EXHIBIT 10(a)
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EMPLOYMENT AGREEMENT
BETWEEN
XXXXXXX X. XXXXX
AND
FLORIDA EAST COAST INDUSTRIES, INC.
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DATED: DECEMBER 11, 2001
TABLE OF CONTENTS
1. EMPLOYMENT PERIOD............................................................................................. 1
2. TERMS OF EMPLOYMENT........................................................................................... 1
(a) Position and Duties.................................................................................. 1
(b) Compensation......................................................................................... 2
3. TERMINATION OF EMPLOYMENT..................................................................................... 4
(a) Death or Disability.................................................................................. 4
(b) Cause................................................................................................ 5
(c) Good Reason.......................................................................................... 6
(d) Termination for Other Reasons........................................................................ 6
(e) Notice of Termination................................................................................ 6
(f) Date of Termination.................................................................................. 6
4. OBLIGATIONS OF FECI UPON TERMINATION.......................................................................... 7
(a) Accelerating Event................................................................................... 7
(b) Good Reason; Other than for Cause, Death or Disability............................................... 7
(c) Death................................................................................................ 7
(d) Cause; Other Than for Good Reason.................................................................... 8
(e) Disability........................................................................................... 8
(f) Nondisclosure to Media............................................................................... 8
5. CHANGE IN CONTROL............................................................................................. 8
6. NON-EXCLUSIVITY OF EXECUTIVE'S RIGHTS......................................................................... 8
7. CONFIDENTIAL INFORMATION...................................................................................... 8
8. NON-COMPETITION; NON-SOLICITATION............................................................................. 9
9. REMEDIES FOR EXECUTIVE'S BREACH............................................................................... 10
10. DISPUTE....................................................................................................... 10
11. NO CONFLICTING OBLIGATIONS OF EXECUTIVE....................................................................... 10
12. INDEMNITY OF EXECUTIVE........................................................................................ 10
13. SUCCESSORS.................................................................................................... 11
14. MISCELLANEOUS................................................................................................. 11
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") between XXXXXXX X.
XXXXX, an individual (the "Executive") and FLORIDA EAST COAST INDUSTRIES, INC.
("FECI"), a Florida corporation, recites and provides as follows:
WHEREAS, the Board of Directors of FECI (the "Board") desires
that FECI retain the services of the Executive, and the Executive desires to be
employed with FECI, all on the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants herein contained, FECI and the Executive agree as follows:
1. EMPLOYMENT PERIOD. FECI hereby agrees to employ the
Executive, and the Executive hereby agrees to accept employment by FECI, in
accordance with the terms and provisions of this Agreement commencing January 2,
2002 (the "Effective Date") and continuing until terminated by either party
hereto (the "Employment Period").
2. TERMS OF EMPLOYMENT.
(A) POSITION AND DUTIES.
(i) During the Employment Period, the
Executive shall serve as Vice President & Treasurer of FECI and shall have such
authority and perform such executive duties as are commensurate with such
position and as are otherwise assigned by the Board.
(ii) The Executive's services shall be
performed at the headquarters of FECI or its subsidiaries in St. Augustine,
Florida and as required at other facilities of FECI and subsidiaries.
(iii) During the Employment Period, and
excluding any periods of vacation and leave to which the Executive is entitled,
the Executive agrees to devote his full business attention and time to the
business and affairs of FECI and, to the extent necessary to discharge the
duties assigned to the Executive hereunder, to use the Executive's reasonable
efforts to perform faithfully such responsibilities. During the Employment
Period it shall not be a violation of this Agreement for the Executive to serve
on corporate, civic, charitable, and professional association boards or
committees, subject to the approval of the President of Employer, in each
instance, which approval shall not be unreasonably withheld, or deliver lectures
or fulfill speaking engagements, so long as such activities do not materially
interfere with the performance of the Executive's responsibilities as an
employee of FECI in accordance with the Agreement.
(B) COMPENSATION.
(i) Base Salary. During the Employment
Period, the Executive shall receive a base salary ("Annual Base Salary"), which
shall be paid in equal installments on a semi-monthly basis, at the annual rate
of not less than One Hundred Fifty Five Thousand Dollars ($155,000) per year.
During the Employment Period, the Annual Base Salary shall be reviewed at least
annually by the Board. Any increase in Annual Base Salary shall not serve to
limit or reduce any other obligation to the Executive under this Agreement
(ii) Short-Term Incentive Bonus. In
addition to the Annual Base Salary, during the Employment Period the Executive
shall participate in an annual incentive compensation plan. Such plan shall
provide the Executive with the opportunity to earn a bonus based on achievement
of performance criteria. The incentive bonus plan shall be structured such that
the Executive may receive up to thirty percent (30%) of Annual Base Salary
("Target") for attainment of certain target performance goals, with a maximum
bonus of two hundred percent (200%) of Target for extraordinary performance or
such other maximum bonus as determined by FECI in accordance with FECI's Annual
Incentive Compensation Plan ("Plan") and prorated in accordance with the Plan.
The Board of Directors of FECI (acting by and through the compensation
committee) and Executive's supervisor will establish the performance criteria
and goals in consultation with the Executive and in accordance with the Plan.
(iii) Long-Term Incentives: Restricted
Stock. The Executive shall receive a grant of restricted stock for two thousand
five hundred (2,500) shares of Employer's common stock issued under the FECI
Stock Incentive Plan. Such shares shall be subject to restrictions which shall
provide that the Executive shall not transfer such shares during the restriction
period and shall forfeit such shares if during the restriction period he is
discharged by Employer for Cause (as hereinafter defined in Section 3(b)) or
resigns from employment with Employer without Good Reason (as hereinafter
defined in Section 3(c)). The restriction period shall lapse with respect to
such shares in five (5) equal annual installments on each of the first through
fifth anniversaries of the Effective Date. Notwithstanding the foregoing, the
restriction period shall lapse immediately as to all such shares in the event
that an Accelerating Event (as hereinafter defined in Section 4(a)) occurs. The
Executive shall be entitled to receive any dividends or other distributions
payable with respect to such shares of restricted stock beginning on the date of
award of such shares. Such stock award shall be evidenced by a written
restricted stock award agreement between Employer and the Executive, the terms
of which shall be agreed to by the parties in good faith as soon as practical.
(iv) Long-Term Incentives: Basic Stock
Options. The Executive shall receive a grant of non-statutory stock options on
ten thousand (10,000) shares of FECI Class A ("Class A") common stock issued
under the FECI Stock Incentive Plan. The options shall have a term of ten (10)
years (subject to earlier expiration as hereinafter provided), shall have an
exercise price equal to one hundred percent (100%) of the fair market value, as
of the close of trading on the next preceding business day prior to the date of
this Agreement (being $21.425 per share) of the shares of common stock of
EMPLOYER, and shall vest and become exercisable in five (5) equal annual
installments on the first through fifth anniversaries of the
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Effective Date; provided, however, that such stock options shall vest
immediately and become exercisable in their entirety in the event that an
Accelerating Event (as hereinafter defined in Section 4(a)) occurs. To the
extent not previously exercised, all such stock options shall expire immediately
following the Date of Termination (as hereinafter defined in Section 3(f));
provided, however, that the Executive, or his heirs or legal representatives in
the event of the Executive's death, may exercise all or any part of such stock
options as were exercisable as of the close of business on the Date of
Termination for a period of two (2) years following such Date of Termination in
the event (i) an Accelerating Event (as hereinafter defined in Section 4(a))
occurs; or (ii) the Executive retires at normal retirement age under any
retirement plan of Employer. Such stock options shall include a provision for
adjustment in the option price to reflect an extraordinary distribution made
with respect to the common stock during the term of the options. In the event of
a capital adjustment resulting from a stock dividend, stock split,
reorganization, merger, consolidation, spin off, a combination or exchange of
shares or other transaction having a similar substantive effect, the number
shares of stock subject to the stock options and the option price shall be
equitably adjusted. Such stock options shall be evidenced by a written stock
option award agreement between Employer and the Executive, the terms of which
shall be agreed to by the parties in good faith as soon as practical.
(iii) Long-Term Incentives: Subsequent
Option Grants. Option grants shall be in accordance with FECI's Stock Incentive
Plan, with the performance criteria for threshold, target and maximum grants as
established pursuant to the Plan.
(iv) Savings and Retirement Plans.
During the Employment Period, the Executive shall be entitled to participate in
all savings and retirement plans, practices, policies and programs applicable
generally to other peer executives of FECI.
(v) Welfare Benefit Plans. During the
Employment Period, the Executive and/or the Executive's family and dependents,
as the case may be, shall be eligible for participation in and shall receive all
benefits under all welfare benefit plans, practices, policies and programs
provided by FECI (including, without limitation, medical, prescription, dental,
disability salary continuance, employee group life, accidental death and travel
accident insurance plans and programs) to the extent applicable generally to
other peer executives of FECI.
