Exhibit 10.3
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement ("Agreement") between
Xxxxxxx Enterprises, Inc., a Louisiana corporation (the "Company"), and Xxxxxx
X. Xxxxxxxx (the "Employee") is dated effective as of December 16, 2008 and
amends and restates the agreement dated February 20, 2007 (the "Agreement
Date"), as previously amended on May 14, 2007 and May 1, 2008.
WITNESSETH:
WHEREAS, the Company desires to retain the services of Employee pursuant to
the terms of this Agreement, subject to Employee's acceptance of the conditions
stated herein;
WHEREAS, Employee wishes to be employed by the Company in consideration of
the compensation and benefits set forth herein and pursuant to the terms hereof;
WHEREAS, during the course of his employment with the Company, Employee
will have received extensive and unique knowledge, training and education in,
and access to resources involving, the Death Care Business (as defined below) at
a substantial cost to the Company, which Employee acknowledges will
substantially enhance Employee's skills and knowledge in such business;
WHEREAS, during the course of his employment with the Company, Employee
will have received access to and information about the Company's customers,
suppliers, joint venture partners and others having important commercial
relationships with the Company, the preservation of which the Employee
acknowledges are vital to the continuing commercial success of the Company;
WHEREAS, during the course of his employment with the Company, Employee
will continue to have access to valuable oral and written information, knowledge
and data relating to the business and operations of the Company and its
subsidiaries that is non-public, confidential or proprietary in nature and is
particularly useful in the Death Care Business; and
WHEREAS, in view of the training provided by the Company to Employee, its
cost to the Company, the importance of maintaining continuing favorable
relationships with customers, suppliers, partners and others, and the need for
the Company to be protected against disclosures by Employee of the Company's and
its subsidiaries' trade secrets and other non-public, confidential or
proprietary information, the Company and Employee desire, among other things, to
prohibit Employee from disclosing or utilizing, outside the scope and term of
his employment with the Company, any non-public, confidential or proprietary
information, knowledge and data relating to the business and operations of the
Company or its subsidiaries received by Employee during the course of his
employment, and to restrict the ability of Employee to compete with the Company
or its subsidiaries for a limited period of time;
NOW, THEREFORE, for and in consideration of the continued employment of
Employee by the Company and the payment of salary, benefits and other
compensation to Employee by the Company, the parties hereto agree as follows:
ARTICLE 1
EMPLOYMENT CAPACITY AND TERM
SECTION 1.1 CAPACITY AND DUTIES OF EMPLOYEE. The Employee is employed by
the Company to render services on behalf of the Company in the capacity set
forth in Appendix A hereto, as such Appendix may be amended or supplemented from
time to time (as so amended or supplemented, "Appendix A"). The Employee shall
perform such duties, consistent with the Employee's job title, as are assigned
to the title or titles held by the Employee as set forth from time to time in
the Company's Bylaws and such other duties as may be prescribed from time to
time by the Company's Board of Directors (the "Board").
SECTION 1.2 EMPLOYMENT TERM; START DATE. Employee shall report to work no
later than March 31, 2007. The date Employee reports to work is referred to
herein as the "Start Date." The term of Employee's employment under this
Agreement (the "Employment Term") shall commence on the Start Date and shall
continue through October 31, 2010, subject to extension as provided in Section
6.3 in the event of a Change of Control (as defined in Section 6.2), and subject
to any earlier termination of Employee's status as an employee pursuant to this
Agreement.
SECTION 1.3 DEVOTION TO RESPONSIBILITIES. During the Employment Term, the
Employee shall devote all of his business time to the business of the Company,
shall use his best efforts to perform faithfully and efficiently his duties
under this Agreement, and shall not engage in or be employed by any other
business; provided, however, that nothing herein shall prohibit the Employee
from (a) serving as a member of the board of directors, board of trustees or the
like of any for-profit or non-profit entity that does not compete with the
Company, or performing services of any type for any civic or community entity,
whether or not the Employee receives compensation therefor, (b) investing his
assets in such form or manner as shall require no more than nominal services on
the part of the Employee in the operation of the business of the entity in which
such investment is made, or (c) serving in various capacities with, and
attending meetings of, industry or trade groups and associations, as long as the
Employee's activities permitted by clauses (a), (b) and (c) above do not
materially and unreasonably interfere with the ability of the Employee to
perform the services and discharge the responsibilities required of him under
this Agreement. Notwithstanding clause (b) above, during the Employment Term,
the Employee may not beneficially own more than 2% of the equity interests of a
business organization required to file periodic reports with the Securities and
Exchange Commission under the Securities Exchange Act of 1934 (the "Exchange
Act") and may not beneficially own more than 2% of the equity interests of a
business organization that competes with the Company. For purposes of this
paragraph, "beneficially own" has the meaning ascribed to that term in Rule
13d-3 under the Securities Exchange Act of 1934, as amended from time to time
(the "Exchange Act").
ARTICLE 2
COMPENSATION AND BENEFITS
During the Employment Term, the Company shall provide the Employee with the
compensation and benefits described below:
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SECTION 2.1 SALARY AND BONUS. The Company shall pay the Employee a salary
("Base Salary") at an annual rate per fiscal year of the Company ("Fiscal Year")
as set forth in Appendix A, which shall be payable to the Employee at such
intervals as other salaried employees of the Company are paid.
(A) The Employee shall be eligible to receive an annual incentive
bonus (the "Bonus"), up to the maximum set forth in Appendix A. The Bonus will
be awarded based upon factors to be established or approved annually by the
Compensation Committee in its discretion and set forth in Appendix A or a
supplement thereto. Any Bonus shall be paid no later than March 15 of the
following calendar year. For Fiscal Year 2007, any Bonus awarded shall be
prorated for the number of days Employee has been employed by the Company. In
addition, for Fiscal Year 2007, any Bonus awarded shall be paid fifty percent
(50%) in cash and fifty percent (50%) in Class A common stock of the Company.
(B) Any change in the Employee's title, Base Salary or Bonus
eligibility during the Employment Term shall be set forth in one or more
amendments or supplements to Appendix A to this Agreement, each of which shall
be signed by the Employee and a member of the Compensation Committee of the
Board of Directors of the Company.
SECTION 2.2 BENEFITS. The Employee shall be eligible to participate in all
benefit programs provided to other employees of the Company from time to time in
accordance with the eligibility and other terms of such programs.
SECTION 2.3 EXPENSES. The Employee shall be reimbursed for reasonable
out-of-pocket expenses incurred from time to time on behalf of the Company or
any subsidiary in the performance of his duties under this Agreement, upon the
presentation of such supporting invoices, documents and forms as the Company
reasonably requests.
SECTION 2.4 SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN. The Employee shall be
entitled to participate in the Company's Supplemental Executive Retirement Plan
on the terms and subject to the conditions set forth therein.
SECTION 2.5 SUPPLEMENTAL 401(K) PLAN. Employee shall be entitled to
participate in the Company's supplemental 401(k) plan (the Xxxxxxx Enterprises,
Inc. Supplemental Retirement and Deferred Compensation Plan) on the same basis
as other executive officers.
SECTION 2.6 CAR ALLOWANCE. During the term of Executive's employment
hereunder, Executive shall receive a car allowance of $15,300 per year.
ARTICLE 3
LONG-TERM INCENTIVES
Effective upon the Start Date, the Employee shall receive the following
incentives under the Company's stock incentive plans:
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SECTION 3.1 RESTRICTED STOCK.
(a) Restricted Stock-Time Vest. An aggregate of 100,000 shares of the
Class A common stock of the Company as a time-vested restricted stock award.
Thirty-four percent (34%) of such shares shall vest on the first anniversary of
the Start Date. Thirty-three percent (33%) of such shares shall vest on each of
the second and third anniversaries of the Start Date.
(b) Restricted Stock- Performance Based (XXX). An aggregate of 120,000
shares of the Class A common stock of the Company as a performance-based
restricted stock award. 40,000 of such shares shall vest on October 31, 2008 if
the Company's return on equity ("XXX") for fiscal 2008 is greater or equal to
ten percent (10%). 40,000 of such shares shall vest on October 31, 2009 if XXX
for fiscal 2009 is greater or equal to eleven percent (11%). 40,000 of such
shares shall vest on October 31, 2010 if XXX for fiscal 2010 is greater or equal
to twelve percent (12%). To the extent not already vested, 120,000 of such
shares shall vest on October 31, 2010 if the XXX for fiscal years 2008, 2009 and
2010 is greater than or equal to eleven percent (11%) on a compounded annual
basis. The calculation of XXX shall be made by the Compensation Committee and
shall include such positive or negative adjustments as the Compensation
Committee shall in good xxxxx xxxx appropriate in order to reflect unusual
items, non-recurring items or items outside of management's responsibility or
control, consistent with the types of adjustments made by the Committee in the
past in determining whether performance criteria were met by Company executives
under the annual bonus plan. The calculation of XXX by the Committee shall be
final and binding absent a showing by the Employee of manifest error or bad
faith. Attachment 2 to Appendix A provides an example of the XXX calculation.
