EMPLOYMENT AGREEMENT
EXHIBIT 10.1
This Employment Agreement (this “Agreement”) is entered into by and between Xxxxxxx Group
Inc., a Delaware corporation f/k/a Offshore Logistics, Inc. (the “Company”) and Xxxxx X. Xxxxxx, an
individual (the “Executive”), effective as of the 16th day of February 2006 “Effective Date”).
Except as otherwise provided herein, capitalized terms used herein shall have the meaning specified
in Section 10.
WHEREAS, the Company desires to employ the Executive and to enter into an employment agreement
embodying the terms of such employment and services; and
WHEREAS, the Executive desires to accept such employment and service in the position described
on Exhibit A attached to this Agreement and incorporated herein by reference (“Exhibit A”) and to
enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for
other good and valuable consideration, the receipt of which is mutually acknowledged, the Company
and the Executive agree as follows:
1. Employment, Duties and Acceptance.
(a) Employment Period.
(i) The Company hereby agrees to employ the Executive for a term commencing on the
Effective Date and expiring at the end of the day on the second anniversary of the Effective
Date (the “Initial Employment Period”).
(ii) The Initial Employment Period shall be automatically further extended at the end
of the Initial Employment Period and on each anniversary thereafter (each such date being a
“Renewal Date”), so as to terminate one (1) year from such Renewal Date, unless at least
ninety (90) days prior to a Renewal Date either Party gives a Notice of Non-Renewal to the
other Party that the Employment Period should not be further extended after the next Renewal
Date, in which event the end of the term of the Executive’s employment by the Company shall
be the Renewal Date next following such Notice of Non-Renewal. As used in this Agreement,
the “Employment Period” shall mean the period beginning on the Effective Date and ending on
the expiration of the term of the Executive’s employment with the Company pursuant to this
Section 1(a), subject to earlier termination of the Executive’s employment with the Company
pursuant to Section 3 hereof.
(iii) Notwithstanding the foregoing provisions of this Section 1(a), if a Change of
Control Effective Date (as defined in Section 10(i) hereof) occurs during the Employment
Period, then the Employment Period shall extend to include and shall terminate at the end of
the Change of Control Period, subject to earlier termination pursuant to Section 3 hereof,
and the Employment Period shall no longer be subject to extension on the Renewal Date.
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(b) Position. From and after the Effective Date during the remainder of the
Employment Period, the Executive shall serve in the position shown on Exhibit A. Executive shall
also serve in those offices and directorships of subsidiary corporations or entities of the Company
to which the Executive may from time to time be appointed or elected. During the Employment
Period, the Executive shall devote substantially all of the Executive’s business time, energy and
talents to the Company and its Affiliated Group. During the Employment Period, it shall not be a
violation of this Agreement for the Executive, subject to the requirements of Section 5, to (A)
serve on corporate, civic or charitable boards or committees, provided that, written approval of
the Board is required for any corporate board, (B) deliver lectures or fulfill speaking engagements
and (C) manage personal investments, so long as such activities do not interfere with the
performance of the Executive’s responsibilities to the Company or violate any Company policies. It
is expressly understood and permitted that the Executive performs financial, accounting and
advisory services for EPC International, Inc., a private corporation solely owned by the
Executive’s brother.
(c) Location of Services. The Executive’s principal location of employment shall be
at the Company offices shown on Exhibit A; provided, that the Executive will be required to
travel frequently outside of the applicable principal location of employment in connection with the
performing the Executive’s duties under this Agreement.
(d) Duties. The Executive agrees that during the Employment Period, the Executive
shall perform the duties as shown on Exhibit A. During any Change of Control Period, the
Executive’s position (including status, offices, titles and reporting requirements), authority,
duties and responsibilities shall be at least commensurate in all material respects with the most
significant of those held, exercised and assigned to the Executive at any time during the 120-day
period immediately preceding the Change of Control Effective Date.
(e) Acceptance of Employment by the Executive. The Executive hereby accepts such
employment and shall render the services and perform the duties described above.
2. Compensation and Benefits.
(a) Base Salary. During the Employment Period, the Executive shall receive an
annualized base salary (“Annual Base Salary”) at the rate and Grade Level shown on Exhibit A,
payable semi-monthly or such other payroll period pursuant to the Company’s normal payroll
practices for its senior executives. The current Annual Base Salary shall be reviewed at such time
as the salaries of other senior executives of the Company are reviewed generally; provided,
that the Executive’s reviews shall occur at least annually and may be increased and decreased, but
not decreased below the base level shown on Exhibit A, during the Employment Period. All such
reviews shall consider factors the Company deems material; including, but not limited to: (i)
market benchmarking; (ii) increases in cost of living; (iii) Executive’s job performance; and (iv)
overall Company performance. During any Change of Control Period, the Annual Base Salary shall be
at least equal to 12 times the highest monthly base salary paid or payable, including any base
salary which has been earned but deferred, to the Executive by the Company and the Affiliated Group
in respect of the 12-month period immediately preceding the month in which the Change of Control
Effective Date occurs. During any Change of Control Period, (x) Annual Base Salary shall not be
reduced, and (y) the term “Annual Base Salary” as utilized in
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this Agreement shall refer to Annual Base Salary as determined pursuant to the foregoing
subpart (x).
(b) Annual Bonus. For each fiscal year completed during the Employment Period, the
Executive shall be eligible to receive an annual cash bonus (“Annual Bonus”) based upon performance
targets that are established by the Committee, provided that the Executive’s target Annual
Bonus shall be as shown on Exhibit A as a percentage of the Executive’s Annual Base Salary (the
“Target Bonus”), and the maximum Annual Bonus shall be as shown on Exhibit A as a percentage of the
Executive’s Annual Base Salary. If the beginning of the Employment Period does not coincide with
the beginning of the Company’s fiscal year, the Annual Bonus will be pro-rated for the first fiscal
year during the Employment Period. Annual performance metrics will be set by the Committee based
upon objective performance criteria of the Company, such as earnings per share and return on
capital employed, as well as individual performance and, with respect to the Company’s first fiscal
year ending after the Effective Date, pursuant to the provisions of the Annual Incentive
Compensation Plan for such fiscal year. During any Change of Control Period, the Executive shall
be awarded, for each fiscal year ending during the Change of Control Period, an Annual Bonus in
cash at least equal to the Recent Annual Bonus. Each such Annual Bonus shall be paid no later than
the end of the third month of the fiscal year next following the fiscal year for which the Annual
Bonus is awarded, unless the Executive shall elect to defer the receipt of such Annual Bonus.
(c) Stock Option Grant. The Company shall grant to the Executive stock options
pursuant to the Incentive Plan to purchase the number shares of the Company’s common stock as shown
on Exhibit A (the “Stock Options”). The Stock Options shall have a per share exercise price equal
to the closing price of a share of common stock of the Company on the date of grant which shall be
as soon as reasonably practicable after approval of this Agreement by the Committee, shall have a
ten-year term, and shall vest in three annual installments on each of the first three anniversaries
of the Effective Date, with 33% of the Stock Options vesting on each of first two anniversaries of
the Effective Date, and the remaining 34% vesting on the third anniversary of the Effective Date,
provided in each case that the Executive remains in the employ of the Company through such
date. Except as specifically provided herein, the terms and conditions of the Stock Options shall
be subject to the terms of the Incentive Plan and the award agreement evidencing the grant. During
the Employment Period, the Executive may receive such additional Awards (as defined in the
Incentive Plan), if any, pursuant to the Incentive Plan as may be determined, from time to time, by
the Committee.