(vi) Expenses. The Executive shall be
entitled to receive prompt reimbursement for all employment-related expenses
incurred by the Executive during the Employment Period in accordance with the
most favorable policies, practices and procedures of FECI as in effect generally
from time after the Effective Date with respect to other peer executives of
FECI.
(vii) Fringe Benefits. During the
Employment Period, the Executive and/or the Executive's family and dependents
shall be entitled to fringe benefits in accordance with the most favorable
plans, practices, programs and policies of FECI as in effect generally from time
to time after the Effective Date with respect to other peer executives of FECI.
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(viii) Vacation. During the Employment
Period, the Executive shall be entitled to four (4) weeks paid vacation per
annual period.
(ix) Car Allowance. During the
Employment Period, the Executive shall be entitled to a car allowance in
accordance with FECI's car allowance policy, in lieu of expenses associated with
the operation of his automobile.
(x) Relocation Expense. Employer shall
make the Executive whole by reimbursing him for all reasonable costs associated
with his relocation from the Chestnut Hill, Massachusetts area to the St.
Augustine, Florida area whether incurred before or after the Effective Date, but
only to the extent that such costs are incurred prior to the first anniversary
of the Effective Date. Such costs shall include, without limitation, closing
costs associated with the sale of the Executive's Massachusetts residence and
closing costs associated with the Executive's purchase and financing of a new
primary residence in the St. Augustine area. For purpose of this Section,
"closing costs" shall mean loan origination fees, appraisal fees, credit report
fees, assumption fees, settlement or closing fees, title examination fees, title
insurance binder, document preparation fees, notary fees, attorneys' fees, real
estate brokers' commissions on sale of Massachusetts home, title insurance fees,
recording fees, tax stamps, transfer taxes, survey fees and costs of pest, radon
and home inspections. Employer shall also arrange for and pay for the move of
the Executive's household goods and personal effects (including packing,
reasonable storage charges and unpacking charges) from his Massachusetts
residence to his new primary residence in Florida. Employer shall pay for the
Executive's reasonable temporary living costs in the St. Augustine area up to 3
months from the Effective Date (or such additional time as may be requested by
the Executive and approved by the Chairman of Employer, which approval shall not
be unreasonably withheld) until Executive is moved into his new residence in
Florida. Employer will pay the costs associated with a reasonable number of
trips to St. Augustine for the Executive and his spouse to look for a new
residence. In addition, at the Executive's request Employer shall provide the
Executive with an interest-free bridge loan for a term of up to twelve (12)
months for an amount up to the asking price of his Massachusetts residence,
which loan shall be repayable upon the earlier of five (5) days following the
closing of the sale of the Massachusetts residence or the first anniversary of
the making of such loan. In addition, Employer shall pay the Executive an amount
determined by its accountants equal to the Executive's federal, state and local
taxes on the foregoing reimbursement and imputed interest under the aforesaid
loan (the "Tax Gross-up") and the federal, state and local taxes on the Tax
Gross-up, all to the end that the Executive be held harmless, on an after-tax
basis, from the tax impact thereof.
(xi) Right to Change Plans. Executive
shall not be obligated to institute, maintain or refrain from changing, amending
or discontinuing any benefit plan, program, or perquisite referred to in Section
2(b), so long as such changes are similarly applicable to other executives of
FECI.
3. TERMINATION OF EMPLOYMENT.
(A) DEATH OR DISABILITY. The Executive's
employment shall terminate automatically upon the Executive's death during the
Employment Period. If FECI determines in
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good faith that the Disability of the Executive has occurred (pursuant to the
definition of disability set forth below), it may give to the Executive notice
of its intention to terminate the Executive's employment. In such event, the
Executive's employment with FECI shall terminate upon a date selected by FECI
and set forth in such notice (the "Disability Effective Date"), provided that,
prior to such date, the Executive shall not have returned to full-time
performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Executive from the Executive's duties
with FECI on a full-time basis for one hundred eighty (180) consecutive business
days as a result of incapacity due to mental or physical illness which is
determined to be total and permanent by a physician selected by FECI or its
insurers and acceptable to the Executive or the Executive's legal representative
(such agreement as to acceptability not to be withheld unreasonably).
(B) CAUSE. FECI may terminate the Executive for
cause. "Cause" means any of the following:
(i) (a) a material breach by the Executive of the obligations
under this agreement or any other written agreement with the
Company, or (b) a failure to attempt in good faith to perform
the Executive's duties and responsibilities (other than as a
result of incapacity due to physical or mental illness), which
is demonstrably willful and deliberate on the Executive's part
provided that such breach or failure is not remedied within
ten (10) days after receipt of notice from the Company
specifying such breach or failure;
(ii) the Executive `s conviction for committing a felony or the
guilty or nolo contendere plea by the executive to a felony
(other than as a result of vicarious liability where the
Executive was not involved in and had no material knowledge of
the action or inactions leading to the charges or had such
involvement or knowledge but acted upon advise of the
Company's counsel as to its legality);
(iii) the (a) insubordination or the willful engaging by the
Executive in misconduct or (b) the Executive's gross
negligence, in either case, with regard to the Employer or the
Executive's duties, which have, or is likely to have, a
material adverse impact on the Employer; or
(iv) a material act of dishonesty or breach of trust on the
Executive's part resulting or intending to result, directly or
indirectly, in material personal or family gain or enrichment
at the expense of the Employer.
For purposes of this paragraph, no act, or failure to act, on the
Executive's part shall be considered "willful" unless done or omitted
to be done, by the Executive not in good faith and without reasonable
belief that the Executive's action or omission was in the best
interests of the Company. In the event that the Executive alleges that
the failure to attempt to perform the Executive's duties and
responsibilities is due to a physical or mental illness, and thus not
"Cause" under (i) above, the Executive shall be required to furnish the
Company with a written statement from a licensed physician who is
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reasonably acceptable to the Company which confirms the Executive's
inability to attempt to perform due to such physical or mental illness.
(C) GOOD REASON. The Executive may terminate his
employment for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean, in the absence of the consent of the Executive, a reasonable determination
by the Executive that any of the following has occurred:
(i) FECI materially reduces the Executive's position (including
titles), authority, duties or responsibilities as contemplated
by Section 2(a) of this Agreement, excluding for this purpose
(a) any isolated and insubstantial action not taken in bad
faith and which is remedied by FECI promptly after receipt of
notice thereof given by the Executive and (b) any action by
FECI to decentralize to its subsidiaries financial management
functions relevant to these subsidiaries; or
(v) any failure by FECI to comply with any of the provisions of
this Agreement applicable to it, other than any isolated and
insubstantial failure not occurring in bad faith and which is
remedied promptly after notice thereof from the Executive.
(D) TERMINATION FOR OTHER REASONS. FECI may
terminate the employment of the Executive without Cause by giving notice to the
Executive, which notice shall set forth the Date of Termination. The Executive
may resign from his employment without Good Reason hereunder by giving notice to
FECI at least thirty (30) days prior to the Date of Termination.
(E) NOTICE OF TERMINATION. Any termination shall
be communicated by Notice of Termination to the other party. For purposes of
this Agreement, a "Notice of Termination" means a notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) in the case
of a termination under Section 3(b) or 3(c), to the extent applicable, sets
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated (the failure by the Executive or FECI to set forth in the Notice of
Termination any fact or circumstance shall not waive any right of the Executive
or FECI hereunder or preclude the Executive or FECI from asserting such fact or
circumstance in enforcing the Executive's or FECI's rights hereunder), and (iii)
if the Date of Termination (as defined below) is other than the date of receipt
of such notice, specifies the termination date (which date shall not be more
than fifteen (15) days after the giving of such notice, unless otherwise
required by Section 3(f)).
(F) DATE OF TERMINATION. "Date of Termination"
shall mean (i) if the Executive's employment is terminated by FECI due to the
Executive's Disability, the Date of Termination shall be the Disability
Effective Date, (ii) if the Executive's employment is terminated by reason of
the Executive's death, the Date of Termination shall be the date of death of the
Executive, and (iii) in all other case, the date of receipt of the Notice of
Termination or any permitted later date specified therein, as the case may be.
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4. OBLIGATIONS OF FECI UPON TERMINATION.
(A) ACCELERATING EVENT. As used in this
Agreement and in the Restricted Stock Agreement of even date herewith, the term
"Accelerating Event" shall mean any of the following: (i) the Executive is
discharged without Cause, or (ii) the Executive resigns with Good Reason.
