EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
10.3
This EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is dated as of this June 11, 2007,
between Xxxxxx Inc., a Delaware corporation (the “Company”), and Xxxxx Xxxxx (the “Executive”).
(a) Executive shall serve as Vice President of Operations and President of its Xxxxxx Americas
Division. In such capacity, Executive shall have active and general supervision and management
over the business affairs of Xxxxxx Americas.
(b) Executive shall use Executive’s best efforts to perform faithfully and efficiently the
duties and responsibilities assigned to Executive hereunder and devote substantially all of
Executive’s business time to the performance of Executive’s duties with the Company; provided, the
foregoing shall not prevent Executive from participating in charitable, civic, educational,
professional or community affairs so long as such activities do not materially interfere with the
performance of Executive’s duties hereunder or create a potential business conflict or the
appearance thereof.
continue. In all events hereunder, Executive’s employment is subject to earlier termination
pursuant to Section 7 hereof, and upon such earlier termination the Term shall be deemed to have
ended.
(a) BUY-OUT AWARDS.
(i) The Board or the Committee shall, in accordance with the form of award attached
hereto as Exhibit A, award Executive as of the Effective Date, 7,250 restricted
stock units (the “Buy-Out RSUs”). The Buy-Out RSUs shall vest in full on the fifth
anniversary of the Effective Date, provided that Executive has been continuously employed by
the Company through such date for the Buy-Out RSUs to so vest, except as otherwise provided
hereunder and in the award agreement.
(i) The Board or the Committee shall award Executive as of the Effective Date such
number of performance share units (the “2007 PSUs”) as equals the quotient of (A) $180,000
divided by (B) the Fair Market Value of one share of Common Stock on the Effective Date, in
accordance with the form of award attached hereto as Exhibit B. Each Inducement PSU
represents the right to receive between zero and one and one-half (1.5) restricted stock
units, depending on attainment of Company performance objectives during calendar year 2007.
Each such restricted stock unit represents the right to receive one share of Common Stock,
and shall vest as provided hereunder and in the award agreement.
(ii) The Board or the Committee shall, in accordance with the form of awards attached
hereto as Exhibit C, award Executive as of the Effective Date, such number of stock
appreciation rights settled in shares of the Company’s Common Stock (the “2007 SSARs”) as
equal to the quotient of (A) $180,000 divided by (B) the Black-
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Scholes value (or other valuation method) of one (1) share of Common Stock on the
Effective Date as determined by the Committee or the Board for the valuation of SSAR grants
to other senior executives during the 2007 fiscal year. The 2007 SSARs will be granted with
an exercise price equal to the Fair Market Value of one share of Common Stock on the
Effective Date. The 2007 SSARs shall vest and become exercisable in three (3) equal
installments on the first, second and third anniversaries of the Effective Date, provided
that the Executive has been continuously employed by the Company through each such vesting
date for such installment to so vest, except as otherwise provided hereunder and in the
award agreement.
(i) Commencing with annual awards granted to senior executives in 2008, Executive shall
be eligible for annual long-term incentive awards throughout the Term under such long-term
incentive plans and programs as may be in effect from time to time in accordance with the
Company’s compensation practices and the terms and provisions of any such plans or programs;
provided, that Executive’s participation in such plans and programs shall be at a level and
on terms and conditions consistent with participation by other senior executives of the
Company, as the Board or the Committee shall determine in its sole discretion, with due
consideration of Executive’s position, awards granted to other senior executives of the
Company and competitive compensation data. Notwithstanding, provided that Executive is
employed by the Company on the date of grant, Executive shall be granted an annual long-term
incentive equity award during the 2008 fiscal year having a value on the grant date of not
less than 120% of Base Salary.
(ii) All long-term incentive awards to Executive shall be granted pursuant to and shall
be subject to all of the terms and conditions imposed upon such awards granted under the
Plan.
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(d) RELOCATION. Executive will relocate his residence to the vicinity of Indianapolis,
Indiana within 120 days following the Effective Date. Executive shall be entitled to relocation
benefits in accordance with the Company’s relocation policy; provided, (i) the Company shall extend
the period for which Executive shall be eligible for reimbursement of his temporary housing
expenses to 120 days and (ii) the Company will reimburse Executive for the reasonable cost of
commuting between Roanoke, Virginia and Indianapolis, Indiana until the earlier of (A) 120 days
following the Effective Date or (B) the date that Executive relocates the residence of Executive
and his family to the vicinity of Indianapolis, Indiana. The Company’s relocation policy includes
the requirement that the Executive sign the Company’s Continuation of Employment Agreement form.
For clarity, it is understood that the Company will pay for two house hunting trips (to include
Executive’s children) and the shipment of three personal vehicles.
(b) DEATH. Automatically on the date of death of Executive.
(i) Executive’s willful and continued failure to perform substantially his duties owed
to the Company or its affiliates after a written demand for substantial performance is
delivered to him specifically identifying the nature of such unacceptable performance, which
is not cured or reasonable progress toward a cure by Executive within a reasonable period,
not to exceed thirty (30) days;
(ii) Executive is convicted of (or pleads guilty or no contest to) a felony or any
crime involving moral turpitude;
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(iii) Executive breaches his representation or covenant under Section 24; or
(iv) Executive has engaged in conduct that constitutes gross misconduct in the
performance of his employment duties.
An act or omission by Executive shall not be “willful” if conducted in good faith and with
Executive’s reasonable belief that such conduct is in the best interests of the Company.
(i) Executive’s Base Salary or annual target bonus opportunity is reduced;
(ii) Executive’s duties or responsibilities are negatively and materially changed in a
manner inconsistent with Executive’s position (including status, offices, titles, and
reporting responsibilities) or authority; or
(iii) The Company requires Executive’s principal office to be relocated more than 50
miles from its location as of the date immediately preceding the Change in Control.
(f) VOLUNTARY TERMINATION FOR ANY REASON (WITHOUT GOOD REASON DURING A PROTECTION PERIOD).
Upon at least thirty (30) days’ prior written notice by Executive to the Company of Executive’s
voluntary termination of employment (i) for any reason prior to or after a Protection Period or
(ii) without Good Reason during a Protection Period, in either case which the Company may, in its
sole discretion, make effective earlier than any termination date set forth in such notice.
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(i) (A) any accrued and unpaid Base Salary through the date of termination and any
accrued and unused vacation in accordance with Company policy; (B) any accrued and unpaid
benefits through the date of termination in accordance with the applicable plan or program;
(C) reimbursement for any unreimbursed expenses, incurred and documented in accordance with
applicable Company policy, through the date of termination; and (D) reimbursement for any
unpaid relocation expenses in accordance with Section 6(d) (collectively, “Accrued
Obligations”). Accrued Obligations payable under clause (A) shall be payable within fifteen
(15) days following the date of termination, under clause (B) shall be paid in accordance
with the applicable plan or program, and under clauses (C) and (D) shall be paid within
fifteen (15) days after Executive shall have provided the Company all required documentation
therefor;
(ii) Any unpaid bonus earned with respect to any fiscal year ending on or preceding the
date of termination, payable when bonuses are paid generally to senior executives for such
year;
(iii) A pro-rated annual bonus for the fiscal year in which such termination occurs,
the amount of which shall be based on actual performance under the applicable bonus plan and
a fraction, the numerator of which is the number of days elapsed during the performance year
through the date of termination and the denominator of which is 365, which pro-rated bonus
shall be paid when bonuses are paid generally to senior executives for such year;
(iv) Any disability insurance benefits, or life insurance proceeds, as the case may be,
as may be provided under the Company plans in which Executive participates immediately prior
to such termination; and
(v) Executive’s Inducement Awards shall become immediately fully vested. Executive’s
Inducement SSARs shall be exercisable for the lesser of one year following the date of
termination or the exercise period stated in the award agreement. Any restricted stock
units awarded with respect to 2007 PSUs shall become immediately fully vested, and any
restricted stock units to be awarded with respect to 2007 PSUs shall be fully vested
immediately upon award. If Executive’s termination of employment occurs prior to 2008, then
restricted stock units shall be awarded with respect to 2007 PSUs based upon performance for
all of the calendar year 2007.