(c) Restricted Stock- Performance Based (Stock Price). An aggregate of
120,000 shares of the Class A common stock of the Company as a performance-based
restricted stock award. 40,000 of such shares shall vest on October 31, 2008 if
the closing price per share of the Company's Class A common stock on its
principal trading market (the "Closing Price") equals or exceeds $8 per share
for twenty consecutive trading days during fiscal 2008. 40,000 of such shares
shall vest on October 31, 2009 if the Closing Price of the Company's Class A
common stock equals or exceeds $9 per share for twenty consecutive trading days
during fiscal 2009. 40,000 of such shares shall vest on October 31, 2010 if the
Closing Price of the Company's Class A common stock equals or exceeds $10 per
share for twenty consecutive trading days during fiscal 2010. To the extent not
already vested, all 120,000 of such shares shall vest on October 31, 2010 if the
Closing Price of the Company's Class A common stock equals or exceeds $10 per
share for twenty consecutive trading days at any time after the Start Date and
on or before October 31, 2010.
(d) The restrictions on the restricted stock granted pursuant to this
Section 3.1 shall lapse upon a Change of Control, as defined in Section 6.2.
(e) Unvested restricted stock shall be forfeited upon the termination
of the Employee's employment for any reason; provided, however, that in the
event that the Employee's employment is terminated by the Company without Cause
(as defined in Section 4.3) or by the Employee for Good Reason (as defined in
Section 4.4), then unvested restricted stock that otherwise would have vested on
the next anniversary date of the Start Date shall fully vest on the date of such
termination.
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SECTION 3.2 STOCK OPTIONS
(a) Effective upon the Start Date, the Company shall grant to the
Employee options under the Company's stock incentive plans to purchase an
aggregate of 360,000 shares of the Class A common stock of the Company at an
exercise price per share equal to the closing price per share of the Class A
common stock on the Nasdaq Stock Market on the Start Date, as such number of
shares and price per share may be adjusted from time to time, as provided in the
plans, subject to the following vesting conditions:
(i) Options to purchase 120,000 of such shares shall vest on
October 31, 2008 if the Closing Price of the Company's Class A common stock
equals or exceeds $8 per share for twenty consecutive trading days during fiscal
2008.
(ii) Options to purchase 120,000 of such shares shall vest on
October 31, 2009 if the Closing Price of the Company's Class A common stock
equals or exceeds $9 per share for twenty consecutive trading days during fiscal
2009.
(iii) Options to purchase 120,000 of such shares shall vest on
October 31, 2010 if the Closing Price of the Company's Class A common stock
equals or exceeds $10 per share for twenty consecutive trading days during
fiscal 2010.
(iv) To the extent not already vested, options to purchase all
360,000 of such shares shall vest on October 31, 2010 if the Closing Price of
the Company's Class A common stock equals or exceeds $10 per share for twenty
consecutive trading days at any time after the Start Date and on or before
October 31, 2010.
(b) The options will expire seven years after the Start Date.
(c) The options shall vest upon a Change in Control.
(d) If Employee's employment is terminated, options may be exercised,
but only to the extent exercisable at the time of termination, within the
periods specified below, but no later than March 31, 2014:
(i) In the event of
(A) death,
(B) disability within the meaning of Section 22(e)(3) of the
Code,
(C) retirement on or after reaching age 65,
(D) early retirement with the approval of the Board of
Directors or
(E) any termination, other than termination for "cause,"
after Employee has completed 15 or more continuous years of full-time service
with the Company,
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options must be exercised within one year following termination of
employment, after which time options shall terminate.
(ii) In the event of termination for any other reason, options
may be exercised, but only to the extent exercisable at the time of termination,
within 30 days following termination of employment, after which time options
shall terminate.
Any options not yet exercisable at the time of termination of employment
shall terminate immediately upon termination of employment.
(e) purposes of Section 3.2(d) only, the term "cause" shall mean (a)
Employee's breach of any written employment agreement between Employee and SEI
or a subsidiary or (b) the willful engaging by Employee in gross conduct
injurious to SEI or the subsidiary that employs Employee, which in either case
is not remedied within 10 days after SEI or the employing subsidiary provides
written notice to Employee of such breach or willful misconduct.
ARTICLE 4
TERMINATION OF EMPLOYMENT
SECTION 4.1 DEATH. The Employee's status as an employee shall terminate
immediately and automatically upon the Employee's death during the Employment
Term.
SECTION 4.2 DISABILITY. The Employee's status as an employee may be
terminated for "Disability" as follows:
(a) The Employee's status as an employee shall terminate if the
Employee has a disability that would entitle him to receive benefits under the
Company's long-term disability insurance policy in effect at the time either
because he is Totally Disabled or Partially Disabled, as such terms are defined
in such policy. Any such termination shall become effective on the first day on
which the Employee is eligible to receive payments under such policy (or on the
first day that he would be so eligible, if he had applied timely for such
payments).
(b) If the Company has no long-term disability plan in effect, if (i)
the Employee is rendered incapable because of physical or mental illness of
satisfactorily discharging his duties and responsibilities under this Agreement
for a period of 90 consecutive days and (ii) a duly qualified physician chosen
by the Company and reasonably acceptable to the Employee or his legal
representatives so certifies in writing, the Board shall have the power to
determine that the Employee has become disabled. If the Board makes such a
determination, the Company shall have the continuing right and option, during
the period that such disability continues, and by notice given in the manner
provided in this Agreement, to terminate the status of Employee as an employee.
Any such termination shall become effective 30 days after such notice of
termination is given, unless within such 30-day period, the Employee becomes
capable of rendering services of the character contemplated hereby (and a
physician chosen by the Company and reasonably acceptable to the Employee or his
legal representatives so certifies in writing) and the Employee in fact resumes
such services.
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(c) The "Disability Effective Date" shall mean the date on which
termination of employment becomes effective due to Disability.
SECTION 4.3 CAUSE. The Company may terminate the Employee's status as an
employee for Cause. As used herein, "Cause" shall mean the Employee's: (a)
breach of this Agreement; (b) intentional failure to perform his prescribed
duties; (c) unauthorized acts or omissions that could reasonably be expected to
cause material financial harm to the Company or materially disrupt Company
operations; (d) commission of a felony; (e) commission of an act of dishonesty
(even if not a crime) resulting in the enrichment of the Employee at the expense
of the Company; (f) knowing falsification or knowing attempted falsification of
financial records of the Company in violation of SEC Rule 13b2-1; or (g) willful
failure to follow established Company policies or procedures; provided, however,
that no such termination may take place in the case of (a) through (c) or (g)
above unless the Company has provided written notice to the Employee of such
conduct and the Employee has failed to remedy such conduct within 10 days
following receipt of such notice.
SECTION 4.4 GOOD REASON. The Employee may terminate his status as an
employee for Good Reason. As used herein, the term "Good Reason" shall mean:
(a) The occurrence of any of the following during the Employment Term:
(i) the assignment to the Employee of any duties or
responsibilities that are inconsistent with the Employee's status, title and
position as set forth in Appendix A; provided, that following a Change of
Control, if the Company is controlled by another company (directly or
indirectly), Employee shall be deemed to have been assigned duties and
responsibilities inconsistent with his status, title and position as set forth
in Appendix A if he does not hold an equivalent position in the ultimate parent
company.
(ii) any removal of the Employee from, or any failure to
reappoint or reelect the Employee to, the position set forth in Appendix A
(other than in connection with the expiration of the Employment Term), except in
connection with a termination of Employee's status as an employee as permitted
by this Agreement.
(iii) the Company's requiring the Employee to be based anywhere
other than in the metropolitan area set forth in Appendix A, except for required
travel in the ordinary course of the Company's business;
(b) any breach of this Agreement by the Company that continues for a
period of 10 days after written notice thereof is given by the Employee to the
Company;
(c) the failure by the Company to obtain the assumption of its
obligations under this Agreement by any successor or assign as contemplated in
this Agreement; or
(d) any purported termination by the Company of the Employee's status
as an employee for Cause that is not effected pursuant to a Notice of
Termination satisfying the requirements of this Agreement.
