Exhibit A
EXECUTION COPY
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT, effective as of September 17,
1997, by and between XXXXXXX INDUSTRIES, INC., a Delaware corporation having its
principal address at 0000 Xxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxx 00000
(the "Employer"), and XXXXXX XXXX, an individual residing at Xxxx Xxx Xxxx,
(X.X. Xxx 00) Xxxx Xxxxxxx, Xxx Xxxx 00000 (the "Executive").
W I T N E S S E T H:
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WHEREAS, the Executive has entered into an Employment Agreement with the
Employer, effective as of October 1, 1991, as amended by an Amendment, effective
as of January 1, 1994 (the "Existing Employment Agreement"); and
WHEREAS, the Executive and the Employer wish to modify the terms of the
Existing Employment Agreement by amending and restating the Existing Employment
Agreement in the form of this Amended and Restated Employment Agreement (the
"Agreement");
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the Executive and the Employer hereby amend and restate the Existing
Employment Agreement as follows:
1. Term of Employment.
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The Employer agrees to employ the Executive, and the Executive hereby
accepts such employment, as Chairman of the Board of Directors of the Employer.
This Agreement shall have a three-year rolling term, which shall commence as of
the date first above written and automatically be extended so that the unexpired
term on any date is always three years (the "Employment Period"), until such
time as either party gives written notice to the other of its election not to
extend such term. The Employment Period shall end three years from the date on
which such notice is given unless it is terminated earlier as provided in
Section 4 hereof.
2. Duties and Authority.
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a. During the Employment Period the Executive shall serve as Chairman of
the Board of Directors of the Employer. The Executive shall devote his best
efforts and full working time and attention to services for the Employer. The
Executive agrees to hold any other office or position with the
Employer or any of the Employer's subsidiaries without additional compensation
if elected or appointed to such office or position.
b. To the degree required by the Employer, the Executive shall be
responsible to identify and propose to the Employer's Board of Directors persons
suitable to serve as President of the Employer.
3. Compensation.
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a. As compensation for the Executive's services in all capacities during
the Employment Period, the Employer shall pay the Executive the following:
(i) a base salary at the rate of $606,373 per annum to be paid in
equal installments in accordance with normal payroll practices of the
Employer but not less frequently than monthly, provided that in each
subsequent calendar year or part thereof during which the Executive is
employed commencing in 1998, the Executive's base salary shall be adjusted
upward annually from the Executive's current base salary at a rate at least
commensurate with increases granted to other key executives (the "Base
Salary");
(ii) a discretionary cash incentive bonus (the "Bonus") for each
calendar year or part thereof during which the Executive is employed, the
amount of such Bonus to be consistent with the executive bonus program
which the Employer establishes for other key employees.
b. The Executive shall be entitled to reimbursement for reasonable business
and travel expenses incurred in the performance of his duties in accordance with
the Employer's normal reimbursement practices.
c. Subject to the terms of the applicable plan and/or program, the
Executive shall participate in all bonus, incentive, stock option, pension,
disability and health plans and programs and all fringe benefit plans maintained
by or on behalf of the Employer and in which senior executives of the Employer
are entitled to participate.
4. Termination of Employment.
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a. The Executive's employment hereunder shall terminate upon the
Executive's death, and the Employer shall have the right to terminate the
Executive's employment upon his permanent disability. A permanent disability is
a physical or mental disability which results in the Executive's inability to
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substantially perform his duties hereunder for a period of 180 consecutive days
or for a period of 200 days within any period of 12 consecutive months, except
that a permanent disability shall not include a physical or mental disability
which occurs in connection with the Executive's employment hereunder. In the
event of termination by reason of death or permanent disability, the Employer's
obligation to pay further compensation hereunder shall cease on the date of
termination, except that the Executive (or, in the case of death, his
beneficiaries, or his estate if no beneficiary has been named) shall be entitled
to receive his Base Salary and Bonus prorated on a calendar day basis through
the date of such termination.
