EXHIBIT (10.36)
Employment Contract - Xxxx X. Xxxxxx
EMPLOYMENT AGREEMENT
AGREEMENT, dated February 6, 2000, between CONSUMER
PROGRAMS INCORPORATED, a Missouri corporation (the
"Corporation"), and Xxxx X. Xxxxxx (the "Executive").
WHEREAS, the Corporation currently employs the Executive in
the capacity of Secretary and General Counsel and the Executive
is one of the key executives of the Corporation;
WHEREAS, there is much competition for the type of business
performed by the Corporation in the locales in which the
Corporation operates, and the Corporation and Executive
acknowledge that the Corporation is active in the product
markets in which it competes;
WHEREAS, Executive, during his or her employment, has been
and will be entrusted with confidential information;
WHEREAS, Executive and the Corporation recognize and
acknowledge that, to ensure the continued growth and stability
of the Corporation, it is necessary to obtain an agreement from
Executive not to compete with the Corporation and not to
disclose confidential information of the Corporation; and
WHEREAS, the Corporation desires that the Executive
continue in the employ of the Corporation as a result of his or
her experience with the Corporation and his or her potential for
making future contributions to the Corporation, and the
Executive is willing to make a commitment to remain in such
employ upon the terms and subject to the conditions of this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises
contained herein and other good and valuable consideration, the
parties hereto hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "Affiliated Companies" shall mean any corporation
(or other business entity) controlling, controlled by or under
common control with the Corporation.
(b) "Beneficiary" shall mean the person designated in
writing by the Executive as his or her beneficiary under this
Agreement, or in the absence of such designation, his or her
estate.
(c) Cause shall mean:
(1) prior to a Change of Control, (i) conduct or
activity of the Executive materially detrimental to the
Corporation's reputation or business (including financial)
operations; (ii) gross or habitual neglect or breach of duty or
misconduct of the Executive in discharging the duties of his or
her position; or (iii) prolonged absence by the Executive from
his or her duties (other than on account of illness or
disability) without the consent of the Corporation.
(2) after a Change of Control, (i) an act or acts
of dishonesty on the Executive's part which are intended to
result in his or her substantial personal enrichment at the
expense of the Corporation; (ii) any material violation by the
Executive of his or her obligations and covenants pursuant to
this Agreement which is demonstrably willful and deliberate on
the Executive's part and which results in material injury to the
Corporation; or (iii) the conviction of Executive of a felony or
of a crime involving moral turpitude.
(d) A "Change of Control" shall mean a change in
control of a nature that would be required to be reported in
response to Item 1(a) of the Current Report on Form 8-K, as in
effect on the date hereof, pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended ("Exchange Act")
or would have been required to be so reported but for the fact
that such event had been "previously reported" as that term is
defined in Rule 12b-2 of Regulation 12B of the Exchange Act
unless the transactions that give rise to the change in control
are approved or ratified by a majority of the members of the
Incumbent Board of CPI Corp. who are not employees of the
Corporation; provided that, without limitation, notwithstanding
anything herein to the contrary, such a change in control shall
be deemed to have occurred if (a) any Person is or becomes the
beneficial owner (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of CPI Corp.
representing 40% or more of the combined voting power of CPI
Corp.'s then outstanding securities ordinarily (apart from
rights accruing under special circumstances) having the right to
vote at elections of directors ("Voting Securities"), (b)
individuals who constitute the Board of CPI Corp. on the date
hereof (the "Incumbent Board") cease for any reason to
constitute at least a majority thereof, provided that any person
becoming a director subsequent to the date hereof whose
election, or nomination for election by CPI Corp.'s
shareholders, was approved by a vote of at least three-quarters
of the directors comprising the Incumbent Board (either by a
specific vote or by approval of the proxy statement of CPI Corp.
in which such person is named as a nominee for director, without
objection to such nomination) shall be, for purposes of this
clause (b), considered as though such person were a member of
the Incumbent Board, or (c) approval by the stockholders of CPI
Corp. of a reorganization, merger or consolidation, in each
case, with respect to which persons who were the stockholders of
CPI Corp. immediately prior to such reorganization, merger or
consolidation do not, immediately thereafter, own, directly or
indirectly, more than 50% of the combined voting power entitled
to vote generally in the election of directors of the
reorganized, merged or consolidated company's then outstanding
voting securities, or a liquidation or dissolution of CPI Corp.
or of the sale of all or substantially all of the assets of CPI
Corp. For purposes of this Agreement, the term "Person" shall
mean and include any individual, corporation, partnership,
group, association or other "person," as such term is used in
Section 14(d) of the Exchange Act, other than CPI Corp., the
Corporation or an Affiliated Company or any employee benefit
plan(s) sponsored or maintained by the Corporation or any
Affiliated Company.
(e) "Code" shall mean the Internal Revenue Code of
1986, as may be amended from time to time.
(f) "Continuing Directors" shall have the meaning set
forth in Paragraph 3(G) of Article Ten of CPI Corp.'s
Certificate of Incorporation.
(g) "Fiscal Year" shall mean the Fiscal Year of the
Corporation.