(d) Performance Accelerated Restricted Stock Unit Grant. The Company shall grant to
the Executive pursuant to the Incentive Plan, the number Performance Accelerated Restricted Stock
Units as shown on Exhibit A (the “Restricted Shares”). The Restricted Shares will vest five years
from the first day of the fiscal year which includes the Effective Date so long as Executive has
been continuously employed by the Company and the Company’s annualized total shareholder return (as
defined in the award agreement) is at least 3% during the entire vesting period. Vesting of the
Restricted Shares will be accelerated if the Company’s annualized total shareholder returns during
such vesting period reach certain thresholds provided in the award agreement evidencing the grant
of the Restricted Shares (which thresholds shall be consistent with those provided in awards to
other senior executives of the Company) and under the circumstances described in Section 3(e).
Except as specifically provided herein, the terms and
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conditions of the Restricted Shares shall be subject to the terms of the Incentive Plan and
the award agreement evidencing the grant.
(e) Deferred Compensation. As soon as reasonably practicable after December 31 of
each year during the Employment Period the Company will credit an amount equal to the percentage
shown on Exhibit A of the aggregate cash paid by the Company to Executive as Annual Base Salary and
Annual Bonus for the calendar year ended December 31 (less Company contributions to qualified
plans) into a Company deferred compensation plan (the Offshore Logistics, Inc. Deferred
Compensation Plan Effective: January 1, 2004, as amended from time to time), which will be subject
to the vesting schedule set forth in such plan. In the event that legislation implemented
subsequent to the date of this Agreement causes the deferrals contemplated hereby not to be
respected for tax purposes, such amounts shall be paid to the Executive in the year of accrual on
December 31st of each such year (conditioned on the Executive’s continued employment on such date),
on a fully taxable basis, and without adjustment for tax impact.
(f) Employee Benefits. During the Employment Period, the Executive (subject to
applicable law and regulation) shall be eligible for participation in the Company health and
medical, welfare, retirement (including the Offshore Logistics, Inc. Employee Savings and
Retirement Plan, as amended from time to time), non-qualified deferred compensation, perquisite,
fringe benefit, and other benefit plans, practices, policies and programs, as may be in effect from
time to time, for executives of the Company generally; provided, that, except as otherwise
provided in this Agreement, the Executive shall not be eligible for any Company severance benefit
plans, practices, policies and programs. If the Executive is a new employee of the Company, the
Company agrees to reimburse the Executive for all costs of coverage provided pursuant to COBRA for
medical insurance for Executive and the Executive’s immediate family for the period beginning on
the Effective Date and ending on the date Executive first becomes eligible for coverage under the
Company health and medical plan. In addition, as soon as reasonably practicable after execution
and delivery of this Agreement by the Company and the Executive, subject to the Executive becoming
eligible for coverage under the Company health and medical plan, the Company shall provide to the
Executive and continue during the Employment Period a Company-paid portable, term life insurance
policy covering the Executive’s life in the amount of $500,000 with death benefits payable to the
Executive’s designated beneficiaries. The Executive shall cooperate with the Company in applying
for such coverage, including submitting to a physical exam and providing all relevant health and
personal data. During any Change of Control Period, in no event shall the benefits described in
this Section 2(f) provide the Executive with benefits that are less favorable, in the aggregate,
than the most favorable of such benefits in effect for the Executive at any time during the 120-day
period immediately preceding the Change of Control Effective Date or, if more favorable to the
Executive, those provided generally at any time after the Change of Control Effective Date to other
peer executives of the Company and the Affiliated Group.
(g) Expenses. During the Employment Period, the Executive shall be eligible for
prompt reimbursement for business expenses reasonably incurred by the Executive in accordance with
the policies of the Company as may be in effect from time to time for Company executives generally,
including (but not limited to) club and professional dues and required continuing education and
licensing fees as shown on Exhibit A.
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(h) Vacation. During the Employment Period, the Executive shall be eligible for paid
vacation at the rate of the number of weeks per year shown on Exhibit A in accordance with the
policies of the Company.
(i) Company Automobile. During the Employment Period, the Company shall provide the
Executive with an automobile allowance as shown on Exhibit A to be used by Executive to acquire,
maintain and operate an automobile which Executive may use for business purposes during the
Employment Period.
(j) Office and Support Staff. During any Change of Control Period, the Executive
shall be entitled to an office or offices of a size and with furnishings and other appointments,
and to exclusive personal secretarial and other assistants, at least equal to the most favorable of
the foregoing provided to the Executive by the Company and the Affiliated Group at any time during
the 120-day period immediately preceding the Change of Control Effective Date or, if more favorable
to the Executive, as provided generally at any time thereafter with respect to other peer
executives of the Company and the Affiliated Group.
3. Termination of Employment.
(a) Death or Disability. The Executive’s employment shall terminate automatically
upon the Executive’s death during the Employment Period. If the Company determines in good faith
that the Disability of the Executive has occurred during the Employment Period (pursuant to the
definition of Disability set forth below), it may provide the Executive with written notice in
accordance with Section 9(b) of this Agreement of its intention to terminate the Executive’s
employment. In such event, the Executive’s employment with the Company shall terminate effective
on the 30th day after receipt of such notice by the Executive (the “Disability Effective Date”),
provided that, within the 30-day period after such receipt, the Executive shall not have returned
to full time performance of the Executive’s duties.
(b) Cause. The Company may terminate the Executive’s employment during the Employment
Period with or without Cause.
(c) Good Reason. The Executive’s employment may be terminated by the Executive with
or without Good Reason. The Executive’s employment may be terminated by the Executive for Good
Reason if (x) an event or circumstance set forth in Section 10(aa) shall have occurred and the
Executive provides the Company with written notice thereof within 30 days after the Executive has
knowledge of the occurrence or existence of such event or circumstance, which notice shall
specifically identify the event or circumstance that the Executive believes constitutes Good
Reason, (y) the Company fails to correct the circumstance or event so identified within 30 days
after the receipt of such notice, and (z) the Executive resigns within 90 days after the date of
delivery of the notice referred to in clause (x) above.
(d) Notice of Termination. Any termination by the Company for Cause, or by the
Executive for Good Reason, shall be communicated by Notice of Termination to the other Party hereto
given in accordance with Section 9(b) of this Agreement. The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause shall not waive any right of the Executive or
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the Company, respectively, hereunder or preclude the Executive or the Company, respectively,
from asserting such fact or circumstance in enforcing the rights of the Executive or the Company
hereunder.
(e) Special Vesting Terms for Stock Option and Awards. All unvested Stock Options and
other Awards (including, without limitation, the Restricted Shares) granted pursuant to this
Agreement or the Incentive Plan will become fully vested and unrestricted (i) in the event of the
Company’s termination of the Executive’s employment without Cause during the Employment Period,
(ii) in the event of the Executive’s resignation during the Employment Period for Good Reason,
(iii) upon termination of the Executive’s employment by the Company due to the Executive’s death or
Disability, or (iv) upon the occurrence of a Change of Control. If the Executive’s employment is
terminated prior to the Termination Date, the period of exercise for the Executive’s vested Stock
Options shall be as follows:
(i) Upon the Executive’s termination of employment by reason of the Executive’s death
or Disability, any Stock Options held by the Executive that were exercisable immediately
before the Date of Termination may be exercised at any time until the earlier of (A) the
second anniversary of the Date of Termination and (B) the expiration date of the Stock
Options.
(ii) Upon the Executive’s termination of employment by the Company for Cause, any Stock
Options and Restricted Shares held by the Executive shall be forfeited, effective as of the
Date of Termination.
(iii) Upon termination of the Executive’s employment for any reason other than the
Executive’s death or Disability or termination by the Company for Cause, any Stock Options
held by the Executive that were exercisable immediately before the Date of Termination may
be exercised at any time until the earlier of (A) the 90th day following the Date of
Termination and (B) the expiration date of such Stock Options.