b. The Employer may terminate the Executive's employment hereunder for
Cause (as defined below) upon not less than 30 days prior written notice
specifying such cause. If the Executive's employment hereunder is terminated for
Cause, the Executive shall forfeit all existing Employer stock options effective
as of the date of the termination of his employment, but such options shall
remain exercisable for the 30-day period following the Executive's receipt of
written notice required under this Section 4(b). For purposes of this Agreement,
the term "Cause" shall mean (i) the Executive's willful and continued failure to
substantially perform his duties hereunder, (ii) the engaging by the Executive
in willful misconduct which is demonstrably and materially injurious to the
Employer, or (iii) the Executive's conviction of a felony for a crime of moral
turpitude. For purposes of this Section 4(b), no act, or failure to act, on the
Executive's part shall be considered "willful" unless done, or omitted to be
done, by him not in good faith and without reasonable belief that his action or
omission was in the best interest of the Employer. The Executive shall not be
terminated for Cause in the case of actions or omissions described in clauses
(i) or (ii) of this Section 4(b) unless the Employer shall have given the
Executive an opportunity to cure any such actions or omissions during the 30-day
period after the Executive's receipt of written notice required under this
Section 4(b).
c. The Executive's employment hereunder may be terminated by the Employer
without Cause upon not less than 90 days prior written notice or by the
Executive for "Good Reason" (as defined below) upon not less than 10 days prior
written notice. In such event, (i) the Executive shall continue to receive his
then current Base Salary otherwise payable pursuant to Section 3 hereof as if
his employment had continued for the remainder of the Employment Period and an
annual bonus for the remainder of the Employment Period equal to the average
Bonus for the three calendar years immediately preceding the written notice,
such bonus to be paid in the normal course at the time
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other executive bonuses are normally paid, and (ii) all of the outstanding
unvested Employer stock options then held by Executive shall immediately vest
and become exercisable upon such notice. In addition, at the Employer's expense,
the Executive shall continue to participate in all of the Employer's health
plans and programs and the Employer shall continue to furnish Executive with an
office and a secretary in New York City in the Borough of Manhattan for the
remainder of the Employment Period as if he remained employed for such period,
such benefits and office to be comparable in quality and location to those
currently provided. For purposes of this Agreement, "Good Reason" shall mean (A)
a failure by the Employer to comply with any material provision of this
Agreement which has not been cured within ten (10) days after notice of such
noncompliance has been given by the Executive to the Employer, (B) the
assignment to the Executive by the Employer of duties inconsistent with the
Executive's position, authority, duties, responsibilities or status with the
Employer as in effect immediately after the date of execution of this Agreement,
including, but not limited to, any reduction whatsoever in such position,
authority, duties, responsibilities or status, or a change in the Executive's
titles or offices, as then in effect, or any removal of the Executive from, or
any failure to reelect the Executive to, any of such positions, except in
connection with the termination of his employment on account of his death,
disability, or for Cause, (C) the requirement of excessive travel on the part of
the Executive, (D) a relocation by the Employer of the Executive's principal
place of employment to any location outside a thirty mile radius from the
Executive's current principal place of employment, (E) the failure of the
Employer to have any successor to the Employer assume the Agreement, (F) the
delivery to the Executive of notice of the Employer's decision to terminate the
Executive's employment without Cause, or (G) any other material change in the
conditions of employment if the Executive determines in good faith that his
customary duties can no longer be performed because of the change.
d. The Executive shall also have the right to resign voluntarily without
Good Reason from employment during the Employment Period by written notice to
the Employer at least 60 days prior to the effective date of the resignation.
Upon his resignation without Good Reason, the Executive shall be entitled to
receive any accrued but unpaid Base Salary. The Employer shall have discretion
whether or not to award the Executive a Bonus for any calendar year in which he
resigns without Good Reason.
e. If the Executive's employment is terminated for Cause pursuant to
Section 4(b), or if the Executive shall voluntarily resign for any reason other
than Good Reason, the
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Executive's right to receive the Base Salary (except any accrued and unpaid
salary), the Bonus, and any other compensation and benefits to which he would
otherwise be entitled under this Agreement shall be forfeited as of the date of
termination of employment.
f. Except as provided in Section 4(b) hereof or any relevant option
agreement, the Executive's death or termination of employment shall not affect
his rights under any Employer stock options.