(h) "Permanent Disability" shall mean the inability of
Executive to perform the services contemplated by Section 4
hereof for a period of at least one hundred eighty (180)
consecutive calendar days or for thirty-five (35) weeks (whether
or not consecutive) in any twelve (12) month period on account
of any sickness, injury or other infirmity or disability.
(i) "Retirement" shall mean the Executive's voluntary
or involuntary termination of employment with the Corporation
except for termination on account of (A) Cause as defined in
Subsection 6(b) hereof, (B) death or (C) Permanent Disability
before attaining age sixty-five (65).
(j) "Term of Employment" shall have the meaning set
forth in Section 3 hereof.
(k) "Vesting Percentage" shall mean the percentage of
Supplemental Retirement Benefits, death benefits, and disability
benefits in which Executive has a nonforfeitable interest
(except in the event of termination for Cause) based upon the
number of Years of Service Executive has completed, determined
as follows:
COMPLETED YEARS VESTING
OF SERVICE PERCENTAGE
--------------- ----------
0 0%
1 10%
2 20%
3 30%
4 40%
5 50%
6 60%
7 70%
8 80%
9 90%
10 100%
Notwithstanding anything herein to the contrary, if Executive's
employment with the Corporation terminates following a Change of
Control, unless such termination is for Cause, for purposes of
Subsections 5(g), 5(h), and 5(i) of this Agreement Executive
shall be deemed to have completed ten (10) Years of Service and
his or her Vesting Percentage shall be deemed to be 100%.
(l) "Year of Service" shall mean any Fiscal Year
during which the Executive has worked for the Corporation at
least one thousand (1,000) hours, including Fiscal Years prior
to the effective date of this Agreement.
2. EMPLOYMENT. The Corporation hereby employs and engages
the services of the Executive as one of its key executives
initially in the position of Secretary and General Counsel of
the Corporation for the Term of Employment set forth in Section
3. The Executive agrees to serve the Corporation for the Term
of Employment as provided herein.
3. TERM OF EMPLOYMENT. The Executive's Term of Employment
shall be a period commencing on the date hereof and ending one
(1) year thereafter; provided, however, that upon the expiration
of the aforesaid period (the "Expiration Date") and upon each
anniversary of the Expiration Date, the Term of Employment shall
automatically be extended for an additional one (1) year period
unless Executive or the Corporation notifies the other in
writing at least sixty (60) days prior to the commencement of
such one (1) year period of an intention to terminate this
Agreement. Notwithstanding anything herein to the contrary, the
Term of Employment shall terminate upon Executive's death or
Permanent Disability as set forth in subsection 6(a) hereof or
upon the Corporation's termination of Executive's employment for
Cause pursuant to subsection 6(b) hereof.
4. POSITION AND DUTIES.
(a) Prior to a Change of Control, during the Term of
Employment, the Executive shall serve the Corporation in such
capacity as the Corporation may determine. After a Change of
Control, during the Term of Employment, the Executive's
position, authority and responsibilities, the type of work he or
she is asked to perform, and the status and stature of the
people with whom he or she is asked to work, shall be comparable
to that existing with respect to the Executive as of the date
immediately prior to the Change of Control, and after a Change
of Control the Executive's services shall be performed at the
location where the Executive was employed as of the date
immediately prior to the Change of Control, or at such other
location as may be mutually agreed between the Corporation and
the Executive.
(b) The Executive agrees to devote his or her full
business time during normal business hours to the business and
affairs of the Corporation (except as otherwise provided herein)
and to use his or her best efforts to promote the interests of
the Corporation and its Affiliated Companies and to perform
faithfully and efficiently the responsibilities assigned to him
or her in accordance with the terms of this Agreement to the
extent necessary to discharge such responsibilities, except for
(i) service on corporate, civic or charitable boards or
committees not significantly interfering with the performance of
such responsibilities and (ii) periods of vacation and sick
leave to which he or she is entitled. It is expressly
understood and agreed that the Executive's continuing service on
any boards and committees with which he or she shall be
connected, as a member or otherwise, as of the date hereof, or
any such service approved by the Corporation during the Term of
Employment, shall not be deemed to interfere with the
performance of the Executive's services to the Corporation
pursuant to this subparagraph 4(b).
5. COMPENSATION AND OTHER CONDITIONS OF EMPLOYMENT.
(a) BASE SALARY. During the Term of Employment, the
Executive shall receive an annual base salary (the "Base
Salary"), in equal installments payable weekly or at such other
intervals as salary is normally paid by the Corporation to its
employees, at an annual rate established by the Corporation and
any Affiliated Companies as of the date hereof. The Base Salary
shall be reviewed at least once each year and may be increased
at any time and from time to time by action of the Board of
Directors of CPI Corp., any committee thereof or any individual
having authority to take such action, in accordance with the
Corporation's regular practices. Any increase in the Base
Salary shall not serve to limit or reduce any other obligation
of the Corporation hereunder, and after such increase the Base
Salary shall not be reduced from such increased level.