(iv) Notwithstanding the foregoing provisions of this Section 3(e), if the Executive
dies after the Executive’s employment by the Company is terminated but while any of the
Stock Options remain exercisable as set forth above, such Stock Options may be exercised at
any time until the later of (A) the earlier of (1) the first anniversary of the date of such
death and (2) the expiration date of such Stock Options and (B) the last date on which such
Stock Options would have been exercisable, absent this Section 3(e)(iv).
(v) Notwithstanding the foregoing provisions of this Section 3(e), upon the termination
of the Executive’s employment with the Company for any reason, other than termination for
Cause by the Company, during the 24-month period following any Change of Control Effective
Date, any Stock Options held by the Executive as of the Change of Control Effective Date
that remain outstanding as of the Date of Termination may thereafter be exercised, until the
later of (A) the last date on which such Stock Options would be exercisable in the absence
of this Section 3(e)(v) and (B) the earlier of (1) the third anniversary of the Change of
Control Effective Date and (2) the expiration date of such Stock Options.
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Notwithstanding anything in this Agreement to the contrary, express or implied, except as provided
in Section 4(a)(ii), the provisions of this Agreement are in addition to and not in limitation of
the Executive’s rights under the Incentive Plan and any other plan, program, policy or practice
provided by the Company or any of the Affiliated Group and for which the Executive may qualify.
(f) Resignation from All Positions. Notwithstanding any other provision of this
Agreement, upon the termination of the Executive’s employment for any reason, unless otherwise
requested by the President and Chief Executive Officer and accepted by the Executive, the Executive
shall immediately resign as of the Date of Termination from all positions that the Executive holds
or has ever held with the Company and any other member of the Affiliated Group (and with any other
entities with respect to which the Company has requested the Executive to perform services and
which has been accepted by the Executive), including, without limitation, all boards of directors
of any member of the Affiliated Group. The Executive hereby agrees to execute any and all
documentation to effectuate such resignations upon request by the Company, but the Executive shall
be treated for all purposes as having so resigned upon termination of the Executive’s employment,
regardless of when or whether the Executive executes any such documentation.
4. Obligations upon Termination.
(a) Good Reason; Other Than for Cause; Non-Renewal by Company; Expiration. If, during
the Employment Period, (1) the Company shall terminate the Executive’s employment other than for
Cause, death or Disability, (2) the Executive shall terminate the Executive’s employment for Good
Reason, (3) the Executive’s employment terminates voluntarily or involuntarily by reason of the
Company providing to the Executive a Notice of Non-Renewal, or (4) the Executive’s employment
terminates voluntarily or involuntarily upon expiration of the term of this Agreement at the end of
a Change of Control Period unless the Company provides the Executive with a Comparable Offer at
least ninety (90) days prior to the end of the Change of Control Period:
(i) The Company shall pay to the Executive in a lump sum in cash within 30 days after
the Date of Termination the aggregate of the following amounts:
| A. | the Accrued Amounts (as defined in Section 10(a) hereof); and | ||
| B. | an amount equal to: |
| (1) | in the event such termination occurs at any time other than a Change of Control Period, the product of (x) two and (y) the sum of (i) the Executive’s Annual Base Salary at the Date of Termination and (ii) the Target Bonus; or | ||
| (2) | in the event such termination occurs during or at the end of a Change of Control Period, the product of (x) three and (y) the sum of (i) the Executive’s Annual Base Salary and (ii) the Highest Annual Bonus. |
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(ii) To the extent not theretofore paid or provided, the Company shall timely pay or
provide to the Executive any other amounts or benefits required to be paid or provided or
which the Executive is eligible to receive under any plan, program, policy or practice or
contract or agreement (other than, in the event the Executive’s termination occurs outside
of a Change of Control Period, any severance plan, program, policy or practice or contract
or agreement) of the Company and its Affiliated Group (such amounts and benefits, the “Other
Benefits”) in accordance with the terms and normal procedures of each such plan, program,
policy or practice, based on accrued benefits through the Date of Termination.
(iii) Until the earlier to occur of (A) the expiration of eighteen months after the
Date of Termination, (B) the date on which the Executive attains the age of 65, (C) the date
the Executive first becomes eligible to receive health benefits under another
employer-provided plan, from and after the Executive’s Date of Termination, or (D) the death
of the Executive, the Company shall, via proper COBRA election by Executive, continue
medical and dental benefits to the Executive (and, if applicable, to the spouse and
dependents of the Executive who received such benefits under the Executive’s coverage
immediately prior to the Date of Termination) at least equal to those that would have been
provided to the Executive (and to any such dependent) in accordance with the plans,
programs, practices and policies of the Company had the Executive remained actively
employed, provided that Executive makes all required COBRA payments to the Company, and the
Company shall immediately reimburse Executive for each such COBRA payment.
(iv) As a condition to the Executive’s receipt of payments and benefits described under
Sections 4(a)(i), 4(a)(ii) and 4(a)(iii) in the event the Executive’s termination occurs
outside of a Change of Control Period, the Executive must execute and deliver to the Company
a full release of all claims that the Executive may have (and such release must become
irrevocable) against the Company, its Affiliated Group, and all of their officers,
employees, directors, and agents, in a form mutually and reasonably agreeable to the Parties
hereunder; provided, however, that the Executive shall retain the Executive’s
indemnification and related rights as a former officer and director under the Certificate of
Incorporation and Bylaws of the Company and the Executive’s rights under the Directors and
Officers Insurance Policy(ies) maintained by the Company from time to time.
(b) Cause; Without Good Reason; Non-Renewal by Executive. If the Executive’s
employment shall be terminated for Cause during the Employment Period, if the Executive shall
resign without Good Reason during the Employment Period, or if the Executive’s employment
terminates by reason of the Executive providing to the Company a Notice of Non-Renewal, this
Agreement shall terminate without further obligations to the Executive, other than the Company’s
obligation to pay or provide to the Executive an amount equal to the Accrued Amounts and the Other
Benefits. For purposes of this Section 4(b) only, the Accrued Amounts shall not include the amount
described in Section 10(a)(i)(2).
(c) Death or Disability. If the Executive’s employment is terminated by reason of the
Executive’s death or Disability during the Employment Period, this Agreement shall terminate
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without further obligations to the Executive’s legal representatives under this Agreement,
other than the Company’s obligation to pay or provide to Executive’s estate, heirs or beneficiaries
or to Executive, as the case may be: (i) the Accrued Amounts; and (ii) the Other Benefits. With
respect to the provision of Other Benefits, in the event the Executive’s termination occurs during
a Change of Control Period, the term “Other Benefits” as utilized in this Section 4(c) shall
include, without limitation, and the Executive’s estate and/or beneficiaries shall be entitled to
receive, benefits at least equal to the most favorable benefits provided by the Company and the
Affiliated Group to the estates and beneficiaries of peer executives of the Company and the
Affiliated Group under such plans, programs, practices and policies relating to death benefits, if
any, as in effect with respect to other peer executives and their beneficiaries at any time during
the 120-day period immediately preceding the Change of Control Effective Date or, if more favorable
to the Executive’s estate and/or the Executive’s beneficiaries, as in effect on the date of the
Executive’s death with respect to other peer executives of the Company and the Affiliated Group and
their beneficiaries.
5. Covenants. The Executive recognizes that the Company’s willingness to enter into
this Agreement is based in material part on the Executive’s agreement to the provisions of this
Section 5, and that the Executive’s breach of the provisions of this Section 5 could materially
damage the Company.