Company for Cause, then the Company shall pay to Executive any Accrued Obligations in
accordance with Section 8(a)(i). Upon termination of Executive’s employment by the Company for
Cause, all unvested Inducement Awards and any vested unexercised 2007 SSARs will be immediately
forfeited.
(i) Executive’s Accrued Obligations, payable in accordance with Section 8(a)(i);
(ii) Any unpaid bonus earned with respect to any fiscal year ending on or preceding the
date of termination, payable when bonuses are paid generally to senior executives for such
year;
(iii) A pro-rated annual bonus for the fiscal year in which such termination occurs,
the amount of which shall be based on actual performance under the applicable bonus plan and
a fraction, the numerator of which is the number of days elapsed during the performance year
through the date of termination and the denominator of which is 365, which pro-rated bonus
shall be paid when bonuses are paid generally to senior executives for such year;
(iv) Severance payments in the aggregate amount equal to the sum of (A) Executive’s
then Base Salary plus (B) his annual target bonus, which amount shall be payable to
Executive in equal payroll installments over a period of twelve (12) months;
(v) Subject to Executive’s continued co-payment of premiums, continued participation
for twelve (12) months in the Company’s medical benefits plan which covers Executive and his
eligible dependents upon the same terms and conditions (except for the requirements of
Executive’s continued employment) in effect for active employees of the Company. In the
event Executive obtains other employment that offers substantially similar or more favorable
medical benefits, such continuation of coverage by the Company under this subsection shall
immediately cease. The continuation of health benefits under this subsection shall reduce
the period of coverage and count against Executive’s right to healthcare continuation
benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
(“COBRA”); and
(vi) Executive’s Inducement Awards shall become immediately fully vested. Executive’s
Inducement SSARs shall be exercisable for the lesser of one year following the date of
termination or the exercise period stated in the award agreement. Any restricted stock
units awarded with respect to the 2007 PSUs shall become immediately fully vested, and any
restricted stock units to be awarded with respect to the 2007 PSUs shall be fully vested
immediately upon award. If Executive’s termination of employment occurs prior to 2008, then
restricted stock units shall be awarded with respect to 2007 PSUs based upon performance for
all of calendar year 2007.
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(a) compliance with the provisions of Section 12 hereof;
(b) delivery to the Company of an executed Agreement and General Release (the “General
Release”), which shall be substantially in the form attached hereto as Exhibit D within
twenty-one (21) days after presentation thereof by the Company to Executive; and
(c) delivery to the Company of a resignation from all offices, directorships and fiduciary
positions held by Executive with the Company, its affiliates and employee benefit plans.
Notwithstanding the due date of any post-employment payments, any amounts due following a
termination under this Agreement (other than Accrued Obligations) shall not be payable until after
the expiration of any statutory revocation period applicable to the General Release without
Executive having revoked such General Release, and, subject to the provisions of Section 22 hereof,
any such amounts shall be paid to Executive within thirty (30) days thereafter. Notwithstanding
the foregoing, Executive shall be entitled to any Accrued Obligations, payable without regard for
the conditions of this Section 9.
(a) CHANGE IN CONTROL. A “Change in Control” of the Company shall be deemed to have occurred
if any of the events set forth in any one of the following subparagraphs shall occur:
(i) The acquisition by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of more than 50% of either (i) the then-outstanding shares of common
stock of the Company (the “Outstanding Company Common Stock”) or (ii) 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 (a), the following acquisitions shall not constitute a
Change of Control: (1) any acquisition directly from the Company, (2) any acquisition by the
Company, (3) any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company, or (4) any
acquisition by any corporation pursuant to a transaction which complies with clauses (1) and
(2) of subsection (iii) of this definition;
(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 shareholders, was approved by a vote
of at least a majority of the directors then comprising the Incumbent Board shall
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be considered as though such individual were a member of 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;
(iii) consummation of a reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the Company (a “Business
Combination”), in each case, unless, following such Business Combination, (1) 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% 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) and in substantially the same
proportions as their ownership, immediately prior to such Business Combination of the
Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may
be, and (2) 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 shareholders of the Company of a complete liquidation or
dissolution of the Company.
(i) Executive’s Accrued Obligations, payable in accordance with Section 8(a)(i);
(ii) Any unpaid bonus earned with respect to any fiscal year ending on or preceding the
date of termination, payable when bonuses are paid generally to senior executives for such
year;
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(iii) A pro-rated annual bonus for the fiscal year in which such termination occurs,
the amount of which shall be based on target performance and a fraction, the numerator of
which is the number of days elapsed during the performance year through the date of
termination and the denominator of which is 365, which pro-rated bonus shall be paid when
bonuses are paid generally to senior executives for such year;
(iv) A lump sum severance payment in the aggregate amount equal to the product of (A)
the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his
annual target bonus multiplied by (B) two (2);
(v) Subject to Executive’s continued co-payment of premiums, continued participation
for two (2) years in the Company’s medical benefits plan which covers Executive and his
eligible dependents upon the same terms and conditions (except for the requirements of
Executive’s continued employment) in effect for active employees of the Company. In the
event Executive obtains other employment that offers substantially similar or more favorable
medical benefits, such continuation of coverage by the Company under this subsection shall
immediately cease. The continuation of health benefits under this subsection shall reduce
the period of coverage and count against Executive’s right to healthcare continuation
benefits under COBRA; and
(vi) All of Executive’s unvested Long-Term Awards (except for any performance shares or
PSUs (other than the 2007 PSUs which are covered above under Section 10(b)) where
termination of Executive’s employment occurs prior to a Performance Determination Date)
shall become immediately fully vested. All then-unexercised stock-settled or other stock
appreciation rights shall be exercisable for the lesser of one year following the date of
termination or the exercise period stated in the award agreement to the extent permissible
under the applicable award agreement and plan. With respect to any PSUs (other than 2007
PSUs) where the Executive’s employment is terminated prior to a Performance Determination
Date, the consequence of such termination shall be governed by the award agreement.
(i) If it is determined that any amount, right or benefit paid or payable (or otherwise
provided or to be provided) to the Executive by the Company or any of its affiliates under
this Agreement or any other plan, program or arrangement under which Executive participates
or is a party, other than amounts payable under this Section 10(d), (collectively, the
“Payments”), would constitute an “excess parachute payment” within the meaning of Section
280G of the Internal Revenue Code of 1986, as amended (the “Code”), subject to the excise
tax imposed by Section 4999 of the Code, as amended from time to time (the “Excise Tax”),
and the present value of such Payments (calculated in a manner consistent with that set
forth in the applicable regulations promulgated under Section 280G of the Code) is equal to
or less than 110% of the threshold at which such amount becomes an “excess parachute
payment,” then the amount of the Payments payable to the Executive under this Agreement
shall be reduced (a “Reduction”) to the
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extent necessary so that no portion of such Payments payable to the Executive is
subject to the Excise Tax.