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SECTION 4.5 VOLUNTARY TERMINATION BY THE COMPANY. The Company may terminate
the Employee's status as employee for other than death, Disability or Cause.
SECTION 4.6 VOLUNTARY TERMINATION BY THE EMPLOYEE. The Employee may
voluntarily terminate the Employee's status as employee for other than Good
Reason.
SECTION 4.7 NOTICE OF TERMINATION. Any termination by the Company or by the
Employee, shall be communicated by Notice of Termination to the other party
hereto given in accordance with Article 9 Section 9.2 of this Agreement. For
purposes of this Agreement, a "Notice of Termination" means a written notice
that (a) indicates the specific termination provision in this Agreement relied
upon (b) to the extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employee's
employment under the provisions so indicated and (c) 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 be not more than 30 days after the giving
of such notice). The failure by the Employee or the Company to set forth in the
Notice of Termination any fact or circumstance that contributes to a showing of
Good Reason, Disability or Cause shall not negate the effect of the notice nor
waive any right of the Employee or the Company, respectively, hereunder or
preclude the Employee or the Company, respectively, from asserting such fact or
circumstance in enforcing the Employee's or the Company's rights hereunder.
SECTION 4.8 DATE OF TERMINATION. "Date of Termination" means (a) if
Employee's employment is terminated by reason of his death or Disability, the
Date of Termination shall be the date of death of Employee or the Disability
Effective Date, as the case may be, (b) if Employee's employment is terminated
by the Company for Cause, or by the Employee for Good Reason, the date of
delivery of the Notice of Termination or any later date specified therein (which
date shall not be more than 30 days after the giving of such notice) as the case
may be, (c) if the Employee's employment is terminated by the Company for
reasons other than death, Disability or Cause, the Date of Termination shall be
the date on which the Company notifies the Employee of such termination or any
later date specified therein, and (d) if the Employee's employment is terminated
voluntarily by the Employee for reasons other than Good Reason, the Date of
Termination shall be the date on which the Employee notifies the Company of such
termination or any later date specified therein (which date shall not be later
than 30 days after the giving of such notice) as the case may be.
ARTICLE 5
OBLIGATIONS UPON TERMINATION
SECTION 5.1 SEPARATION FROM SERVICE. No payments or benefits provided
herein that are paid because of a termination of employment under circumstances
described herein shall be paid, unless such termination of employment also
constitutes a "separation from service" within the meaning of Section 409A of
the Internal Revenue Code of 1986, as amended and the regulations and guidance
issued thereunder ("Section 409A").
SECTION 5.2 DEATH. If the Employee's status as an employee is terminated by
reason of the Employee's death, this Agreement shall terminate without further
obligation to the Employee's legal representatives under this Agreement, other
than the obligation to pay accrued
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salary through the Date of Termination and to make any payments due pursuant to
employee benefit plans maintained by the Company or its subsidiaries.
SECTION 5.3 DISABILITY. If Employee's status as an employee is terminated
by reason of Employee's Disability, this Agreement shall terminate without
further obligation to the Employee, other than the obligation to pay accrued
salary through the Date of Termination and to make any payments due pursuant to
employee benefit plans maintained by the Company or its subsidiaries.
SECTION 5.4 TERMINATION BY THE COMPANY FOR REASONS OTHER THAN DEATH,
DISABILITY OR CAUSE; TERMINATION BY THE EMPLOYEE FOR GOOD REASON. If the Company
terminates the Employee's status as an employee for reasons other than death,
Disability or Cause, or the Employee terminates his employment for Good Reason,
then, except as provided in Section 6.4, the Company shall pay to the Employee
an amount equal to a single year's Base Salary in effect at the Date of
Termination, payable over a two-year period as follows: beginning on the first
regular payroll date that is at least six months after the Date of Termination,
the Employee shall be paid one-fourth of a single year's Base Salary, and the
remaining three-fourths shall be paid in equal installments on the Company's
regular bi-weekly payroll dates over the following 18 months; provided, however,
that if the Employee is not a "specified employee" under Section 409A on the
Date of Termination, such payments shall begin on the first regular payroll date
of the Company following the Date of Termination and shall be made in equal
installments on each of such payroll dates over the following 24 months.
SECTION 5.5 CAUSE. If the Employee's status as an employee is terminated by
the Company for Cause, this Agreement shall terminate without further obligation
to the Employee other than for accrued salary through the Date of Termination,
obligations imposed by law and obligations imposed pursuant to any employee
benefit plan maintained by the Company or its subsidiaries.
SECTION 5.6 RESIGNATION FROM BOARD OF DIRECTORS. If Employee is a director
of the Company and his employment is terminated for any reason other than death,
the Employee shall, if requested by the Company, immediately resign as a
director of the Company. If such resignation is not received when so requested,
the Employee shall forfeit any right to receive any payments pursuant to this
Agreement.
SECTION 5.7 NO ACCELERATION OF PAYMENTS. No acceleration of payments and
benefits provided for herein shall be permitted, except that the Company may
accelerate payment, if permitted under the regulations under Section 409A.
ARTICLE 6
CHANGE OF CONTROL
SECTION 6.1 In the event a Change of Control occurs during the Employment
Term, then the provisions of this Article 6 shall be applicable.
SECTION 6.2 "Change of Control" means:
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(a) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of more than 30% of the outstanding shares of the Company's Class A Common
Stock, no par value per share (the "Common Stock"); provided, however, that for
purposes of this subsection (a), the following acquisitions shall not constitute
a Change of Control:
(i) any acquisition of Common Stock directly from the Company,
(ii) any acquisition of Common Stock by the Company,
(iii) any acquisition of Common Stock by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or
(iv) any acquisition of Common Stock by any corporation pursuant
to a transaction that complies with clauses (i), (ii) and (iii) of subsection
(c) of this Section 6.2; or
(b) individuals who, as of the date of this Agreement constitute the
Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the date of this Agreement whose election, or nomination
for election by the Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered a member of the Incumbent Board, unless such individual's initial
assumption of office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a person other
than the Incumbent Board; or
(c) consummation of a reorganization, merger or consolidation, or sale
or other disposition of all or substantially all of the assets of the Company (a
"Business Combination"), in each case, unless, following such Business
Combination,
(i) all or substantially all of the individuals and entities who
were the beneficial owners of the Company's outstanding common stock and the
Company's voting securities entitled to vote generally in the election of
directors immediately prior to such Business Combination have direct or indirect
beneficial ownership, respectively, of 50% or more of the then outstanding
shares of common stock, and 50% or more of the combined voting power of the then
outstanding voting securities entitled to vote generally in the election of
directors, of the corporation resulting from such Business Combination (which,
for purposes of this paragraph (i) and paragraphs (ii) and (iii), shall include
a corporation which as a result of such transaction controls the Company or all
or substantially all of the Company's assets either directly or through one or
more subsidiaries), and
(ii) except to the extent that such ownership existed prior to
the Business Combination, no person (excluding any corporation resulting from
such Business Combination or any employee benefit plan or related trust of the
Company or such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 20% or more of the then outstanding
shares of common stock of the corporation resulting from such
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Business Combination or 20% or more of the combined voting power of the then
outstanding voting securities of such corporation, and
(iii) at least 50% of the members of the board of directors of
the corporation resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination; or
(d) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
SECTION 6.3 (a) Upon a Change of Control, the Employment Term shall
automatically continue following such Change of Control for a period equal to
the then remaining Employment Term or two years, whichever period is longer,
subject to any earlier termination of Employee's status as an employee pursuant
to this Agreement.
(b) For any fiscal year ending during the two-year period following a
Change of Control during which entire year the Employee remains employed, the
Employee shall be awarded an annual bonus in cash at least equal to (i) the
average Bonus paid to the Employee for the last three completed fiscal years
prior to the Change of Control, (ii) the average Bonus paid for the last two
completed fiscal years prior to the Change of Control, if the Employee has
participated in a Company Bonus plan only for the last two fiscal years, or
(iii) the actual Bonus paid for the last completed fiscal year prior to the
Change of Control, if the Employee has participated in a Company Bonus plan only
for the last completed fiscal year (the "Minimum Bonus"). Notwithstanding the
foregoing, in calculating the Minimum Bonus payment under this Section 6.3(b), a
Bonus amount for a prior fiscal year that was reduced pro rata because the
Employee was not a participant in a Company Bonus plan for a full year shall be
annualized. Each such Minimum Bonus shall be paid no later than 2 1/2 months
following the end of the fiscal year for which the Minimum Bonus is awarded,
unless the Employee shall have elected to defer the receipt of such Minimum
Bonus in accordance with procedures established by the Company.