(B) GOOD REASON; OTHER THAN FOR CAUSE, DEATH OR
DISABILITY. If, during the Employment Period, FECI shall terminate the
Executive's employment other than for Cause, death or Disability or the
Executive shall terminate employment for Good Reason:
(i) FECI shall pay to the Executive in
a lump sum in cash within thirty (30) days after the Date of Termination the sum
of (A) the Executive's Annual Base Salary through the Date of Termination to the
extent not theretofore paid; (B) to the extent not theretofore paid, any annual
bonus payable to the Executive for any prior completed fiscal year if payable or
otherwise earned by the Executive in accordance with the Plan; (C) any
compensation previously deferred by the Executive (together with any accrued
interest or earnings thereon) to the extent not theretofore paid; and (D) any
accrued vacation pay, expenses reimbursement and any other entitlements accrued
by the Executive under Section 2(b) to the extent not theretofore paid (the sum
of the amount described in clauses (A), (B), (C) and (D) shall be hereinafter
referred to as the "Accrued Obligations"); and
(ii) FECI shall pay to the Executive in
twelve (12) monthly installments beginning thirty (30) days following the Date
of Termination an amount equal to the sum of one hundred percent (100%) of the
Executive's Annual Base Salary; and
(iii) For twelve (12) months following
the Date of Termination, or such longer period as any plan, program, practice or
policy may provide, FECI shall continue health benefits (medical, prescription,
dental and vision) to the Executive and/or the Executive's family and dependents
at least equal to those which would have been provided to them in accordance
with the plans, programs, practices and policies described in Section 2(b)(v) if
the Executive's employment had not been terminated, in accordance with the most
favorable plans, practices, programs or policies of FECI as in effect generally
at any time thereafter with respect to other peer executives of FECI and their
families ("Welfare Benefit Continuation"). If the Executive becomes reemployed
with another employer and is eligible to receive medical or other welfare
benefits under any other employer-provided plan, the medical and other welfare
benefits herein shall be secondary to those provided under such other plan
during such applicable period of eligibility.
(C) DEATH. If the Executive's employment is
terminated by reason of the Executive's death, this Agreement shall terminate
without further obligation to the Executive's legal representatives under this
Agreement, other than for payment of Accrued Obligations (which shall be paid to
the Executive's estate or beneficiary, as applicable, in a lump sum in cash
within thirty (30) days of the Date of Termination).
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(D) CAUSE: OTHER THAN FOR GOOD REASON. If the
Executive's employment shall be terminated for Cause or the Executive terminates
his employment without Good Reason, this Agreement shall terminate without
further obligation to the Executive other than the obligation to pay to the
Executive the Accrued Obligations (which shall be paid in cash within thirty
(30) days of the Date of Termination).
(E) DISABILITY. If the Executive's employment
shall be terminated by reason of the Executive's Disability, this Agreement
shall terminate without further obligation to the Executive, other than for
payment of Accrued Obligations and the timely payment or provision of the
Welfare Benefit Continuation. Accrued Obligations shall be paid to the Executive
in a lump sum in cash within thirty (30) days of the Date of Termination. The
Executive shall be entitled after the Disability Effective Date to receive
disability and other benefits as in effect at the Disability Effective Date with
respect to other peer executives of FECI and their families.
(F) NONDISCLOSURE TO MEDIA. After the Date of
Termination, the Executive and FECI agree that they will not discuss the
Executive's employment and resignation or termination (including the terms of
this Agreement) with any representatives of the media, either directly or
indirectly, without the consent of the other party hereto.
5. CHANGE IN CONTROL. Notwithstanding anything to the
contrary contained in this agreement, in the event there is a change in control
of FECI, all of the rights and obligations of FECI and Executive as respects
termination of Executive's employment as a result of the change in control shall
be governed in all respects by the change in control agreement by and between
Executive and FECI.
6. NON-EXCLUSIVITY OF EXECUTIVE'S RIGHTS. Amounts which
are vested benefits or which the Executive is otherwise entitled to receive
under any plan, policy, practice or program of or any contract or agreement with
FECI at or subsequent to the Date of Termination shall be payable in accordance
with such plan, policy, practice or program or contract or agreement except as
explicitly modified by this Agreement.
7. CONFIDENTIAL INFORMATION.
(a) The Executive shall hold in a fiduciary
capacity for the benefit of FECI all secret or confidential information,
knowledge or data relating to FECI or any of its affiliated companies, and their
respective businesses, which shall have been obtained by the Executive during
the Executive's employment by FECI or any of its affiliated companies and which
shall not be or become public knowledge (other than by acts by the Executive or
representatives of the Executive in violation of this Agreement). After
termination of the Executive's employment with FECI, the Executive shall not,
without the prior written consent of FECI or except as may otherwise be required
by law or legal process, communicate or divulge any such information, knowledge
or data to anyone other than FECI and those designated by it.
(b) All records, files, memoranda, reports,
price lists, customer lists, drawings, designs, proposals, plans, sketches,
documents, computer programs, CAD systems,
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CAM systems, disks, computer printouts and the like (together with all copies
thereof) relating to the business of FECI, which Executive shall use or prepare
or otherwise have in his possession in the course of, or as a result of, his
employment hereunder shall, as between the parties hereto, remain the sole
property of FECI. Executive shall use such materials solely for the benefit of
FECI and shall not divulge any such materials other than in furtherance of
FECI's interests. Executive hereby agrees that he will return all such
materials, including copies, to FECI upon demand, or upon the cessation of his
employment.
(c) Any termination of the Executive's
employment hereunder or of this Agreement shall have no effect on the continuing
operation of this Section 7.
8. NON-COMPETITION; NON-SOLICITATION.
(a) In consideration of FECI undertaking to
employ the Executive under the terms provided for herein and to protect the
FECI's valuable trade secrets and other business and professional information
and its relationships with existing and prospective customers and suppliers, the
Executive agrees that, except as is set forth below, for a period commencing on
the Effective Date hereof and ending on the first anniversary of the date the
Executive ceases to be employed by FECI (the "Non-Competition Period"), the
Executive shall not, directly or indirectly, either for himself or any other
person, own, manage, control, materially participate in, invest in, permit his
name to be used by, act as consultant or advisor to, render material services
for (alone or in association with any person, firm, corporation or other
business organization) or otherwise assist in any manner, any business which is
a competitor of a substantial portion of the FECI's business at the date the
Executive ceases to be employed by the FECI (a "Competitor"). Notwithstanding
the foregoing, the restrictions set forth above shall immediately terminate and
shall be of no further force or effect in the event of a default by FECI of the
performance of any of the obligations hereunder, which default is not cured
within ten (10) days after notice thereof. Nothing herein shall prohibit the
Executive from being a passive owner of not more than five percent (5%) of the
equity securities of an enterprise engaged in such business which is publicly
traded, so long as he has no active participation in the business of such
enterprise.
(b) During the Non-Competition Period, the
Executive shall not, directly or indirectly, (i) induce, solicit, recruit or
hire or attempt to induce, solicit, recruit or hire or aid others in inducing,
soliciting, recruiting or hiring any employee of FECI or its subsidiaries to
leave the employ of FECI, or in any way interfere with the relationship between
FECI (including its subsidiaries) and an employee thereof except in the proper
exercise of the Executive's authority, or (ii) in any way interfere with the
relationship between FECI (including its subsidiaries) and any customer,
supplier, licensee or other business relation thereof.
(c) If, at the time of enforcement of this
Section 7, a court shall hold that the duration, scope, area or other
restrictions stated herein are unreasonable under circumstances then existing,
the parties agree that the maximum duration, scope, area or other restrictions
reasonable under such circumstances shall be substituted for the stated
duration, scope, area or other restrictions.
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(d) The covenants made in this Section 7 shall
be construed as an agreement independent of any other provisions of this
Agreement, and shall survive the termination of this Agreement. Moreover, the
existence of any claim or cause of action of the Executive against FECI or any
of its affiliates, whether or not predicted upon the terms of this Agreement,
shall not constitute a defense to the enforcement of these covenants.
9. REMEDIES FOR EXECUTIVE'S BREACH. In the event
Executive violates any provisions of Section 7 or 8 and such violation continues
after notice thereof to the Executive and the expiration of a reasonable
opportunity to cure, then FECI may thereafter terminate the payment of any
post-termination benefits hereunder, and FECI will have no further obligation to
Executive under this Agreement. The parties acknowledge that any violation of
Section 7 or 8 can cause substantial and irreparable harm to FECI. Therefore,
FECI shall be entitled to pursue any and all legal and equitable remedies,
including but not limited to any injunctions.
10. DISPUTE. Any dispute or controversy arising under or
in connection with this Agreement shall be settled by binding arbitration, which
shall be the sole and exclusive method of resolving any questions, claims or
other matters arising under this Agreement or any claim that FECI has in any way
violated the non-discrimination and/or other provisions of Title VII or the
Civil Rights Act of 1964, as amended; the Age Discrimination in Employment Act
of 1967, as amended; the American with Disabilities Act; the Family and Medical
Leave Act; the Employee Retirement Income Security Act of 1974, as amended; and,
in general, any federal law or the law of the State of Florida. Such proceeding
shall be conducted by final and binding arbitration before a panel of one or
more arbitrators under the administration of the American Arbitration
Association, and in a location mutually agreed to by the Executive and FECI. The
Federal and State courts located in the United States of America are hereby
given jurisdiction to render judgment upon, and to enforce, each arbitration
award, and the parties hereby expressly consent and submit to the jurisdiction
of such courts. Notwithstanding the foregoing, in the event that a violation of
the Agreement would cause irreparable injury, FECI and the Executive agree that
in addition to the other rights and remedies provided in this Agreement (and
without waiving their rights to have all other matters arbitrated as provided
above) the other party may immediately take judicial action to obtain injunctive
relief.