(ii) In the event it shall be determined that the amount of the Payments payable to the
Executive is more than 110% greater than the threshold at which such amount becomes an
“excess parachute payment,” then the Executive shall be entitled to receive an additional
payment from the Company (a “Gross-Up Payment”) in an amount such that, after payment by the
Executive of all taxes (including any interest or penalties imposed with respect to such
taxes), including, without limitation, any income and employment taxes 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.
(iii) All determinations required to be made under this Section 10(d), including
whether and when a Gross-Up Payment or a Reduction is required, the amount of such Gross-Up
Payment or Reduction and the assumptions to be utilized in arriving at such determination,
shall be made by an independent, nationally recognized accounting firm mutually acceptable
to the Company and the Executive (the “Auditor”); provided that in the event a Reduction is
determined to be required, the Executive may determine which Payments shall be reduced in
order to comply with the provisions of this Section 10(d). The Auditor shall promptly
provide detailed supporting calculations to both the Company and Executive following any
determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of
the Auditor shall be paid by the Company. Any Gross-Up Payment, as determined pursuant to
this Section 10(d), shall be paid by the Company to the Executive within five (5) days of
the receipt of the Auditor’s determination. All determinations made by the Auditor shall be
binding upon the Company and the Executive; provided that if, notwithstanding the Auditor’s
initial determination, the Internal Revenue Service (or other applicable taxing authority)
determines that an additional Excise Tax is due with respect to the Payments, then the
Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if
applicable, based upon the determinations made by the Internal Revenue Service (or other
applicable taxing authority) after taking into account any additional interest and penalties
(the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the
Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount
of the Payments after the Reduction, as applicable, within five (5) days of the receipt of
the Auditor’s recalculation of the Gross-Up Payment.
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Reason during a Protection Period, all vested Long-Term Awards will remain exercisable for
ninety (90) days following the effective date of such termination of employment. Upon any
termination by the Company for Cause, by the Executive for any reason at any time other than during
a Protection Period or by Executive without Good Reason during a Protection Period, all unvested
Long-Term Awards will be immediately forfeited. The provisions of this Section 11 shall not apply
to Executive’s Inducement Awards.
(b) NONSOLICITATION. Commencing on the date hereof, and continuing during Executive’s
employment with the Company and for the twelve (12) month period following termination of
Executive’s employment for any reason (a twenty-four (24) month post-employment period in the event
of a termination of Executive’s employment for any reason at any time during a Protection Period)
(“Restricted Period”), Executive agrees that Executive shall not, without the prior written consent
of the Company, directly or indirectly, individually or on behalf of any other person, firm,
corporation or other entity: (i) solicit, recruit or employ (whether as an employee, officer,
director, agent, consultant or independent contractor) any person who was or is at any time during
the six (6) months preceding termination of Executive’s employment an employee, representative,
officer or director of the Company; (ii) take any action to encourage or induce any employee,
representative, officer or director of the Company to cease their relationship with the Company for
any reason; or (iii) knowingly solicit, aid or induce any customer of the Company or any of its
subsidiaries or affiliates to purchase goods or services then sold by the Company or any of its
subsidiaries or affiliates from another person, firm, corporation or other entity or assist or aid
any other persons or entity in identifying or soliciting any such customer.
(c) NONCOMPETITION. Executive acknowledges that Executive performs services of a unique
nature for the Company that are irreplaceable, and that Executive’s performance of such services to
a competing business will result in irreparable harm to the Company. Accordingly, during the
Restricted Period, Executive agrees that Executive shall not, directly or indirectly, own, manage,
operate, control, be employed by (whether as an employee,
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consultant, independent contractor or otherwise, and whether or not for compensation) or
render services to any person, firm, corporation or other entity, in whatever form, engaged in any
business of the same type as any business in which the Company or any of its subsidiaries or
affiliates is engaged on the date of termination or in which they have proposed, within twelve (12)
months prior to such date, to be engaged in on or after such date at any time during the Restricted
Period, in any locale of any country in which the Company conducts business. This Section 12(c)
shall not prevent Executive from owning not more than two percent (2%) of the total shares of all
classes of stock outstanding of any publicly held entity engaged in such business.
(d) NONDISPARAGEMENT. Each of Executive and the Company (for purposes hereof, “the Company”
shall mean only (i) the Company by press release or other formally released announcement and (ii)
the executive officers and directors thereof and not any other employees) agrees not to make any
public statements that disparage the other party, or in the case of the Company, its respective
affiliates, employees, officers, directors, products or services. Notwithstanding the foregoing,
statements made in the course of sworn testimony in administrative, judicial or arbitral
proceedings (including, without limitation, depositions in connection with such proceedings) shall
not be subject to this Section 12(d). Executive’s provision shall also not cover normal
competitive statements which do not cite Executive’s employment by the Company.
Executive’s employment, or relate to any matters pertaining to, or useful in connection
therewith, the business or affairs of the Company or any of its subsidiaries. Included herein as
if developed during the employment period is any specialized equipment and software developed for
use in the business of the Company. All of Executive’s right, title and interest in, to, and under
all such Inventions, licenses, and right to grant licenses shall be the sole property of the
Company. Any such Inventions disclosed to anyone by Executive within one (1) year after the
termination of employment for any cause whatsoever shall be deemed to have been made or conceived
by Executive during the Term. As to all such Inventions, Executive will, upon request of the
Company execute all documents which the Company deems 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 do all things (including the
giving of evidence in suits and other proceedings) which the Company deems necessary or proper to
obtain, maintain, or assert patents for any and all such Inventions or to assert its rights in any
Inventions not patented.
(i) REFORMATION. If it is determined by a court of competent jurisdiction in any state that
any restriction in this Section 12 is excessive in duration or scope or is unreasonable or
unenforceable under the laws of that state, it is the intention of the parties that such
restriction may be modified or amended by the court to render it enforceable to the maximum extent
permitted by the law of that state.
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(a) This Agreement is personal to each of the parties hereto. Except as provided in Section
14(b) below, no party may assign or delegate any rights or obligations hereunder without first
obtaining the written consent of the other party hereto.
(b) The Company shall assign this Agreement to any successor to all or substantially all of
the business or assets of the Company provided that the Company shall require such successor to
expressly assume and agree to perform this Agreement 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 and shall deliver
a copy of such assignment to Executive.
If to Executive:
At the address shown on the records of the Company
If to the Company:
Xxxxxx Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attn: General Counsel
0000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attn: General Counsel
or to such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be effective
only upon receipt.
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breach of Section 12, shall be settled exclusively by arbitration, conducted before a single
arbitrator in St. Louis, Missouri, administered by the American Arbitration Association (“AAA”) in
accordance with its Commercial Arbitration Rules then in effect. The single arbitrator shall be
selected by the mutual agreement of the Company and Executive, unless the parties are unable to
agree to an arbitrator, in which case, the arbitrator will be selected under the procedures of the
AAA. The arbitrator will have the authority to permit discovery and to follow the procedures that
Executive or she determines to be appropriate. The arbitrator will have no power to award
consequential (including lost profits), punitive or exemplary damages. The decision of the
arbitrator will be final and binding upon the parties hereto. Judgment may be entered on the
arbitrator’s award in any court having jurisdiction. Each party shall bear its own legal fees and
costs and equally divide the forum fees and cost of the arbitrator (unless otherwise awarded by the
arbitrator).
21. ENTIRE AGREEMENT; MISCELLANEOUS. This Agreement together with all exhibits hereto sets
forth the entire agreement of the parties hereto in respect of the subject matter contained herein.
No agreements or representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly set forth in this
Agreement. The validity, interpretation, construction and performance of this Agreement shall be
governed by the laws of the State of Delaware without regard to its conflicts of law principles.