SECTION 6.4 (a) If, on or within two years following a Change of Control,
the Company terminates Employee's employment for reasons other than death,
Disability or Cause or Employee terminates his employment for Good Reason, then
at the times provided in Section 6.4(b),
(i) instead of the payments provided in Section 5.4, Employee
shall receive from the Company an amount equal to two times the sum of the
Employee's Base Salary in effect at the Date of Termination; and
(ii) the Company shall pay to the Employee an amount calculated
by multiplying the Minimum Bonus by the fraction obtained by dividing the number
of days from the beginning of the fiscal year in which the Date of Termination
occurs through the Date of Termination by 365; provided, however, that, if the
Employee has in effect a 401(k) plan or non-qualified deferred compensation plan
deferral election with respect to any percentage of the annual bonus which would
otherwise become payable with respect to the fiscal year in which the Date of
Termination occurs, such payment shall be reduced by an amount equal to such
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percentage times the payment (which reduction amount shall be deferred in
accordance with such election).
(b) If the Change of Control also constitutes a change in ownership or
effective control of the Company or a change in ownership of a substantial
portion of the Company's assets under Section 409A (a "409A Change of Control"),
the payments provided in this Section 6.4 shall be made on the first regular
payroll date that is at least six months after the Date of Termination;
provided, however, that if Employee is not a "specified employee" under Section
409A on the Date of Termination, such payment shall be made 10 business days
following the Date of Termination. If the Change of Control does not also
constitute a 409A Change of Control, the payments shall be made over a two-year
period as follows: beginning on the first regular payroll date that is at least
six months after the Date of Termination, the Employee shall be paid one-fourth
of the total amount due under this Section 6.4, and the remaining three-fourths
shall be paid in equal installments on the Company's regular bi-weekly payroll
dates over the following 18 months; provided, however, that if the Employee is
not a "specified employee" under Section 409A on the Date of Termination, such
payments shall begin on the first regular payroll date of the Company following
the Date of Termination and shall be made in equal installments on each of such
payroll dates over the following 24 months.
SECTION 6.5 All options granted pursuant to this Agreement shall vest upon
a Change of Control.
SECTION 6.6 All restrictions on shares of restricted stock granted pursuant
to this Agreement shall lapse upon a Change of Control.
ARTICLE 7
NONDISCLOSURE, NONCOMPETITION AND PROPRIETARY RIGHTS
SECTION 7.1 CERTAIN DEFINITIONS. For purposes of this Agreement, the
following terms shall have the following meanings:
(a) "Confidential Information" means any information, knowledge or
data of any nature and in any form (including information that is electronically
transmitted or stored on any form of magnetic or electronic storage media)
relating to the past, current or prospective business or operations of the
Company and its subsidiaries, that at the time or times concerned is not
generally known to persons engaged in businesses similar to those conducted or
contemplated by the Company and its subsidiaries (other than information known
by such persons through a violation of an obligation of confidentiality to the
Company), whether produced by the Company and its subsidiaries or any of their
consultants, agents or independent contractors or by Employee, and whether or
not marked confidential, including without limitation information relating to
the Company's or its subsidiaries' products and services, business plans,
business acquisitions, joint ventures, processes, product or service research
and development ideas, methods or techniques, training methods and materials,
and other operational methods or techniques, quality assurance procedures or
standards, operating procedures, files, plans, specifications, proposals,
drawings, charts, graphs, support data, trade secrets, supplier lists, supplier
information, purchasing methods or practices, distribution and selling
activities, consultants' reports, marketing and engineering or other technical
studies, maintenance records,
-12-
employment or personnel data, marketing data, strategies or techniques,
financial reports, budgets, projections, cost analyses, price lists, formulae
and analyses, employee lists, customer records, customer lists, customer source
lists, proprietary computer software, and internal notes and memoranda relating
to any of the foregoing.
(b) "Death Care Business" means (i) the owning and operating of
funeral homes and cemeteries, including combined funeral home and cemetery
facilities, (ii) the offering of services and products to meet families' funeral
needs, including prearrangement, family consultation, the sale of caskets and
related funeral and cemetery products and merchandise (whether at physical
locations or by means of the Internet), the removal, preparation and
transportation of remains, cremation, the use of funeral home facilities for
visitation and worship, and related transportation services, (iii) the marketing
and sale of funeral services and cemetery property or merchandise on an at-need
or prearranged basis, (iv) providing, managing and administering financing
arrangements (including trust funds, escrow accounts, insurance and installment
sales contracts) for prearranged funeral plans and cemetery property and
merchandise, (v) providing interment services, the sale (on an at-need or
prearranged basis) of cemetery property including lots, lawn crypts, family and
community mausoleums and related cemetery merchandise such as monuments,
memorials and burial vaults, (vi) the maintenance of cemetery grounds pursuant
to perpetual care contracts and laws or on a voluntary basis, and (vii) offering
mausoleum design, construction and sales services.
SECTION 7.2 NONDISCLOSURE OF CONFIDENTIAL INFORMATION. During the
Employment Term, Employee shall hold in a fiduciary capacity for the benefit of
the Company all Confidential Information which shall have been obtained by
Employee during Employee's employment (whether prior to or after the Agreement
Date) and shall use such Confidential Information solely within the scope of his
employment with and for the exclusive benefit of the Company. For a period of
five years after the Employment Term, commencing with the Date of Termination,
Employee agrees (a) not to communicate, divulge or make available to any person
or entity (other than the Company) any such Confidential Information, except
upon the prior written authorization of the Company or as may be required by law
or legal process, and (b) to deliver promptly to the Company any Confidential
Information in his possession, including any duplicates thereof and any notes or
other records Employee has prepared with respect thereto. In the event that the
provisions of any applicable law or the order of any court would require
Employee to disclose or otherwise make available any Confidential Information,
Employee shall give the Company prompt prior written notice of such required
disclosure and an opportunity to contest the requirement of such disclosure or
apply for a protective order with respect to such Confidential Information by
appropriate proceedings.
SECTION 7.3 LIMITED COVENANT NOT TO COMPETE. During the Employment Term and
for a period of two years thereafter, commencing with the Date of Termination,
Employee agrees that, with respect to each State of the United States or other
jurisdiction, or specified portions thereof, in which the Employee regularly (a)
makes contact with customers of the Company or any of its subsidiaries, (b)
conducts the business of the Company or any of its subsidiaries or (c)
supervises the activities of other employees of the Company or any of its
subsidiaries, as identified in Appendix B attached hereto and forming a part of
this Agreement, and in which the Company or any of its subsidiaries engages in
the Death Care Business on the Date of
-13-
Termination (collectively, the "Subject Areas"), Employee will restrict his
activities within the Subject Areas as follows:
(a) Employee will not, directly or indirectly, for himself or others,
own, manage, operate, control, be employed in an executive, managerial or
supervisory capacity by, consult with, or otherwise engage or participate in or
allow his skill, knowledge, experience or reputation to be used in connection
with, the ownership, management, operation or control of, any company or other
business enterprise engaged in the Death Care Business within any of the Subject
Areas; provided, however, that nothing contained herein shall prohibit Employee
from making passive investments as long as Employee does not beneficially own
more than 2% of the equity interests of a business enterprise engaged in the
Death Care Business within any of the Subject Areas. For purposes of this
paragraph, "beneficially own" shall have the same meaning ascribed to that term
in Rule 13d-3 under the Exchange Act.
(b) Employee will not call upon any customer of the Company or its
subsidiaries for the purpose of soliciting, diverting or enticing away the
business of such person or entity, or otherwise disrupting any previously
established relationship existing between such person or entity and the Company
or its subsidiaries;
(c) Employee will not solicit, induce, influence or attempt to
influence any supplier, lessor, lessee, licensor, partner, joint venturer,
potential acquiree or any other person who has a business relationship with the
Company or its subsidiaries, or who on the Date of Termination is engaged in
discussions or negotiations to enter into a business relationship with the
Company or its subsidiaries, to discontinue or reduce or limit the extent of
such relationship with the Company or its subsidiaries; and
(d) Employee will not make contact with any of the employees of the
Company or its subsidiaries with whom he had contact during the course of his
employment with the Company for the purpose of soliciting such employee for
hire, whether as an employee or independent contractor, or otherwise disrupting
such employee's relationship with the Company or its subsidiaries.