(a) Confidential Information. The Company will provide its confidential and trade
secret information to the Executive, and the Executive agrees to hold in a fiduciary capacity for
the benefit of the Company and the Affiliated Group, all Confidential Information. The Executive
shall not communicate, divulge or disseminate Confidential Information at any time during or after
the Executive’s employment with the Company and the Affiliated Group, except with the prior written
consent of the Company, or as otherwise required by law or legal process or governmental inquiry or
as such disclosure or use may be required in the course of the Executive performing the Executive’s
duties and responsibilities hereunder. Notwithstanding the foregoing provisions, if the Executive
is required to disclose any such confidential or proprietary information pursuant to applicable law
or governmental inquiry or a subpoena or court order, the Executive shall promptly notify the
Company in writing of any such requirement so that the Company or the appropriate member of the
Company and the Affiliated Group may seek an appropriate protective order or other appropriate
remedy. The Executive shall reasonably cooperate with the Company and the Affiliated Group to
obtain such a protective order or other remedy. If such order or other remedy is not obtained
prior to the time the Executive is required to make the disclosure, then unless the Company waives
compliance with the provisions hereof, the Executive shall disclose only that portion of the
confidential or proprietary information which the Executive is advised by counsel in writing
(either the Executive’s or the Company’s) that the Executive is legally required to so disclose.
Upon the Executive’s termination of employment with the Company and the Affiliated Group for any
reason, the Executive shall promptly return to the Company all records, files, memoranda,
correspondence, notebooks, notes, reports, customer lists, drawings, plans, documents, and other
documents and the like relating to the business of the Company and the Affiliated Group or
containing any trade secrets relating to the Company and the Affiliated Group or that the Executive
uses, prepares or comes into contact with during the course of the Executive’s employment with the
Company and the Affiliated Group, and all keys, credit cards and passes, and such materials shall
remain the sole property of the Company and/or the Affiliated Group, as applicable. The Executive
agrees to
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execute any standard form confidentiality agreements with the Company that the Company
generally enters into or may enter into in the future with its senior executives. The Executive
agrees to represent in writing to the Company upon termination of employment that the Executive has
complied with the foregoing provisions of this Section 5(a).
(b) Work Product and Inventions. The Company and/or its nominees or assigns shall own
all right, title and interest in and to the Developments, whether or not patentable, reduced to
practice or registrable under patent, copyright, trademark or other intellectual property law
anywhere in the world, made, authored, discovered, reduced to practice, conceived, created,
developed or otherwise obtained by the Executive (alone or jointly with others) during the
Executive’s employment with the Company and the Affiliated Group, and arising from or relating to
such employment or the business of the Company or of other member of the Affiliated Group (whether
during business hours or otherwise, and whether on the premises of using the facilities or
materials of the Company or of other members of the Affiliated Group or otherwise). The Executive
shall promptly and fully disclose to the Company and to no one else all Developments, and hereby
assigns to the Company without further compensation all right, title and interest the Executive has
or may have in any Developments, and all patents, copyrights, or other intellectual property rights
relating thereto, and agrees that the Executive has not acquired and shall not acquire any rights
during the course of the Executive’s employment with the Affiliated Group or thereafter with
respect to any Developments.
(c) Non-Solicitation of Affiliated Group Employees. The Executive shall not, at any
time during the Restricted Period, other than in the ordinary exercise of the Executive’s duties as
shown on Exhibit A, without the prior written consent of the Company, directly or indirectly,
solicit, recruit, or employ (whether as an employee, officer, agent, consultant or independent
contractor) any person who is or was at any time during the previous 12 months, an employee,
representative, officer or director of the Company or any member of the Affiliated Group. Further,
during the Restricted Period, the Executive shall not take any action that could reasonably be
expected to have the effect of directly encouraging or inducing any person to cease their
relationship with the Company or any member of the Affiliated Group for any reason. A general
employment advertisement by an entity of which the Executive is a part will not constitute
solicitation or recruitment.
(d) Non-Competition. In consideration of the Company’s promise to provide the
Executive with the confidential and trade secret information of the Company, the Executive agrees
as follows:
(i) Areas Other Than Louisiana. Except with respect to competition in the
State of Louisiana, or with respect to competition in or above the waters off the State of
Louisiana in the areas specified in subparagraph (B) of Section 5(d)(ii) of this Agreement,
during the Restricted Period, the Executive shall not, either directly or indirectly,
compete with the business of the Company anywhere in the world where the Company or any
member of the Affiliated Group conducts business by (1) becoming an officer, agent,
employee, partner or director of any other corporation, partnership or other entity, or
otherwise render services to or assist or hold an interest (except as a less than 2-percent
shareholder of a publicly traded corporation or as a less than 5-percent shareholder of a
corporation that is not publicly traded) in any Competitive Business, or
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(2) soliciting, servicing, or accepting the business of (A) any active customer of the
Company or any member of the Affiliated Group, or (B) any person or entity who is or was at
any time during the previous twelve months a customer of the Company or any member of the
Affiliated Group, provided that such business is competitive with any significant business
of the Company or any member of the Affiliated Group.
(ii) Louisiana. With respect to competition in the State of Louisiana, or with
respect to competition in or above the waters specified in subparagraph (B) of this Section
5(d)(ii).
| A. | Executive, during the Restricted Period, agrees to refrain from carrying on or engaging in a business similar to the business of the Company or any member of the Affiliated Group, or from soliciting customers of the business of the Company or any member of the Affiliated Group, within the Parishes of Lafayette, Vermillion, Cameron, Iberia, St. Xxxx, Plaquemines, Terrebonne, Lafourche, St. Xxxxxxx, Orleans, Calcasieu and Jefferson in the State of Louisiana, so long as the Company or any member of the Affiliated Group carries on a like business therein during the Restricted Period, and | ||
| B. | Executive, during the Restricted Period, agrees to refrain from carrying on or engaging in a business similar to the business of the Company or any member of the Affiliated Group or from soliciting customers of the business of the Company or any member of the Affiliated Group in or above the waters of the Gulf of Mexico adjacent to the Parishes of Lafayette, Vermillion, Cameron, Iberia, St. Xxxx, Plaquemines, Terrebonne, Lafourche, St. Xxxxxxx, Orleans, Calcasieu and Jefferson in the State of Louisiana, so long as the Company or any member of the Affiliated Group carries on a like business therein during the Restricted Period. | ||
| C. | All non-capitalized terms in subparagraphs (A) and (B) of this Section 5(d)(ii) are intended to and shall have the same meanings that those terms (to the extent they appear therein) have in La. R.S. 23:921.C. Subject to and only to the extent not inconsistent with the foregoing sentence, the Parties understand the following phases to have the following meanings: |
| (1) | The phrase “carrying on or engaging in a business similar to the business of the Company or any member of the Affiliated Group” includes engaging, as principal, agent, trustee, or through the agency of any corporation, partnership, association or agent or agency, in any business that conducts an offshore oil and gas helicopter service business in competition with the Company or any member of the Affiliated Group or being the owner (except as a less than 2-percent shareholder of a publicly traded corporation or as a less than 5-percent shareholder of a corporation that is not publicly traded) of any interest in any corporation or other entity, |
11
