Exhibit 10.9
XXXXX CORPORATION LIMITED
c/x Xxxxx Executive Offices
Xxx Xxxxxxxxxx Xxxxx 0xx Xxxxx
Xxxxxxxx, XX 00000
November 5, 2002
(As Amended December 13, 2002)
Xx. Xxxx X. Xxxxxx
00 Xxxxxx Xxxx Xxxx
Xxxxxx, Xxxxxxxxxxx 00000
Dear Xxxx:
The purpose of this letter is to amend and restate in its entirety the
Employment Letter, dated January 10, 2001 between you and Xxxxx Corporation
Limited (the "Company"). You are currently the President of the Commercial and
Subsidiary Operations division of the Company and you shall continue to serve in
that capacity as of and after the date of this Agreement in accordance with the
terms and provisions of this Agreement as well as any employment and other
policies applicable to employees of the Company and its subsidiaries from time
to time during the term of your employment.
We and you hereby acknowledge that your employment with the Company
constitutes "at-will" employment and that either party may terminate this
Agreement at any time, upon written notice of termination within a reasonable
period of time before the effective date of the termination. You will report to
the Chairman, the Chief Executive Officer or the President and Chief Operating
Officer of the Company.
I. COMPENSATION
You will receive the following compensation and benefits, from which the
Company may withhold any amounts required by applicable law:
(i) The Company will pay you a base salary ("Base Salary") at the
rate of U.S. $360,000 per year. This Base Salary will be paid in
accordance with the normal payroll practices of the Company.
(ii) The Company will pay you an annual bonus (the "Annual Bonus")
of up to 110%+ of your Base Salary in respect of each fiscal year of the
Company in accordance with the Company's annual incentive compensation
plan if the Company achieves the performance objectives set forth by the
board of directors of the Company (the "Board") (or any designated
committee thereof) from time to time. The Annual Bonus shall be approved
by the Board and shall be paid on an all-or-nothing basis.
(iii) In addition, you will continue to be eligible to participate
in any nonqualified pension plans and qualified plans in the same manner
as you currently participate or may elect to participate from time to time
after the date of this Agreement.
(iv) You shall be eligible for four (4) weeks vacation annually.
(v) You shall be eligible for a car allowance of $1,400 monthly.
II. SEVERANCE; CHANGE OF CONTROL
If the Company terminates your employment without Cause, as defined in
Annex A, or if you terminate your employment for Good Reason, as defined in
Annex A, whether the same occurs before or following a Change of Control (as
defined in Annex A), the Company will pay you an amount equal to one and
one-half (1 1/2) times your Annualized Total Compensation (as defined below),
subject to the execution by you of a customary release, which amount shall be
payable in equal installments over the eighteen (18) month period following the
date your employment with the Company is terminated (the "Termination Date").
The Company will also provide to you a continuation of all benefits, including
automobile and other related benefits, if any, which you were eligible to
receive immediately prior to such termination, for a period of eighteen (18)
months following the Termination Date. The Company will also make the additional
payments provided in Annex B, if applicable. Your rights of indemnification
under the Company's and any of its subsidiaries' organizational documents, any
plan or agreement at law or otherwise and your rights thereunder to director's
and officer's liability insurance coverage for, in both cases, actions as an
officer and director of the Company and its affiliates shall survive any
termination of your employment.
"Annualized Total Compensation" means Base Salary plus Annual Bonus (as if
all necessary targets and objectives were met) for one year at the rate in
effect immediately before the Termination Date. In addition, all outstanding
stock options, grants, restricted stock awards or other equity grants issued to
you will vest 100% immediately either as of the Termination Date (in the case of
a termination by the Company without Cause or a termination by you for Good
Reason) or prior to the Change of Control becoming effective (solely in the
event that upon or in connection with such Change of Control your employment
with the Company is terminated without Cause or you terminate your employment
for Good Reason), as applicable. The payments under this paragraph are in lieu
of any notice requirements of any Canadian national or provincial law. In the
event of any termination, you agree to resign as an officer and director of the
Company and its subsidiaries and affiliates.
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III. GENERAL
You agree (i) that at all times both during and after your employment, you
will respect the confidentiality of Company's and its subsidiaries and
affiliates' confidential information and will not disparage the Company and its
subsidiaries and affiliates or their officers, directors or employees, and (ii)
during your employment and for eighteen (18) months thereafter, you will not (a)
accept a position with, or provide material services to, an entity that competes
with a portion of the Company's business representing more than $25 million of
the Company's revenues on the date of your departure, (b) solicit or hire, or
assist others in the solicitation or hiring of, the Company's employees or (c)
interfere with the Company's business relationships with any material customers
or suppliers.