(e) Employee further agrees that, for a period of one year from and
after the Date of Termination, Employee will not hire, on behalf of himself or
any person or entity engaged in the Death Care Business with which Employee is
associated, any employee of the Company or its subsidiaries as an employee or
independent contractor, whether or not such engagement is solicited by Employee;
provided, however, that the restriction contained in this subsection (e) shall
not apply to Company employees who reside in, or are hired by Employee to
perform work in, any of the Subject Areas located within the States of Virginia,
Arkansas or Georgia.
Employee agrees that he will from time to time upon the Company's request
promptly execute any supplement, amendment, restatement or other modification of
Appendix B as may be necessary or appropriate to correctly reflect the
jurisdictions which, at the time of such modification, should be covered by
Appendix B and this Article 7 Section 7.3. Furthermore, Employee agrees that all
references to Appendix B in this Agreement shall be deemed to refer to Appendix
B as so supplemented, amended, restated or otherwise modified from time to time.
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SECTION 7.4 INJUNCTIVE RELIEF; OTHER REMEDIES. Employee acknowledges that a
breach by Employee of Section 7.2 or 7.3 of this Article 7 would cause immediate
and irreparable harm to the Company for which an adequate monetary remedy does
not exist; hence, Employee agrees that, in the event of a breach or threatened
breach by Employee of the provisions of Section 7.2 or 7.3 of this Article 7
during or after the Employment Term, the Company shall be entitled to injunctive
relief restraining Employee from such violation without the necessity of proof
of actual damage or the posting of any bond, except as required by non-waivable,
applicable law. Nothing herein, however, shall be construed as prohibiting the
Company from pursuing any other remedy at law or in equity to which the Company
may be entitled under applicable law in the event of a breach or threatened
breach of this Agreement by Employee, including without limitation the recovery
of damages and/or costs and expenses, such as reasonable attorneys' fees,
incurred by the Company as a result of any such breach or threatened breach. In
addition to the exercise of the foregoing remedies, the Company shall have the
right upon the occurrence of any such breach or threatened breach to cancel any
unpaid salary, bonus, commissions or reimbursements otherwise outstanding at the
Date of Termination. In particular, Employee acknowledges that the payments
provided under Article 5 Section 5.3 or Article 6 Section 6.4 are conditioned
upon Employee fulfilling any noncompetition and nondisclosure agreements
contained in this Article 7. In the event Employee shall at any time materially
breach or threaten to breach any noncompetition or nondisclosure agreements
contained in this Article V, the Company may suspend or eliminate payments under
Article 5 or Article 6 during the period of such breach or threatened breach.
Employee acknowledges that any such suspension or elimination of payments would
be an exercise of the Company's right to suspend or terminate its performance
hereunder upon Employee's breach of this Agreement; such suspension or
elimination of payments would not constitute, and should not be characterized
as, the imposition of liquidated damages.
SECTION 7.5 REQUESTS FOR WAIVER IN CASES OF UNDUE HARDSHIP. In the event
that Employee should find any of the limitations of Article 7 Section 7.3
(including without limitation the geographic restrictions of Appendix B) to
impose a severe hardship on Employee's ability to secure other employment,
Employee may make a request to the Company for a waiver of the designated
limitations before accepting employment that otherwise would be a breach of
Employee's promises and obligations under this Agreement. Such request must be
in writing and clearly set forth the name and address of the organization with
which employment is sought and the location, position and duties that Employee
will be performing. The Company will consider the request and, in its sole
discretion, decide whether and on what conditions to grant such waiver.
SECTION 7.6 GOVERNING LAW OF THIS ARTICLE V; CONSENT TO JURISDICTION. Any
dispute regarding the reasonableness of the covenants and agreements set forth
in this Article 7 (including Appendix B hereto), or the territorial scope or
duration thereof, or the remedies available to the Company upon any breach of
such covenants and agreements, shall be governed by and interpreted in
accordance with the laws of the State of the United States or other jurisdiction
in which the alleged prohibited competing activity or disclosure occurs, and,
with respect to each such dispute, the Company and Employee each hereby
irrevocably consent to the exclusive jurisdiction of the state and federal
courts sitting in the relevant State (or, in the case of any jurisdiction
outside the United States, the relevant courts of such jurisdiction) for
resolution of such dispute, and agree to be irrevocably bound by any judgment
rendered thereby in
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connection with such dispute, and further agree that service of process may be
made upon him or it in any legal proceeding relating to this Article 7 and/or
Appendix B by any means allowed under the laws of such jurisdiction. Each party
irrevocably waives any objection he or it may have as to the venue of any such
suit, action or proceeding brought in such a court or that such a court is an
inconvenient forum.
SECTION 7.7 EMPLOYEE'S UNDERSTANDING OF THIS ARTICLE. Employee hereby
represents to the Company that he has read and understands, and agrees to be
bound by, the terms of this Article 7 (including Appendix B hereto). Employee
acknowledges that the geographic scope and duration of the covenants contained
in Article 7 Section 7.3 are the result of arm's-length bargaining and are fair
and reasonable in light of (i) the importance of the functions performed by
Employee and the length of time it would take the Company to find and train a
suitable replacement, (ii) the nature and wide geographic scope of the
operations of the Company and its subsidiaries, (iii) Employee's level of
control over and contact with the business and operations of the Company and its
subsidiaries in a significant number of jurisdictions where same are conducted
and (iv) the fact that all facets of the Death Care Business are conducted by
the Company and its subsidiaries throughout the geographic area where
competition is restricted by this Agreement. It is the desire and intent of the
parties that the provisions of this Agreement be enforced to the fullest extent
permitted under applicable law, whether now or hereafter in effect and,
therefore, to the extent permitted by applicable law, the parties hereto waive
any provision of applicable law that would render any provision of this Article
7 (including Appendix B hereto) invalid or unenforceable.
ARTICLE 8
ARBITRATION
SECTION 8.1 BINDING AGREEMENT TO ARBITRATE. Any claim or controversy
arising out of any provision of this Agreement (other than Article 7 hereof), or
the breach or alleged breach of any such provision, shall be settled by
arbitration administered by the American Arbitration Association (the "AAA")
under its National Rules for the Resolution of Employment Disputes (the
"Rules"), and judgment on the award rendered by the arbitrator(s) may be entered
in any court having jurisdiction thereof.
SECTION 8.2 SELECTION AND QUALIFICATIONS OF ARBITRATORS. If no party to the
arbitration makes a claim in excess of $1.0 million, exclusive of interest and
attorneys' fees, the proceedings shall be conducted before a single neutral
arbitrator selected in accordance with the Rules. If any party makes a claim
that exceeds $1.0 million, the proceedings shall be conducted before a panel of
three neutral arbitrators, one of whom shall be selected by each party within 15
days after commencement of the proceeding and the third of whom shall be
selected by the first two arbitrators within 10 days after their appointment. If
the two arbitrators selected by the parties are unable or fail to agree on the
third arbitrator, the third arbitrator shall be selected by the AAA. Each
arbitrator shall be a member of the bar of the State of Louisiana and actively
engaged in the practice of employment law for at least 15 years.
SECTION 8.3 LOCATION OF PROCEEDINGS. The place of arbitration shall be New
Orleans, Louisiana.
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SECTION 8.4 REMEDIES. Any award in an arbitration initiated under this
Article 8 shall be limited to actual monetary damages, including if determined
appropriate by the arbitrator(s) an award of costs and fees to the prevailing
party. "Costs and fees" mean all reasonable pre-award expenses of the
arbitration, including arbitrator's fees, administrative fees, travel expenses,
out-of-pocket expenses such as copying, telephone, witness fees and attorneys'
fees. The arbitrator(s) will have no authority to award consequential, punitive
or other damages not measured by the prevailing party's actual damages, except
as may be required by statute.
SECTION 8.5 OPINION. The award of the arbitrators shall be in writing,
shall be signed by a majority of the arbitrators, and shall include findings of
fact and a statement of the reasons for the disposition of any claim.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 BINDING EFFECT.
(a) This Agreement shall be binding upon and inure to the benefit of
the Company and any of its successors or assigns.
(b) This Agreement is personal to the Employee and shall not be
assignable by the Employee without the consent of the Company (there being no
obligation to give such consent) other than such rights or benefits as are
transferred by will or the laws of descent and distribution.