11. NO CONFLICTING OBLIGATIONS OF EXECUTIVE. Executive
represents and warrants that he is not subject to any duties or restrictions
under any prior agreement with any previous employer or any other person, and
that he has no rights or obligations except as previously disclosed to FECI
which may conflict with the interests of FECI or with the performance of the
Executive's duties and obligations under this Agreement. Executive agrees to
notify FECI immediately if any such conflicts occur in the future.
12. INDEMNITY OF EXECUTIVE. FECI shall indemnify and
defend the Executive against all claims relating to the performance of his
duties hereunder to the fullest extent permitted by FECI's Articles of
Incorporation and Bylaws, the relevant provisions of which shall not be amended
in their application to the Executive to be any less favorable to him than as at
present, except as required by law.
10
13. SUCCESSORS.
(a) This Agreement is personal to the Executive
and without the prior consent of FECI shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of
and be binding upon FECI and its successors and assigns.
(c) FECI will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of FECI to assume expressly and
agree to perform this Agreement in the same manner and to the same extent that
FECI would be required to perform it if no such succession had taken place. As
used in this Agreement, "FECI" shall mean FECI as herein before defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
14. MISCELLANEOUS.
(a) This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, without reference
to principles of conflict of laws. The captions of this Agreement are not part
of the provisions hereof and shall have no force or effect. This Agreement may
not be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications
hereunder shall be in writing and shall be given by hand delivery to the other
party or by registered or certified mail, return receipt requested, postage
prepaid, or by telecopier, or by courier, addressed as follows:
If to Executive to: If to FECI to:
Xxxxxxx X. Xxxxx Florida East Coast Industries, Inc.
000 Xxxxxxx Xxxx Chief Financial Officer
Xxxxxxxx Xxxx, XX 00000 Xxx Xxxxxx Xxxxxx
Xx. Xxxxxxxxx, XX 00000
With copy to:
Corporate Secretary
Florida East Coast Industries, Inc.
Xxx Xxxxxx Xxxxxx
Xx. Xxxxxxxxx, XX 00000
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
11
(c) This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all prior understandings with respect thereto.
(d) In the event of a dispute arising out of
this Agreement, any party receiving any monetary or injunctive remedy, whether
at law or in equity, which is final and not subject to appeal shall be entitled
to its reasonable attorneys' fees and costs incurred with respect to obtaining
such remedy from the other party.
(e) The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(f) FECI may withhold from any amounts payable
under this Agreement such Federal, state or local taxes, as shall be required to
be withheld, pursuant to any applicable law or regulation.
(g) The Executive's or FECI's failure to insist
upon strict compliance with any provision hereof or any other provision of this
Agreement or the failure to assert any right the Executive or FECI may have
hereunder, shall not be deemed to be a waiver of such provision or right or any
other provision or right of this Agreement.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from its Board of Directors, FECI has caused
these presents to be executed in its name on its behalf, all as of the day and
year first above written.
COMPANY:
FLORIDA EAST COAST INDUSTRIES, INC.
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxx,
Chairman, President and CEO
EXECUTIVE:
By /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx
12
CHANGE IN CONTROL AGREEMENT
This Agreement (the "Agreement") made as of the 2nd day of January,
2002, by and between, Florida East Coast Industries, Inc., a Florida
corporation, with its principal office at Xxx Xxxxxx Xxxxxx, Xx. Xxxxxxxxx,
Xxxxxxx 00000 (the "Company") and Xxxxxxx X. Xxxxx (the "Executive").
W I T N E S S E T H
WHEREAS, the Company believes that the establishment and maintenance of
sound and vital management of the Company is essential to the protection and
enhancement of the interests of the Company and the stockholders of the Company;
WHEREAS, the Company also recognizes that the possibility of a Change
in Control (as defined herein), with the attendant uncertainties and risks,
might result in the departure or distraction of key employees of the Company to
the detriment of the Company;
WHEREAS, the Board has determined that it is appropriate to take steps
to induce key employees to remain with the Company, and to reinforce and
encourage their continued attention and dedication, when faced with the
possibility of a Change in Control of the Company; and
WHEREAS, the Board has determined that it is in the best interests of
the Company and the stockholders of the Company to improve upon the provisions
relating to a Change in Control contained in any written agreement with the
Company, including the Executive's Employment Agreement, and to include those
provisions in this Agreement, with certain modifications as set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. DEFINITIONS.
(a) "Base Salary" means the Executive's annual base
compensation rate for services paid by the Company to the Executive at
the time immediately prior to the Executive's termination of
employment, as reflected in the Company's payroll records or, if
higher, the Executive's annual base compensation rate immediately prior
to a Change in Control. Base Salary shall not include commissions,
bonuses, overtime pay, incentive compensation, benefits paid under any
qualified plan, any group medical, dental or other welfare benefit
plan, noncash compensation or any other additional compensation but
shall include amounts reduced pursuant to the Executive's salary
reduction agreement under Sections 125 or 401(k) of the Code, if any,
or a nonqualified elective deferred compensation arrangement, if any,
to the extent that in each such case the reduction is to base salary.
(b) "Board" means the board of directors of the Company.
(c) "Bonus" means the Executive's target performance
bonus for the fiscal year in which the Executive's termination of
employment occurs or, if higher, the Executive's target performance
bonus for the fiscal year in which a Change in Control occurs.
(d) "Cause" means any of the following:
(i) (A) a material breach by the Executive of
the obligations under any written agreement with the Company, including
the Employment Agreement or (B) a failure to attempt in good faith to
perform the Executive's duties and responsibilities (other than as a
result of incapacity due to physical or mental illness), which is
demonstrably willful and deliberate on the Executive's part; provided
that such breach or failure is not remedied within ten (10) days after
receipt of notice from the Company specifying such breach or failure;
(ii) the Executive's conviction for committing a
felony or the guilty or nolo contendere plea by the Executive to a
felony (other than as a result of vicarious liability where the
Executive was not involved in and had no material knowledge of the
action or inactions leading to the charges or had such involvement or
knowledge but acted upon advice of the Company's counsel as to its
legality);
(iii) the (A) willful engaging by the Executive in
misconduct or (B) the Executive's gross negligence, in either case,
with regard to, the Employer or the Executive's duties, which have, or
is likely to have, a material adverse impact on the Employer; or
(iv) a material act of dishonesty or breach of
trust on the Executive's part resulting or intending to result,
directly or indirectly, in material personal or family gain or
enrichment at the expense of the Employer.
For purposes of this paragraph, no act, or failure to act, on the
Executive's part shall be considered "willful" unless done or omitted to be
done, by the Executive not in good faith and without reasonable belief that the
Executive's action or omission was in the best interests of the Company. In the
event that the Executive alleges that the failure to attempt to perform the
Executive's duties and responsibilities is due to a physical or mental illness,
and thus not "Cause" under (i) above, the Executive shall be required to furnish
the Company with a written statement from a licensed physician who is reasonably
acceptable to the Company which confirms the Executive's inability to attempt to
perform due to such physical or mental illness. A termination for Cause after a
Change in Control shall be based only on events occurring after such Change in
Control; provided, however, the foregoing limitation shall not apply to an event
constituting Cause which was not discovered by the Company prior to a Change in
Control.
(e) "Change in Control" means the occurrence of any of
the following:
(i) any "person" or group of affiliated
"persons" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) becomes the "beneficial owner" (as de-
2
fined in Rule 13d-3 under the Exchange Act) directly or indirectly, of
securities representing more than 50% of the total voting power
represented by the Company's then outstanding voting securities;
(ii) a change in the composition of the Board, as
a result of which fewer than a majority of the Directors are Incumbent
Directors. "Incumbent Directors" shall mean Directors who either (A)
are Directors of the Company as of the date hereof or (B) are elected
or nominated for election, to the Board with the affirmative votes of
at least a majority of the Incumbent Directors at the time of such
election or nomination (but shall not include an individual whose
election or nomination is in connection with an actual or threatened
proxy contest relating to the election of Directors of the Company); or
(iii) the Company adopts, and the stockholders
approve, if necessary, a plan of complete liquidation of the Company,
or the Company sells or disposes of substantially all of its assets to
any "person" or group of affiliated "persons" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act), other than a spin-off or
similar disposition to the stockholders of the Company; or
(iv) the Company is a party to a merger or
consolidation in which the shareholders of the Company immediately
prior to such transaction hold less than 50% of the total voting power
of the resulting or surviving entity immediately after such transaction
in approximately the same proportion as prior to such transaction.
Only one Change in Control may occur under this Agreement.
(f) "COBRA" means the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended.
(g) "Code" means the Internal Revenue Code of 1986, as
amended.
