Exhibit 10.12
Execution Copy
EMPLOYMENT AGREEMENT
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As of December 31, 1999, Xxxxxx Xxxx Educators Corporation, a Delaware
corporation ("Employer"), and Xxxxx X. Lower II, an individual residing at 00
Xxxxxxx Xxxx, Xxxxxxxx, XX 00000 ("Employee"), agree as follows:
1. Term. Employer hereby employs Employee, and Employee hereby accepts
employment, on the terms and conditions hereinafter set forth. The term of this
Agreement (the "Term") shall commence on February 1, 2000 and shall terminate on
December 31, 2000; provided, however; that unless Employer gives notice to
Employee of its intention to have this agreement expire ("Employer Notice of
Non-Renewal") prior to September 1 of any year during the Term, or Employee
gives notice to Employer of his intention to have this agreement expire
("Employee Notice of Non-Renewal") prior to September 1 of any year during the
Term, then, on such September 1, the Term shall be extended to the December 31
of the year succeeding the year in which such September 1 occurs. Said Term may
be sooner terminated as hereinafter provided, and if the Term is so terminated,
all references herein to the "Term" of this Agreement shall mean the original
Term as so shortened, except where the context otherwise requires.
2. Duties. Employee agrees to serve Employer as its President and Chief
Executive Officer and, subject to election by the shareholders of Employer, as a
member of its Board of Directors. Employee also agrees to serve as a director
and/or executive officer of corporations which are subsidiaries of Employer as
requested by the Board of Directors of Employer. During the term of this
Agreement, Employee will devote his full working time and exclusive attention
to, and use his best efforts to advance, the business and welfare of Employer.
During the term of this Agreement, Employee will not engage in any other
employment activities for any direct or indirect remuneration without the prior
written consent of Employer and will not engage in any activities which
interfere with the performance of his duties hereunder.
3. Confidential Information.
(a) Employee hereby agrees that, during the Term and thereafter, he
proprietary or confidential information or knowledge, including without
limitation, trade secrets, processes, records of research, proposals, reports,
methods, techniques, computer software or programming or budgets or other
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financial information, regarding Employer, its business, properties or affairs
obtained by him at any time prior to or subsequent to the execution of this
Agreement, except to the extent required by his performance of assigned duties
for Employer or as required by law or legal process.
(b) Upon termination of employment Employee will deliver to Employer
all tangible displays and repositories of processes, records of research,
proposals, reports, memoranda, computer software and programming, budgets and
other financial information, and other materials or records or writings of any
other type (including any copies thereof) made, used or obtained by Employee in
connection with his employment by Employer.
(c) Employee agrees that the remedy at law for any breach by him of
any of the covenants and agreements set forth in this Section 3 will be
inadequate and that, in the event of any such breach, Employer may, in addition
to the other remedies which may be available to it at law, obtain injunctive
relief prohibiting him (together with all those persons associated with him)
from the breach of such covenants and agreements.
4. Base Salary and Benefits.
4.1 Base Salary. During the Term, Employer shall pay Employee a salary
at the rate of Five Hundred Thousand Four Dollars ($500,004) per annum, payable
in accordance with the standard policies of the Company in existence from time
to time, subject to any payroll deductions as may be necessary or customary in
respect of Employer's salaried employees.
4.2 Vacation. Employee shall be entitled to such amount of paid
vacation during each year during the Term as shall be afforded to the other
senior executives of the Company.
4.3 Non-Pension Benefits. During the Term, Employer shall furnish
Employee with the same fringe benefit programs other than stock option and
supplemental pension plans as are made available generally to Employer's senior
employees, including participating in such group life, disability, health and
other similar benefit or insurance programs as are now or hereafter made
available generally to such employees and participating in Employer's 401(k)
plan, subject to the terms of such programs.
4.4 Pension Benefits. Employer shall provide for Employee's
participation in Employer's pension plan and an additional non-qualified pension
plan at no cost to Employee so that the following retirement benefits will be
payable to Employee during his lifetime by Employer, in aggregate, pursuant to
such plans:
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Last Date of Employment Annual Benefit
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On or prior to December 31, 2000 $0
January 1, 2001 to December 31, 2001 $45,000
January 1, 2002 to December 31, 2002 $90,000
January 1, 2003 to December 31, 2003 $135,000
January 1, 2004 or later $180,000.
5. Expenses.
(a) Employer will pay or reimburse Employee for such reasonable
travel, entertainment and other expenses as he may incur at the request of
Employer during the term of this Agreement in connection with the performance of
his duties hereunder. Employee shall furnish Employer with such evidence that
such expenses were incurred as Employer reasonably requires or requests.
(b) Employer will pay or reimburse Employee for reasonable costs
associated with his purchase of a second home in the Springfield, IL area (the
"Second Home"), including without limitation fees and commissions of real estate
brokers and agents and points incurred in financing the Second Home, but not
including the actual cost of the Second Home and its contents and costs of
financing the purchase of the Second Home, other than points. Employer will also
pay or reimburse Employee for reasonable temporary living expenses in the
Springfield, IL area until such time as he occupies the Second Home.