The descriptive headings in this Agreement are inserted for convenience of reference only and are
not intended to be part of or to affect the meaning or interpretation of this Agreement. The use
of the word “including” in this Agreement shall be by way of example rather than by limitation and
the word “or” shall be inclusive and not exclusive.
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XXXXXX INC. |
||||
By: | /s/Xxxx Xxxxxx | |||
Xxxx Xxxxxx, Chief Executive Officer | ||||
/s/Xxxxx Xxxxx | ||||
Xxxxx Xxxxx | ||||
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Exhibit 10.3
EXHIBIT A
XXXXXX INC.
BUY-OUT RESTRICTED STOCK UNIT AWARD AGREEMENT
THIS BUY-OUT RESTRICTED STOCK UNIT AWARD AGREEMENT (this “Agreement”) is effective as of June
11, 2007 (the “Grant Date”) by and between Xxxxxx Inc., a Delaware corporation (the “Company”) and
Xxxxx Xxxxx (“Grantee”).
WHEREAS, pursuant to the Executive Employment Agreement between the Grantee and the Company
dated June 11, 2007, (the “Employment Agreement”) the Grantee, by action of the Board of Directors
of the Company (the “Board”), or by action of the Compensation Committee (the “Committee”) of the
Board, is to receive a grant of 7,250 restricted stock units (“RSUs”) representing 7,250 shares
(the “Shares”) of the Company’s common stock, $0.01 par value per share (the “Common Stock”),
subject to the provisions of the Employment Agreement, and to enter into a Restricted Stock Unit
Award Agreement in the form hereof;
(a) Generally. Subject to the acceleration of the Vesting pursuant to Section 2(b),
(c) or (e) below, or the forfeiture and termination of the RSUs pursuant to Section 2(d) below, all
of the RSUs shall Vest on the fifth (5th) anniversary of the Grant Date. All Vested RSUs shall be
paid to the Grantee as provided in Section 4 hereof.
(b) Death, Disability or Retirement. If Grantee terminates employment with the
Company on account of death or Disability (as defined in Section 7(a) of the Employment Agreement),
then any and all unvested RSUs shall immediately Vest in full.
(c) Termination by Company Without Cause. If Grantee’s employment with the Company is
terminated by the Company without Cause (as defined in Section 7(d) of the Employment Agreement),
other than for Disability, prior to Grantee’s attainment of age 65, then any and all unvested RSUs
shall immediately Vest in full.
A-1
(d) Other Employment Termination. If the Grantee voluntarily terminates his
employment or if the Company terminates the Grantee’s employment for Cause (as defined in Section
(c) of the Employment Agreement), , then any and all RSUs that are not Vested at such time shall be
forfeited, cancelled and terminated upon such termination.
(e) Change of Control. If Grantee is employed at the time of a Change in Control of
the Company (as defined in Section 10(a) of the Employment Agreement), then upon such Change in
Control, any and all unvested RSUs shall immediately Vest in full.
(a) Issuance of Shares. As of the date in which the RSUs Vest, the Company shall
issue to the Grantee a stock certificate (or register Shares of Common Stock in book-entry form)
representing a number of Shares of Common Stock equal to the number of RSUs then vested.
(b) Withholding Taxes. At the time Shares of Common Stock are issued to the Grantee,
the Company shall satisfy the statutory Federal, state and local withholding tax obligation
(including the FICA and Medicare tax obligation) required by law with respect to the distribution
of Shares from one or more of the following methods, as the Grantee elects: (i) the Company shall
withhold cash compensation then accrued and payable to the Grantee of such required withholding
amount, (ii) the Grantee may tender a check or other payment of cash to the Company of such
required withholding amount, or (iii) by withholding from Shares issuable to the Grantee hereunder
having an aggregate fair market value equal to the amount of such required withholding.
(a) It and the Grantee, at Company’s expense, have taken any actions required to register the
Shares under the Securities Act of 1933, as amended or to perfect an exemption from the
registration requirements thereof;
(b) Any applicable listing requirement of any stock exchange or other securities market on
which the Common Stock is listed has been satisfied; and
(c) Any other applicable provision of state or federal law has been satisfied.
A-2
(a) Rights as a Stockholder. Neither the Grantee nor the Grantee’s representative
shall have any rights as a stockholder with respect to any Shares underlying the RSUs until the
date that the Company is obligated to deliver such Shares to the Grantee or the Grantee’s
representative.
(b) Dividends. Between the Grant Date and the date of Vesting of the RSUs (the
“Accrual Period”), any dividends or distributions payable with respect to the number of Shares
equal to the number of RSUs held by the Grantee shall be accumulated and deferred until the Vesting
of the RSUs. After such Vesting of the RSUs, the Company shall promptly distribute to the Grantee
all such dividends and distributions accrued during the Accrual Period.
(c) No Retention Rights. Nothing in this Agreement shall confer upon the Grantee any
right to continue in the employment or service of the Company for any period of specific duration
or interfere with or otherwise restrict in any way the rights of the Company or of the Grantee,
which rights are hereby expressly reserved by each, to terminate his employment or service at any
time and for any reason, with or without cause.
(d) Employment by Subsidiary, etc. For purposes of this Agreement, employment by a
parent or subsidiary of or a successor to the Company shall be considered employment by the
Company.
(e) Anti-Dilution. In the event that any change in the outstanding Shares of Common
Stock of the Company (including an exchange of Common Stock for stock or other securities of
another corporation) occurs by reason of a Common Stock dividend or split, recapitalization,
merger, consolidation, combination, exchange of Shares or other similar corporate changes, other
than for consideration received by the Company therefor, the number of RSUs awarded hereunder, and
the number of Shares distributable pursuant to Vested RSUs, shall be appropriately adjusted by the
Committee whose determination shall be conclusive, final and binding; provided, however that
fractional Shares shall be rounded to the nearest whole share. In the event of any other change in
the Common Stock, the Committee shall in its sole discretion determine whether such change
equitably requires a change in the number or type of Shares subject to RSUs and any adjustment made
by the Committee shall be conclusive, final and binding.
(f) Incorporation of Plan. The provisions of the Plan are incorporated by reference
into these terms and conditions.
(g) Inconsistency. To the extent any terms and conditions herein conflict with the
terms and conditions of the Plan, the terms and conditions of the Plan shall control. In the event
of any inconsistency between either this Agreement or the Plan, and the Employment Agreement, the
Employment Agreement shall control.
(h) Notices. Any notice required by the terms of this Agreement shall be given in
writing and shall be deemed effective upon personal delivery, upon deposit with the United States
Postal Service, by registered or certified mail, with postage and fees prepaid or upon deposit with
a reputable overnight courier. Notice shall be addressed to the Company at its
A-3
principal executive office and to the Grantee at the address that he most recently provided to
the Company.
(i) Entire Agreement; Amendments. This Agreement, together with the Employment
Agreement, constitutes the entire contract between the parties hereto with regard to the subject
matter hereof. This Agreement and the Employment Agreement supersede any other agreements,
representations or understandings (whether oral or written and whether express or implied) which
relate to the subject matter hereof. The Committee shall have authority, subject to the express
provisions of the Plan, to interpret this Agreement and the Plan, to establish, amend and rescind
any rules and regulations relating to the Plan, to modify the terms and provisions of this
Agreement, and to make all other determinations in the judgment of the Committee necessary or
desirable for the administration of the Plan, provided no such action may be contrary to the
provisions of the Employment Agreement or may otherwise modify this Agreement in a manner adverse
to Grantee without his prior written consent. The Committee may correct any defect or supply any
omission or reconcile any inconsistency in the Plan or in this Agreement in the manner and to the
extent it shall deem necessary or desirable to carry it into effect. All action by the Committee
under the provisions of this paragraph shall be final, conclusive and binding for all purposes.