(h) "Company" has the meaning ascribed to it in the
preamble and in paragraph 14 hereof.
(i) "Effective Date" means January 2, 2002.
(j) "Employer" means the Company and its affiliates.
(k) "Employment Agreement" means the employment agreement
between the Executive and the Company in effect on the Effective Date.
(l) "Exchange Act" means the Securities Exchange Act of
1934, as amended.
(m) "Good Reason" means the occurrence or failure to
cause the occurrence of any of the following events without the
Executive's express written consent:
3
(i) any (A) diminution in the Executive's title
from that which exists immediately prior to a Change in Control or (B)
any material diminution in the Executive's duties, responsibilities, or
authority from that which exists immediately prior to a Change in
Control (except in each case in connection with the termination of the
Executive's employment for Cause or as a result of the Executive's
death, or temporarily as a result of the Executive's illness or other
absence), or (C) the assignment to the Executive of duties and
responsibilities materially inconsistent with the position held by the
Executive immediately prior to the Change in Control, excluding in the
case of (B) or (C) an isolated, insubstantial and inadvertent action
not taken in bad faith and which is remedied promptly after receipt of
notice thereof given by the Executive;
(ii) a relocation of the Executive's principal
business location to an area outside a 35 mile radius of the
Executive's principal business location at the time of the Change in
Control, or a material increase in the amount of travel required of
Executive beyond that required prior to the Change in Control;
(iii) a reduction in the Executive's annual Base
Salary;
(iv) a failure by the Company after a Change in
Control to continue any annual bonus plan, program or arrangement in
which the Executive is then entitled to participate (the "Bonus
Plans"), provided that any such plan(s) may be modified at the
Company's discretion from time to time but shall be deemed terminated
if (A) any such plan does not remain substantially in the form in
effect prior to such modification and (B) plans providing the Executive
with substantially similar benefits are not substituted therefor
("Substitute Plans"), or a failure by the Company to continue the
Executive as a participant in the Bonus Plans and Substitute Plans on
at least the same basis as to the potential amount of the bonus and the
achievability thereof as the Executive participated immediately prior
to any change in such plans or awards, in accordance with the Bonus
Plans and the Substitute Plans, provided that such action is not cured
within 10 days after written notice thereof from the Executive to the
Company;
(v) a failure to permit the Executive after the
Change in Control to participate in cash or equity based incentive
plans and programs (other than Bonus Plans) on a basis providing the
Executive in the aggregate with an annualized award value in each
fiscal year after the Change in Control at least equal to the aggregate
annualized award value being provided by the Company to the Executive
under such incentive plans and programs immediately prior to the Change
in Control (with any awards intended not to be repeated on an annual
basis allocated over the years the awards are intended to cover),
provided that such action is not cured within 10 days after written
notice thereof from the Executive to the Company;
(vi) the failure by the Company to continue to
provide Executive with benefits substantially similar to those enjoyed
by Executive under any of the Company's life insurance, medical,
dental, accident, disability or pension plans or perquisites in which
the Executive was participating at the time of the Change in Control,
the taking of any action by the Company which would directly or
indirectly materially reduce any of
4
such benefits, or the failure by the Company to provide Executive with
the number of paid vacation days to which he is entitled on the basis
of years of service with the Company in accordance with the Company's
normal vacation policy in effect at the time of the Change in Control;
(vii) a material breach by the Company of any
other written agreement with the Executive or failure to timely pay any
compensation obligation to the Executive that in either case remains
uncured for 10 days after written notice of such breach is given by the
Executive to the Company;
(viii) failure of any successor to assume in a
writing delivered to Executive and reasonably satisfactory to Executive
the obligations hereunder within 10 days after written notice by the
Executive to the Company; or
(ix) any purported termination of Executive's
employment that is not effected pursuant to a Notice of Termination
satisfying the requirements of Sections 5 and 6 hereof, which purported
termination shall not be effective for purposes of this Agreement.
(n) "Term" has the meaning ascribed to it in Section 2
hereof.
2. TERM. The term of this Agreement shall commence on the
Effective Date and end on the earlier of (a) the termination of the Executive's
employment with the Company or (b) the third anniversary of the Effective Date
(the "Term," as it may be extended or terminated); provided, however, that the
Term shall be automatically extended for successive additional one (1) year
periods (the "Additional Terms"), unless, at least 180 days prior to the end of
the original Term or the then Additional Term, the Company has notified the
Executive in writing that the Term shall not be extended and further provided,
if a Change in Control occurs prior to the end of the aforesaid period, the
duration of this Agreement shall be extended, if it would otherwise end prior
thereto, until the second anniversary of the date of such Change in Control,
whether such two-year period ends before or after the end of such aforesaid
period. Notwithstanding anything in this Agreement to the contrary, if the
Company becomes obligated to make any payment to the Executive pursuant to the
terms hereof, then this Agreement shall remain in effect for such purposes until
all of the Company's obligations hereunder are fulfilled.
3. TERMINATION FOLLOWING CHANGE IN CONTROL. If a Change in
Control occurs during the Term and the Executive's employment by the Company is
terminated (a) by the Company without Cause or by the Executive for Good Reason
at any time during the period commencing on the date of the Change in Control
and ending on the second anniversary of the Change in Control or (b) by the
Company without Cause or by the Executive for Good Reason (based on Section
1(m)(i), (ii), (iii) and (iv) and without reference to the Change in Control
measurement date) at any time during the period commencing three months prior to
a Change in Control and ending immediately prior to the Change in Control and
the Executive demonstrates that such termination was requested by the party
taking control or was otherwise in anticipation of the Change in Control, then
the Company shall pay or provide the Executive with the payments and benefits
provided under Section 4 hereof.
5
4. COMPENSATION UPON TERMINATION. Subject to Section 9, in the
event that the Executive becomes entitled to payments or benefits pursuant to
Section 3, then the Company shall pay or provide the Executive with the
following payments and benefits in lieu of any other termination, change in
control, separation, severance or similar benefits under the Employment
Agreement or under any other compensation arrangement with the Employer. The
amounts hereunder shall reduce and be in full satisfaction of any statutory
entitlement (including notice of termination, termination pay and/or severance
pay) of the Executive upon a termination of employment.
(a) Within 10 business days after the Date of Termination
(or within 10 business days after the date of the Change in Control if
the termination occurred within three months prior to the Change in
Control and such amount was not previously paid): (i) any unpaid Base
Salary through the Date of Termination and any accrued vacation; (ii)
any unpaid bonus accrued with respect to the fiscal year ending on or
preceding the date of termination; (iii) reimbursement for any
unreimbursed expenses incurred through the Date of Termination; and
(iv) all other payments, benefits or fringe benefits to which the
Executive may be entitled subject to, and in accordance with, the terms
of any applicable compensation arrangement or benefit (other than
severance arrangements), equity or fringe benefit plan or program or
grant.
(b) Within 10 business days after the Date of Termination
(or within 10 business days after the date of the Change in Control if
the termination occurred within three months prior to the Change in
Control and such amount was not previously paid), a lump sum cash
payment equal to two times the sum of the Executive's Base Salary and
Bonus in effect on the date immediately preceding the Change in
Control.
(c) Within 10 business days after the Date of Termination
(or within 10 business days after the date of the Change in Control, if
the termination occurred within three months prior to the Change in
Control and such amount was not previously paid), payment of a pro-rata
portion of the Bonus for the fiscal year to which the Bonus relates
(determined by multiplying such amount by a fraction, the numerator of
which is the number of days during the fiscal year of termination that
the Executive is employed by the Company and the denominator of which
is 365).
(d) Repayment obligations for any sign-on bonuses or
relocation payments, if any, conditioned upon a termination of
employment shall be forgiven on a termination for Good Reason or
without Cause following a Change in Control.
(e) Subject to the Executive's continued co-payment of
premiums which shall not exceed the level of co-payment made by the
Executive immediately prior to the date of the Change in Control,
continued participation in all health plans which cover the Executive
(and eligible dependents), including, without limitation, medical,
dental and prescription drug coverage upon the same terms and
conditions (except for the requirements of the Executive's continued
employment) in effect on the date of termination until two years after
the Date of Termination; provided, however, that in the event that the
Execu-
6
tive obtains other employment that offers substantially similar or
improved benefits, as to any particular health plan, the continuation
of coverage by the Company for such similar or improved benefit under
such plan shall immediately cease. To the extent, in the good faith
judgment of the Company, such coverage cannot be provided under the
Company's health plans without jeopardizing the tax status of such
plans, for underwriting reasons or because of the tax impact on the
Executive, the Company shall pay the Executive an amount equal to the
cost to the Company for a similarly situated active employee fully
grossed-up to cover taxes on such amount and the gross-up payment. Such
period of medical coverage shall reduce and count against the
Executive's rights to COBRA continuation coverage.
(f) Unless otherwise provided in any stock option grant
agreements made after the Effective Date, all stock options to purchase
shares of FECI common stock held by or for the benefit of the Executive
shall become immediately fully vested and exercisable as of the Date of
Termination for the Exercise Period set forth in such stock option
grant agreements.
