligation to have the Employee serve in the
capacities of Vice President/Operations, the Employee may, unless
the Company shall have cured its breach within 15 days after it
receives written notice from the Employee reasonably specifying
such breach, terminate his employment hereunder by a second
notice to the Company effective immediately. In such event the
Employee shall be entitled to receive from the Company all of the
amounts and benefits provided in Section 3.1 of this Agreement;
provided that if the Company disputes by written notice that a
material breach of any of its obligations has occurred, or
reasonably believes and asserts in writing that any such breach
has been cured within the 15-day period specified above, the
Company may submit the matter for arbitration pursuant to Section
6.6 hereof. If the matter is submitted for arbitration, then,
until the arbitrators render a final decision, no change in the
employment, responsibilities or compensation of the Employee
hereunder shall take place.
4. Best Efforts, Non-Compete and Confidential Information.
4.1 Best Efforts and Non-ComDete During Employment Term.
The Employee agrees that during the term of his employment by the
Company, he will devote significant business time and efforts to
the Company. He will not engage in any way whatsoever, directly
or indirectly, in any business that is competitive with the
Company or its affiliates, nor solicit, or in any other manner
work for or assist any business which is competitive with the
Company or its affiliates. During the term of this Agreement, he
will undertake no planning for or organization of any business
activity competitive with the business of the Company, and
Employee will not combine or conspire with any other employee of
the Company or any other person for the purpose of organizing any
such competitive business hereunder shall take place.
4.2 Confidential Information. The Employee will not
disclose to any other person or entity (except as required by
applicable law or in connection with the performance of his
responsibilities hereunder), or use for his own benefit, any
confidential information of the Company, obtained by him incident
to his employment with the Company. The term "confidential
information" includes, without limitation, any information
pertaining to computer programs, vendors, subcontractors and
customers, financial information, business plans, prospects and
opportunities which have been discussed or considered by the
Company's management, but does not include; any information which
has become public other than by reason of the Employee's failure
to comply with the provisions of this Section.
4.3 Continued Applicability. The provisions of Section
4.2 shall remain in effect and shall have full force and effect
for a period of two years after the date that this Agreement
expires or is terminated.
4.4 Covenant of Good Faith and Fair Dealing. The parties
specifically agree that each owes to the other the covenant to
act in good faith and deal fairly in the performance of the terms
of this Agreement.
5. Assignment.
Subject to Section 3.5, this Agreement and the rights
and obligations of the parties hereto shall bind and inure to the
benefit of each of the parties hereto and shall also bind and
inure to the benefit of any successor or successors of the
Company by reorganization, merger or consolidation and any
assignee of all or substantially all of the Company's business
and properties, but, except as to any such successor or assignee
of the Company, neither this Agreement nor any rights or benefits
hereunder may be assigned by the Company or the Employee.
6. Miscellaneous.
6.1 Governing Law. This Agreement shall be construed in
accordance with and governed for all purposes by the laws of the
State of Florida.
6.2 Actions. The parties agree and acknowledge that the
rights conveyed by this Agreement are of a unique and special
nature and that the Company will not have an adequate remedy at
law in the event of failure of the.Employee to abide by its terms
and conditions nor will money damages adequately compensate for
such injury. It is, therefore, agreed between the parties that
in the event of breach by the Employee of any of his agreements
contained in this Agreement, the Company shall have the rights,
among other rights, to damages sustained thereby and to obtain an
injunction or decree of specific performance from any court of
competent jurisdiction to restrain or compel the Employee to
perform as agreed herein. The Employee agrees that this
paragraph shall survive the termination of this employment and he
shall be bound by its terms and all times subsequent to the
termination of his employment for so long a period as Company
continues to conduct the same business or businesses as it was
conducting during the period of this Agreement. Nothing herein
contained shall in any way limit or exclude any other right
granted by law or equity to the Company.
6.3 Notices. Any notice, request, or.instruction to be
given hereunder shall be in writing and shall be deemed given
when personally delivered or three days after being sent by
United States certified mail, postage prepaid, with return
receipt requested to, the parties at their respective addresses
set forth below:
(a) To the Company:
Attention: President
The Xxxxxxx Company
0000 Xxxx XxXxx Xxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
(b) To the Employee:
Attention: Franc Xxxxxx
_______________________
_______________________
6.4 Severability. If any paragraph, subparagraph or
provision hereof is found for any reason whatsoever to be invalid
or inoperative, that paragraph, subparagraph or provision shall
be deemed severable and shall not affect the force and validity
of any other provision of this Agreement. If any covenant herein
is determined by a court to be overly broad thereby making the
covenant unenforceable, the parties agree and it is their desire
that such court shall substitute a reasonable judicially
enforceable limitation in place of the offensive part of the
covenant and that as so modified the covenant shall be as fully
enforceable as if set forth herein by the parties themselves in
the modified form. The covenants of Employee in this Agreement
shall each be construed as an agreement independent of any other
provision in this Agreement, and the existence of any claim or
cause of action of Employee against the Company, whether
predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of the covenants in
this Agreement.
6.5 Amendment and Waiver. This Agreement may not be
amended, supplemented or waived except by a writing signed by the
party against which such amendment or waiver is to be enforced.
The waiver by any party of a breach of any provision of this
Agreement shall not operate to, or be construed as a waiver of,
any other breach of that provision nor as a waiver of any breach
of another provision.
6.6 Arbitration of Disputes. Any controversy or claim
arising out of or relating to this Agreement or to the breach
thereof shall be settled by binding arbitration in accordance
with the laws of the State of Florida conducted in the City of
Miami in accordance with the commercial rules of the American
Arbitration Association. Judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction
thereof. The cost of any arbitration proceeding conducted
hereunder shall be borne equally between the Employee and the
Company.
6.7 Binding Effect. Subject to the provisions of
Section 5 hereof, this Agreement shall be binding on the
successors and assigns of the parties hereto.
6.8 Survival of Rights and Obligations. All rights and
obligations of the Employee or the Company arising during the
term of this Agreement shall continue to have full force and
effect after the date that this Agreement terminates or expires.
6.9 Counterparts. This Agreement may be executed in two
counterparts, each of which is an original but which shall
together constitute one and the same instrument.
EXECUTION
Upon execution below by both parties, this Agreement
will enter into full force and effect as of January 1, 1996.
COMPANY
THE XXXXXXX CO.
By:________________________
its:
EMPLOYEE
____________________________
Franc Xxxxxx