| or an officer, director, or employee of any corporation or other entity (other than the Company or any member of the Affiliated Group), or a member or employee or any partnership, or an owner or employee of any other business that conducts an offshore oil and gas helicopter service business in competition with the Company or any member of the Affiliated Group. Moreover, the term also includes (i) directly or indirectly inducing any current customers of the Company or any member of the Affiliated Group to patronize any offshore oil and gas helicopter service business in competition with the Company or any member of the Affiliated Group; (ii) canvassing, soliciting, or accepting any offshore oil and gas helicopter service business of the type conducted by the Company or any member of the Affiliated Group; (iii) directly or indirectly requesting or advising any current customers of the Company or any member of the Affiliated Group to withdraw, curtail or cancel such customer’s offshore oil and gas helicopter service business with the Company or any member of the Affiliated Group; or (iv) directly or indirectly disclosing to any other person, firm, corporation or entity, the names and addresses of any of the current customers of the Company or any member of the Affiliated Group. In addition, the term includes, directly or indirectly, through any person, firm, association, corporation or other entity with which Executive is now or may hereafter become associated, causing or inducing any present employee of the Company or any of its subsidiaries to leave the employ of the Company or any of its subsidiaries to accept employment with the Executive or with such person, firm association, corporation, or other entity. | |||
| (2) | The phrase “a similar business to the business of the Company or any member of the Affiliated Group” means an offshore oil and gas helicopter service business. | ||
| (3) | The phrase “carries on a like business” includes, without limitation, actions taken by or through a wholly-owned subsidiary or other affiliated corporation or entity. |
| D. | Notwithstanding any other provision of this Agreement, Section 5(d)(ii) of this Agreement shall not apply with respect to any geographic area outside of the geographic territory expressly set forth in this Section 5(d)(ii). |
(e) Assistance. The Executive agrees that during and after the Executive’s employment
by the Company, upon request by the Company, the Executive will assist the Company and the
Affiliated Group in the defense of any claims, or potential claims that may be made or threatened
to be made against the Company and/or any member of the Affiliated Group in any Proceeding, and
will assist the Company and the Affiliated Group in the prosecution of any claims that may be made
by the Company and/or any member of the Affiliated Group in any
12
Proceeding, to the extent that such claims may relate to the Executive’s employment or the
period of the Executive’s employment by the Company. The Executive agrees, unless precluded by
law, to promptly inform the Company if the Executive is asked to participate (or otherwise become
involved) in any Proceeding involving such claims or potential claims. The Executive also agrees,
unless precluded by law, to promptly inform the Company if the Executive is asked to assist in any
investigation (whether governmental or otherwise) of the Company and/or any member of the
Affiliated Group (or their actions), regardless of whether a lawsuit has then been filed against
the Company and/or any member of the Affiliated Group with respect to such investigation. The
Executive agrees to fully and completely cooperate with any investigations conducted by or on
behalf of the Company and for any member of the Affiliated Group from time to time. The Company
agrees to reimburse the Executive for all of the Executive’s reasonable out-of-pocket expenses
associated with such assistance, including travel expenses and any attorneys’ fees, and shall pay a
reasonable per diem fee for the Executive’s service. In addition, the Executive agrees to provide
such services as are reasonably requested by the Company to assist any successor to the Executive
in the transition of duties and responsibilities to such successor. Any services or assistance
contemplated in this Section 5(e) shall be at mutually agreed to and convenient times.
(f) Remedies. The Executive acknowledges and agrees that the terms of this Section 5:
(i) are reasonable in geographic and temporal scope, (ii) are necessary to protect legitimate
proprietary and business interests of the Company in, inter alia, near permanent customer
relationships and confidential information. The Executive further acknowledges and agrees that (x)
the Executive’s breach of the provisions of this Section 5 will cause the Company irreparable harm,
which cannot be adequately compensated by money damages, and (y) if the Company elects to prevent
the Executive from breaching such provisions by obtaining an injunction against the Executive,
there is a reasonable probability of the Company’s eventual success on the merits. The Executive
consents and agrees that if the Executive commits any such breach or threatens to commit any
breach, the Company shall be entitled to temporary and permanent injunctive relief from a court of
competent jurisdiction, in addition to, and not in lieu of, such other remedies as may be available
to the Company for such breach, including the recovery of money damages. If any of the provisions
of this Section 5 are determined to be wholly or partially unenforceable, the Executive hereby
agrees that this Agreement or any provision hereof may be reformed so that it is enforceable to the
maximum extent permitted by law. If any of the provisions of this Section 5 are determined to be
wholly or partially unenforceable in any jurisdiction, such determination shall not be a bar to or
in any way diminish the Company’s right to enforce any such covenant in any other jurisdiction.
6. Non-Exclusivity of Rights. Except as provided in Section 4(a)(ii), nothing in this
Agreement shall prevent or limit the Executive’s continuing or future participation in any plan,
program, policy or practice provided by the Company or any of the Affiliated Group and for which
the Executive may qualify, nor, subject to Section 9(g), shall anything herein limit or otherwise
affect such rights as the Executive may have under any contract or agreement with the Company or
any of the Affiliated Group. Amounts which are vested benefits or which the Executive is otherwise
entitled to receive under any plan, policy, practice or program of or any contract or agreement
with the Company or any of the Affiliated Group at or subsequent to the Date of Termination shall
be payable in accordance with such plan, policy, practice or program or contract or agreement
except as explicitly modified by this Agreement.
13
7. No Duty to Mitigate. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable to the Executive
under any of the provisions of this Agreement and except as specifically provided in Section
4(a)(iii), such amounts shall not be reduced whether or not the Executive obtains other employment.
8. Assignment; Successors.
(a) No Assignment. This Agreement is personal to the Executive and without the prior
written consent of the Company 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. This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(b) Successors. The Company shall cause any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all or a substantial portion
of its business and/or assets to assume expressly and agree to perform this Agreement immediately
upon such succession in the same manner and to the same extent that the Company would be required
to perform it if no such succession had taken place.
9. Miscellaneous.
(a) Governing Law; Captions; Amendments. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without reference to principles of
conflict of laws. The Parties hereto irrevocably agree to submit to the jurisdiction and venue of
the courts of the State of Delaware in any Delaware Proceeding. In the event of a Delaware
Proceeding, the Company shall pay all of the Executive’s reasonable travel expenses incurred by him
for the Executive’s travel between the Executive’s principal residence and/or principal place of
business at such time and Delaware in connection with such Delaware Proceeding. 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 otherwise than by a written agreement executed by the
Parties hereto or their respective successors and legal representatives.
(b) Notices. 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:
| If to the Executive: |
|||
| At the address most recently on file for the Executive at the Company at the time of such notice. |
14
| If to the Company: |
|||
| Xxxxxxx Group Inc. 0000 X. Xxx Xxxxxxx Xxxxxxx Xxxxx, Xxxxx 0000 Xxxxxxx, Xxxxx 00000 Attention: President and Chief Executive Officer |
|||
| With a Copy to: |
|||
| Gardere Xxxxx Xxxxxx LLP 0000 Xxxxxxxxx, Xxxxx 0000 Xxxxxxx, Xxxxx 00000-0000 Attention: X. X. Xxxxxxx III |
or to such other address as either Party shall have furnished to the other Party in writing in
accordance herewith. Notice and communications shall be effective when actually received by the
addressee.
(c) 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.
(d) Withholding. Notwithstanding any other provision of this Agreement, the Company
may withhold from any amounts payable or benefits provided under this Agreement any Federal, state,
local and foreign taxes as shall be required to be withheld pursuant to any applicable law or
regulation.
(e) No Waiver. The Executive’s or the Company’s failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any right the Executive or
the Company may have hereunder, shall not be deemed to be a waiver of such provision or right or
any other provision or right of this Agreement.
(f) Press Release. The Parties agree that the Company may issue a press release and
may otherwise publicly disclose the Executive’s employment with the Company.
(g) Director’s and Officer’s Insurance. The Company shall provide the Executive with
Director’s and Officer’s insurance coverage, including indemnification, on terms no less favorable
than the terms of the coverage provided to similarly situated current and former directors and
officers of the Company. In the event that the validity of this Agreement is challenged (other
than by the Executive or the Executive’s representatives), the Executive’s reasonable expenses
incurred therewith shall be reimbursed by the Company.