(b) ANNUAL BONUS. After a Change of Control, in
addition to the Base Salary, the Executive shall be awarded for
each Fiscal Year during the Term of Employment an annual bonus
(the "Annual Bonus") (pursuant to any bonus plan or program of
the Corporation, any incentive plan or program of the
Corporation, or otherwise) in cash at least equal to the highest
bonus paid or payable to the Executive in respect of any of the
Fiscal Years during the three Fiscal Years immediately prior to
the date of the Change of Control. Prior to a Change of
Control, the amount of the Executive's Annual Bonus shall be
determined in accordance with the Corporation's regular
practice.
(c) OTHER COMPENSATION PLANS. After a Change of
Control, in addition to the Base Salary and Annual Bonus payable
as hereinabove provided, during the Term of Employment, the
Executive shall be entitled to participate in all other
compensation plans and programs, including, without limitation,
savings plans, stock option plans, and retirement plans of the
Corporation and its Affiliated Companies (collectively, the
"Savings Plans"), on a basis at least equivalent to that
provided by the Corporation and its Affiliated Companies to the
Executive under such programs immediately prior to the date of
the Change of Control. Prior to a Change of Control, the
Executive's entitlement to participate in the Savings Plans
shall be determined in accordance with the Corporation's
regular practice. Prior to a Change of Control, nothing herein
shall be construed to prevent the Corporation from amending or
altering any such plans in accordance with the terms thereof.
All agreements between the Corporation and the Executive
existing on the date hereof providing for special pension,
retirement or similar benefits are continued by this Agreement.
(d) BENEFIT PLANS. After a Change of Control, during
the Term of Employment, the Executive, his or her spouse, or his
or her dependents, as the case may be, shall be entitled to
receive all amounts which he or she, his or her spouse or his or
her dependents are or would have been entitled to receive as
benefits under all other benefit plans of the Corporation and
its Affiliated Companies, including, without limitation,
medical, dental, disability, group life, accidental death and
travel accident insurance plans and programs (collectively, the
"Benefit Plans") on a basis at least as favorable to the
Executive as on the date immediately prior to the date of the
Change of Control. Prior to a Change of Control, the
Executive's and such other persons' entitlement to participate
in the Benefit Plans shall be determined in accordance with the
Corporation's regular practice.
(e) EXPENSES. During the Term of Employment, the
Executive shall be entitled to receive prompt reimbursement for
all reasonable expenses incurred by the Executive in accordance
with the regular policies and procedures of the Corporation.
(f) OFFICE AND SUPPORT STAFF. After a Change of
Control the Executive shall be entitled to an office or offices
of a size and with furnishings and other appointments, and to
secretarial and other assistance, at least equal to those
provided to the Executive as of the date immediately prior to
the date of the Change of Control.
(g) DEATH BENEFITS. In the event of Executive's death
after completion of at least ten (10) Years of Service, unless
(1) Executive's employment with the Corporation was terminated
for Cause or (2) Executive (or his or her Beneficiary) is
entitled to receive Supplemental Retirement Benefits pursuant to
subsection 5(i), the Corporation shall pay to Executive's
Beneficiary an annual death benefit equal to forty percent (40%)
(but not to exceed $150,000) of the highest annual Base Salary
paid to Executive from and after fiscal year 1997 (as defined in
subsection 5(a) hereof) for the Fiscal Year of his or her
termination of employment with the Corporation, payable in equal
monthly installments, commencing with the month following the
month of Executive's death and ending with the later of (i) the
month in which Executive would have reached age sixty-five (65)
or (ii) the two-hundred fortieth (240th) month following the
month of Executive's death. In the event that Executive dies
before age 65 but has not completed at least ten (10) Years of
Service with the Corporation, death benefits shall be reduced to
an amount equal to the benefits determined under the preceding
sentence multiplied by the Vesting Percentage applicable to
Executive.
(h) DISABILITY BENEFITS. In the event of Executive's
Permanent Disability prior to attaining age 65 and prior to
termination of employment with the Corporation, unless
Executive's employment with the Corporation was terminated for
Cause, the Corporation shall pay Executive annual disability
benefits equal to forty percent (40%) (but not to exceed
$150,000) of the highest annual Base Salary paid to Executive
from and after fiscal year 1997 for the Fiscal Year in which the
Executive terminated employment with the Corporation, payable in
equal monthly installments, commencing with the month following
the month in which Executive terminated employment as a result
of Permanent Disability and ending on the earlier of (i) the
month in which Executive reaches age 65 or (ii) the month of his
or her death. In the event that at the time of Permanent
Disability Executive has not completed at least ten (10) Years
of Service, the disability benefits shall be reduced to an
amount equal to the benefits determined under the preceding
sentence multiplied by the Vesting Percentage applicable to
Executive. Disability benefits pursuant to this subsection (h)
shall be reduced by any amounts paid to Executive under the
Corporation's long-term disability insurance policy, but shall
not be reduced for any payments received by Executive from
Social Security or from any disability insurance coverage
individually owned by Executive.
(i) SUPPLEMENTAL RETIREMENT BENEFITS.