(j) Choice of Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, as such laws are applied to contracts entered into and
performed in such State, without giving effect to the choice of law provisions thereof.
(k) Successors.
(i) This Agreement is personal to the Grantee and, except as otherwise provided in Section 3
above, shall not be assignable by the Grantee otherwise than by will or the laws of descent and
distribution, without the written consent of the Company. This Agreement shall inure to the
benefit of and be enforceable by the Grantee’s legal representatives.
(ii) This Agreement shall inure to the benefit of and be binding upon the Company and its
successors. It shall not be assignable except in connection with the sale or other disposition of
all or substantially all the assets or business of the Company.
(l) Severability. If any provision of this Agreement for any reason should be found
by any court of competent jurisdiction to be invalid, illegal or unenforceable, in whole or in
part, such declaration shall not affect the validity, legality or enforceability of any remaining
provision or portion hereof, which remaining provision or portion hereof shall remain in full force
and effect as if this Agreement had been adopted with the invalid, illegal or unenforceable
provision or portion hereof eliminated.
(m) Headings. The headings, captions and arrangements utilized in this Agreement
shall not be construed to limit or modify the terms or meaning of this Agreement.
(n) Counterparts. This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which shall constitute but one
and the same instrument.
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This Agreement is executed by the Company as of the date and year first written above.
XXXXXX INC. |
||||
By: | /s/ Xxxx Xxxxxx | |||
Xxxx Xxxxxx | ||||
Title: | Chief Executive Officer | |||
The undersigned Grantee hereby acknowledges receipt of an executed original of this Agreement
and accepts the RSUs granted hereunder, and further agrees to the terms and conditions hereinabove
set forth.
/s/ Xxxxx Xxxxx | ||||
Xxxxx Xxxxx, Grantee | ||||
Date: June 6, 2007
A-5
Exhibit
10.3
EXHIBIT B
XXXXXX INC.
2007 PERFORMANCE SHARE AWARD AGREEMENT
THIS PERFORMANCE SHARE AWARD AGREEMENT (this “Agreement”) is effective as of June 11, 2007
(the “Grant Date”) by and between Xxxxxx Inc., a Delaware corporation (the “Company”) and Xxxxx
Xxxxx (“Grantee”).
WHEREAS, pursuant to the Executive Employment Agreement between Grantee and the Company dated
June 11, 2007 (the “Employment Agreement”), the Grantee, by action of the Board of Directors of the
Company (the “Board”), or by action of the Compensation Committee (the “Committee”) of the Board,
is to receive a grant of 3,300 performance share units (“PSUs”) subject to the provisions of the
Employment Agreement and representing, subject to certain restrictions, a certain number of shares
(the “Shares”) of the Company’s common stock, $0.01 par value per share (the “Common Stock”), such
number to be based on the attainment of performance objectives as provided below, and is to enter
into a Performance Share Award Agreement in the form hereof;
(a) Award Period; Performance Objectives. The award period (“Award Period”) during
which performance shall be measured is calendar year 2007. The Committee has established
performance objectives for such Award Period based on the attainment of 2007 financial performance
goals. The financial performance goals are those the Committee has established for the Company’s
2007 annual cash incentive plan. If Company performance during the Award Period is at 100% of
targeted objectives, then the Grantee shall be entitled to receive one (1) RSU for each PSU. If
Company performance during the Award Period is at 70% of targeted objectives, then the Grantee
shall be entitled to receive one-half (.5) of an RSU for each
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PSU. If Company performance during the Award Period is at 120% of targeted objectives, then
the Grantee shall be entitled to receive one and one-half (1.5) of an RSU for each PSU. The number
of RSUs shall be prorated for performance between the foregoing standards. If Company performance
during the Award Period is at less than 70% of targeted objectives, then the Grantee shall not be
entitled to receive any RSUs for the PSUs, and this Performance Share Award and the PSUs shall have
no value and shall be deemed forfeited, cancelled and terminated. After the Award Period, the
Committee shall determine the number (if any) of RSUs to be awarded for each PSU based on Company
performance during the Award Period, which determination shall be final, conclusive and binding
(the date on which the Committee makes such determination is the “Performance Determination Date”,
and the RSUs that are so awarded are the “Awarded RSUs”).
(b) Death or Disability During Award Period. If prior to the Performance
Determination Date and while employed by the Company the Grantee dies or becomes Disabled (as
defined in Section 7(a) of the Employment Agreement) and leaves the Company, then the Grantee (or,
as the case may be, the person entitled by will or the applicable laws of descent and distribution)
shall, after the Award Period, be entitled to receive the RSUs that would otherwise (but for such
death or Disability) be awarded to the Grantee after the Award Period pursuant to Section 2(a)
above based upon performance for the entire Award Period. Such Awarded RSUs shall immediately Vest
in full.
(c) Termination by Company Without Cause. If prior to the Performance Determination
Date, Grantee’s employment with the Company is terminated by the Company without Cause (as defined
in Section 7(c) of the Employment Agreement) prior to Grantee’s attainment of age 65 other than for
Disability, then after the Award Period Grantee shall be entitled to receive the RSUs that would
otherwise (but for such termination) be awarded to the Grantee after the Award Period pursuant to
Section 2(a) above based upon performance for the entire Award Period. Such Awarded RSUs shall
immediately Vest in full.
(d) Other Employment Termination Prior to Performance Determination Date. If the
Grantee voluntarily terminates his employment or if the Company terminates the Grantee’s
employment for Cause (as defined in Section 7(c) of the Employment Agreement, prior to the
Performance Determination Date, any and all PSUs shall be forfeited, cancelled and terminated upon
such termination. If the Grantee voluntarily terminates his employment or if the Company
terminates the Grantee’s employment for Cause, after a Performance Determination Date, any and all
unvested RSUs shall be forfeited, cancelled and terminated upon such termination.
(a) Generally. Subject to the acceleration of the Vesting pursuant to Sections 2(b)
or 2(c) above or Sections 3(b), 3(c) or 3(e) below, or the forfeiture and termination of the
Awarded RSUs pursuant to Section 3(d) below, one-half (1/2) of the Awarded RSUs shall Vest on the
first anniversary of the Performance Determination Date, and the remaining one-half (1/2) shall
Vest on the second anniversary of the Performance Determination Date. All Vested Awarded RSUs
shall be paid to the Grantee as provided in Section 5 hereof.
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(b) Death, Disability or Retirement. If, after the award of the Awarded RSUs and
while employed by the Company, the Grantee dies or becomes Disabled (and leaves the Company) or
retires from employment with the Company under any Company retirement plan then in effect, then any
and all unvested Awarded RSUs shall immediately Vest in full.
(c) Termination by Company Without Cause. If Grantee’s employment with the Company is
terminated by the Company without Cause prior to Grantee’s attainment of age 65 other than for
Disability, then any and all unvested Awarded RSUs shall immediately Vest in full.
(d) Other Employment Termination. If the Grantee or the Company terminates the
Grantee’s employment other than under Sections 3(b) or 3(c) after the award of the Awarded RSUs,
any and all Awarded RSUs that are not Vested at such time shall be forfeited, cancelled and
terminated upon such termination.
(e) Change of Control. If Grantee is employed at the time of a Change in Control of
the Company (as defined in Section 10(a) of the Employment Agreement), then upon such Change in
Control, any and all unvested Awarded RSUs shall immediately Vest in full.