(h) Representations and Understandings. The Executive hereby represents and warrants
to the Company that the Executive is not party to any contract, understanding, agreement or policy,
whether or not written, with the Executive’s current employer (or any other previous employer) or
otherwise, that would be breached by the Executive’s entering into, or performing services under,
this Agreement, and that the Executive is fully able to assume the
15
duties and responsibilities set forth in this Agreement without restrictions of any kind. The
Executive further represents that the Executive has disclosed to the Company in writing all
material threatened, pending, or actual claims that are unresolved and still outstanding as of the
Effective Date, in each case, against the Executive of which the Executive is aware, if any, as a
result of the Executive’s employment with the Executive’s current employer (or any other previous
employer) or the Executive’s membership on any boards of directors.
(i) Entire Agreement; Conflicts. This Agreement and the other agreements referred to
herein, constitute the entire agreement between the Parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understanding, both written and oral. In the
event of direct conflict between the provisions of this Agreement and any Company policies or
practices, the provisions of this Agreement shall control.
(j) Counterparts. This Agreement may be executed by facsimile and in multiple
counterparts, each of which shall constitute an original and all of which shall constitute one and
the same document.
(k) Section 280G Limitation on Payments.
(i) In the event that all or any portion of the benefits provided under this Agreement,
either alone or together with other payments and benefits that the Executive receives or is
then entitled to receive from the Company or any member of the Affiliated Group, would
constitute a “parachute payment” within the meaning of Section 280G of the Code, the Company
shall reduce such payments and benefits provided to the Executive under this Agreement to
the extent necessary so that no portion thereof shall be subject to the excise tax imposed
by Section 4999 of the Code; but only if, by reason of such reduction, the net after-tax
benefit to the Executive shall exceed the net after-tax benefit if such reduction were not
made. “Net after-tax benefit” for these purposes shall mean (A) the total amount payable to
the Executive under this Agreement (and all other payments and benefits which the Executive
receives or is then entitled to receive from the Company or any member of the Affiliated
Group) that would constitute a “parachute payment” within the meaning of Section 280G of the
Code, less (B) the amount of federal income taxes payable with respect to the foregoing
calculated at the Executive’s applicable marginal income tax rate for each year in which the
foregoing shall be paid to the Executive (based upon the rate in effect for such year as set
forth in the Code at the time of the payment under this Agreement), less (C) the amount of
excise taxes imposed with respect to the payments and benefits described in (A) above by
Section 4999 of the Code. The amount of any reduction made under this Section 9(k) in the
payment to which the Executive is entitled under this Agreement is hereinafter referred to
as the “Relinquished Amount.”
(ii) All determinations required to be made under this Section 9(k), including whether
and when a Relinquished Amount shall be imposed and the amount of such Relinquished Amount,
shall be made by the Company’s independent auditing firm used immediately prior to the
Change of Control (the “Accounting Firm”), which shall provide detailed supporting
calculations both to the Company and the Executive. The Company shall provide any and all
information, records and documents relating to Executive’s
16
compensation and benefits paid or payable by the Company as may be reasonably requested
by the Accounting Firm in connection with its determination of the Relinquished Amount. In
the event that the Accounting Firm is serving as accountant or auditor for the individual,
entity or group effecting the Change of Control, the Executive shall appoint another
nationally recognized 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.
(iii) Notwithstanding anything herein to the contrary, expressed or implied, the
Company’s obligations to the Executive pursuant to this Section 9(k) shall be limited to
providing to the Executive payments and benefits in accordance with the determinations of
the Accounting Firm. The Company shall not be liable for any inaccuracies in the
determination of the Relinquished Amount by such Accounting Firm.
(l) Section 409A Compliance. The Parties acknowledge that Section 409A of the Code
was enacted pursuant to the American Jobs Creation Act of 2004, generally effective with respect to
amounts deferred after January 1, 2005, and only limited guidance has been issued by the Internal
Revenue Service with respect to the application of Code Section 409A to certain arrangements, such
as this Agreement. The Internal Revenue Service has indicated that it will provide further
guidance regarding interpretation and application of Section 409A of the Code during 2005. The
Parties acknowledge that the full effect of Section 409A of the Code on potential payments pursuant
to this Agreement cannot be determined at the time that the Parties are entering into this
Agreement. The Parties agree to work together in good faith in an effort to comply with Section
409A of the Code based on further guidance issued by the Internal Revenue Service from time to
time, provided that the Company shall not be required to assume any increased economic burden.
10. Definitions. As used in this Agreement, the following terms shall have the
respective meanings assigned to them below:
(a) “Accrued Amounts” shall mean:
(i) in the event termination of the Executive’s employment occurs at any time other
than a Change of Control Period, the sum of (1) the Executive’s Annual Base Salary through
the Date of Termination, to the extent not theretofore paid, (2) the product of (x) the
Target Bonus and (y) a fraction (which, for purposes of clarity, shall equal less than 1),
the numerator of which is the number of days in the then-current fiscal year through the
Date of Termination, and the denominator of which is 365, (3) the Executive’s business
expenses that are reimbursable pursuant to this Agreement but have not been reimbursed by
the Company as of the Date of Termination, (4) any compensation previously deferred by the
Executive (together with any accrued interest or earnings thereon) and any accrued but
unused vacation allowances for the year in which the Date of Termination occurs, and (5) any
Annual Bonus earned prior to the Termination Date but unpaid; or
17
(ii) in the event termination of the Executive’s employment occurs during a Change of
Control Period, the sum of (1) the Executive’s Annual Base Salary through the Date of
Termination to the extent not theretofore paid, (2) the product of (x) the higher of (I) the
Recent Annual Bonus and (II) the Annual Bonus paid or payable, including any bonus or
portion thereof which has been earned but deferred (and annualized for any fiscal year
consisting of less than twelve full months or during which the Executive was employed for
less than twelve full months or during which the Executive was employed for less than twelve
full months), for the most recently completed fiscal year during the Employment Period, if
any (such higher amount being referred to as the “Highest Annual Bonus”) and (y) a fraction,
the numerator of which is the number of days in the current fiscal year through the Date of
Termination, and the denominator of which is 365, (3) the Executive’s business expenses that
are reimbursable pursuant to this Agreement but have not been reimbursed by the Company as
of the Date of Termination, (4) any compensation previously deferred by the Executive
(together with any accrued interest or earnings thereon) and any accrued vacation pay, in
each case to the extent not therefore paid, and (5) any Annual Bonus earned prior to the
Termination Date but unpaid.
(b) “Affiliated Group” shall mean any entity controlled by, controlling or under common
control with the Company.
(c) “Agreement” is defined in the Preamble to this Agreement.
(d) “Annual Base Salary” is defined in Section 2(a).
(e) “Annual Bonus” is defined in Section 2(b).
(f) “Board” shall mean the Board of Directors of the Company.
(g) “Cause” shall mean:
(i) the Executive’s willful failure to substantially perform the Executive’s duties
under this Agreement, or the Executive’s willful failure to perform specific directives of
the President and Chief Executive Officer of the Company, which directives are consistent
with the scope and nature of the Executive’s duties as set forth in Section 1(d) hereof,
other than any such failure resulting from incapacity due to physical or mental illness,
which failure has continued for a period of at least 30 days following delivery to the
Executive of a written demand for substantial performance specifying the manner in which the
Executive has failed hereunder; or
(ii) the Executive’s commission of malfeasance, fraud, or dishonesty, or the
Executive’s willful and material violation of Company policies; or
(iii) the Executive’s indictment or formal charge for, and subsequent conviction of, or
plea of guilty or nolo contendere to, a felony, or a misdemeanor involving moral turpitude;
or
(iv) the Executive’s material breach of Section 5 of this Agreement.
18
A termination of employment of the Executive shall not be deemed to be for “Cause” unless
and until there shall have been delivered to the Executive a copy of a resolution duly
adopted by the affirmative vote of not less than a majority of the entire membership of the
Board at a meeting of the Board called and held for such purpose, finding that, in the good
faith opinion of the Board, the Executive is guilty of the conduct described in one or more
of the clauses in Section 10(g) above, and specifying the particulars thereof.