(c) The Company shall require any successor to or assignee of (whether
direct or indirect, by purchase, merger, consolidation or otherwise) all or
substantially all of the assets or businesses of the Company (i) to assume
unconditionally and expressly this Agreement and (ii) to agree to perform all of
the obligations under this Agreement in the same manner and to the same extent
as would have been required of the Company had no assignment or succession
occurred, such assumption to be set forth in a writing reasonably satisfactory
to the Employee. In the event of any such assignment or succession, the term
"Company" as used in this Agreement shall refer also to such successor or
assign.
SECTION 9.2 NOTICES. All notices hereunder must be in writing and shall be
deemed to have been given upon receipt of delivery by: (a) hand (against a
receipt therefor), (b) certified or registered mail, postage prepaid, return
receipt requested, (c) a nationally recognized overnight courier service
(against a receipt therefor) or (d) telecopy transmission with confirmation of
receipt. All such notices must be addressed as follows:
If to the Company, to:
Xxxxxxx Enterprises, Inc.
0000 Xxxxx Xxxxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attn: Chairman of the Compensation Committee
of the Board of Directors
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If to the Employee, to:
Xxxxxx X. Xxxxxxxx
0000 Xxxxxx Xxxx
Xxxx Xxxx Xxxx, Xxxx 00000
or such other address as to which any party hereto may have notified the
other in writing.
SECTION 9.3 GOVERNING LAW. This Agreement shall be construed and enforced
in accordance with and governed by the internal laws of the State of Louisiana
without regard to principles of conflict of laws, except as expressly provided
in Article 7 Section 7.6 above with respect to the resolution of disputes
arising under, or the Company's enforcement of, Article 7 of this Agreement.
SECTION 9.4 WITHHOLDING. The Employee agrees that the Company has the right
to withhold, from the amounts payable pursuant to this Agreement, all amounts
required to be withheld under applicable income and/or employment tax laws, or
as otherwise stated in documents granting rights that are affected by this
Agreement.
SECTION 9.5 SEVERABILITY. If any term or provision of this Agreement
(including without limitation those contained in Appendix B), or the application
thereof to any person or circumstance, shall at any time or to any extent be
invalid, illegal or unenforceable in any respect as written, Employee and the
Company intend for any court construing this Agreement to modify or limit such
provision temporally, spatially or otherwise so as to render it valid and
enforceable to the fullest extent allowed by law. Any such provision that is not
susceptible of such reformation shall be ignored so as to not affect any other
term or provision hereof, and the remainder of this Agreement, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid, illegal or unenforceable, shall not be
affected thereby and each term and provision of this Agreement shall be valid
and enforced to the fullest extent permitted by law.
SECTION 9.6 WAIVER OF BREACH. The waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach thereof.
SECTION 9.7 REMEDIES NOT EXCLUSIVE. Except as provided in Article 8 hereof,
no remedy specified herein shall be deemed to be such party's exclusive remedy,
and accordingly, in addition to all of the rights and remedies provided for in
this Agreement, the parties shall have all other rights and remedies provided to
them by applicable law, rule or regulation.
SECTION 9.8 COMPANY'S RESERVATION OF RIGHTS. Employee acknowledges and
understands that the Employee serves at the pleasure of the Board and that the
Company has the right at any time to terminate Employee's status as an employee
of the Company, subject to the rights of the Employee to claim the benefits
conferred by this Agreement.
SECTION 9.9 JURY TRIAL WAIVER. THE PARTIES HEREBY WAIVE TRIAL BY JURY IN
ANY JUDICIAL PROCEEDING TO WHICH THEY ARE PARTIES
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INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH THIS AGREEMENT.
SECTION 9.10 SURVIVAL. The rights and obligations of the Company and
Employee contained in Article 7 of this Agreement shall survive the termination
of the Agreement. Following the Date of Termination, each party shall have the
right to enforce all rights, and shall be bound by all obligations, of such
party that are continuing rights and obligations under this Agreement.
SECTION 9.11 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings, oral or written, between the parties hereto
with respect to the subject matter hereof. This Agreement may not be amended
orally, but only by an agreement in writing by the parties hereto.
SECTION 9.12 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
SECTION 9.13 SECTION 409A OF THE INTERNAL REVENUE CODE. In the event that
any of the compensation or benefits payable to the Employee hereunder are
considered to be non-qualified deferred compensation under Section 409A, the
Company and the Employee shall negotiate in good faith and agree to such
amendments to this Agreement as they and their respective tax counsel deem
necessary to avoid the imposition of additional taxes and penalties under
Section 409A or such regulations, while preserving the economic benefits
intended to be conferred on the Employee by this Agreement. This Agreement is
intended to comply with Section 409A and shall be construed accordingly.
IN WITNESS WHEREOF, the Company and the Employee have caused this Agreement
to be executed and effective on December 16, 2008.
XXXXXXX ENTERPRISES, INC.
Dated: December 16, 2008 By: /s/ XXXXX X. XXXXXXXXX
------------------------------------
Xxxxx X. XxXxxxxxx
Compensation Committee Chairman
EMPLOYEE:
Dated: December 16, 2008 /s/ XXXXXX X. XXXXXXXX
----------------------------------------
Xxxxxx X. Xxxxxxxx
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APPENDIX A TO EMPLOYMENT AGREEMENT
BETWEEN XXXXXXX ENTERPRISES, INC.
AND
XXXXXX X. XXXXXXXX
BASE SALARY, BONUS COMPENSATION AND BENEFITS
1. Employee's title(s) shall be President and Chief Executive Officer, and
Employee's principal work location shall be the New Orleans, Louisiana
metropolitan area. Employee's Base Salary shall be $600,000.
2. Employee's duties shall include leading the development of a strategic plan
within the first twelve months of employment that articulates the strategic
direction and goals for the Company and outlines how such plan shall be
implemented.
3. Employee shall continue to hold a seat on the Board of Directors. Employee
shall be nominated for re-election as a director at the 2009 annual meeting
of stockholders for a term expiring at the 2010 annual meeting of
stockholders and until his successor is duly elected and qualified.
Employee agrees to resign from such seat if requested by the Company upon
Termination of Employment.
4. For Fiscal Year 2008 ("FY 2008"), Employee shall be eligible to receive a
maximum Bonus of 160% of his Base Salary at the level in effect at the
beginning of fiscal 2008. See Attachment 1 to this Appendix A. The Company
may elect to pay a portion of the Bonus in Class A common stock.
5. Employee is expected to comply with the Company's Executive Stock Ownership
Policy.
Agreed to and accepted:
XXXXXXX ENTERPRISES, INC.
Date: December 16, 2008 By: /s/ XXXXX X. XXXXXXXXX
------------------------------------
Xxxxx X. XxXxxxxxx
Compensation Committee Chairman
EMPLOYEE
Date: December 16, 2008 /s/ XXXXXX X. XXXXXXXX
----------------------------------------
Xxxxxx X. Xxxxxxxx
X-0
XXXXXXXX X TO EMPLOYMENT AGREEMENT
BETWEEN XXXXXXX ENTERPRISES, INC.