(a) Issuance of Shares. As of the date(s) on which the Awarded RSUs Vest, the Company
shall issue to the Grantee a stock certificate (or register Shares of Common Stock in book-entry
form) representing a number of Shares of Common Stock equal to the number of Awarded RSUs then
vested.
(b) Withholding Taxes. At the time Shares of Common Stock are issued to the Grantee,
the Company shall satisfy the statutory Federal, state and local withholding tax obligation
(including the FICA and Medicare tax obligation) required by law with respect to the distribution
of Shares from one or more of the following methods, as the Grantee elects: (i) the Company shall
withhold cash compensation then accrued and payable to Grantee of such required withholding amount,
(ii) the Grantee may tender a check or other payment of cash to the Company of such required
withholding amount, or (iii) by withholding from Shares issuable to the Grantee hereunder having an
aggregate fair market value equal to the amount of such required withholding.
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(a) It and the Grantee, at Company’s expense, have taken any actions required to register the
Shares under the Securities Act of 1933, as amended, or to perfect an exemption from the
registration requirements thereof;
(b) Any applicable listing requirement of any stock exchange or other securities market on
which the Common Stock is listed has been satisfied; and
(c) Any other applicable provision of state or federal law has been satisfied.
(a) Rights as a Stockholder. Neither the Grantee nor the Grantee’s representative
shall have any rights as a stockholder with respect to any Shares underlying the Awarded RSUs until
the date that the Company is obligated to deliver such Shares to the Grantee or the Grantee’s
representative.
(b) Dividends. Between the Performance Determination Date and the date of Vesting of
the Awarded RSUs (the “Accrual Period”), any dividends or distributions payable with respect to the
number of Shares equal to the number of Awarded RSUs held by the Grantee shall be accumulated and
deferred until the Vesting of the Awarded RSUs. After such Vesting of the Awarded RSUs, the
Company shall promptly distribute to the Grantee all such dividends and distributions accrued
during the Accrual Period.
(c) No Retention Rights. Nothing in this Agreement shall confer upon the Grantee any
right to continue in the employment or service of the Company for any period of specific duration
or interfere with or otherwise restrict in any way the rights of the Company or of the Grantee,
which rights are hereby expressly reserved by each, to terminate his employment or service at any
time and for any reason, with or without cause.
(d) Employment by Subsidiary, etc. For purposes of this Agreement, employment by a
parent or subsidiary of or a successor to the Company shall be considered employment by the
Company.
(e) Anti-Dilution. In the event that any change in the outstanding Shares of Common
Stock of the Company (including an exchange of Common Stock for stock or other securities of
another corporation) occurs by reason of a Common Stock dividend or split, recapitalization,
merger, consolidation, combination, exchange of Shares or other similar corporate changes, other
than for consideration received by the Company therefore, the number of Awarded RSUs hereunder, and
the number of Shares distributable pursuant to Vested Awarded RSUs, shall be appropriately adjusted
by the Committee whose determination shall be conclusive, final and binding; provided, however
that fractional Shares shall be rounded to the nearest whole share. In the event of any other
change in the Common Stock, the Committee shall in its sole discretion determine whether such
change equitably requires a change in the number or type of Shares subject to Awarded RSUs and any
adjustment made by the Committee shall be conclusive, final and binding.
(f) Incorporation of Plan. The provisions of the Plan are incorporated by reference
into these terms and conditions.
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(g) Inconsistency. To the extent any terms and conditions herein conflict with the
terms and conditions of the Plan, the terms and conditions of the Plan shall control. In the event
of any inconsistency between this Agreement and the Employment Agreement, the Employment Agreement
shall control.
(h) Notices. Any notice required by the terms of this Agreement shall be given in
writing and shall be deemed effective upon personal delivery, upon deposit with the United States
Postal Service, by registered or certified mail, with postage and fees prepaid or upon deposit with
a reputable overnight courier. Notice shall be addressed to the Company at its principal executive
office and to the Grantee at the address that he most recently provided to the Company.
(i) Entire Agreement; Amendments. This Agreement, together with the Employment
Agreement, constitutes the entire contract between the parties hereto with regard to the subject
matter hereof. This Agreement and the Employment Agreement supersede any other agreements,
representations or understandings (whether oral or written and whether express or implied) which
relate to the subject matter hereof. The Committee shall have authority, subject to the express
provisions of the Plan, to interpret this Agreement and the Plan, to establish, amend and rescind
any rules and regulations relating to the Plan, to modify the terms and provisions of this
Agreement, and to make all other determinations in the judgment of the Committee necessary or
desirable for the administration of the Plan, provided no such action may be contrary to the
provisions of the Employment Agreement or may otherwise modify this Agreement in a manner adverse
to Grantee without his prior written consent. The Committee may correct any defect or supply any
omission or reconcile any inconsistency in the Plan or in this Agreement in the manner and to the
extent it shall deem necessary or desirable to carry it into effect. All action by the Committee
under the provisions of this paragraph shall be final, conclusive and binding for all purposes.
(j) Choice of Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, as such laws are applied to contracts entered into and
performed in such State, without giving effect to the choice of law provisions thereof.
(k) Successors.
(i) This Agreement is personal to the Grantee and, except as otherwise provided in Section 4
above, shall not be assignable by the Grantee otherwise than by will or the laws of descent and
distribution, without the written consent of the Company. This Agreement shall inure to the
benefit of and be enforceable by the Grantee’s legal representatives.
(ii) This Agreement shall inure to the benefit of and be binding upon the Company and its
successors. It shall not be assignable except in connection with the sale or other disposition of
all or substantially all the assets or business of the Company.
(l) Severability. If any provision of this Agreement for any reason should be found
by any court of competent jurisdiction to be invalid, illegal or unenforceable, in whole or in
part, such declaration shall not affect the validity, legality or enforceability of any remaining
provision or portion hereof, which remaining provision or portion hereof shall remain in full
B-5
force and effect as if this Agreement had been adopted with the invalid, illegal or
unenforceable provision or portion hereof eliminated.
This Agreement is executed by the Company as of the date and year first written above.
XXXXXX INC. |
||||
By: | /s/ Xxxx Xxxxxx | |||
Xxxx Xxxxxx | ||||
Title: | Chief Executive Officer | |||
The undersigned Grantee hereby acknowledges receipt of an executed original of this Agreement
and accepts the PSUs granted hereunder, and further agrees to the terms and conditions hereinabove
set forth.
/s/ Xxxxx Xxxxx | ||||
Xxxxx Xxxxx, Grantee | ||||
Date: June 6, 2007
B-6
Exhibit
10.3
EXHIBIT C
XXXXXX INC.
2007 STOCK APPRECIATION RIGHTS AWARD AGREEMENT
THIS STOCK APPRECIATION RIGHT AWARD AGREEMENT (this “Agreement”) is effective as of June 11,
2007 (the “Grant Date”) by and between Xxxxxx Inc., a Delaware corporation (the “Company”) and
Xxxxx Xxxxx (“Grantee”).