5. NOTICE OF TERMINATION. After a Change in Control, any
purported termination of the Executive's employment pursuant to Section 3 shall
be communicated by written Notice of Termination from one party hereto to the
other party hereto in accordance with Section 17. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which shall set forth
in reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment.
6. DATE OF TERMINATION. "Date of Termination", with respect to
any purported termination of the Executive's employment after a Change in
Control, shall mean the date specified in the Notice of Termination (which, in
the case of a termination by the Executive for Good Reason, shall not be less
than five days nor more than 60 days, from the date such Notice of Termination
is given). In the event of Notice of Termination by the Company, the Executive
may treat such notice as having a Date of Termination at any date between the
date of the receipt of such notice and the Date of Termination indicated in the
Notice of Termination by the Company; provided, that the Executive must give the
Company written notice of the Date of Termination if the Executive deems it to
have occurred prior to the Date of Termination indicated in the notice.
7. EXCISE TAX. In the event that the Executive becomes entitled
to payments and/or benefits which would constitute "parachute payments" within
the meaning of Section 280G(b)(2) of the Code, the provisions of Exhibit A shall
apply.
8. NO DUTY TO MITIGATE/SET-OFF. In the event of any termination
of the Executive's employment, the Executive shall not be required to seek other
employment or to attempt in any way to reduce any amounts payable to the
Executive by the Company pursuant to this Agreement. Further, the amount of any
payment or benefit provided for in this Agreement shall not be reduced by any
compensation earned by the Executive or benefit provided to the Executive as the
result of employment by another employer or otherwise. The amounts payable
hereunder shall not be subject to set-off, counterclaim, recoupment, defense or
other right which the Company may have against the Executive.
7
9. NON-COMPETITION; CONFIDENTIALITY. (a) The Executive
acknowledges that the restrictive covenants (including, without limitation,
confidentiality and non-competition) in any other agreement with the Company
previously signed by the Executive (including the Employment Agreement) shall
not be affected by this Agreement and that the restrictive covenants therein
shall continue to apply after a Change in Control or a termination of employment
after a Change in Control in accordance with the terms of such restrictive
covenants.
(b) Furthermore, during the two-year period after the
Termination Date, the Executive shall not, directly or indirectly, (i)
induce, solicit, recruit or hire or attempt to induce, solicit, recruit
or hire or aid others in inducing, soliciting, recruiting or hiring any
employee of the Company, or in any way interfere with the relationship
between the Company and an employee thereof, or (ii) in any way
interfere with the relationship between the Company and any customer,
supplier, licensee or other business relation thereof.
10. RELEASE REQUIRED. Any amounts payable pursuant to this
Agreement (beyond amounts payable pursuant to Section 4(a)) shall only be
payable if the Executive delivers to the Company (and does not revoke) a release
of all claims of any kind whatsoever that the Executive has or may have against
the Employer and its officers, directors and employees, known or unknown, as of
the Date of Termination (other than claims to payments specifically payable
hereunder, claims under COBRA, claims to vested accrued benefits under the
Employer's employee benefit plans, claims relating to any rights of
indemnification under the Company's organizational documents or otherwise or
claims relating to any outstanding stock options or other equity-based award on
the Date of Termination) occurring up to the release date in such form as
reasonably required by the Company (but without ancillary provisions not
directly related to the release).
11. LITIGATION SUPPORT. Subject to the Executive's other
commitments, following the Executive's receipt of any payments or benefits under
this Agreement, the Executive shall be reasonably available to cooperate with
the Company and provide information as to matters which the Executive was
personally involved, or has information on, during the Executive's employment
with the Company and which are or become the subject of litigation or other
dispute.
12. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration
conducted in Jacksonville, Florida under the Commercial Arbitration Rules then
prevailing of the American Arbitration Association and such submission shall
request the American Arbitration Association to: (a) appoint an arbitrator
experienced and knowledgeable concerning the matter then in dispute; (b) require
the testimony to be transcribed; (c) require the award to be accompanied by
findings of fact and the statement for reasons for the decision; and (d) request
the matter to be handled by and in accordance with the expedited procedures
provided for in the Commercial Arbitration Rules. The determination of the
arbitrators, which shall be based upon a de novo interpretation of this
Agreement, shall be final and binding and judgment may be entered on the
arbitrators' award in any court having jurisdiction.
8
13. ATTORNEY'S FEES. In the event that a claim for payment or
benefits under this Agreement is disputed or the Executive is otherwise
enforcing rights under this Agreement and the arbitrator determines that the
Executive has prevailed on the material issues in the arbitration, the Company
shall, upon presentment of appropriate documentation, promptly pay, or reimburse
the Executive, for all reasonable legal and other professional fees, costs of
arbitration and other expenses incurred in connection therewith by the
Executive.
14. NO ASSIGNMENT. This Agreement shall not be assignable by the
Executive. This Agreement shall be assignable by the Company only by merger or
with all or a substantial portion of the assets of the Company. This Agreement
shall inure to the benefit and be binding upon the personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees, legatees and permitted assignees of the parties hereto. If the Company
is acquired, consolidates or merges into or with, or transfers all or
substantially all of its assets to, another entity, the term "Company" as used
herein shall mean such other entity and this Agreement shall continue in full
force and effect. In the case of any transaction in which a successor would not
by the foregoing provision or operation of law be bound by this Agreement, the
Company shall require such successor expressly and unconditionally to assume and
agree to perform the Company's obligations under this Agreement, in the same
manner and to the same extent that the Company would be required to perform if
no such succession had taken place.
15. MISCELLANEOUS. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive and such officer as may be
specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. This
Agreement constitutes the entire Agreement between the parties hereto pertaining
to the subject matter hereof and supersedes all existing agreements between them
concerning such subject matter (including, without limitation, the Employment
Agreement as it may apply with regard to a termination after a Change in Control
or with regard to a termination in anticipation of a Change in Control but not
any stock option or other equity agreement nor any plan or programs, except as
provided herein); provided, however, that in the event the Term ends before the
Company becomes obligated to make any payment to the Executive pursuant to the
terms hereof, the effect of this sentence regarding superceding existing
agreements as they apply to a termination of employment in connection with a
Change in Control shall be of no further force or effect. 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. All references to any law shall be deemed also to refer
to any successor provisions to such laws.
16. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
17. NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally, or
sent by registered mail, postage prepaid as follows:
9
If to the Company, to:
Florida East Coast Industries, Inc.
Xxx Xxxxxx Xxxxxx
Xx. Xxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
If to the Executive, to the Executive's last shown address on the books
of the Company.
Any such notice shall be deemed given when so delivered personally, or,
if mailed, five days after the date of deposit in the United States mail. Any
party may by notice given in accordance with this Section to the other parties,
designate another address or person for receipt of notices hereunder.
18. SEPARABILITY. If any provisions of this Agreement shall be
declared to be invalid or unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the remaining provisions hereof which shall
remain in full force and effect.
19. NON-EXCLUSIVITY OF RIGHTS. Except as otherwise specifically
provided therein, (a) nothing in this Agreement shall prevent or limit the
Executive's continuing or future participation in any benefit, bonus, incentive,
equity or other plan or program provided by the Company and for which the
Executive may qualify, nor (b) shall anything herein limit or otherwise
prejudice such rights as the Executive may have under any other currently
existing plan, agreement as to employment or severance from employment with the
Company or statutory entitlements, provided, that to the extent such amounts are
paid under Section 4(a) hereof or otherwise, they shall not be due under any
such program, plan, agreement, or statute. Amounts that are vested benefits or
which the Executive is otherwise entitled to receive under any plan or program
of the Company, at or subsequent to the Date of Termination shall be payable in
accordance with such plan or program, except as otherwise specifically provided
herein.
20. NOT AN AGREEMENT OF EMPLOYMENT. This is not an agreement
assuring employment and the Company reserves the right to terminate the
Executive's employment at any time with or without Cause, subject to the payment
provisions hereof if such termination is after, or within three months prior to,
a Change in Control. The Executive acknowledges that the Executive is aware that
the Executive shall have no claim against the Company hereunder or for
deprivation of the right to receive the amounts hereunder as a result of any
termination that does not specifically satisfy the requirements hereof. Except
as provided herein, the foregoing shall not affect the Executive's rights under
any other agreement with the Company.
21. WITHHOLDING TAXES. The Company may withhold from all payments
due hereunder such federal, state and local taxes as may be required to be
withheld pursuant to any applicable law or regulation.
10
22. GOVERNING LAW. This Agreement shall be construed, interpreted,
and governed in accordance with the laws of the State of Florida, without
reference to rules relating to conflicts of law.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed and the Executive has hereunto set the Executive's hand as of the date
first set forth above.