(1) In the event of Executive's Retirement
after completion of at least ten (10) Years of Service, unless
Executive's employment with the Corporation was terminated for
Cause, the Corporation shall pay Executive retirement benefits
for twenty (20) years in an annual amount equal to forty percent
(40%) (but not to exceed $150,000) of the highest annual Base
Salary paid to Executive from and after fiscal year 1997 for the
Fiscal Year of his or her Retirement ("Supplemental Retirement
Benefits"). In the event of Executive's Retirement before
completion of ten (10) Years of Service, Corporation shall pay
Executive retirement benefits on the same terms as set forth in
the preceding sentence except that retirement benefits shall be
reduced to an amount equal to Supplemental Retirement Benefits
multiplied by the Vesting Percentage.
(2) Supplemental Retirement Benefits shall be
payable in two hundred forty (240) equal monthly installments
commencing with the month following the later of (i) the month
of Executive's Retirement or (ii) the month during which
Executive reaches age sixty-five (65). If Executive dies prior
to the end of the two hundred forty (240) month period during
which Supplemental Retirement Benefits are payable, Supplemental
Retirement Benefits shall be payable during the remainder of
such 240-month period to his or her Beneficiary.
(3) Notwithstanding anything herein to the
contrary, in the event of Executive's termination of employment
with the Corporation prior to attaining age 65 as a result of
Permanent Disability, if Executive attains age 65 and his or her
employment with the Corporation was not terminated for Cause,
the Corporation shall pay to Executive the Supplemental
Retirement Benefits set forth in this Subsection 5(i) in
accordance with Executive's Vesting Percentage, commencing as of
the month following the month in which Executive attains age 65;
provided, however, that any Supplemental Retirement Benefits
paid pursuant to this sentence shall be reduced by any amounts
paid to Executive under the Corporation's long-term disability
insurance policy (but shall not be reduced for any payments
received by Executive from Social Security or from any
disability insurance coverage individually owned by Executive)
for the same period.
(j) SURVIVABILITY OF DEATH AND SUPPLEMENTAL
RETIREMENT BENEFITS. In the event of Executive's Retirement or
death, Executive's entitlement to death benefits pursuant to
Subsection 5(g) hereof and Supplemental Retirement Benefits
pursuant to Subsection 5(i) hereof shall survive the Term of
Employment and Executive or his or her Beneficiary shall be
entitled to such death benefits and Supplemental Retirement
Benefits based on the same terms and conditions as would have
been applicable had his or her death or Retirement, as the case
may be, occurred during the Term of Employment.
6. TERMINATION OF EMPLOYMENT.
(a) DEATH OR PERMANENT DISABILITY. Except for the
obligations of the Corporation set forth in this Subsection
6(a), this Agreement shall terminate automatically upon the
Executive's death or Permanent Disability. In the event of such
termination, the Corporation shall pay to the Executive's
Beneficiary or, in the event of Permanent Disability, the
Executive or his or her legal representative, all benefits and
Base Salary accrued through the date of termination, including,
without limitation, amounts payable under any plan referred to
in Subsection 5(d) plus any benefits to which Executive may be
entitled pursuant to Subsection 5(g), Subsection 5(h) or
Subsection 5(i) hereof.
(b) CAUSE. The Corporation may terminate the
Executive's employment for Cause. If the Executive's employment
is terminated for Cause, the Corporation shall pay the Executive
his or her full accrued Base Salary through the effective date
of the termination of his or her employment (which shall be no
earlier than the date of receipt of notice thereof) at the rate
in effect at the time of such termination, and the Corporation
shall have no further obligations to the Executive under this
Agreement.
(c) NOTIFICATION PRIOR TO ONE YEAR EXTENSION. Either
Executive or the Corporation may terminate this Agreement by
notifying the other party in writing of an intention to do so at
least sixty (60) days prior to the commencement of a one-year
extension period described in Section 3 hereof.
(d) PAYMENTS FOR INVOLUNTARY TERMINATION WITHOUT
CAUSE.
(1) If prior to a Change of Control (i) the
Corporation terminates Executive's employment (other than for
Cause pursuant to subsection 6(b) hereof), or (ii) the
Executive's employment terminates by reason of the Corporation's
termination of this Agreement pursuant to subsection 6 (c)
hereof, the Corporation shall pay Executive following such
involuntary termination his or her full accrued Base Salary
through the date of termination of employment plus an amount
equal to fifty percent (50%) of Executive's Base Salary for the
fiscal year in which termination occurs, payable in twenty-six
(26) equal weekly installments or at such other intervals as
salary is normally paid by the Corporation to its employees.
The payment pursuant to this Subsection 6(d)(1) and any payments
to which Executive may be entitled pursuant to Subsections 5(g),
5(h), and 5(i) shall be in full discharge of any claims,
actions, demands or damages of every nature and description
which Executive might have or might assert against the
Corporation or any Affiliated Company in connection with or
arising from the termination of Executive's employment or the
termination of this Agreement.