(c) If, prior to January 17, 2003, the Term ends as a result of a
Termination Without Cause (as defined herein), an Employer Notice of Non-Renewal
or a Change of Control Termination (as defined herein) and Employee sells the
Second Home within six (6) months of such end of the Term (the "Resale"),
Employer will pay to Employee in cash an amount equal to Employee's purchase
price of the Second Home, less the gross sales price of the Second Home in the
Resale, if such amount is greater than zero (0); provided that Employee shall
make reasonable good faith efforts to obtain the best sales price in the Resale
available within such six (6) month period.
6. Incentive Compensation. In addition to the base salary to which Employee
is entitled pursuant to Section 4.1 hereof, Employer will pay to Employee
additional compensation in accordance with the following terms and conditions:
6.1 Stock Grant. On the first day of employment hereunder, Employer
shall cause to be issued to Employee a certificate for 10,000 shares of common
stock of Employer. Such certificate shall be in the name of Employee and shall
represent
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full ownership of such shares. Such shares shall have been registered under the
Securities Act of 1933 and will be freely tradable in the public markets,
subject to applicable legal restrictions. Employee represents to Employer that
he is acquiring such securities for investment purposes and not with an intent
to distribute such securities.
6.2 Stock Options. Employer shall enter into stock option agreements
with Employee, (a) in the form attached hereto as Exhibit A, concurrent with the
complete execution of this Agreement, and (b) in the form attached hereto as
Exhibit B, on the first day of Employee's employment hereunder (together, the
"Stock Option Agreements").
6.3 STIP. Employee shall participate in Employer's Short-Term
Incentive Plan (the "STIP") and successor plans thereto.
6.4 LTIP. Employee shall participate in Employer's Long-Term Incentive
Plan (the "LTIP") and successor plans thereto
6.5 One-Time Bonus. Simultaneous with the payment by Employer of
bonuses payable under the STIP with regard to performance in calendar year 2000
("2000 STIP Bonuses") and payable under the LTIP with regard to performance in
and prior to calendar year 2000 ("2000 LTIP Bonuses"), Employer shall pay to
Employee a one-time bonus equal to the sum of (a) the greater of Employee's 2000
STIP Bonus or Four Hundred Thousand Dollars ($400,000), less Employee's 2000
STIP Bonus and (b) the greater of Employee's 2000 LTIP Bonus or Three Hundred
Thousand Dollars ($300,000), less Employee's 2000 LTIP Bonus.
7. Disability of Employee. If Employee becomes disabled by reason of
illness or other incapacity so that Employee is unable to perform his duties
hereunder for ninety (90) out of one hundred twenty (120) consecutive days, as
determined by a doctor selected by Employer's Board of Directors and reasonably
acceptable to Employee, Employer shall thereupon have the right to terminate
this Agreement. Upon such a termination, Employer's obligations hereunder shall
be limited to payment to Employee of salary due to Employee to such date of
termination and subsequent payment to Employee of a pro-rata share of any
incentive compensation bonuses pursuant to Section 6.3, 6.4 and 6.5, based on
the portion of the performance year in question during which Employee was
employed, with such pro-rata portions payable when such bonuses are regularly
paid to the Employer's employees.
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8. Death of Employee. If Employee dies during the term of this Agreement,
Employee's employment under this Agreement shall automatically terminate. Upon
such a termination, Employer's obligations hereunder shall be limited to payment
to Employee's estate of salary due to Employee through the date which is one
year after such termination and subsequent payment to Employee's estate of a
pro-rata share of any incentive compensation bonuses pursuant to Section 6.3,
6.4 and 6.5, based on the portion of the performance year in question during
which Employee was employed, with such pro-rata portions payable when such
bonuses are regularly paid to the Employer's employees.
9. Termination for Cause. Employee's employment under this Agreement may
be terminated by Employer for "good cause" (a "Termination for Cause"). The term
"good cause" is defined as any one or more of the following occurrences:
(a) Employee's breach of any of the covenants contained in Section 3 of
this Agreement;
(b) Employee's conviction by, or entry of a plea of guilty or nolo
contendere in, a court of competent and final jurisdiction for any felony crime;
(c) Employee's commission of an act of fraud, whether prior to or
subsequent to the date hereof, upon Employer; or
(d) Employee's continuing failure or refusal to perform his duties as
required by this Agreement to the reasonable satisfaction of Employer's Board of
Directors, provided, however, that termination of Employee's employment pursuant
to this subparagraph (d) shall not constitute valid termination "for cause"
unless Employee shall have first received written notice from the Board of
Directors of Employer stating with specificity the nature of such failure or
refusal and stating the required cure action and affording Employee at least
forty-five (45) days to correct the act or omission complained of.