All notices or communications under this Agreement must be in writing,
addressed; (i) if to the Company or MNA, to the attention of the Senior Vice
President, General Counsel at the Company's address first written above and (ii)
if to you, at your address first written above (or to any other addresses as
either party may designate in a notice duly delivered as described in this
paragraph). Any notice or communication shall be delivered by telecopy, by hand
or by courier. Notices and communications may also be sent by certified or
registered mail, return receipt requested, postage prepaid, addressed as above
and the third business day after the actual date of mailing shall constitute the
time at which notice was given.
Any controversy or claim arising out of or relating to this Agreement or
the breach of this Agreement that cannot be resolved by you and the Company,
including any dispute as to the calculation of any payments hereunder, and the
terms of this Agreement, shall be determined by a single arbitrator in
Connecticut, in accordance with the rules of the American Arbitration
Association. The decision of the arbitrator shall be final and binding and may
be entered in any court of competent jurisdiction. The arbitrator may award the
party he determines has prevailed in the arbitration any legal fees and other
fees and expenses that may be incurred in respect of enforcing its respective
rights under this Agreement. This Agreement shall be interpreted in accordance
with the laws of Connecticut.
This Agreement sets forth the entire agreement between us with respect to
the matters set forth herein, and fully supersedes any prior agreements or
understandings between us. This Agreement may be executed in counterparts. This
Agreement may not be modified or terminated orally.
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If the foregoing terms and conditions are acceptable and agreed to by you,
please sign on the line provided below to signify such acceptance and agreement
and return the executed copy to the Senior Vice President, General Counsel of
the Company, One Canterbury Green, Stamford, Connecticut 06901.
XXXXX CORPORATION LIMITED
By:/s/ Xxxxxx X. Xxxxxx
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Name:
Title:
Accepted and Agreed as of this 29 day of November, 2002
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
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DEFINITIONS
a. "CAUSE" means (i) the willful and continued failure of Executive to
perform substantially his duties with the Company (other than any such failure
resulting from Executive's incapacity due to physical or mental illness or any
such failure subsequent to Executive being delivered a notice of termination
without Cause by the Company or delivering a notice of termination for Good
Reason to the Company) after a written demand for substantial performance is
delivered to Executive by the Chairman or the Board that specifically identifies
the manner in which the Chairman or the Board believes that Executive has not
substantially performed Executive's duties, (ii) the willful engaging by
Executive in illegal conduct or misconduct which is demonstrably and materially
injurious (monetarily or otherwise) to the Company or its subsidiaries and
affiliates, (iii) any misappropriation, fraud or breach of fiduciary duty with
regard to the Company or its affiliates or any of the assets of the Company or
its affiliates (other than good faith expense account disputes), (iv) conviction
of or the pleading of nolo contendere with regard to, a felony or any crime
involving fraud, dishonesty or moral turpitude, or (v) refusal or failure to
attempt in good faith to follow the written direction of the Chairman or the
Board promptly upon receipt of such written direction. A termination for Cause
after a Change of Control shall be based only on events occurring after such
Change of Control; provided, however, the foregoing limitation shall not apply
to an event constituting Cause which was not discovered by the Company prior to
a Change of Control. For purpose of this paragraph (a), no act or failure to act
by Executive shall be considered "willful" unless done or omitted to be done by
Executive in bad faith and without reasonable belief that Executive's action or
omission was in the best interests of the Company or its subsidiaries and
affiliates. Any act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board, based upon the advice of counsel for the
Company shall be conclusively presumed to be done, or omitted to be done, by
Executive in good faith and in the best interests of the Company.