(h) “Change of Control” shall mean:
(i) the acquisition by an individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act) (a “Person”) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 35% or more of either (x) the
then outstanding shares of common stock of the Company (the “Outstanding Company Common
Stock”) or (y) the combined voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors (the “Outstanding Company
Voting Securities”); provided, however, that for purposes of this subsection (i), the
following acquisitions shall not constitute a Change of Control: (A) any acquisition
directly from the Company, (B) any acquisition by the Company, (C) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company or (D) any acquisition by any corporation pursuant to
a transaction which complies with clauses (A), (B) and (C) of subsection (iii) of this
Section 10(h)(i); or
(ii) individuals who, as of the date hereof, constitute the Board (the “Incumbent
Board”) cease for any reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company’s stockholders, was approved by a vote
of at least a majority of the directors then comprising the Incumbent Board, but excluding,
for this purpose, any such individual whose initial assumption of office occurs as a result
of an actual or threatened election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board; or
(iii) consummation by the Company of a reorganization, merger or consolidation or sale
or other disposition of all or substantially all of the assets of the Company or the
acquisition of assets of another corporation (a “Business Combination”), in each case,
unless, following such Business Combination, (A) all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 50.1% of, respectively, the
then outstanding shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from such Business Combination (including,
without limitation, a corporation which as a result of such transaction owns the Company or
all or substantially all of the Company’s assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership, immediately prior to
such Business Combination of the Outstanding
19
Company Common Stock and Outstanding Company Voting Securities, as the case may be, (B)
no Person (excluding any employee benefit plan (or related trust) of the Company or such
corporation resulting from such Business Combination) beneficially owns, directly or
indirectly 35% or more of, respectively, the then outstanding shares of common stock of the
corporation resulting from such Business Combination or the combined voting power of the
then outstanding voting securities of such corporation except to the extent that such
ownership existed prior to the Business Combination, and (C) at least a majority of the
members of the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such Business Combination; or
(iv) approval by the stockholders of the Company of a complete liquidation or
dissolution of the Company.
(i) “Change of Control Effective Date” shall mean the first date during the Employment Period
on which a Change of Control occurs. Anything in this Agreement to the contrary notwithstanding,
if a Change of Control occurs and if the Executive’s employment with the Company is terminated
prior to the date on which the Change of Control occurs, and if it is reasonably demonstrated by
the Executive that such termination of employment (1) was at the request of a third party who has
taken steps reasonably calculated to effect a Change of Control or (2) otherwise arose in
connection with or anticipation of a Change of Control, then for all purposes of this Agreement the
“Change of Control Effective Date” shall mean the date immediately prior to the date of such
termination of employment.
(j) “Change of Control Period” shall mean the greater of (i) the period commencing on the
Change of Control Effective Date and ending on the Termination Date in effect on the Change of
Control Effective Date, and (ii) the period commencing on the Change of Control Effective Date and
ending on the second anniversary of the Change of Control Effective Date.
(k) “Code” shall mean the Internal Revenue Code of 1986, as amended.
(l) “Committee” shall mean the Compensation Committee of the Company.
(m) “Company” shall mean Xxxxxxx Group Inc., a Delaware corporation, and any successor to its
business and/or assets that assumes and agrees to perform this Agreement by operation of law, or
otherwise.
(n) “Comparable Offer” shall mean a binding offer of employment by the Company to the
Executive on terms substantially the same as the terms of this Agreement, or on terms more
beneficial to the Executive, including, without limitation, terms and provisions regarding (i) the
Executive’s position, title, duties, authority, and responsibilities, (ii) base salary, annual
bonus, options, restricted shares, severance payments and other compensation provided to the
Executive, and (iii) health and medical, welfare, retirement, deferred compensation, perquisite,
fringe benefit and other benefit plans in which the Executive will be eligible for participation.
(o) “Competitive Business” shall mean any person or entity (including any joint venture,
partnership, firm, corporation, or limited liability company) that engages in any
20
principal or significant business of the Company or any member of the Affiliated Group as of
the Date of Termination (or any material or significant business being actively pursued as of the
Date of Termination that the Company or any member of the Affiliated Group enters into during the
Restricted Period).
(p) “Confidential Information” shall mean any and all secret or confidential information,
knowledge or data relating to the Company and the Affiliated Group and their businesses (including,
without limitation, any proprietary and not publicly available information concerning any
processes, methods, trade secrets, research or secret data, costs, names of users or purchasers of
their respective products or services, business methods, operating procedures or programs or
methods of promotion and sale) that the Executive obtains during the Executive’s employment by the
Company and the Affiliated Group that is not public knowledge.
(q) “Date of Termination” means (i) if the Executive’s employment is terminated by the Company
for Cause or by the Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein within 30 days of such notice, as the case may be; (ii) if the
Executive’s employment is terminated by the Company, other than for Cause or Disability, the date
on which the Company notifies the Executive of such termination; (iii) if the Executive voluntarily
resigns without Good Reason, the date on which the Executive notifies the Company of such
termination; (iv) if the Executive’s employment is terminated by reason of death, the date of death
of the Executive; (v) if the Executive’s employment is terminated by the Company due to Disability,
the Disability Effective Date; or (vi) if the Executive’s employment is terminated by the Executive
or the Company as a result of a Notice of Non-Renewal, the end of the applicable Employment Period.
(r) “Delaware Proceeding” shall mean any action or proceeding brought under, with respect to
or in connection with this Agreement in the courts of Delaware.
(s) “Developments” shall mean any and all inventions, ideas, trade secrets, technology,
devices, discoveries, improvements, processes, developments, designs, know how, show-how, data,
computer programs, algorithms, formulae, works of authorship, works modifications, trademarks,
trade names, documentation, techniques, designs, methods, trade secrets, technical specifications,
technical data, concepts, expressions, patents, patent rights, copyrights, moral rights, and all
other intellectual property rights or other developments whatsoever.
(t) “Disability” shall mean the inability of the Executive to perform the Executive’s duties
with the Company on a full-time basis for 150 consecutive days during the Employment Period as a
result of incapacity due to mental or physical illness, which is determined to be total and
permanent by a licensed physician selected by the Company or its insurers and reasonably acceptable
to the Executive or the Executive’s legal representative. If the Parties cannot agree on a
licensed physician, each Party shall select a licensed physician and the two physicians shall
select a third who shall be the approved licensed physician for these purposes.
(u) “Disability Effective Date” is defined in Section 3(a).
(v) “Effective Date” is defined in the Preamble to this Agreement.
21
(w) “Employment Period” is defined in Section 1(a)(ii).
(x) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
(y) “Executive” is defined in the Preamble to this Agreement.
(z) “Extended Employment Period” is defined in Section 1(a)(ii).
(aa) “Good Reason” shall mean, in the absence of the Executive’s consent, (i) a material
failure by the Company to comply with any of the material provisions regarding the Executive’s
position and duties set forth in Section 1 hereof or the Executive’s compensation and benefits set
forth in Section 2 hereof, other than an isolated, insubstantial or inadvertent failure not
occurring in bad faith and which is remedied by the Company promptly after receipt of notice
thereof given by the Executive, (ii) the relocation of the Executive’s job to a location more than
fifty (50) miles from the location shown on Exhibit A that creates an unreasonable and material
burden on the Executive or the Executive’s spouse and children (if any), or (iii) any action or
inaction by any member of the Board, the Chief Executive Officer or the President, in connection
with the business of the Company, which (A) causes the Executive to be named as a party in a
Proceeding for which the Company does not provide Director’s and Officer’s Insurance coverage for
the Executive pursuant to Section 9(g) or indemnification of the Executive pursuant to the
Certificate of Incorporation and Bylaws of the Company, or (B) requires or could reasonably be
expected to require the Executive to commit in connection with the discharge of the Executive’s
duties to the Company (1) malfeasance, fraud, or dishonesty, or (2) a willful and material
violation of Company policies or U.S. laws and regulations (including SEC rules and regulations) or
accounting and auditing rules and regulations generally known as U.S. generally accepted accounting
principles and U.S. generally accepted auditing standards, or (3) any conduct that could reasonably
be expected to result in an indictment or formal charge under the laws of the United States or any
political subdivision thereof for a felony or a misdemeanor involving moral turpitude.