AND
XXXXXX X. XXXXXXXX
Jurisdiction In Which Competition
Is Restricted As Provided
In Article 7 Section 7.3
A. States and Territories of the United States:
1) Louisiana-- The following parishes in the State of Louisiana:
Orleans, St. Xxxxxxx, St. Tammany, Plaquemines, Jefferson, St. Xxxxxxx,
Tangipahoa
as well as any other parishes in the State of Louisiana in which the
Employee regularly (a) makes contact with customers of the Company or any
of its subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
2) Florida-- The following counties in the State of Florida:
Seminole, Dade, Hillsborough, Xxxxx, Orange, Pinellas, Indian River, Palm
Beach, Volusia, Lake, Brevard, Broward, Monroe, Collier, Pasco, Manatee,
Polk, Hardee, Nassau, Baker, Clay, St. Xxxxx, St. Lucie, Osceola,
Ockeechobee, Xxxxxx, Xxxxxx, Xxxxxx, Alachua, Putnam, Levy, Hernando,
Citrus, Sumter, Sarasota, DeSoto, Charlotte, Glades
as well as any other counties in the State of Florida in which the Employee
regularly (a) makes contact with customers of the Company or any of its
subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
3) Texas-- The following counties in the State of Texas:
Xxxxxxx, Xxxxxx, Collin, Tarrant, Lamar, Harris, Denton, Johnson, Rockwall,
Brazoria, Xxxxxxxxx, Van Zandt, Hunt, Ellis, Fannin, Wise, Parker, Red
River, Delta, Galveston, Ft. Bend, Waller, Montgomery, Liberty, Chambers,
Hood, Bosque, Hill, Matagorda, Franklin, Wharton, Somervell
as well as any other counties in the State of Texas in which the Employee
regularly (a) makes contact with customers of the Company or any of its
subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
B-1
4) Maryland-- The following counties in the State of Maryland:
Baltimore, Baltimore City, Xxxxxx, Prince Xxxxxx'x, Xxxx Arundel,
Montgomery, Carroll, Frederick, Harford, Calvert, Charles, Wicomico,
Worcester, Somerset, Dorchester, Washington
as well as any other counties in the State of Maryland in which the
Employee regularly (a) makes contact with customers of the Company or any
of its subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
5) Virginia-- The following counties in the State of Virginia:
Chesterfield, Roanoke, Rockingham, Fairfax, Tazewell, Goochland, Pulaski,
Albemarle, Hanover, Henrico, Xxxxxxxxx, Xxxxxx, Powhatan, Xxxxxxx City,
Prince George, Bedford, Montgomery, Franklin, Botetourt, Craig, Floyd,
Augusta, Shenandoah, Page, Xxxxxx, Prince Xxxxxxx, Xxxxx, Xxxxxxx,
Fluvanna, Louisa, Wythe, Giles, Carroll, Orange, Buckingham, Nelson, King
Xxxxxxx, New Xxxx, Spotsylvania, Xxxxxxxx, Xxxxxxxx, Loudoun, Arlington,
Scott, Washington, Richmond, Xxxxxx, Xxxxxxxxx, Xxxxxx
as well as any other counties in the State of Virginia in which the
Employee regularly (a) makes contact with customers of the Company or any
of its subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
6) West Virginia-- The following counties in the State of West Virginia:
Raleigh, Kanawha, Fayette, Berkeley, Boone, Summers, Wyoming, Clay,
Lincoln, Jackson, Putnam, Roane, Greenbrier, Nicholas, Logan, Wayne,
McDowell, Morgan, Jefferson, Mercer, Mingo, Cabell, Mason, Fayetteville
as well as any other counties in the State of West Virginia in which the
Employee regularly (a) makes contact with customers of the Company or any
of its subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
7) Puerto Rico-- The following towns in the Commonwealth of Puerto Rico:
Canovanas, Carolina, Mayaguez, Yauco, Bayamon, San Juan, Ponce, Caguas,
Humacao, San Xxxx District, Loiza, Juncos, Gurabo, Xxxxxxxx Alto, Guaynabo,
Xxxxxx, Xxxxx Xxxx, Jayuya, Penuelas, Adjuntas, Utuado, Cayey, San Xxxxxxx,
Patillas, Coamo, Guayama, Cidra, Aguas Buenas, Hormigueros, San German,
Maricao, Las Marias, Anasco, Comerio, Toa Baja, Toa Alta, Rio Grande, Las
Piedras, Guanica, Xxxxxxxxxx, Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx, Xxxxxxx,
X-0
as well as any other towns in the Commonwealth of Puerto Rico in which the
Employee regularly (a) makes contact with customers of the Company or any
of its subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
8) North Carolina-- The following counties in the State of North Carolina:
Catawba, Wilson, Guilford, Haywood, Johnston, Wake, Nash, Iredell, Burke,
Caldwell, Lincoln, Alexander, Cleveland, Xxxxxx, Xxxxx, Edgecombe, Pitt,
Davidson, Randolph, Forsyth, Stokes, Rockingham, Xxxxxxx, Alamance,
Xxxxxxx, Buncombe, Xxxxxxxxx, Transylvania, Swain, Madison, Sampson,
Franklin, Durham, Harnett, Granville, Chatham, Alleghany, Surry, Ashe,
Watauga, Yadkin, Pamilco, Halifax, Warren, Carteret, Jones, Lenoir,
Beaufort, Vance, Lee, Moore, Cumberland, Davie
as well as any other counties in the State of North Carolina in which the
Employee regularly (a) makes contact with customers of the Company or any
of its subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
9) South Carolina-- The following counties in the State of South Carolina:
Greenville, Charleston, Aiken, Pickens, Laurens, Spartanburg, Xxxxxxxx,
Abbeville, Berkeley, Dorchester, Colleton, Edgefield, Saluda, Lexington,
Orangeburg, Barnwell, Richland, Fairfield, Kershaw, Sumter, Calhoun,
Newberry, Oconee, Georgetown
as well as any other counties in the State of South Carolina in which the
Employee regularly (a) makes contact with customers of the Company or any
of its subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
10) Tennessee-- The following counties in the State of Tennessee:
Davidson, Sumner, Robertson, Knox, Sullivan, Sevier, Wilson, Rutherford,
Williamson, Cheatham, Trousdale, Macon, Jefferson, Grainger, Union,
Anderson, Loudon, Blount, Roane, Greene, Washington, Carter, Johnson,
Hawkins, Cocke, Xxxxxx, Dekalb, Smith, Hamblen, Unicoi, Xxxxx, Lincoln,
Cooke, Kingsport
as well as any other counties in the State of Tennessee in which the
Employee regularly (a) makes contact with customers of the Company or any
of its subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
11) Arkansas-- The following counties in the State of Arkansas:
B-3
Saline, Pulaski, Hot Spring, Garland, Perry, Grant, Lonoke, Jefferson,
Faulkner, Dallas, Clark, Montgomery, Van Buren, Cleburne, Conway, Ouachita
as well as any other counties in the State of Arkansas in which the
Employee regularly (a) makes contact with customers of the Company or any
of its subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
12) Georgia-- The following counties in the State of Georgia:
Xxxx, Cherokee, Xxxxx, Dekalb, Xxxxxx, Xxxxxxx, Paulding, Bartow, Pickens,
Forsyth, Dawson, Xxxxxx, Xxxxxxx, Rockdale, Newton, Butts, Spalding,
Gwinnett, Fayette, Coweta, Xxxxxxx, Richmond
as well as any other counties in the State of Georgia in which the Employee
regularly (a) makes contact with customers of the Company or any of its
subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
13) Alabama-- The following counties in the State of Alabama:
Mobile, Madison, Baldwin, Monroe, Washington, Jackson, Marshall, Xxxxxx,
Limestone, Clarke, Elmore, Montgomery, Macon, Coosa, Tallapoosa, Autauga,
Chilton, Walker, Jefferson, Blount, Cullman, Winston, Tuscaloosa, Xxxxxxx,
Xxxxxx, Wilcox, Marengo, Choctaw, Xxxx, Talladega, St. Clair, Shelby,
Perry, Xxxx
as well as any other counties in the State of Alabama in which the Employee
regularly (a) makes contact with customers of the Company or any of its
subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
14) Mississippi-- The following counties in the State of Mississippi:
Hinds, Madison, Rankin, Simpson, Copiah, Xxxxxxxxx, Xxxxxx, Yazoo, Xxxxxxx,
Xxxxxx
as well as any other counties in the State of Mississippi in which the
Employee regularly (a) makes contact with customers of the Company or any
of its subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
15) Pennsylvania-- The following counties in the State of Pennsylvania:
Montgomery, Philadelphia, Bucks, Delaware, Xxxxxxx, Berks, Lehigh,
Northampton, York
B-4
as well as any other counties in the State of Pennsylvania in which the
Employee regularly (a) makes contact with customers of the Company or any
of its subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
16) Kentucky-- The following counties in the State of Kentucky:
Pike, Martin, Floyd, Knott, Xxxxxxx, Xxxxx
as well as any other counties in the State of Kentucky in which the
Employee regularly (a) makes contact with customers of the Company or any
of its subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
17) The District of Columbia
18) Kansas-- The following counties in the State of Kansas:
Xxxxxxx, Leavenworth, Johnson, Miami, Franklin, Wyandotte, Sedgwick,
Cowley, Sumner, Butler, Harvey, Reno, Kingman
as well as any other counties in the State of Kansas in which the Employee
regularly (a) makes contact with customers of the Company or any of its
subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
19) Missouri-- The following counties in the State of Missouri:
Boone, Audrain, Callaway, Cole, Cooper, Howard, Moniteau, Randolph,
Jackson, Lafayette, Johnson, Cass, Xxxx, Xxx, Platte, Clinton, Morgan,
Pettis, Saline, Xxxxxxx
as well as any other counties in the State of Missouri in which the
Employee regularly (a) makes contact with customers of the Company or any
of its subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
20) Nebraska-- The following counties in the State of Nebraska:
Lancaster, Otoe, Sarpy, Gage, Saline, Seward, Saunders, Cass, Xxxxxx,
Xxxxxxx, Washington, Dodge, Xxxxxxx
as well as any other counties in the State of Nebraska in which the
Employee regularly (a) makes contact with customers of the Company or any
of its subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
B-5
Employee and the Company agree that, throughout the Employment Term,
Employee shall comply with all of the requirements and restrictions set
forth in Article 7 of the Agreement of which this Appendix B forms a part;
however, Employee and the Company agree that, notwithstanding anything to
the contrary contained in Article 7, Section 3 of the Agreement, Employee
shall be required to restrict his post-employment activities in the State
of Nebraska only to: (i) complying with the restrictions set forth in
Article 7, Section 2 of the Agreement and (ii) refraining from calling upon
any customer of the Company or its subsidiaries with whom Employee has done
business and/or had personal contact for the purpose of soliciting,
diverting or enticing away the business of such person or entity, or
otherwise disrupting any previously established relationship existing
between such person or entity and the Company or its subsidiaries. The
parties hereby acknowledge and agree that this modification to the
restrictions of Article 7, Section 7.3 as they relate to post-employment
competition in the State of Nebraska is being entered into solely to comply
with the limitations provided in Nebraska law on the extent to which
non-competition agreements may be enforced. This modification does not
reflect the parties' agreement as to the extent of the limitations upon
competition necessary to protect the legitimate interests of the Company;
rather, the provisions of Article 7 of the Agreement reflect such
agreement.