(2) If following a Change of Control (i) the
Corporation terminates Executive's employment (other than for
Cause pursuant to Subsection 6(b) hereof), or (ii) the
Executive's employment terminates by reason of the Corporation's
termination of this Agreement pursuant to subsection 6(c)
hereof, the Corporation shall, at the time of such involuntary
termination, make a lump sum cash payment to Executive equal to
200% of his or her Base Salary for the Fiscal Year of
termination. In addition to the payment pursuant to this
Subsection 6(d)(2) and any payments to which Executive may be
entitled pursuant to Subsections 5(g), 5(h) and 5(i), Executive
shall be entitled to all remedies available under this Agreement
or at law in respect of any damages suffered by Executive as a
result of an involuntary termination of employment without
Cause.
7. GROSS-UP FOR PARACHUTE TAX.
(a) GENERAL. In the event that following a Change of
Control Executive becomes entitled to any payments (whether
pursuant to this Employment Agreement or any other plan,
arrangement or agreement) from the Corporation in the nature of
compensation ("Parachute Payments") that in the opinion of a
certified public accounting firm (selected in the manner set
forth in Subsection 7(b)) or that under the provisions of a
notice of assessment from the Internal Revenue Service causes
imposition of the tax under Section 4999 of the Code or any
similar tax that may hereafter be imposed (the "Excise Tax"),
the Corporation shall pay Executive, at the time specified in
Subsection 7(d), the Gross-Up Payment (as determined in
accordance with Subsection 7(c)).
(b) SELECTION OF C.P.A. Within fifteen (15) days
after any termination of Executive's employment following a
Change of Control, the majority of the Continuing Directors as
of the date immediately prior to the Change of Control shall
select a certified public accounting firm (the "C.P.A.") to
determine the amount, if any, of the Excise Tax and the amount,
if any, of the Gross-Up Payments.
(c) AMOUNT OF GROSS-UP PAYMENTS.
(1) The Gross-Up Payments shall be in an amount
such that the net amount retained by Executive with respect to
the Parachute Payments and Gross-Up Payments, after deduction of
any Excise Tax to which the Parachute Payments may be subject
and any federal, state, and local income taxes and Excise Tax
upon the Gross-Up Payments, shall be equal to the gross amount
of the Parachute Payments.
(2) For purposes of determining the amount of the
Gross-Up Payments, Executive shall be deemed to pay federal
income taxes at the applicable rate of federal income taxation
for the calendar year in which the Gross-Up Payment is to be
made and state and local income taxes at the applicable rate of
taxation for the calendar year in which the Gross-Up Payment is
to be made.
(3) In the event that the Excise Tax is
subsequently determined to exceed the amount taken into account
at the time the Gross-Up Payment is made pursuant to Subsection
7(d)(1) hereof (including any excess attributable to any
Parachute Payments the existence or amount of which could not be
accurately determined at the time of the Gross-Up Payment), the
Corporation shall make an additional Gross-Up Payment in respect
of such excess (plus any interest and addition to tax payable
with respect to such excess) within fifteen (15) days after the
amount of such excess is determined by the C.P.A. or by the
Internal Revenue Service (the "IRS") in a notice of assessment.
(d)Timing of Gross-Up Payments. Gross-Up Payments other than
Gross-Up Payments pursuant to Subsection 7(c)(3) shall be paid
not later than forty-five (45) days following payment of any
Parachute Payments to which the Gross-Up Payments are
attributable; provided, however, that if the amount of such
Gross-Up Payment or portion thereof cannot be finally determined
on or before such day, the Corporation shall pay to Executive on
such day an estimate, as determined in good faith by the
Corporation, of the minimum amount of such payments and shall
pay the remainder of such payments (together with interest at
the applicable federal rate provided in Section l274(d) of the
Code) as soon as the amount thereof can be determined by the
C.P.A., but in no event later than forty-five (45) days after
payment of such Parachute Payments.
(e) CORPORATION'S RIGHT TO DESIGNATE TAX
REPRESENTATIVE; ASSIGNMENT OF REFUND PROCEEDS. If the IRS
proposes an assessment of the Excise Tax against Executive or
proposes an additional assessment of Excise Tax in excess of the
amount previously reported by Executive:
(1) Executive shall within five (5) days after
receipt from the IRS of notice of the proposed Excise Tax
assessment notify the Corporation in writing and furnish the
Corporation with copies of all correspondence from the IRS
relating to the proposed Excise Tax assessment.
(2) The Corporation shall be authorized to
designate an attorney and/or accountant (the "Tax
Representative") to serve as Executive's exclusive
representative with respect to all proceedings with the IRS
relating to the proposed Excise Tax assessment, including but
not limited to negotiating a settlement or compromise of the
proposed Excise Tax assessment, filing a claim for refund with
respect thereto, and seeking judicial review of any disallowance
of a claim for refund. Executive hereby agrees to execute an
appropriate power of attorney authorizing the Tax Representative
to represent Executive with respect to the Excise Taxes.
Executive further agrees to take any other appropriate actions
reasonably requested by the Tax Representative in connection
therewith; provided, however, that the Corporation shall
reimburse Executive for any expenses incurred by Executive as a
result of compliance with such requests.