FLORIDA EAST COAST INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman
EXECUTIVE
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
11
EXHIBIT A
GOLDEN PARACHUTE PROVISION
(a) In the event that the Executive shall become entitled to
payments and/or benefits provided by this Agreement or any other amounts in the
"nature of compensation" (whether pursuant to the terms of this Agreement or any
other plan, arrangement or agreement with the Company, any person whose actions
result in a change of ownership or effective control covered by Section
280G(b)(2) of the Code or any person affiliated with the Company or such person)
as a result of such change in ownership or effective control (collectively, the
"Company Payments"), and such Company Payments will be subject to the tax (the
"Excise Tax") imposed by Section 4999 of the Code (and any similar tax that may
hereafter be imposed by any taxing authority), the amounts of any Company
Payments shall be automatically reduced to an amount one dollar less than the
amount that would subject the Executive to the Excise Tax. The dollar amount of
the reduction, if any, to be made with respect to any Company Payments shall be
determined by the Company's Accountants (as such term is defined in paragraph
(b) below) on or before the date such Company Payments are due and payable to
the Executive. Company Payments shall be reduced as mutually agreed between the
Company and the Executive or, in the event the parties cannot agree, in the
following order (1) any lump sum severance based on a multiple of Base Salary or
Bonus, (2) any other cash amounts payable to the Executive, (3) any benefits
valued as parachute payments; and (4) acceleration of vesting of any equity.
(b) For purposes of determining whether any of the Company
Payments will be subject to the Excise Tax and the amount of such Excise Tax,
(x) the Company Payments shall be treated as "parachute payments" within the
meaning of Section 280G(b)(2) of the Code, and all "parachute payments" in
excess of the "base amount" (as defined under Section 280G(b)(3) of the Code)
shall be treated as subject to the Excise Tax, unless and except to the extent
that, in the opinion of the Company's independent certified public accountants
appointed prior to any change in ownership (as defined under Section 280G(b)(2)
of the Code) or tax counsel selected by such accountants or the Company (the
"Accountants") such Company Payments (in whole or in part) either do not
constitute "parachute payments," represent reasonable compensation for services
actually rendered within the meaning of Section 280G(b)(4) of the Code in excess
of the "base amount" or are otherwise not subject to the Excise Tax, and (y) the
value of any non-cash benefits or any deferred payment or benefit shall be
determined by the Accountants in accordance with the principles of Section 280G
of the Code. In the event that the Accountants are serving as accountant or
auditor for the individual, entity or group effecting the Change in Control, the
Executive may appoint another nationally recognized accounting firm to make the
determinations hereunder (which accounting firm shall then be referred to as the
"Accountants" hereunder). All determinations hereunder shall be made by the
Accountants which shall provide detailed supporting calculations both to the
Company and the Executive at such time as it is requested by the Company or the
Executive. If the Accountants determine that payments under this Agreement must
be reduced pursuant to this paragraph, they shall furnish the Executive with a
written opinion to such effect. The determination of the Accountants shall be
final and binding upon the Company and the Executive.
12
(c) In the event of any controversy with the Internal Revenue
Service (or other taxing authority) with regard to the Excise Tax, the Executive
shall permit the Company to control issues related to the Excise Tax (at its
expense), provided that such issues do not potentially materially adversely
affect the Executive, but the Executive shall control any other issues. In the
event the issues are interrelated, the Executive and the Company shall in good
faith cooperate so as not to jeopardize resolution of either issue, but if the
parties cannot agree the Executive shall make the final determination with
regard to the issues. In the event of any conference with any taxing authority
as to the Excise Tax or associated income taxes, the Executive shall permit the
representative of the Company to accompany the Executive, and the Executive and
the Executive's representative shall cooperate with the Company and its
representative.
(d) The Company shall be responsible for all charges of the
Accountant.
(e) The Company and the Executive shall promptly deliver to each
other copies of any written communications, and summaries of any verbal
communications, with any taxing authority regarding the Excise Tax covered by
this Exhibit A.
13
BASIC STOCK OPTION AGREEMENT
Between
FLORIDA EAST COAST INDUSTRIES, INC.
and
XXXXXXX X. XXXXX
Dated: December 11, 2001
THIS AGREEMENT, dated December 11, 2001 between Florida East Coast
Industries, Inc. ("FECI") ("Company"), and Xxxxxxx X. Xxxxx (the "Employee") is
made pursuant to the provisions of Section 2(b)(iv) of that certain Employment
Agreement of even date herewith between the Company and the Employee (the
"Employment Agreement").
In fulfillment of the aforesaid provisions of the Employment Agreement,
the parties agree as follows:
1. Non-Statutory Option. Under the Company's Stock
Incentive Plan, as amended (the "Plan"), the Company hereby grants the
Employee a non-statutory option ("NSO") to purchase from the Company
ten thousand (10,000) shares of the Company's Class A Common Stock
("Common Stock"). The exercise price of the NSO is $21.425 per share,
being the fair market value of the Company's Common Stock on the next
preceding business day prior to the date of this Agreement.
2. Entitlement to Exercise the NSO. The grant of the NSO
is subject to the following terms and conditions:
(a) Vesting. One-fifth of the NSO, 10,000
shares, shall vest on and may be exercised at any time on or
after December 11, 2002. Another one-fifth of the NSO, 2,000
shares, shall vest on and may be exercised at any time on or
after December 11, 2003. Another one-fifth of the NSO, 2,000
shares, shall vest and may be exercised at any time on or
after December 11, 2004. Another one-fifth of the NSO, 2,000
shares, shall vest on and may be exercised at any time on or
after December 11, 2005. The remaining one-fifth of the NSO,
2,000 shares
2
shall, vest on and may be exercised at any time on or after
December 11, 2006. In addition, all of the NSO shall vest on
and may be exercised at any time on or after an Accelerating
Event (as defined in Section 4(a) of the Employment
Agreement). The vesting of any portion of the NSO is
conditioned on the Employee's continued employment by the
Company or a parent or subsidiary of the Company as of the
relevant vesting date.
(b) Exercise Period. Except as otherwise stated
in this Agreement, the vested portion of the NSO may be
exercised, in whole or in part, from the dates described in
subsections (a) above until the earliest of (i) December 11,
2011, (ii) two years following the effective date that the
Employee's employment terminates by reason of an Accelerating
Event (as defined in Section 4(a) of the Employment Agreement)
or normal retirement (as determined under any retirement plan
of the Company), or (iii) the effective date that the Employee
terminates employment for any other reason (but in no event
earlier than two years following the accrual of Change in
Control Entitlement (as defined in Section 5(b) of the
Employment Agreement).
(c) Exercise Following Death. If the Employee
dies while employed by the Company or a parent or subsidiary
corporation, then the person to whom the Employee's rights
under the NSO shall have passed by will or by the laws of
distribution may exercise any of the NSO within two years
after the Employee's death.
3
3. Payment Under NSO. Payment of the NSO price may be
made in cash, in shares of the Company's Common Stock, or in any
combination thereof. If shares of the Company's Common Stock are
delivered to make any such payment, the shares shall be valued at the
fair market value (as defined below) thereof on the date of exercise of
the NSO. For purposes of this Agreement, "fair market value" means, as
of any given date, the closing price of the Company's Common Stock on
such date as quoted in the NYSE Composite Transactions Reporting the
Wall Street Journal. If there were no sales reported as of a particular
date, fair market value will be computed as of the last date preceding
such date on which a sale was reported.
4. Limited Transferability of NSO. The NSO is not
transferable (other than by will or by the laws of descent and
distribution) and, except as otherwise stated in this Agreement, may be
exercised during the Employee's lifetime only by the Employee.
5. Adjustments. The NSO shall be equitably adjusted with
respect to the exercise price to reflect any extraordinary distribution
made with respect to the Company's Common Stock during the term of the
options. In the event of a capital adjustment resulting from a stock
dividend, stock split, reorganization, merger, consolidation, spinoff,
a combination or exchange of shares or other transaction having a
similar substantive effect, the number of shares of stock subject to
the NSO and the exercise price shall be equitably adjusted.
6. Exercise. The vested portion of the NSO may be
exercised in whole or in part, but only with respect to whole shares of
the Company's Common Stock, and may be exercised more than once until
all shares which are subject to the NSO have been
4
purchased. An NSO may be exercised by deliver to the Company of written
notice stating the number of shares elected to be purchased, and by
payment to the Company as described in paragraph 3.
7. Withholding. By signing this Agreement, the Employee
agrees to make arrangements satisfactory to the Company to comply with
any income tax withholding requirements that may apply upon the
exercise of the NSO or the disposition of the Company's Common Stock
received upon the exercise of the NSO. The Employee will be entitled to
elect to satisfy his tax withholding obligation by the withholding by
the Company, at the appropriate time, of shares of the Company's Common
Stock otherwise issuable to the Employee under this Agreement in a
number sufficient, based upon the fair market value (as defined above)
of such Common Stock on the relevant date, to satisfy such tax
withholding requirements.