(bb) “Highest Annual Bonus” is defined in Section 10(a)(ii).
(cc) “Incentive Plan” shall mean the Company’s 2004 Stock Incentive Plan and any successor
plan, as each may be amended.
(dd) “Initial Employment Period” is defined in Section 1(a)(i).
(ee) “Notice of Non-Renewal” is defined in Section 1(a)(ii).
(ff) “Notice of Termination” shall mean a written notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for termination of the
Executive’s employment under the provision so indicated, and (iii) if the Date of Termination is
other than the date of receipt of such notice, specifies the termination date (which date shall be
not more than thirty days after the giving of such notice).
(gg) “Other Benefits” is defined in Section 4(a)(ii) and Section 4(c).
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(hh) “Party” shall mean the Company and the Executive, individually, and “Parties” shall mean
the Company and the Executive collectively.
(ii) “Proceeding” shall mean any action, suit or proceeding, whether civil, criminal,
administrative, investigative or otherwise.
(jj) “Recent Annual Bonus” shall mean the Executive’s highest Annual Bonus for the last three
fiscal years prior to the Change of Control Effective Date (annualized in the event that the
Executive is not employed by the Company for the whole of such fiscal year).
(kk) “Renewal Date” is defined in Section 1(a)(ii).
(ll) “Restricted Period” shall mean the period from the Effective Date through the date
eighteen (18) months following the Date of Termination; provided, however, that there shall be no
Restricted Period in the event that the termination of the Executive’s employment occurs during a
Change of Control Period.
(mm) “Restricted Shares” is defined in Section 2(d).
(nn) “Stock Options” is defined in Section 2(c).
(oo) “Target Bonus” is defined in Section 2(b).
(pp) “Termination Date” shall mean the second anniversary of the Effective Date, or such later
date to which the Employment Period of this Agreement is extended in accordance with the terms of
Section 1(a).
IN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and, the Company has
caused this Agreement to be executed in its name and on its behalf, as of the Effective Date.
| “EXECUTIVE” |
||||
| /s/ Xxxxx X. Xxxxxx | ||||
| Xxxxx X. Xxxxxx | ||||
| Executive Vice President and Chief Financial Officer | ||||
| “COMPANY” XXXXXXX GROUP INC. |
||||
| /s/ Xxxxxxx X. Xxxxxx | ||||
| Xxxxxxx X. Xxxxxx | ||||
| President and Chief Executive Officer | ||||
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EXHIBIT A
TERM SHEET
Xxxxx X. Xxxxxx
Position: Executive Vice President and Chief Financial Officer
Position: Executive Vice President and Chief Financial Officer
Compensation Package
Employer and Location:
|
Xxxxxxx Group Inc. located at 0000 Xxxx Xxx Xxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 (the “Company”) | |
Annual Base Salary:
|
$350,000.00 per year | |
Effective Date and Term:
|
February 16, 2006 to February 16, 2008, automatically renewing for consecutive one year terms unless Executive or the Company give written notice, at least 90 days prior to the anniversary of your employment, that employment will not be renewed. | |
Bonus Percentage:
|
Participation in the Incentive Compensation Plan including cash bonuses and stock options and grants in accordance with Executive Salary Grade 14. Current annual incentive compensation at this grade is a target bonus of 75% of Annual Base Salary with a maximum of 150% of Annual Base Salary. | |
Equity Grants:
|
Initial grant of 10,000 Stock Options and 10,000 Restricted Shares as an incoming member of senior management, and continuing participation in the Company’s annual stock option plans for the Company’s senior management. The granted Stock Options and Restricted Shares will vest periodically in accordance with Company polices. Participation in annual stock option grants is subject to approval of the Compensation Committee of the Board of Directors. | |
401(k) Plan and Matching:
|
Standard 3% match + an additional 3% of Annual Base Salary at the end of each calendar year based on continued employment. | |
Deferred Compensation Plan:
|
This plan will “top up” all 401K contributions made to 15%. Additionally the Executive can elect to defer a portion of his Annual Base Salary or Annual Bonus by contribution into this plan. All investments are self directed by the employee via Vanguard Investment Group. |
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Health & Benefit Plans:
|
Standard health & benefits packages for health insurance, STD, LTD, life and options to “buy up” coverage relative to LTD and life. Additionally the Executive will participate in the Xxxxxxx Group Inc. management life insurance plan that will provide an additional $500,000 of term life coverage; paid for by the Company (this insurance will be portable). Four weeks of annual vacation is allowed. | |
Company Vehicle Allowance:
|
Car allowance of $1,500.00 per month, which will be reassessed periodically. | |
Club Dues:
|
Reimbursement of professional dues, required continuing education and licensing fees. Reimbursement for monthly dues for a recreational club of the Executive’s choice limited to $300 per month. | |
| Upon acceptance of this offer of employment, the Company will provide a formal Employment Agreement, which incorporates the terms of this letter, for Executive’s review and execution. The Company will reimburse Executive’s reasonable legal fees for review of the Employment Agreement, up to $5,000. |
Duties
As the Executive Vice President and Chief Financial Officer of the Company, under the direction of
the President & CEO, you will be responsible for the following:
| • | Management and supervision of the Finance, Accounting, Budgeting & Planning, Tax, Investor Relations, Risk Management, Internal Audit, and Treasury functions of the Company. |
| • | Formulating short and long term goals and developing, implementing, and executing strategies to achieve Company objectives. |
| • | Participating as a key member of the senior management team and as the Chief Executive Officer’s senior advisor in setting and executing on strategies to meet Company objectives while managing the Company’s exposure to risk. |
| • | Establishing and maintaining a relationship of trust and credibility with members of the senior management team, the Board of Directors, outside auditors and legal counsel. |
| • | Insuring that the Company’s policies and business processes meet the corporate governance and internal control requirements established by the senior management team, the Board of Directors and relevant laws and are followed throughout the Company and its affiliates, including but not limited to: (i) designing and implementing effective disclosure controls and procedures necessary to insure accurate financial reporting; (ii) conducting periodic |
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| reviews and evaluations of the effectiveness of the Company’s disclosure controls and procedures; (iii) using reasonable efforts to timely and accurately report the results of Company operations and related matters to the Securities & Exchange Commission, the New York Stock Exchange, and other regulatory agencies; (iv) interfacing with the senior management team and other Company personnel, the Board of Directors, Audit Committee, outside auditors and legal counsel on the effectiveness of the Company’s disclosure controls and procedures and related matters; and (v) acting as a certifying officer for the Company’s financial reporting under the Securities and Exchange Act of 1934 and other regulatory agencies. |
| • | Interfacing, as the Company’s primary representative, with the financial/investment community using reasonable efforts to ensure that the Company’s image and true valuation is portrayed and understood. |
| • | Use reasonable efforts to manage and protect the Company’s capital and liquid assets and use reasonable efforts to insure the availability of adequate capital at all times. |
| • | Developing and maintaining a sound organization plan utilizing a team approach to management and delegating responsibilities and authorities, as required, ensuring they are defined and understood. |
| • | Establishing criteria to measure operations and regularly and systematically appraising and evaluating the Company’s performance results against the Company’s established objectives. |
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