(3) If the Tax Representative files a claim for
refund of Excise Taxes with respect to which the Corporation has
made a Gross-Up Payment and such refund claim is allowed by the
IRS or by the final judgment of a court of competent
jurisdiction, Executive shall endorse the refund check payable
to the Corporation and shall send the refund check to the
Corporation not later than five (5) days after receipt from the
IRS.
(4) If the Corporation designates a Tax
Representative, the Corporation shall pay all of his or her
professional fees and expenses and hold Executive harmless from
any claims in connection therewith. The Tax Representative
shall keep Executive timely informed of all significant
developments in the Excise Tax matter and shall send to
Executive copies of all correspondence relating thereto.
(5) Notwithstanding anything herein to the
contrary, if the Corporation is in material breach of any of its
obligations pursuant to this Agreement, the Corporation's rights
pursuant to this Subsection 7(e) shall be extinguished and
Executive shall have the right to revoke any power of attorney
executed pursuant to this Subsection 7(e).
8. NO OBLIGATION TO MITIGATE DAMAGES. The Executive shall
not be obligated to mitigate any damages by seeking other
employment or otherwise, and no amount payable hereunder and no
benefit or service credit for benefits shall be reduced in the
event that the Executive shall accept alternative employment.
9. BENEFITS PAYABLE ONLY FROM CORPORATE ASSETS.
(a) NO TRUST. Nothing contained in this Agreement,
and no action taken pursuant to its provisions by either party
hereto shall create, or be construed to create, a trust of any
kind, or a fiduciary relationship between the Corporation and
the Executive or his or her Beneficiary.
(b) EXECUTIVE'S STATUS AS UNSECURED GENERAL CREDITOR.
The payment of any benefits hereunder to the Executive or his or
her Beneficiary shall be made from assets which shall continue,
for all purposes, to be a part of the general assets of the
Corporation; no person shall have or acquire any interest in
such assets by virtue of the provisions of this Agreement. To
the extent that the Executive or his or her Beneficiary acquires
a right to receive payments from the Corporation under the
provisions hereof, such right shall be no greater than the right
of any unsecured general creditor of the Corporation.
(c) RECOVERY OF COST OF PROVIDING BENEFITS. In the
event that, in its discretion, the Corporation purchases an
insurance policy insuring the life of the Executive to enable
the Corporation to recover, in whole or in part, the cost of
providing any benefits hereunder, neither the Executive nor his
or her Beneficiary under this Agreement shall have or acquire
any rights whatsoever therein. The Corporation shall be the
sole owner and beneficiary of any such policy and, as such,
shall possess and may exercise all incidents of ownership
therein.
10. DETERMINATION OF BENEFITS AND CLAIMS PROCEDURE. The
Corporation shall make all determinations as to rights to
benefits under this Agreement. Subject to and in compliance
with the specific procedures contained in the applicable
regulations promulgated under the Employee Retirement Income
Security Act of 1974, as amended: (i) any decision by the
Corporation denying a claim for benefits under this Agreement by
the Executive or his or her Beneficiary shall be stated in
writing by the Corporation and delivered or mailed to the
claimant; (ii) each such notice shall set forth the specific
reasons for the denial, written to the best of the Corporation's
ability in a manner that may be understood without legal or
actuarial counsel; and (iii) the Corporation shall afford a
reasonable opportunity to the claimant whose claim for benefits
has been denied for a review of the decision denying such claim.
11. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement
shall prevent or limit the Executive's continuing or future
participation in any benefit, bonus, incentive or other plan or
program provided by the Corporation or any Affiliated Companies
and for which the Executive may qualify, nor shall anything
herein limit or otherwise affect such rights as the Executive
may have under any other agreements with the Corporation or any
Affiliated Companies. Amounts which are vested benefits or
which the Executive is otherwise entitled to receive under any
plan or program of the Corporation or any Affiliated Companies
shall be payable in accordance with the terms of such plan or
program.
12. FULL SETTLEMENT. After a Change of Control, the
Corporation's obligation to make the payments provided for
herein and otherwise to perform its obligations hereunder shall
not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or
other right which the Corporation may have against the Executive
or others. Unless it is finally determined by a court of
competent jurisdiction after all available appeals that the
Corporation has validly terminated the Executive's employment
for Cause, the Corporation agrees to pay, to the full extent
permitted by law, all legal fees and expenses which the
Executive may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Corporation or others
of the validity or enforceability of, or liability under, any
provision of this Agreement or any guarantee of performance
thereof, plus, in each case, interest compounded quarterly, on
the total unpaid amount determined be payable hereunder, such
interest to be calculated on the basis of the prime commercial
lending rate announced by Mercantile Bank, N.A. in effect from
time to time, for the period commencing on the date of such
contest and ending on the date on which the Corporation shall
pay such amount.
13. COVENANTS.
(a) NON-COMPETITION.