8. Delivery of Certificates. The Company may delay
delivery of the certificate for shares purchased pursuant to the
exercise of an NSO until (i) the admission of such shares to listing on
any stock exchange on which the Company's Common Stock may then be
listed, (ii) completion of any registration or other qualification of
such shares under any state or federal law regulation that the
Company's counsel shall determine as necessary or advisable, and (iii)
receipt by the Company of advice by counsel that all applicable legal
requirements have been complied with.
9. Dispute Resolution. Any dispute or controversy
arising under on in connection with this Agreement shall be settled by
binding arbitration, which shall be the sole and exclusive method of
resolving any questions, claims or other matters arising
5
under this Agreement. Such proceeding shall be conducted by final and
binding arbitration before a panel of one or more arbitrators under the
administration of the American Arbitration Association, and in a
location mutually agreed to by the Employee and the Company. The
Federal and State courts located in the United States of America are
hereby given jurisdiction to render judgment upon, and to enforce, each
arbitration award, and the parties hereby expressly consent and submit
to the jurisdiction of such courts.
10. Miscellaneous.
(a) This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, without
reference to principles of conflict of laws. The captions of this
Agreement are not part of the provisions hereof and shall have no force
or effect. This Agreement may not be amended or modified otherwise than
by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
(b) This Agreement and Section 2(b)(iv)
constitutes the entire agreement between the parties with respect to
the subject matter hereof. In the event of any inconsistency between
the provision of this Agreement and the provisions of the Plan, the
provisions of this Agreement shall govern.
(c) All notice and other communications
hereunder shall be in writing and shall be given by hand deliver to the
other party or by registered or certified mail, return receipt
requested, postage prepaid, or by telecopier, or by courier, addressed
as follows:
6
If to the Employee to: If to the Company to:
Xxxxxxx X. Xxxxx Florida East Coast
000 Xxxxxxx Xxxx Industries, Inc.
Xxxxxxxx Xxxx, XX 00000 Xxx Xxxxxx Xxxxxx
Xx. Xxxxxxxxx, XX 00000
Facsimile: 904/826-2379
or to such other address as either party shall have furnished to the
other in writing in accordance herewith. Notice and communications
shall be effective when actually received by the addressee.
(d) In the event of a dispute arising out of
this Agreement, any party receiving any monetary or injunctive remedy,
whether at law or in equity, which is final and not subject to appeal
shall be entitled to its reasonable attorneys' fees and costs incurred
with respect to obtaining such remedy from the other party.
(e) The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement.
(f) The Employee's or the Company's failure to
insist upon strict compliance with any provision hereof or any other
provision of this Agreement or the failure to asset any right the
Employee or the Company may have hereunder, shall not be deemed to be a
waiver of such provision or right or any other provision or right of
this Agreement.
7
FLORIDA EAST COAST INDUSTRIES, INC.
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Chairman and Chief Executive Officer
Agreed and Accepted:
/s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx
RESTRICTED STOCK AGREEMENT
(Long Term Incentive)
between
FLORIDA EAST COAST INDUSTRIES, INC.
and
Xxxxxxx X. Xxxxx
Dated: December 11, 2001
THIS AGREEMENT, dated December 11, 2001, between Florida East Coast
Industries, Inc.("FECI") (the "Company"), and Xxxxxxx X. Xxxxx (the "Employee")
is made pursuant to the provisions of Section 2(b)(iii) of that certain
Employment Agreement of even date herewith between the Company and the Employee
(the "Employment Agreement").
In fulfillment of the aforesaid provisions of the Employment Agreement,
the parties agree as follows:
1. Grant of Restricted Stock. Under the Company's Stock Incentive
Plan, as amended (the "Plan"), the Company hereby grants to the
Employee, subject to the terms and conditions herein set forth, Two
Thousand Five hundred (2,500) shares of the Company's Class A Common
Stock (the "Restricted Stock").
2. Terms and Conditions. The Restricted Stock is subject to the
following terms and conditions:
(a) Limited Nontransferability. This Restricted Stock
shall be nontransferable during the term of the Restrictions (as
hereinafter set forth) except by will or by the laws of descent and
distribution.
2
(b) Restrictions and Lapse of Restrictions. The
Restricted Stock shall be subject to the Employee's continued
employment by the Company or a parent or subsidiary corporation (the
"Restrictions"), which shall lapse according to the following schedule
as of the stated yearly anniversaries of the date hereof (each an
"Anniversary Date"):
ANNIVERSARY UNRESTRICTED
DATE PERCENTAGE
----------- ------------
First 20%
Second 40%
Third 60%
Fourth 80%
Fifth 100%
Notwithstanding the foregoing, upon the occurrence of an Accelerating
Event (as defined in Section 4(a) of the Employment Agreement), all
Restrictions shall lapse upon the date of such Accelerating Event.
3. Forfeiture of Restricted Stock Upon Termination of Employment.
The rights of the Employee and his successors in interest in Restricted
Stock on which the Restrictions have not lapsed pursuant to paragraph
2(b) shall terminate in full when the Employee's employment with the
Company or a parent or subsidiary corporation is terminated by the
Company for Cause (as defined in Section 3(b) of the Employment
Agreement) or by the Employee without Good Reason (as defined in
Section 3(c) of the Employment Agreement).
3
4. Dividends/Distributions. The Company shall pay to the Employee
any dividends or other distributions payable with respect to the
Restricted Stock, notwithstanding the Restrictions, beginning on the
date hereof but not beyond the date of any forfeiture thereof pursuant
to the provisions of paragraph 3.
5. Withholding. The Employee agrees to make arrangements
satisfactory to the Company to comply with any income tax withholding
requirements that may apply upon the lapse of the Restrictions on the
Restricted Stock. The Employee will be entitled to elect to satisfy his
tax withholding obligation by the withholding by the Company, at the
appropriate time, of shares of the Company's Common Stock from the
Restricted Stock in a number sufficient, based upon the fair market
value (as defined below) of such Common Stock on the relevant date, to
satisfy such tax withholding requirements. For purposes of this
Agreement, "fair market value" means, as of any given date, the closing
price of the Company's Common Stock on such date as quoted in the NYSE
Composite Transactions Report in the Wall Street Journal. If there were
no sales reported as of a particular date, fair market value will be
computed as of the last date preceding such date on which a sale was
reported.
6. Delivery of Certificates. The Company may delay delivery of
the certificate for shares granted hereunder until (i) the admission of
such shares to listing on any stock exchange on which the Company's
Common Stock may then be listed, (ii) completion of any registration or
other qualification of such shares under any state or federal law
regulation that the Company's counsel shall determine as necessary or
advisable, and (iii)
4
receipt by the Company of advice by counsel that all applicable legal
requirements have been complied with.
7. Dispute Resolution. Any dispute or controversy arising under
or in connection with this Agreement shall be settled by binding
arbitration, which shall be the sole and exclusive method of resolving
any questions, claims or other matters arising under this Agreement.
Such proceeding shall be conducted by final and binding arbitration
before a panel of one or more arbitrators under the administration of
the American Arbitration Association, and in a location mutually agreed
to by the Employee and the Company. The Federal and State courts
located in the United States of America are hereby given jurisdiction
to render judgement upon, and to enforce, each arbitration award, and
the parties hereby expressly consent and submit to the jurisdiction of
such courts.
8. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, without reference to
principles of conflict of laws. The captions of this Agreement are not
part of the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified otherwise than by a written
agreement executed by the parties hereto or their respective successors
and legal representatives.
(b) This Agreement and Section 12 of the Employment
Agreement constitute the entire agreement between the parties with
respect to the subject matter hereof. In the
5
event of any inconsistency between the provisions of this Agreement and
the provisions of the Plan, the provisions of this Agreement shall
govern.
(c) All notices and other communications hereunder shall
be in writing and shall be given by hand delivery to the other party or
by registered or certified mail, return receipt requested, postage
prepaid, or by telecopier, or by courier, address as follows:
If to the Employee to: If to the Company to:
Xxxxxxx X. Xxxxx Florida East Coast
000 Xxxxxxx Xxxx Industries, Inc.
Xxxxxxxx Xxxx, XX 00000 Xxx Xxxxxx Xxxxxx
Xx. Xxxxxxxxx, XX 00000
Facsimile: 904/826-2379
or to such other address as either party shall have furnished to the
other in writing in accordance herewith. Notice and communications
shall be effective when actually received by the addressee.
(d) In the event of a dispute arising out of this
Agreement, any party receiving any monetary or injunctive remedy,
whether at law or in equity, which is final and not subject to appeal
shall be entitled to its reasonable attorneys' fees and costs incurred
with respect to obtaining such remedy from the other party.
(e) The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(f) The Employee's or the Company's failure to insist
upon strict compliance with any provision hereof or any other provision
of this Agreement or the failure to assert any right the Employee or
the Company may have hereunder, shall not be deemed to be a waiver of
such provision or right or any other provision or right of this
Agreement.
6
FLORIDA EAST COAST INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Chairman and Chief Executive Officer
Agreed and Accepted:
/s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx
7