b. "CHANGE IN CONTROL" means the occurrence of any one of the following
events:
(i) individuals who, on the date of this Agreement, 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 of this Agreement, 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; provided, however, that no
individual initially elected or nominated as a director of the Company as
a result of an actual or threatened election contest with respect to
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
shall be deemed to be an Incumbent Director;
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(ii) any "person" (as such term is defined in Section 3(a)(9) of
the Securities Exchange Act of 1934 (the "Exchange Act") and as used in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing 35% or
more of the combined voting power of the Company's then outstanding
securities eligible to vote for the election of the Board (the "Company
Voting Securities"); provided, however, that the event described in this
paragraph (ii) shall not be deemed to be a Change in Control by virtue of
any of the following acquisitions: (A) by the Company or any subsidiary,
(B) by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any subsidiary, (C) by any underwriter
temporarily holding securities pursuant to an offering of such securities,
or (D) pursuant to a Non-Qualifying Transaction (as defined in paragraph
(iii);
(iii) the consummation of a merger, consolidation, statutory share
exchange or similar form of corporate transaction involving the Company or
any of its Subsidiaries that requires the approval of the Company's
stockholders, whether for such transaction or the issuance of securities
in the transaction (a "Business Combination"), unless immediately
following such Business Combination: (A) more than 50% of the total voting
power of (x) the corporation resulting from such Business Combination (the
"Surviving Corporation"), or (y) if applicable, the ultimate parent
corporation that directly or indirectly has beneficial ownership of 100%
of the voting securities eligible to elect directors of the Surviving
Corporation (the "Parent Corporation"), is represented by Company Voting
Securities that were outstanding immediately prior to such Business
Combination (or, if applicable, is represented by shares into which such
Company Voting Securities were converted pursuant to such Business
Combination), and such voting power among the holders thereof is in
substantially the same proportion as the voting power of such Company
Voting Securities among the holders thereof immediately prior to the
Business Combination, (B) no person (other than any employee benefit plan
(or related trust) sponsored or maintained by the Surviving Corporation or
the Parent Corporation), is or becomes the beneficial owner, directly or
indirectly, of 35% or more of the total voting power of the outstanding
voting securities eligible to elect directors of the Parent Corporation
(or, if there is no Parent Corporation, the Surviving Corporation) other
than persons set forth in (A) through (F) of paragraph (ii) and (C) at
least a majority of the members of the board of directors of the Parent
Corporation (or, if there is no Parent Corporation, the Surviving
Corporation) following the consummation of the Business Combination were
Incumbent Directors at the time of the Board's approval of the execution
of the initial agreement providing for such Business Combination (any
Business Combination which satisfies all of the criteria specified in (A),
(B) and (C) above shall be deemed to be a "Non-Qualifying Transaction");
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(iv) the closing of a sale of all or substantially all of the
Company's assets, other than to an entity or in a manner where the voting
securities immediately prior to such sale represent directly or indirectly
after such sale at least 50% of the voting securities of the entity
acquiring such assets in approximately the same proportion as prior to
such sale; or
(v) the stockholders of the Company approve a plan of complete
liquidation or dissolution of the Company.
Notwithstanding the foregoing, a Change in Control of the Company shall
not be deemed to occur solely because any person acquires beneficial ownership
of more than 35% of the Company Voting Securities as a result of the acquisition
of Company Voting Securities by the Company which reduces the number of Company
Voting Securities outstanding; provided, that if after such acquisition by the
Company such person becomes the beneficial owner of additional Company Voting
Securities that increases the percentage of outstanding Company Voting
Securities beneficially owned by such person, a Change in Control of the Company
shall then occur.
c. "GOOD REASON" means, without Executive's express written consent,
the occurrence of any of the following events:
(i) a change in the Executive's duties or responsibilities
(including reporting responsibilities) that taken as a whole represents a
material and adverse diminution of the Executive's duties,
responsibilities or status with the Company (other than a temporary change
that results from or relates to the incapacitation of the Executive due to
physical or mental illness);
(ii) a reduction by the Company in Executive's rate of annual base
salary or annual target bonus opportunity (including any material and
adverse change in the formula for such annual bonus target) as the same
may be increased from time to time thereafter; or
(iii) any material breach of the Agreement by the Company.
Notwithstanding the foregoing, a Good Reason event shall not be deemed to
have occurred if the Company cures such action, failure or breach within ten
(10) days after receipt of notice thereof given by Executive. Executive's right
to terminate employment for Good Reason shall not be affected by Executive's
incapacities due to mental or physical illness and Executive's continued
employment shall not constitute consent to, or a waiver of rights with respect
to, any event or condition constituting Good Reason; provided, however, that
Executive must provide notice of termination of employment within ninety (90)
days following Executive's knowledge of an event constituting Good Reason or
such event shall not constitute Good Reason under this Agreement.