Upon a Termination for Cause, Employer's obligations hereunder shall
be limited to payment to Employee of salary due to Employee through the date of
termination and subsequent payment to Employee of a pro-rata share of any
incentive compensation bonuses pursuant to Section 6.3, 6.4 and 6.5, based on
the portion of the performance year in question during which Employee was
employed, with such pro-rata portions payable when such bonuses are regularly
paid to the Employer's employees.
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10. Other Terminations.
(a) Employer may, at any time during the Term, upon sixty (60) days prior
written notice to Employee, terminate this Agreement without cause (a
"Termination Without Cause").
(b) Employee may, at any time during the Term, upon sixty (60) days prior
written notice to Employer, terminate this Agreement without cause (a
"Resignation").
(c) A Resignation shall, for purposes of this Agreement, be treated as a
Termination for Cause on the date which is sixty (60) days after the notice of
Resignation.
(d) An Employer Notice of Non-Renewal shall, for purposes of this
Agreement, be treated as a Termination Without Cause on December 31 of the year
in which such notice is given.
(e) An Employee Notice of Non-Renewal shall, for purposes of this
Agreement, be treated as a Termination for Cause on December 31 of the year in
which such notice is given
(f) Upon a Termination Without Cause, Employer's obligations hereunder
shall be limited to (i) payment to Employee of salary due to Employee through
the date which is two (2) years after the date of termination, (ii) continuation
of benefits pursuant to Section 4.3 through the date which is two years after
the date of termination and (iii) payment to Employee, on or before the date
which is thirty (30) days after the date of termination, of a lump-sum cash
amount equal to two (2) times the aggregate target incentive compensation
bonuses pursuant to Section 6.3, 6.4 and 6.5 for the Employee with regard to the
performance year in which the date of termination occurred.
(g) If, during the Term, (i) there is a significant adverse change or
diminution in Employee's duties, working conditions or status as an employee,
(ii) Employer breaches its obligations hereunder or (iii) Employee is required
to perform his duties hereunder in a location other than Springfield, Illinois
which is more than one hundred fifty (150) miles away from Winnetka, Illinois
(any of such events, a "Material Change"), Employee may elect, by written notice
to Employer, to treat such Material Change as a Termination Without Cause on the
date of such notice. Thereupon, the Employee's rights shall be as described in
subsection (f) above and in subsection 5(c) above.
11. Change of Control. If, during the Term, any individual, entity or group
of persons acting in concert own voting securities of Employer which, in the
aggregate, have more than 50%
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of the voting power of outstanding voting securities of Employer entitled to
vote for the election of directors of Employer, such shall constitute a "Change
of Control." If, within three (3) years of a Change of Control, (a) there is a
Termination Without Cause, (b) there is a Material Change or (c) there is an
Employer Notice of Non-Renewal, then this Agreement shall terminate (a "Change
of Control Termination") and Employer shall immediately pay to Employee a
lump-sum cash amount equal to the sum of (x) three (3) times the greater of (i)
Employee's highest annual cash compensation from Employer in any calendar year,
as reported on Form W-2 for such year, or (ii) One Million Two Hundred Thousand
Dollars ($1,200,000) and (y) the actuarially determined present value of the
benefits payable to Employee pursuant to Section 4.4 for his expected remaining
life, calculated on the basis of Employee having been employed by Employer until
the date which is three (3) years after the Change of Control Termination. In
addition, Employer shall continue his benefits pursuant to Section 4.3 for three
(3) years after the Change of Control Termination. In addition, in the event it
shall be determined that any payment or distribution by Employer to or for the
benefit of Employee pursuant to the terms of this Agreement, including without
limitation an Excise Tax Payment (as defined below) (a "Payment") would be
subject to the excise tax imposed by Section 4999 of the Internal Revenue Code
of 1986, as amended, or any interest or penalties with respect to such excise
tax (such excise tax, together with any such interest and penalties,
collectively the "Excise Tax"), then Employee shall be entitled to receive from
Employer an additional payment (the "Excise Tax Payment") in an amount equal to
the Excise Tax imposed upon the Payments.
12. Miscellaneous.
12.1 Modification and Waiver of Breach. No waiver or modification of
this Agreement shall be binding unless it is in writing signed by the parties
hereto. No waiver of a breach hereof shall be deemed to constitute a waiver of a
future breach, whether of a similar or dissimilar nature.
12.2 Assignment. The rights of Employer under this Agreement may,
without the consent of Employee, be assigned by Employer, in its sole and
unfettered discretion, to any person, firm, corporation, or other business
entity which at any time, whether by purchase, merger, or otherwise, directly or
indirectly, acquires all or substantially all of the assets or business of
Employer; provided that such assignment shall not alter or limit Employee's
rights hereunder, including without limitation all rights pursuant to Sections
10(g) and 11 which arise as a result of such assignment.