(1) Executive recognizes that during the course
of Executive's employment with the Corporation, Executive has
been and will be instructed about and become acquainted with
confidential information of the Corporation, including, without
limitation, customer lists, methods of sales, the existence and
contents and terms of this Agreement, methods of sales
procurement, sales procurement techniques, sales procedures and
equipment/supply information, equipment and supply acquisition
procedures and processes and sources, customer evaluation
procedures, customer maintenance and supply maintenance
procedures and corresponding information relating to persons,
firms and corporations which are or may become customers of the
Corporation and, further, companies from which the Corporation
obtains various products and supplies for sale, resale and
distribution to customers of the Corporation. This confidential
information further includes, but is not limited to, customer
identity, supplier identity and terms, purchase terms, sales
techniques, purchase conditions and rates, customer needs,
billing procedures and processes, contacts and customer
information. Further, Executive agrees and acknowledges that
the development and assemblage and maintenance of the customer
base of the Corporation has taken extraordinary time, money,
resources, training, and effort by the Corporation and its
employees.
(2) Executive agrees that he or she will not
during the Term of Employment and for a period of two (2) years
following cessation of his or her employment at the Corporation
("Restricted Period"), for any cause or reason, directly or
indirectly:
(A) engage in any business in competition
with the Corporation and its Affiliates or supply and sell to
present customers, former customers and prospects of the
Corporation and its Affiliates; or
(B) own, manage, operate, control, advise, be
employed by, consult, or materially participate in, or be
materially involved in any manner with the ownership,
management, operation or control of, individually or through any
other entity or device, any business that competes with the
business then conducted by the Corporation or any Affiliate;
provided, however, that mere ownership as an investor of not
more than five percent (5%) of the securities of a corporation
or other business enterprise shall not in and of itself be
deemed to violate this Section 13(a)(2)(B).
(b) NONDISCLOSURE OF CONFIDENTIAL INFORMATION.
(1) Executive will not, except as authorized by
the Corporation in writing, during or at any time after the
termination of Executive's employment with the Corporation,
directly or indirectly, use for himself or herself or others, or
disclose, communicate, divulge, furnish to, or convey to any
other person, firm, or corporation, any secret or confidential
information, knowledge or data of the Corporation or that of
third parties obtained by Executive during the period of his or
her employment with the Corporation. Such information,
knowledge or data includes, without limitation, the following:
(A) Secret or confidential matters of a
technical nature such as, but not limited to, methods, know-how,
formulations, compositions, processes, discoveries, machines,
inventions, computer programs, and similar items or research
projects involving such items,
(B) Secret or confidential matters of a
business nature such as, but not limited to, marketing policies
or strategies, information about costs, price lists, purchasing
and purchasing policies, profits, market, sales or lists of
customers, customer history information, and
(C) Secret or confidential matters pertaining
to future developments such as, but not limited to, research and
development or future marketing or merchandising.
(2) Executive, upon termination of his or her
employment with the Corporation, or at any other time upon the
Corporation's request, shall deliver promptly to the Corporation
all manuals, letters, notes, notebooks, reports, formulations,
computer programs and similar items, memoranda, lists of
customers, customer history information and all other materials
and copies thereof relating in any way to the Corporation's
business and in any way obtained by Executive during the term of
employment with the Corporation which are in his or her
possession or under his or her control; and Executive will not
make or retain any copies of any of the foregoing and will so
represent to the Corporation upon termination of his or her
employment.
(c) INDUCEMENT.
(1) Executive agrees that during the Term of
Employment and during the Restricted Period, Executive shall not
use any confidential information for the purposes of inducing or
attempting to induce any present, former, or prospective
customer of the Corporation or its Affiliates to become a
customer of Executive or any person, firm, or corporation, or
business association with which Executive is affiliated in any
capacity with respect to the markets supplied by the Corporation
or its Affiliates.
(2) Executive agrees that during the Term of
Employment and during the Restricted Period, Executive shall not
directly or indirectly solicit for employment or employ any of
the Corporation's employees to work for Executive or any
business association with which/whom Executive is affiliated, or
to work for any other company in the markets supplied by the
Corporation or its Affiliates.
(d) INTEREST OF PARTIES. Executive agrees that the
duration of the limitations set forth in this Section 13 are
reasonable under the circumstances, considering Executive's
position with the Corporation and other relevant factors, and
that this will not constitute a serious handicap to Executive in
securing future employment.
(e) DISCLOSURE TO CORPORATION. Executive shall
promptly communicate and disclose to the Corporation all
information, observations and data obtained by Executive in the
course of Executive's employment. All written materials,
records and documents made by Executive or coming into
Executive's possession during the Term of Employment concerning
any inventions, products, processes or equipment, manufactured,
used, developed, investigated or considered by the Corporation
or any Affiliated Companies shall be the property of the
Corporation, and upon termination of the Term of Employment, or
upon request of the Corporation during the Term of Employment,
Executive shall promptly deliver the same to the Corporation.
Executive agrees to render to the Corporation such reports of
the activities of the business undertaken by Executive or
conducted under Executive's direction during the Term of
Employment as the Corporation may reasonably request.
(f) INVENTIONS.