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GROSS-UP PAYMENTS
(a) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any payment, award, benefit or distribution
(or any acceleration of any payment, award, benefit or distribution) by the
Company (or any of its affiliated entities) or any entity which effectuates a
Change in Control (or any of its affiliated entities) to or for the benefit of
Executive (whether pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this Annex
B) (the "Payments") would be subject to the excise tax imposed by Section 4999
of the Internal Revenue Code of 1986, as amended (the "Code"), or any interest
or penalties are incurred by Executive with respect to such excise tax (such
excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the Company shall pay to
Executive an additional payment (a "Gross-Up Payment") in an amount such that
after payment by Executive of all taxes (including any Excise Tax) imposed upon
the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal
to the Excise Tax imposed upon the Payments. For purposes of determining the
amount of the Gross-up Payment, the Executive shall be deemed to (i) pay federal
income taxes at the highest marginal rates of federal income taxation for the
calendar year in which the Gross-up Payment is to be made, and (ii) pay
applicable state and local income taxes at the highest marginal rate of taxation
for the calendar year in which the Gross-up Payment is to be made, net of the
maximum reduction in federal income taxes which could be obtained from deduction
of such state and local taxes. Notwithstanding the foregoing provisions of this
Annex B, if it shall be determined that Executive is entitled to a Gross-Up
Payment, but that the Payments would not be subject to the Excise Tax if the
Payments were reduced by an amount that is less than 10% of the portion of the
Payments that would be treated as "parachute payments" under Section 280G of the
Code, then the amounts payable to Executive under this Agreement shall be
reduced (but not below zero) to the maximum amount that could be paid to
Executive without giving rise to the Excise Tax (the "Safe Harbor Cap"), and no
Gross-Up Payment shall be made to Executive. The reduction of the amounts
payable hereunder, if applicable, shall be made by reducing first the payments
under Section I(a)(ii), unless an alternative method of reduction is elected by
Executive. For purposes of reducing the Payments to the Safe Harbor Cap, only
amounts payable under this Agreement (and no other Payments) shall be reduced.
If the reduction of the amounts payable hereunder would not result in a
reduction of the Payments to the Safe Harbor Cap, no amounts payable under this
Agreement shall be reduced pursuant to this provision.
(b) Subject to the provisions of paragraph (a) of this Annex B, all
determinations required to be made under this Annex B, including whether and
when a Gross-Up Payment is required, the amount of such Gross-Up Payment, the
reduction of the Payments to the Safe Harbor Cap and the assumptions to be
utilized in arriving at such determinations, shall be made by the public
accounting firm that is retained by the Company as of the date immediately prior
to the Change in Control (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and
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Executive within fifteen (15) business days of the receipt of notice from the
Company or the Executive that there has been a Payment, or such earlier time as
is requested by the Company (collectively, the "Determination"). In the event
that the Accounting Firm is serving as accountant or auditor for the individual,
entity or group effecting the Change in Control, Executive may appoint another
nationally recognized public accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the Accounting
Firm hereunder). All fees and expenses of the Accounting Firm shall be borne
solely by the Company and the Company shall enter into any agreement requested
by the Accounting Firm in connection with the performance of the services
hereunder. The Gross-up Payment under this Annex B with respect to any Payments
shall be made no later than thirty (30) days following such Payment. If the
Accounting Firm determines that no Excise Tax is payable by Executive, it shall
furnish Executive with a written opinion to such effect, and to the effect that
failure to report the Excise Tax, if any, on Executive's applicable federal
income tax return will not result in the imposition of a negligence or similar
penalty. In the event the Accounting Firm determines that the Payments shall be
reduced to the Safe Harbor Cap, it shall furnish Executive with a written
opinion to such effect. The Determination by the Accounting Firm shall be
binding upon the Company and Executive. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the Determination, it is
possible that Gross-Up Payments which will not have been made by the Company
should have been made ("Underpayment") or Gross-up Payments are made by the
Company which should not have been made ("Overpayment"), consistent with the
calculations required to be made hereunder. In the event that the Executive
thereafter is required to make payment of any Excise Tax or additional Excise
Tax, the Accounting Firm shall determine the amount of the Underpayment that has
occurred and any such Underpayment (together with interest at the rate provided
in Section 1274(b)(2)(B) of the Code) shall be promptly paid by the Company to
or for the benefit of Executive. In the event the amount of the Gross-up Payment
exceeds the amount necessary to reimburse the Executive for his Excise Tax, the
Accounting Firm shall determine the amount of the Overpayment that has been made
and any such Overpayment (together with interest at the rate provided in Section
1274(b)(2) of the Code) shall be promptly paid by Executive (to the extent he
has received a refund if the applicable Excise Tax has been paid to the Internal
Revenue Service) to or for the benefit of the Company. Executive shall
cooperate, to the extent his expenses are reimbursed by the Company, with any
reasonable requests by the Company in connection with any contests or disputes
with the Internal Revenue Service in connection with the Excise Tax and the
Executive shall permit the Company to control issues related to the Excise Tax
(at its expense) to permit a representative of the Company to accompany the
Executive to any conference with any taxing authority and to promptly deliver to
the Company copies of any written communications and summaries of any verbal
communications with any taxing authority regarding the Excise Tax.
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