g. Notwithstanding anything to the contrary herein, the Executive may also
terminate his employment upon a "Change in Control" (as hereinafter defined). If
the Executive terminates his employment upon a " Change in Control" then:
(i) the Employer shall pay the Executive as severance pay in a lump
sum within thirty (30) days following such termination, the following
amounts, which shall not be discounted to take into account present value:
(1) the Executive's Base Salary through the date of termination
at the rate in effect immediately prior to the termination
date; and
(2) an amount equal to the product of (x) the Executive's annual
Base Salary at the rate in effect immediately prior to the
date of termination, multiplied by (z) the number of years
(including partial years) then remaining in the Employment
Period; and
(3) an amount equal to the product of (x) the average annual
Bonus for the three calendar years immediately preceding the
date of termination, multiplied by (z) the number of years
(including partial years as full years) then remaining in
the Employment Period;
(ii) the Employer shall, at the Employer's expense, allow the
Executive to continue to participate, for the number of years (including
partial years) then remaining in the Employment Period, in all the
Employer's benefits, to the same extent and upon
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the same terms and conditions as the Executive participated immediately
prior to the termination, provided that the Executive's continued
participation is permissible or otherwise practicable under the general
terms and provisions of such benefit plan; and
(iii) the Employer shall, at the Employer's expense, continue to
furnish Executive with an office and a secretary in New York City in the
Borough of Manhattan for the number of years (including partial years) then
remaining in the Employment Period, such benefit to be comparable in
quality and location to that provided currently; and
(iv) on the later of (x) the day the Executive notifies the Employer
he is terminating upon a Change in Control, and (y) ten (10) days prior to
the date the Executive actually terminates his employment, all remaining
unvested options previously granted the Executive shall become immediately
exercisable on that date.
"Change in Control", as used in Section 4(g) of the Agreement, is defined
to mean the occurrence of any of the following three events:
(1) a change in control of a nature that would be required to be reported
in response to any form or report to the Securities and Exchange Commission or
any stock exchange on which the Employer's shares are listed which requires the
reporting of a change in control of the Employer;
(2) when any "person," as such terms is used in Section 13(d) or 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), is or
becomes the "beneficial owner," as defined in Rule 13d-3 under the Exchange Act,
directly or indirectly, of 20% of the voting power of the Employer's then
outstanding securities, other than (x) beneficial owners of more than 5% of the
Employer's Common Stock on August 10, 1995, (y) "Exempted Persons" as defined in
Section 1(a) of the Employer's Rights Agreement, dated as of November 10, 1994,
(z) mutual funds, banks, investment advisors registered under the Investment
Advisers Act of 1940, as amended, and other institutional investors, which
either (i) became 20% beneficial owners as a result of an acquisition of Common
Stock by the Employer which, by reducing the number of such shares then
outstanding, increases the proportionate number of shares beneficially owned by
such person to 20% or more of the outstanding Common Stock except that if such
person, after such share purchased by the Employer, becomes the beneficial owner
of any additional shares of Common
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Stock, then this exception would not apply, or (ii) were exempted from the
operation of this provision with the prior approval of eighty percent of the
Board of Directors of the Employer; or
(3) when the individuals who, on the effective date of this Agreement
constitute the Board of Directors of the Employer cease for any reason to
constitute at least a majority thereof, provided, however, that a director who
was not a director on the effective date of this Agreement shall be deemed to
have been a director at that date if such director was elected by, or on the
recommendation of or with the approval of, at least sixty percent of the
directors who were directors on the effective date of this Agreement (either
directly or by prior operation of this provision);
provided, however, that an occurrence shall cease to be a "Change in Control"
for purposes of this Section 4(g) six months after the occurrence of an event
that would otherwise constitute a "Change in Control," except that, for purposes
of computing this six-month period, the six-month time period shall not commence
until, as to clause (1) above, the date on which a change in control form or
report is actually filed, and as to clause (2) above, the date on which a
beneficial owner discloses in a public filing that it has crossed the 20%
threshold.
5. Notices.
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Any notice or other communication hereunder shall be made in writing by
hand-delivery or telecopier (and, if by telecopier, followed by a copy either
delivered by hand within three days thereafter or sent by registered first-class
mail on the next business day) and shall be deemed to have been delivered and
received when delivered by hand, if personally delivered, and when receipt
acknowledged, if telecopied, as follows: (a) if to the Executive at the address
shown at the beginning of this Agreement and at the following telecopier
numbers: (000) 000-0000 and (000) 000-0000 or to such other person(s) or
address(es) or telecopier number(s) as the Executive shall have furnished to the
Employer in writing, and (b) if to the Employer at the address shown at the
beginning of this Agreement and at the following telecopier number: (901)
753-3000, attention of the Board of Directors, with copies to the Employer at
the same address, Attention: General Counsel, and to Xxxxxxx Xxxx & Xxxxxxxxx,
One Citicorp Center, 000 X. 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Attention: Xxxxxx
X. Xxxxx, Esq., telecopier number (000) 000-0000, or to such other person(s) or
address(es) or telecopier number(s) as such persons or the Employer shall have
furnished to the Executive in writing.