(1) Executive shall promptly communicate and
disclose in writing to the Corporation all those inventions and
developments whether patentable or not, as well as patents and
patent applications (hereinafter collectively called
"Inventions"), made, conceived, developed or purchased by
Executive, or under which Executive acquires the right to grant
licenses or to become licensed, alone or jointly with others,
during the Term of Employment, which have arisen or may arise
out of Executive's employment, or relate to any matters
pertaining to, applicable to, or useful in connection with, the
business or affairs of the Corporation or any Affiliated
Companies. All of Executive's right, title and interest in, to
and under all such inventions, licenses and rights to grant
licenses shall be the sole property of the Corporation. Any
such inventions disclosed to anyone by Executive within one (1)
year after the termination of the Term of Employment for any
cause whatsoever shall be deemed to have been made or conceived
by Executive during the Term of Employment.
(2) As to all such inventions, Executive shall,
upon request of the Corporation, during the Term of Employment
or thereafter:
(A) Execute all documents which the
Corporation shall deem necessary or proper to enable it to
establish title to such inventions, or other rights, and to
enable it to file and prosecute applications for letters patent
of the United States and any foreign country; and
(B) Do all things (including the giving of
evidence in suits and other proceedings) which the Corporation
shall deem necessary or proper to obtain, maintain or to assert
patents for any and all such inventions or to assert its rights
in any inventions not patented.
All expenses incident to any action required by the Corporation
or taken on its behalf pursuant to the provisions of this
paragraph shall be borne by the Corporation including without
limitation a reasonable payment for Executive's time and
expenses involved in case he or she is not then in its employ.
(g) LITIGATION. Executive agrees that during the Term
of Employment or thereafter, Executive shall do all things,
including the giving of evidence in suits and other proceedings,
which the Corporation shall deem necessary or proper to obtain,
maintain or assert rights accruing to the Corporation during
the Term of Employment and in connection with which Executive
has knowledge, information or expertise. All reasonable
expenses incurred by Executive during the Term of Employment or
thereafter in fulfilling the duties set forth in this Section,
shall be reimbursed by the Corporation to the full extent
legally appropriate including, without limitation, a reasonable
payment for Executive's time in the event this Agreement has
terminated prior to the time Executive renders such assistance,
advice and counsel.
14. EQUITY. The parties hereto agree that the services to
be rendered by Executive are special, unique and of an
extraordinary character. In the event of the breach by
Executive of any of the provisions of this Agreement, the
Corporation, in addition and as a supplement to such other
rights and remedies as may exist in its favor, may apply to any
court of law or equity having jurisdiction to enforce the
specific performance of this Agreement, and/or may apply for
injunctive relief against any act which would violate any of the
provisions of this Agreement.
15. EFFECT ON PRIOR AGREEMENTS. This Agreement shall
supersede and replace any and all prior employment agreements
entered into between Executive and the Corporation or any
Affiliated Company, including but not limited to that certain
Employment Agreement dated June 1, 1990. This Agreement
contains the entire understanding of the parties hereto with
respect to the subject matter hereof.
16. NO ASSIGNMENT.
(a) This Agreement is personal to the Executive and
without the prior written consent of the Corporation shall not
be assignable by the Executive other than by will or the laws of
descent and distribution. This Agreement shall inure to the
benefit of and be enforceable by the Executive's legal
representatives and Beneficiary.
(b) This Agreement shall inure to the benefit of and
be binding upon the Corporation and its successors. The
Corporation shall require any successor to all or substantially
all of the business and/or assets of the Corporation, whether
direct or indirect, by purchase, merger, consolidation,
acquisition of stock, or otherwise, by an agreement in form and
substance satisfactory to the Executive, expressly to assume and
agree to perform this Agreement in the same manner and to the
same extent as the Corporation would be required to perform if
no such succession had taken place.
17. SEVERABILITY. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, and
this Agreement shall be construed in all respects as if such
invalid or unenforceable provision or clause were omitted.
18. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed
in accordance with the laws of the State of Missouri, without
reference to principles of conflict of laws. The captions of
this Agreement are not part of the provisions hereof and shall
have no force or effect. This Agreement may not be amended or
modified other than by a written agreement executed by the
parties hereto or their respective successors and legal
representatives.
(b) In the event that litigation is required to
enforce any provision of this Agreement, subject to the
provisions of Section 12 hereof, the prevailing party shall be
entitled to reasonable attorneys fees.
(c) All notices and other communications hereunder
shall be in writing and shall be given by hand delivery to the
other party or by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
IF TO THE EXECUTIVE:
Xxxx X. Xxxxxx
0000 Xxxxxxx Xxxxxxxx Xxxxx
Xx. Xxxxx, XX 00000
IF TO THE CORPORATION:
Consumer Programs Incorporated
0000 Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx, President
or to such other address as either party shall have furnished
to the other in writing in accordance herewith. Notice and
communications shall be effective when actually received by the
addressee.
(d) This Agreement contains the entire understanding
of the parties hereto with respect to the subject matter hereof.
(e) The Corporation may withhold from any amounts
payable under this Agreement such federal, state or local taxes
as shall be required to be withheld pursuant to any applicable
law or regulation.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement in duplicate, all as of the day and year first above
written.
CONSUMER PROGRAMS INCORPORATED
BY: /S/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx, President
BY: /S/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx