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12.3 Notices. All notices and other communications required or
permitted under this Agreement shall be in writing, served personally on, sent
by telecopy or overnight courier to, or mailed by certified or registered United
States mail to, the party to be charged with receipt thereof. Notices and other
communications served by mail shall be deemed given hereunder seventy-two (72)
hours after deposit of such notice or communication in the United States Post
Office as certified or registered mail with postage prepaid and duly addressed
to whom such notice or communication is to be given, in the case of (a)
Employer, Xxxxxx Xxxx Educators Corporation, 0 Xxxxxx Xxxx Xxxxx, Xxxxxxxxxxx,
XX 00000 Attention: General Counsel, with a copy to Xxxxxx, Xxxx & Xxxxxxxx LLP,
000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: Xxxxx X. Xxxxxx, or (b)
Employee, to the home address indicated above, with a copy to Xxxx, Xxxxx &
Xxxxxxx, Suite 3100, 0 Xxxxxxxx Xxxxxx, Xxxxxxx, XX 00000-0000, Attention: Xxxxx
X. Xxxxxxx. Either party may change said party's address for purposes of this
Section by giving to the party intended to be bound thereby, in the manner
provided herein, a written notice of such change.
12.4 Counterparts. This instrument may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
12.5 Construction of Agreement. This Agreement shall be construed in
accordance with, and governed by, the laws of the State of Illinois applicable
to agreements executed and to be performed in Illinois.
12.6 Complete Agreement. This Agreement, together with the Stock
Option Agreements, contains the entire agreement between the parties hereto with
respect to the transactions contemplated by this Agreement and supersedes all
previous oral and written and all contemporaneous oral negotiations,
commitments, writings and understandings.
12.7 Non-Transferability of Interest. None of the rights of Employee
to receive any form of compensation payable pursuant to this Agreement shall be
assignable or transferable except through a testamentary disposition or by the
laws of descent and distribution upon the death of Employee. Any attempted
assignment, transfer, conveyance or other disposition (other than as aforesaid)
of any interest in the rights of Employee to receive any form of compensation to
be made by Employer pursuant to this Agreement shall be void.
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12.8 Arbitration. In the event that there shall be a dispute between
the parties hereto arising out of or relating to this Agreement, or the breach
thereof, the parties agree that such dispute shall be resolved by final and
binding arbitration in Chicago, Illinois administered by the American
Arbitration Association (the "AAA") in accordance with the AAA's commercial
arbitration rules for individual employment disputes then in effect. Any award
issued as a result of such arbitration shall be final and binding between the
parties thereto and shall be enforceable by any court having jurisdiction over
the party against whom enforcement is sought. The arbitrator(s) shall allocate
the cost of the legal fees and related costs of the prevailing party in such
arbitration to the other party if and only if a determination is made that such
other party's position asserted in the arbitration was unreasonable.
12.9 Survival of Certain Obligations. Except as may otherwise be
specifically provided for herein, the obligations of the parties pursuant to
Sections 3 and 11 shall survive the termination of this Agreement.
12.10 Captions. The captions appearing in this Agreement are inserted
only as a matter of convenience and as a reference and in no way define, limit
or describe the scope or intent of this Agreement or any of the provisions
hereof.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
EMPLOYEE: EMPLOYER:
XXXXXX XXXX EDUCATORS CORPORATION
/s/ Xxxxx X. Lower II By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Chairman, President & CEO
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Execution Copy
Exhibit A
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STOCK OPTION AGREEMENT
PURSUANT TO THE
XXXXXX XXXX EDUCATORS CORPORATION
1991 STOCK INCENTIVE PLAN
THIS STOCK OPTION AGREEMENT (this "Agreement") is made as of December 31,
1999 (the "Effective Date"), between Xxxxxx Xxxx Educators Corporation, a
Delaware corporation (the "Company"), and Xxxxx X. Lower II (the "Optionee").
R E C I T A L S
A. The Optionee is expected to serve the Company as its President and Chief
Executive Officer pursuant to an Employment Agreement dated as of December 31,
1999 (the "Employment Agreement");
B. The Employment Agreement calls for the Company to enter into this
Agreement on the date of complete execution of the Employment Agreement.
C. This Agreement relates to the granting of stock options to the Optionee
under the Company's 1991 Stock Incentive Plan (the "Plan"), a copy of which is
attached hereto as Exhibit A.
D. In accordance with the Plan, the Committee (as defined in the Plan) has,
as of the Effective Date, granted to the Optionee an option to purchase shares
of Common Stock, $0.001 par value, of the Company (the "Common Stock"), subject
to the terms and conditions of the Plan and this Agreement.
AGREEMENTS
1. Definitions. Capitalized terms not defined herein shall have the
meanings ascribed thereto in the Employment Agreement. Other capitalized terms
used herein shall have the following meanings:
"Act" is defined in Section 8.
"Agreement" means this Stock Option Agreement.
"Change of Control" is defined in the Plan.
"Committee" is defined in the Plan.
"Common Stock" is defined in recital D.
"Company" is defined in the preamble.
"Effective Date" is defined in the preamble.
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"Employment Agreement" is defined in recital A.
"Exercise Price" is defined in Section 2.
"Option" is defined in Section 2.
"Optionee" is defined in the preamble.
"Option Shares" is defined in Section 2.
"Plan" is defined in recital C.
"Termination Date" means the date on which the Optionee ceases to be
employed by the Company for any reason.
2. Grant of Option. The Company hereby grants to the Optionee the right and
option (the "Option") to purchase up to 250,000 shares of Common Stock (the
"Option Shares"), at a per share purchase price equal to the mean between the
highest and lowest reported sales prices of a share of Common Stock on the New
York Stock Exchange Composite Tape on the Effective Date (as such amount may be
adjusted, the "Exercise Price"), on the terms and conditions set forth herein.
3. Exercisability. The Optionee's right to exercise the Option shall vest
as follows if the Optionee is employed by the Company on the relevant dates of
vesting:
Number of Option Shares Date of Vesting
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50,000 January 1, 2001
50,000 January 1, 2002
50,000 January 1, 2003
50,000 January 1, 2004
50,000 January 1, 2005.
Notwithstanding the foregoing, in the event of a Termination Without Cause,
an Employer Notice of Non-Renewal or a Material Change, the Optionee shall, for
purposes of this Section 3, be treated as having been employed by the Company
until the date which is one (1) year after the Termination Date. Further,
notwithstanding the foregoing, in the event of a Change of Control which occurs
after the Optionee's employment with the Company has begun, all unvested Option
Shares shall thereupon immediately vest.
4. Expiration. The vested portion of the Option shall expire upon the
earlier of (1) the tenth (10th) anniversary of the Effective Date, or (2) (i) in
the event of a Termination for Cause, a Resignation which is not a Retirement
(as defined in the Plan) or an Employee Notice of Non-Renewal, the day which is
ninety (90) days after the Termination Date unless, on the seventy-fifth (75th)
day after the Termination Date, the Optionee is, in the reasonable judgment of
outside counsel to the Company, in possession of non-public material information
regarding the Company, in which case the expiry date shall be the day which is
thirty (30) days after notice is given to the Optionee by the Company that, in
the reasonable judgment of outside counsel to the Company, the Optionee is no
longer in possession of such information or (ii) if the Optionee ceases to be an
officer or employee of the Company due to death, a Retirement (as defined in the
Plan), a Termination Without Cause, an Employer Notice of Non-Renewal or a
Material Change or pursuant to Section 7 of the Employment Agreement, the
two-year anniversary of the Termination Date. All provisions of this Section 4
shall apply regardless of whether or not a Change of Control has occurred.
5. Nontransferability. The Option shall not be transferable by the Optionee
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other than by will or by the laws of descent and distribution and
the Option shall be exercisable, during Optionee's lifetime, only by Optionee or
by his guardian or legal representative, it being understood that the term
"Optionee" herein shall include the guardian and legal representative of
Optionee and any person to whom an option is transferred by will or by the laws
of descent and distribution. Notwithstanding the foregoing, the Option may be
transferred to the spouse or lineal descendant of Optionee or to the trustee of
a trust for the primary benefit of a spouse or lineal descendent of Optionee.
Such assignee shall be subject to all of the terms and provisions of the Plan.
6. Adjustments. If the shares of the Common Stock are changed into or
exchanged for a different number or kind of shares or securities, as the result
of any one or more reorganizations, recapitalizations, mergers, acquisitions,
stock splits, reverse stock splits, stock dividends or similar events, or in the
event of a rights offering to purchase Common Stock at a price substantially
below its fair market value, an appropriate adjustment shall be made in the
number and kind of shares or other securities subject to the Option, and the
price for each share or other unit of any securities subject to this Agreement,
in accordance with the Plan. No fractional interests shall be issued on account
of any such adjustment unless the Committee specifically determines to the
contrary; provided, however, that in lieu of fractional interests, the Optionee,
upon the exercise of the Option in whole or part, shall receive cash in an
amount equal to the amount by which the fair market value of such fractional
interests exceeds the Exercise Price attributable to such fractional interests.
7. Exercise of the Option. Prior to the expiration thereof, the Optionee
may exercise the vested portion of the Option from time to time in whole or in
part, provided that unless the Committee in its sole discretion shall determine
otherwise, each such exercise, other than an exercise for all remaining shares
pursuant to this Agreement, shall be for no fewer than one hundred (100) shares.
Upon electing to exercise the Option, the Optionee shall deliver to the
Secretary of the Company a written and signed notice of such election setting
forth the number of Option Shares the Optionee has elected to purchase and shall
at the time of delivery of such notice tender cash or a cashier's or certified
bank check to the order of the Company for the full Exercise Price of such
Option Shares and any amount required pursuant to Section 13 hereof.
8. Compliance with Legal Requirements. No Option Shares shall be issued or
transferred pursuant to this Agreement unless and until all legal requirements
applicable to such issuance or transfer have, in the reasonable opinion of
counsel to the Company, been satisfied. Such requirements may include, but are
not limited to, registering or qualifying such Shares under any state or federal
law, satisfying any applicable law relating to the transfer of unregistered
securities or demonstrating the availability of an exemption from applicable
laws, placing a legend on the Shares to the effect that they were issued in
reliance upon an exemption from registration under the Securities Act of 1933,
as amended (the "Act"), and may not be transferred other than in reliance upon
Rule 144 or Rule 701 promulgated under the Act, if available, or upon another
exemption from the Act, or obtaining the consent or approval of any governmental
regulatory body.
9. No Interest in Shares Subject to Option. Neither the Optionee
(individually or as a member of a group) nor any beneficiary or other person
claiming under or through the Optionee shall have any right, title, interest, or
privilege in or to any shares of stock allocated or reserved for the purpose of
the Plan or subject to this Agreement except as to such Option Shares, if any,
as shall have been issued to such person upon exercise of this Option or any
part of it.
10. Plan Controls. The Option hereby granted is subject to, and the Company
and the Optionee agree to be bound by, all of the terms and conditions of the
Plan as the same may be amended from time to time in accordance with the terms
thereof, but no such amendment shall be effective as to the Option without the
Optionee's consent insofar as it may adversely affect the Optionee's rights
under this Agreement.
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11. Not an Employment Contract. Nothing in the Plan, in this Agreement or
any other instrument executed pursuant thereto shall confer upon the Optionee
any right to employment by the Company or any Subsidiary or shall affect the
rights of the parties to the Employment Agreement with regard to the terms
thereof.
12. Governing Law. All terms of and rights under this Agreement shall be
governed by and construed in accordance with the internal laws of the State of
Delaware, without giving effect to principles of conflicts of law.
13. Taxes. The Committee may, in its discretion, make such provisions and
take such steps as it may deem necessary or appropriate for the withholding of
all federal, state, local and other taxes required by law to be withheld with
respect to the issuance or exercise of the Option including, but not limited to,
deducting the amount of any such withholding taxes from any other amount then or
thereafter payable to the Optionee, requiring the Optionee to pay to the Company
the amount required to be withheld or to execute such documents as the Committee
deems necessary or desirable to enable it to satisfy its withholding
obligations, or any other means provided in the Plan.
14. Notices. All notices, requests, demands and other communications
pursuant to this Agreement shall be in writing and shall be given in accordance
with the procedures set forth in Section 12.3 of the Employment Agreement.
15. Amendments and Waivers. This Agreement may be amended, and any
provision hereof may be waived, only by a writing signed by both parties hereto.
16. Entire Agreement. This Agreement, together with the Plan, sets forth
the entire agreement and understanding between the parties as to the subject
matter hereof and supersedes all prior oral and written and all contemporaneous
oral discussions, agreements and understandings of any kind or nature.
17. Separability. In the event that any provision of this Agreement is
declared to be illegal, invalid or otherwise unenforceable by a court of
competent jurisdiction, such provision shall be reformed, if possible, to the
extent necessary to render it legal, valid and enforceable, or otherwise
deleted, and the remainder of this Agreement shall not be affected except to the
extent necessary to reform or delete such illegal, invalid or unenforceable
provision.
18. Headings. The headings preceding the text of the sections hereof are
inserted solely for convenience of reference, and shall not constitute a part of
this Agreement, nor shall they affect its meaning, construction or effect.
19. Counterparts. This Agreement may be executed in two counterparts, each
of which shall be deemed an original, but which together shall constitute one
and the same instrument.
20. Further Assurances. Each party shall cooperate and take such action as
may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement.
21. Binding Effect. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective permitted successors and
assigns.
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22. Arbitration. In the event that there shall be a dispute between the
parties hereto arising out of or relating to this Agreement or the breach
thereof, the parties agree that such dispute shall be resolved in accordance
with Section 12.8 of the Employment Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
XXXXXX XXXX EDUCATORS CORPORATION
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chairman
OPTIONEE
/s/ Xxxxx X. Lower II
----------------------------------------
Xxxxx X. Lower II
80101362_10.Doc
Exhibit B
---------
STOCK OPTION AGREEMENT
PURSUANT TO THE
XXXXXX XXXX EDUCATORS CORPORATION
1991 STOCK INCENTIVE PLAN
THIS STOCK OPTION AGREEMENT (this "Agreement") is made as of February 1,
2000 (the "Effective Date"), between Xxxxxx Xxxx Educators Corporation, a
Delaware corporation (the "Company"), and Xxxxx X. Lower II (the "Optionee").
R E C I T A L S
- - - - - - - -
A. The Optionee presently serves the Company as its President and Chief
Executive Officer pursuant to an Employment Agreement dated as of December 31,
1999 (the "Employment Agreement");
B. The Employment Agreement calls for the Company to enter into this
Agreement on the first day of the Optionee's employment with the Company.
C. This Agreement relates to the granting of stock options to the Optionee
under the Company's 1991 Stock Incentive Plan (the "Plan"), a copy of which is
attached hereto as Exhibit A.
D. In accordance with the Plan, the Committee (as defined in the Plan) has,
as of the Effective Date, granted to the Optionee an option to purchase shares
of Common Stock, $0.001 par value, of the Company (the "Common Stock"), subject
to the terms and conditions of the Plan and this Agreement. Such option is
intended to qualify to the maximum extent permitted by law as an incentive stock
option under Section 422 of the Internal Revenue Code of 1986, as amended.
AGREEMENTS
----------
1. Definitions. Capitalized terms not defined herein shall have the
meanings ascribed thereto in the Employment Agreement. Other capitalized terms
used herein shall have the following meanings:
"Act" is defined in Section 8.
"Agreement" means this Stock Option Agreement.
"Change of Control" is defined in the Plan.
"Committee" is defined in the Plan.
"Common Stock" is defined in recital D.
"Company" is defined in the preamble.
"Effective Date" is defined in the preamble.
"Employment Agreement" is defined in recital A.
"Exercise Price" is defined in Section 2.
"Option" is defined in Section 2.
"Optionee" is defined in the preamble.
"Option Shares" is defined in Section 2.
"Plan" is defined in recital C.
"Termination Date" means the date on which the Optionee ceases to be
employed by the Company for any reason.
2. Grant of Option. The Company hereby grants to the Optionee the right and
option (the "Option") to purchase up to 500,000 shares of Common Stock (the
"Option Shares"), at a per share purchase price equal to the mean between the
highest and lowest reported sales prices of a share of Common Stock on the New
York Stock Exchange Composite Tape on the Effective Date (as such amount may be
adjusted, the "Exercise Price"), on the terms and conditions set forth herein.
3. Exercisability. The Optionee's right to exercise the Option shall vest
as follows if the Optionee is employed by the Company on the relevant dates of
vesting:
Number of Option Shares Date of Vesting
----------------------- ---------------
100,000 January 1, 2001
100,000 January 1, 2002
100,000 January 1, 2003
100,000 January 1, 2004
100,000 January 1, 2005.
Notwithstanding the foregoing, in the event of a Termination Without Cause,
an Employer Notice of Non-Renewal or a Material Change, the Optionee shall, for
purposes of this Section 3, be treated as having been employed by the Company
until the date which is one (1) year after the Termination Date. Further,
notwithstanding the foregoing, in the event of a Change of Control, all unvested
Option Shares shall thereupon immediately vest.
4. Expiration. The vested portion of the Option shall expire upon the
earlier of (1) the tenth (10th) anniversary of the Effective Date, or (2) (i) in
the event of a Termination for Cause, a Resignation which is not a Retirement
(as defined in the Plan) or an Employee Notice of Non-Renewal, the day which is
ninety (90) days after the Termination Date unless, on the seventy-fifth (75th)
day after the Termination Date, the Optionee is, in the reasonable judgment of
outside counsel to the Company, in possession of non-public material information
regarding the Company, in which case the expiry date shall be the day which is
thirty (30) days after notice is given to the Optionee by the Company that, in
the reasonable judgment of outside counsel to the Company, the Optionee is no
longer in possession of such information or (ii) if the Optionee ceases to be an
officer or employee of the Company due to death, a Retirement (as defined in the
Plan), a Termination Without Cause, an Employer Notice of Non-Renewal or a
Material Change or pursuant to Section 7 of the Employment Agreement, the
two-year anniversary of the Termination Date.
All provisions of this Section 4 shall apply regardless of whether or not a
Change of Control has occurred.
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5. Nontransferability. The Option shall not be transferable by the Optionee
other than by will or by the laws of descent and distribution and the Option
shall be exercisable, during Optionee's lifetime, only by Optionee or by his
guardian or legal representative, it being understood that the term "Optionee"
herein shall include the guardian and legal representative of Optionee and any
person to whom an option is transferred by will or by the laws of descent and
distribution. Notwithstanding the foregoing, the Option may be transferred to
the spouse or lineal descendant of Optionee or to the trustee of a trust for the
primary benefit of a spouse or lineal descendent of Optionee. Such assignee
shall be subject to all of the terms and provisions of the Plan.