21) Iowa-- The following county in the State of Iowa:
Xxxx, Xxxxxx, Marion, Warren, Madison, Dallas, Story, Xxxxx, Pottawattamie
as well as any other counties in the State of Iowa in which the Employee
regularly (a) makes contact with customers of the Company or any of its
subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
22) Nevada-- The following counties in the State of Nevada:
Xxxxx, Washoe, Xxxxxxx, Xxxxxx City
as well as any other counties in the State of Nevada in which the Employee
regularly (a) makes contact with customers of the Company or any of its
subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
23) Arizona-- The following counties in the State of Arizona:
Mohave, La Paz
as well as any other counties in the State of Arizona in which the Employee
regularly (a) makes contact with customers of the Company or any of its
subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
B-6
24) Oregon-- The following counties in the State of Oregon:
Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxx, Curry, Jackson, Klamath, Clatsop, Columbia,
Multnomah, Clackamas, Yamhill, Tillamook
as well as any other counties in the State of Oregon in which the Employee
regularly (a) makes contact with customers of the Company or any of its
subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
25) California-- The following counties in the State of California:
Xxxxx, Plumas, Xxxxxx, Yuba, Colusa, Tehama, Fresno, San Mateo, Contra
Costa, San Joaquin, Stanislaus, Santa Xxxxx, Mariposa, Orange, San
Bernardino, Kern, Ventura, Inyo, Riverside, Los Angeles, Monterey, Kings,
Santa Xxxxxxx, Xxxxxx, Tulare, San Benito, Merced, San Xxxx Obispo, Nevada,
Alameda, Sacramento, El Dorado, Amador, Yolo, Xxxxxx, San Diego, Imperial,
Sonoma, Napa, Lake, Marin, Santa Xxxx, Calaveras, Placer, Butte, Mendocino,
San Francisco, Mono, Tuolumne, Del Norte, Siskiyou
as well as any other counties in the State of California in which the
Employee regularly (a) makes contact with customers of the Company or any
of its subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
Employee and the Company agree that, throughout the Employment Term,
Employee shall comply with all of the requirements and restrictions set
forth in Article 7 of the Agreement of which this Appendix B forms a part;
however, Employee and the Company agree that, notwithstanding anything to
the contrary contained in Article 7, Section 7.2 or 7.3 of the Agreement,
Employee shall be required to restrict his post-employment activities in
the State of California only to: (i) complying with the restrictions set
forth in Article 7, Section 7.2 of the Agreement to the extent that
Confidential Information constitutes a trade secret under California law
and (ii) complying with the restrictions set forth in Article 7, Sections
7.3(c) and 7.3(d) of the Agreement. The parties hereby acknowledge and
agree that these modifications to the restrictions of Article 7, Sections
7.2 and 7.3 as they relate to post-employment disclosure and competition in
the State of California are being entered into solely to comply with the
limitations provided in California law on the extent to which nondisclosure
and noncompetition agreements may be enforced. These modifications do not
reflect the parties' agreement as to the extent of the limitations upon
disclosure and competition necessary to protect the legitimate interests of
the Company; rather, the provisions of Article 7 of the Agreement reflect
such agreement.
27. Illinois-- The following counties in the State of Illinois:
Cook, Lake, McHenry, Kane, DuPage, Will
B-7
as well as any other counties in the State of Illinois in which the
Employee regularly (a) makes contact with customers of the Company or any
of its subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
28. Washington-- The following counties in the State of Washington:
King, Snohomish, Kittitas, Xxxxxx, Kitsap, Skagit, Chelan, Island
as well as any other counties in the State of Washington in which the
Employee regularly (a) makes contact with customers of the Company or any
of its subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
29. Wisconsin-- The following counties in the State of Wisconsin:
Waukesha, Dodge, Ozaukee, Jefferson, Washington, Racine, Walworth,
Milwaukee, Winnebago, Fond du Lac, Green Lake, Calumet, Waushara,
Outagamie, Waupaca, Kenosha, Xxxxx, Shawano, Oconte, Kewaunee
as well as any other counties in the State of Wisconsin in which the
Employee regularly (a) makes contact with customers of the Company or any
of its subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
30. Ohio-- The following counties in the State of Ohio:
Monroe, Harrison, Noble, Belmont, Licking, Jefferson, Guernsey, Fairfield,
Muskingum, Perry, Knox, Delaware, Franklin, Coshocton
as well as any other counties in the State of Ohio in which the Employee
regularly (a) makes contact with customers of the Company or any of its
subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
31. New Jersey-- The following counties in the State of New Jersey:
Burlington, Xxxxxx, Hunterdon
as well as any other counties in the State of New Jersey in which the
Employee regularly (a) makes contact with customers of the Company or any
of its subsidiaries, (b) conducts the business of the Company or any of its
subsidiaries or (c) supervises the activities of other employees of the
Company or any of its subsidiaries as of the Date of Termination.
B. Acknowledgment
B-8
The Company and Employee acknowledge that Employee's voluntary compliance
with Article 7, Sections 7.2 and 7.3 constitutes a significant part of the
consideration for the Company's agreement to make the payments specified in
Article 5 and 6. Therefore, the Company and Employee acknowledge that it is
the intent of this Agreement that if Employee engages in conduct described
as prohibited conduct in Article 7 Section 7.2 or 7.3, the Company may
suspend or eliminate payments under Article 5, including Section 5.4 of
Article 5, and Article 6, including Section 6.4 of Article 6, during the
period of such conduct, even if the parties' contractual prohibitions on
such conduct are determined to be invalid, illegal or unenforceable under
applicable law.
Furthermore, the parties acknowledge that any provision in this Appendix B
that permits Employee to engage, after the Date of Termination, in a
particular jurisdiction, in conduct otherwise prohibited by Article 7
Section 7.2 or 7.3 (for example, as in California and Nebraska) has been
agreed to solely in order to comply with the limitations provided in the
law of that jurisdiction on the extent to which nondisclosure and
noncompetition agreements may be enforced. Therefore, the parties
acknowledge that, although Employee may be permitted pursuant to this
Appendix B to engage, after the Date of Termination, in certain
jurisdictions (such as California and Nebraska), in conduct otherwise
prohibited by Article 7 Section 7.2 or 7.3, if Employee does engage in
conduct prohibited by the provisions of Article 7 Section 7.2 or 7.3 (as
such provisions appear in the Agreement without giving effect to any
modifications to such provisions made by this Appendix B), Employee will
forfeit his or her right to payments under Article 5, including Section 5.4
of Article 5, and Article 6, including Section 6.4 of Article 6, during the
period of such conduct.
AGREED TO AND ACCEPTED:
XXXXXXX ENTERPRISES, INC. EMPLOYEE
BY: /S/ XXXXX X. XXXXXXXXX /S/ XXXXXX X. XXXXXXXX
--------------------------------- ----------------------------------------
XXXXX X. XXXXXXXXX EFFECTIVE DATE: DECEMBER 16, 2008
COMPENSATION COMMITTEE CHAIRMAN
EFFECTIVE DATE: DECEMBER 16, 2008
B-9