WHEREAS, pursuant to the Executive Employment Agreement between the Grantee and the Company
dated June 11, 2007 (the “Employment Agreement”), the Grantee, by action of the Board of Directors
of the Company (the “Board”), or by action of the Compensation Committee (the “Committee”) of the
Board, is to receive a grant of stock appreciation rights corresponding to 6,800 shares (the
“Shares”) of the Company’s common stock, $0.01 par value per share (the “Common Stock”), subject to
the provisions of the Employment Agreement, and is to enter into a Stock Appreciation Right Award
Agreement in the form hereof;
(a) | Employment. During the Grantee’s lifetime, the SARs are exercisable only by the Grantee, and, except as otherwise provided in clause (c) below, only if the Grantee has remained continuously employed by the Company from the Grant Date. | ||
(b) | Term of SARs. The SARs shall expire ten years following the Grant Date (the period between the Grant Date and such expiration date being the “SAR Term”), or earlier if clause (c) of this Section 2 applies. |
C-1
(c) | Exceptions. Subject to the exceptions noted in subparts (i)-(v) below, the SARs shall be forfeited, cancelled and terminated immediately if the Grantee is no longer employed by the Company. |
(i) | Retirement. If after one year from the Grant Date the Grantee retires from employment with the Company in accordance with any Company retirement plan then in effect, the Grantee may at any time within the three-year period following such retirement (but within the SAR Term) exercise all SARs, including those SARs that had not previously vested which shall Vest upon retirement. The Grantee’s right to exercise SARs upon retirement in such fashion is expressly conditioned on the Grantee’s furnishing to the Company a non-compete covenant (the form of which must be reasonably acceptable to the Company) that would prevent the Grantee from competing against the Company during such three-year period following retirement (or, if shorter, through the end of the SAR Term). The non-compete covenant will contain a provision that will require the Grantee to pay the Company damages if the Grantee breaches such non-compete covenant. The damages shall include any gain the Grantee may receive from the exercise of an SAR in violation of such non-compete covenant. | ||
(ii) | Disability. If the Grantee is no longer with the Company due to Disability, the Grantee may at any time within one year following the Grantee’s leaving the Company (but within the SAR Term) exercise all SARs, including those SARs that had not previously vested which shall Vest upon the date of Disability. | ||
(iii) | Termination of Employment by Company Without Cause; Voluntary Termination. If Grantee’s employment with the Company is terminated by the Company without Cause (as defined in Section 7(c) of the Employment Agreement) other than for Disability, prior to Grantee’s attainment of age 65, then Grantee may at any time within one (1) year following Grantee’s leaving the Company (but within the SAR Term) exercise all SARs, including those SARs that had not previously vested which shall Vest upon the date of such termination of Grantee’s employment. If after one year from the Grant Date the Grantee voluntarily terminates the Grantee’s employment, the Grantee may at any time within ninety (90) days following the Grantee’s leaving the Company (but within the SAR Term) exercise the Grantee’s SARs to the extent the Grantee was entitled to exercise such SARs prior to leaving the Company, but not otherwise. | ||
(iv) | Death. If the Grantee dies while employed by the Company (or if the Grantee were to die during the post-employment period covered by Section 2(c)(ii) (Disability) above), the person entitled by will or the applicable laws of descent and distribution may, within one year from the Grantee’s death (but within the SAR Term), exercise the Grantee’s SARs, including those SARs that had not previously vested which shall Vest upon the date of death. |
C-2
(v) | Change in Control. If Grantee is employed at the time of a Change in Control of the Company (as defined in Section 10(a) of the Employment Agreement), then upon such Change in Control, any and all unvested SARs shall immediately Vest in full. If, in the event of a Change in Control of the Company, during the Protection Period (as defined in Section 10(c) of the Employment Agreement) and prior to Grantee’s attainment of age 65, Grantee’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by the Grantee for Good Reason (as defined in Section 7(e) of the Employment Agreement), the Grantee may at any time within one (1) year following such termination of employment (but within the SAR Term) exercise all SARs. |
(o) Exercise. Vested SARs may be exercised by following the procedures the Company
has in place at the time of exercise. For Vested SARs to be exercised by a person other than the
Grantee (as provided above), the Company must have appropriate documentation evidencing the rights
of the Grantee’s beneficiary(s). The Grantee shall designate the number of Shares subject to the
Vested SARs that are being exercised, and upon exercise shall be entitled to receive that number of
Shares having an aggregate fair market value equal to the excess of the fair market value of one
Share, at the time of such exercise, over the Exercise Price, multiplied by the number of Shares
subject to the SARs which are so exercised. For purposes of this Section 4(a), fair market value
shall be determined by calculating the average of the high and low publicly-traded price of a Share
on the date of exercise.
(p) Issuance of Shares. The Company shall issue Shares to the Grantee upon exercise
of SARs pursuant to Section 4(a) above by issuing to the Grantee a stock certificate (or register
Shares of Common Stock in book-entry form) representing a number of requisite number of Shares. No
fractional shares may be delivered, but in lieu thereof a cash or other adjustment shall be made as
determined by the Committee in its discretion.
(q) Withholding Taxes. At the time Shares of Common Stock are issued to the Grantee,
the Company shall satisfy the statutory Federal, state and local withholding tax obligation
(including the FICA and Medicare tax obligation) required by law with respect to the distribution
of Shares from one or more of the following methods, as the Grantee elects: (i) the Company shall
withhold cash compensation then accrued and payable to Grantee of such required withholding amount,
(ii) the Grantee may tender a check or other payment of cash to the Company of such required
withholding amount, or (iii) by withholding from Shares issuable to the Grantee hereunder having an
aggregate fair market value equal to the amount of such required withholding.
C-3
(r) It and the Grantee, at Company’s expense, have taken any actions required to register the
Shares under the Securities Act of 1933, as amended, or to perfect an exemption from the
registration requirements thereof;
(s) Any applicable listing requirement of any stock exchange or other securities market on
which the Common Stock is listed has been satisfied; and
(t) Any other applicable provision of state or federal law has been satisfied.
(a) Rights as a Stockholder. Neither the Grantee nor the Grantee’s representative
shall have any rights as a stockholder with respect to any Shares subject to the SARs until the
date that the Company is obligated to deliver Shares to the Grantee or the Grantee’s representative
pursuant to Section 4 above, and then only with respect to the Shares so delivered.
(b) No Retention Rights. Nothing in this Agreement shall confer upon the Grantee any
right to continue in the employment or service of the Company for any period of specific duration
or interfere with or otherwise restrict in any way the rights of the Company or of the Grantee,
which rights are hereby expressly reserved by each, to terminate his employment or service at any
time and for any reason, with or without cause.
(c) Employment by Subsidiary, etc.. For purposes of this Agreement, employment by a
parent or subsidiary of or a successor to the Company shall be considered employment by the
Company.
(u) Anti-Dilution. In the event that any change in the outstanding Shares of Common
Stock of the Company (including an exchange of Common Stock for stock or other securities of
another corporation) occurs by reason of a Common Stock dividend or split, recapitalization,
merger, consolidation, combination, exchange of Shares or other similar corporate changes, other
than for consideration received by the Company therefor, the number of Shares subject to the SARs
hereunder shall be appropriately adjusted by the Committee whose determination shall be conclusive,
final and binding; provided, however that fractional Shares shall be rounded to the nearest whole
share. In the event of any other change in the Common Stock, the Committee shall in its sole
discretion determine whether such change equitably requires a change in the number or type of
Shares subject to the SARs and any adjustment made by the Committee shall be conclusive, final and
binding.
(v) Incorporation of Plan. The provisions of the Plan are incorporated by reference
into these terms and conditions.
(w) Inconsistency. To the extent any terms and conditions herein conflict with the
terms and conditions of the Plan, the terms and conditions of the Plan shall control. In the event
of any inconsistency between this Agreement and the Employment Agreement, the Employment Agreement
shall control.
C-4
(x) Notices. Any notice required by the terms of this Agreement shall be given in
writing and shall be deemed effective upon personal delivery, upon deposit with the United States
Postal Service, by registered or certified mail, with postage and fees prepaid or upon deposit with
a reputable overnight courier. Notice shall be addressed to the Company at its principal executive
office and to the Grantee at the address that he most recently provided to the Company.