6. Registration of Options.
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The Employer agrees that, at the Employer's cost, it will file a
Registration Statement on Form S-8 (or its equivalent) relating to the
Executive's existing options to acquire shares of common stock of the Employer.
The Executive agrees to provide the Employer with reasonable notice of the
Executive's desire to have such a Registration Statement prepared and filed with
the Securities and Exchange Commission.
7. Certain Additional Payments by the Employer.
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a. Anything in this Agreement to the contrary notwithstanding, in the event
it shall be determined that any payment, distribution, waiver of Employer
rights, acceleration of vesting of any stock options or restricted stock, or any
other payment or benefit in the nature of compensation to or for the benefit of
the Executive, alone or in combination (whether such payment, distribution,
waiver, acceleration or other benefit is made pursuant to the terms of this
Agreement or any other agreement, plan or arrangement providing payments or
benefits in the nature of compensation to or for the benefit of the Executive,
but determined without regard to any additional payments required under this
Section 7) (a "Payment") would be subject to the excise tax imposed by Section
4999 of the Code (or any successor provision) or any interest or penalties are
incurred by the Executive with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then the Executive shall be entitled to
receive an additional payment (a "Gross-Up Payment") in an amount such that
after payment by the Executive of all taxes with respect to the Gross-Up Payment
(including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
b. Subject to the provisions of Section 7(c), all determinations required
to be made under this Section 7, including whether and when a Gross-Up Payment
is required and the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by the nationally
recognized accounting firm then auditing the accounts of the Employer (the
"Accounting Firm") which shall provide detailed supporting calculations both to
the Employer and the Executive within 15 business days of the receipt of notice
from the Executive that there has been a Payment, or such earlier time as is
requested by the Employer. In the event that the Accounting Firm is unwilling or
unable to perform its obligations pursuant to this Section 7, the Executive
shall appoint another
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nationally recognized accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to hereunder as the
Accounting Firm). All fees and expenses of the Accounting Firm shall be borne
solely by the Employer. Any Gross-Up Payment, determined pursuant to this
Section 7, shall be paid by the Employer to the Executive within five days of
the receipt of the Accounting Firm's determination. Any determination by the
Accounting Firm shall be binding upon the Employer and the Executive. The
parties hereto acknowledge that, as a result of the potential uncertainty in the
application of Section 4999 of the Code (or any successor provision) at the time
of the initial determination by the Accounting Firm hereunder, it is possible
that the Employer will not have made Gross-Up Payments which should have been
made consistent with the calculations required to be made hereunder (an
"Underpayment"). In the event that the Employer exhausts its remedies pursuant
to Section 7(c) and the Executive thereafter is required to make a payment of
any Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment shall be promptly paid
by the Employer to or for the benefit of the Executive.
c. The Executive shall notify the Employer in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Employer of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than 20 business days after the Executive is informed
in writing of such claim and shall apprise the Employer of the nature of such
claim and the date on which such claim is requested to be paid. The Executive
shall not pay such claim prior to the expiration of the 30-day period following
the date on which he gives such notice to the Employer (or such shorter period
ending on the date that any payment of taxes with respect to such claim is due).
If the Employer notifies the Executive in writing prior to the expiration of
such period that it desires to contest such claim, the Executive shall:
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(i) give the Employer any information reasonably requested by the
Employer relating to such claim,
(ii) take such action in connection with contesting such claim as the
Employer shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such
claim by an attorney reasonably selected by the Employer,
(iii) cooperate with the Employer in good faith in order effectively
to contest such claim, and
(iv) permit the Employer to participate in any proceedings relating to
such claim;
provided, however, that the Employer shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limiting the foregoing provisions of this
Section 7(c), the Employer shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax claimed and xxx for a refund or contest the claim
in any permissible manner, and the Executive agrees to prosecute such contest to
a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Employer shall
determine; provided, however, that if the Employer directs the Executive to pay
such claim and xxx for a refund, the Employer shall advance the amount of such
payment to the Executive, on an interest-free basis, and shall indemnify and
hold the Executive harmless, on an after-tax basis, from any Excise Tax or
income tax (including interest or penalties with respect thereto) imposed with
respect to such advance or with respect to any imputed income with respect to
such advance; and further provided that any extension of the statute of
limitations relating to payment of taxes for the taxable year of the Executive
with respect to which such contested amount is claimed to be due is limited
solely to such contested amount. Furthermore, the Employer's control of the
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contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
d. If, after the receipt by the Executive of an amount advanced by the
Employer pursuant to Section 7(c), the Executive becomes entitled to receive any
refund with respect to such claim, the Executive shall (subject to the
Employer's complying with the requirements of Section 7(c)) promptly pay to the
Employer the amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after the receipt by the Executive
of an amount advanced by the Employer pursuant to Section 7(c), a determination
is made that the Executive shall not be entitled to any refund with respect to
such claim and the Employer does not notify the Executive in writing of its
intent to contest such denial of refund prior to the expiration of 30 days after
such determination, then such advance shall be forgiven and shall not be
required to be repaid and the amount of such advance shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be paid.
8. Assignability.
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This Agreement shall not be assignable by the Employer except to a
majority-owned subsidiary or parent entity of the Employer and shall be binding
upon and inure to the benefit of the Employer and its successors and assigns.
This Agreement shall not be assignable by the Executive, but it shall be binding
upon, and to the extent provided in Section 4(a) shall inure to the benefit of,
the Executive's heirs, executors, administrators and legal representatives.
9. Entire Agreement.
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This Agreement supersedes the Existing Employment Agreement and all prior
understandings between the Executive and the Employer as to the subject matter
hereof.
10. Waivers, Amendments and Further Agreements.
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Neither this Agreement nor any term or condition hereof, including without
limitation the terms and conditions of this Section 10, may be waived, modified
or amended in whole or in part as against the Employer or the Executive except
by written instrument executed by each of the parties expressly stating that it
is intended to operate as a waiver, modification or amendment of this Agreement
or the applicable term or
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condition hereof. Each of the parties hereto agrees to execute all such further
instruments and documents and to take all such further action as the other party
may reasonably require in order to effectuate the terms and purposes of this
Agreement.
11. Severability.
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In case one or more of the provisions contained in this Agreement shall be
or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
12. No Conflicting Obligations.
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The Executive represents and warrants to the Employer that the Executive is
not now under any obligation to anyone other than the Employer and other
entities of which he is a non-executive director and has no interest which is
inconsistent or in conflict with this Agreement, or which would prevent, limit
or impair, in any way, the Executive's performance of any of the covenants or
duties hereinabove set forth. However, subject to Section 2 hereof, nothing
herein shall be deemed to limit the Executive's participation in, or pursuit of,
non-conflicting business interests.
13. Survival.
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Except as otherwise provided herein, the covenants, agreements,
representations and warranties contained in or made pursuant to this Agreement
shall survive the Executive's termination of employment, irrespective of any
investigation made by or on behalf of any party.
14. Governing Law.
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This Agreement shall be governed by and construed and enforced in
accordance with the law of the State of New York, without regard to the
principles of conflicts of law thereof.
15. Arbitration; Legal Fees.
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Any dispute, controversy or claim arising out of or relating to this
Agreement or the breach thereof shall be finally settled by arbitration by a
single arbitrator in accordance with the rules then in effect of the American
Arbitration Association in an arbitration in New York, New York. Judgment upon
an award rendered by the arbitrator may be entered in any court of competent
jurisdiction. To the extent that the Executive prosecutes or defends, whether by
arbitration or through a judicial proceeding, a dispute, controversy or claim
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relating to this Agreement which results in a judgment, award or settlement in
the Executive's favor in any material respect, the Employer shall reimburse the
Executive for all reasonable fees and costs (including legal fees) incurred by
the Executive in such successful prosecution or defense.
16. Headings.
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The headings in this Agreement are solely for convenience of reference and
shall be given no effect in the construction or interpretation of this
Agreement.
17. Counterparts.
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This Agreement may be executed in counterparts each of which shall be
deemed an original but which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties have executed or caused to be executed this
Agreement effective as of the date first above written.
XXXXXXX INDUSTRIES, INC.
[Seal] By: /s/ Xxxxxxx X. X'Xxxxx
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Name: Xxxxxxx X. X'Xxxxx
Title: Chief Executive Officer
Date: September 17, 1997
/s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
Date: September 17, 1997
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