(y) Entire Agreement; Amendments. This Agreement, together with the Employment
Agreement, constitutes the entire contract between the parties hereto with regard to the subject
matter hereof. This Agreement and the Employment Agreement supersede any other agreements,
representations or understandings (whether oral or written and whether express or implied) which
relate to the subject matter hereof. The Committee shall have authority, subject to the express
provisions of the Plan, to interpret this Agreement and the Plan, to establish, amend and rescind
any rules and regulations relating to the Plan, to modify the terms and provisions of this
Agreement, and to make all other determinations in the judgment of the Committee necessary or
desirable for the administration of the Plan, provided no such action may be contrary to the
provisions of the Employment Agreement or may otherwise modify this Agreement in a manner adverse
to Grantee without his prior written consent. The Committee may correct any defect or supply any
omission or reconcile any inconsistency in the Plan or in this Agreement in the manner and to the
extent it shall deem necessary or desirable to carry it into effect. All action by the Committee
under the provisions of this paragraph shall be final, conclusive and binding for all purposes.
(z) Choice of Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, as such laws are applied to contracts entered into and
performed in such State, without giving effect to the choice of law provisions thereof.
(aa) Successors.
(i) This Agreement is personal to the Grantee and, except as otherwise provided in Section 2
above, shall not be assignable by the Grantee otherwise than by will or the laws of descent and
distribution, without the written consent of the Company. This Agreement shall inure to the
benefit of and be enforceable by the Grantee’s legal representatives.
(ii) This Agreement shall inure to the benefit of and be binding upon the Company and its
successors. It shall not be assignable except in connection with the sale or other disposition of
all or substantially all the assets or business of the Company.
(bb) Severability. If any provision of this Agreement for any reason should be found
by any court of competent jurisdiction to be invalid, illegal or unenforceable, in whole or in
part, such declaration shall not affect the validity, legality or enforceability of any remaining
provision or portion hereof, which remaining provision or portion hereof shall remain in full force
and effect as if this Agreement had been adopted with the invalid, illegal or unenforceable
provision or portion hereof eliminated.
(cc) Headings. The headings, captions and arrangements utilized in this Agreement
shall not be construed to limit or modify the terms or meaning of this Agreement.
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(dd) Counterparts. This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which shall constitute but one
and the same instrument.
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This Agreement is executed by the Company as of the date and year first written above.
XXXXXX INC. |
||||
By: | /s/ Xxxx Xxxxxx | |||
Xxxx Xxxxxx | ||||
Title: | Chief Executive Officer | |||
The undersigned Grantee hereby acknowledges receipt of an executed original of this Agreement
and accepts the SARs granted hereunder, and further agrees to the terms and conditions hereinabove
set forth.
/s/ Xxxxx Xxxxx | ||||
Xxxxx Xxxxx, Grantee | ||||
Date: June 6, 2007
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Exhibit 10.3
EXHIBIT D
GENERAL RELEASE OF ALL CLAIMS
1. For and in consideration of the promises made in the Executive Employment Agreement
(defined below), the adequacy of which is hereby acknowledged, the undersigned (“Executive”), for
himself, his heirs, administrators, legal representatives, executors, successors, assigns, and all
other persons claiming through Executive, if any (collectively, “Releasers”), does hereby release,
waive, and forever discharge Xxxxxx Inc. (the “Company”), the Company’s subsidiaries, parents,
affiliates, related organizations, employees, officers, directors, attorneys, successors, and
assigns (collectively, the “Releasees”) from, and does fully waive any obligations of Releasees to
Releasers for, any and all liability, actions, charges, causes of action, demands, damages, or
claims for relief, remuneration, sums of money, accounts or expenses (including attorneys’ fees and
costs) of any kind whatsoever, whether known or unknown or contingent or absolute, which heretofore
has been or which hereafter may be suffered or sustained, directly or indirectly, by Releasers in
consequence of, arising out of, or in any way relating to Executive’s employment with the Company
or any of its affiliates or the termination of Executive’s employment. The foregoing release and
discharge, waiver and covenant not to xxx includes, but is not limited to, all claims and any
obligations or causes of action arising from such claims, under common law including wrongful or
retaliatory discharge, breach of contract (including, but not limited to, any claims under the
Employment Agreement between the Company and Executive, dated as of June 11, 2007, as amended (the
“Employment Agreement”)) and any claims under any stock option and restricted stock units
agreements between Executive and the Company and any action arising in tort including libel,
slander, defamation or intentional infliction of emotional distress, and claims under any federal,
state or local statute including Title VII of the Civil Rights Act of 1964, the Civil Rights Act of
1866 and 1871 (42 U.S.C. § 1981), the National Labor Relations Act, the Age Discrimination in
Employment Act (ADEA), the Fair Labor Standards Act, the Americans with Disabilities Act of 1990,
the Rehabilitation Act of 1973, the Missouri Human Rights Act (R.S. MO Section 213.010 et seq.), or
the discrimination or employment laws of any state or municipality, or any claims under any express
or implied contract which Releasers may claim existed with Releasees. This release and waiver does
not apply to any claims or rights that may arise after the date Executive signs this General
Release. The foregoing release does not apply to any claims of indemnification under the
Employment Agreement or a separate indemnification agreement with the Company or rights of coverage
under directors and officers liability insurance, and the foregoing release does not apply to any
claims with respect to rights of Executive under the Employment Agreement and rights of Executive
under any employee benefit plans or programs of the Company.
2. Excluded from this release and waiver are any claims which cannot be waived by law,
including, but not limited to, the right to participate in an investigation conducted by certain
government agencies. Executive does, however, waive Executive’s right to any monetary recovery
should any agency (such as the Equal Employment Opportunity Commission) pursue any claims on
Executive’s behalf. Executive represents and warrants that Executive has not filed any complaint,
charge, or lawsuit against the Releasees with any government agency or any court.
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3. Executive agrees never to xxx Releasees in any forum for any claim covered by the above
waiver and release language, except that Executive may bring a claim under the ADEA to challenge
this General Release or as otherwise provided in this General Release. If Executive violates this
General Release by suing Releasees, other than under the ADEA or as otherwise set forth in Section
1 hereof, Executive shall be liable to the Company for its reasonable attorneys’ fees and other
litigation costs incurred in defending against such a suit. Nothing in this General Release is
intended to reflect any party’s belief that Executive’s waiver of claims under ADEA is invalid or
unenforceable, it being the interest of the parties that such claims are waived.
4. Executive acknowledges, agrees and affirms that he is subject to certain post-employment
covenants pursuant to Section 12 of the Employment Agreement, which covenants survive the
termination of his employment and the execution of this General Release.
5. Executive acknowledges and recites that:
(a) Executive has executed this General Release knowingly and voluntarily;
(b) Executive has read and understands this General Release in its entirety;
(c) Executive has been advised and directed orally and in writing (and this subparagraph (c)
constitutes such written direction) to seek legal counsel and any other advice he wishes with
respect to the terms of this General Release before executing it;
(d) Executive’s execution of this General Release has not been coerced by any employee or
agent of the Company; and
(e) Executive has been offered twenty-one (21) calendar days after receipt of this General
Release to consider its terms before executing it.
6. This General Release shall be governed by the internal laws (and not the choice of laws) of
the State of Delaware, except for the application of pre-emptive Federal law.
7. Executive shall have seven (7) days from the date hereof to revoke this General Release by
providing written notice of the revocation to the Company, as provided in Section 14 of the
Employment Agreement, upon which revocation this General Release shall be unenforceable and null
and void and in the absence of such revocation this General Release shall be binding and
irrevocable by Executive.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
Date: , 20___
|
EXECUTIVE: | |
(name) |
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