6. Adjustments. If the shares of the Common Stock are changed into or
exchanged for a different number or kind of shares or securities, as the result
of any one or more reorganizations, recapitalizations, mergers, acquisitions,
stock splits, reverse stock splits, stock dividends or similar events, or in the
event of a rights offering to purchase Common Stock at a price substantially
below its fair market value, an appropriate adjustment shall be made in the
number and kind of shares or other securities subject to the Option, and the
price for each share or other unit of any securities subject to this Agreement,
in accordance with the Plan. No fractional interests shall be issued on account
of any such adjustment unless the Committee specifically determines to the
contrary; provided, however, that in lieu of fractional interests, the Optionee,
upon the exercise of the Option in whole or part, shall receive cash in an
amount equal to the amount by which the fair market value of such fractional
interests exceeds the Exercise Price attributable to such fractional interests.
7. Exercise of the Option. Prior to the expiration thereof, the Optionee
may exercise the vested portion of the Option from time to time in whole or in
part, provided that unless the Committee in its sole discretion shall determine
otherwise, each such exercise, other than an exercise for all remaining shares
pursuant to this Agreement, shall be for no fewer than one hundred (100) shares.
Upon electing to exercise the Option, the Optionee shall deliver to the
Secretary of the Company a written and signed notice of such election setting
forth the number of Option Shares the Optionee has elected to purchase and shall
at the time of delivery of such notice tender cash or a cashier's or certified
bank check to the order of the Company for the full Exercise Price of such
Option Shares and any amount required pursuant to Section 13 hereof.
8. Compliance with Legal Requirements. No Option Shares shall be issued or
transferred pursuant to this Agreement unless and until all legal requirements
applicable to such issuance or transfer have, in the reasonable opinion of
counsel to the Company, been satisfied. Such requirements may include, but are
not limited to, registering or qualifying such Shares under any state or federal
law, satisfying any applicable law relating to the transfer of unregistered
securities or demonstrating the availability of an exemption from applicable
laws, placing a legend on the Shares to the effect that they were issued in
reliance upon an exemption from registration under the Securities Act of 1933,
as amended (the "Act"), and may not be transferred other than in reliance upon
Rule 144 or Rule 701 promulgated under the Act, if available, or upon another
exemption from the Act, or obtaining the consent or approval of any governmental
regulatory body.
9. No Interest in Shares Subject to Option. Neither the Optionee
(individually or as a member of a group) nor any beneficiary or other person
claiming under or through the Optionee shall have any right, title, interest, or
privilege in or to any shares of stock allocated or reserved for the purpose of
the Plan or subject to this Agreement except as to such Option Shares, if any,
as shall have been issued to such person upon exercise of this Option or any
part of it.
10. Plan Controls. The Option hereby granted is subject to, and the Company
and the Optionee agree to be bound by, all of the terms and conditions of the
Plan as the same may be amended from time to time in accordance with the terms
thereof, but no such amendment shall be effective as to the Option without the
Optionee's consent insofar as it may adversely affect the Optionee's rights
under this Agreement.
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11. Not an Employment Contract. Nothing in the Plan, in this Agreement or
any other instrument executed pursuant thereto shall confer upon the Optionee
any right to employment by the Company or any Subsidiary or shall affect the
rights of the parties to the Employment Agreement with regard to the terms
thereof.
12. Governing Law. All terms of and rights under this Agreement shall be
governed by and construed in accordance with the internal laws of the State of
Delaware, without giving effect to principles of conflicts of law.
13. Taxes. The Committee may, in its discretion, make such provisions and
take such steps as it may deem necessary or appropriate for the withholding of
all federal, state, local and other taxes required by law to be withheld with
respect to the issuance or exercise of the Option including, but not limited to,
deducting the amount of any such withholding taxes from any other amount then or
thereafter payable to the Optionee, requiring the Optionee to pay to the Company
the amount required to be withheld or to execute such documents as the Committee
deems necessary or desirable to enable it to satisfy its withholding
obligations, or any other means provided in the Plan.
14. Notices. All notices, requests, demands and other communications
pursuant to this Agreement shall be in writing and shall be given in accordance
with the procedures set forth in Section 12.3 of the Employment Agreement.
15. Amendments and Waivers. This Agreement may be amended, and any
provision hereof may be waived, only by a writing signed by both parties hereto.
16. Entire Agreement. This Agreement, together with the Plan, sets forth
the entire agreement and understanding between the parties as to the subject
matter hereof and supersedes all prior oral and written and all contemporaneous
oral discussions, agreements and understandings of any kind or nature.
17. Separability. In the event that any provision of this Agreement is
declared to be illegal, invalid or otherwise unenforceable by a court of
competent jurisdiction, such provision shall be reformed, if possible, to the
extent necessary to render it legal, valid and enforceable, or otherwise
deleted, and the remainder of this Agreement shall not be affected except to the
extent necessary to reform or delete such illegal, invalid or unenforceable
provision.
18. Headings. The headings preceding the text of the sections hereof are
inserted solely for convenience of reference, and shall not constitute a part of
this Agreement, nor shall they affect its meaning, construction or effect.
19. Counterparts. This Agreement may be executed in two counterparts, each
of which shall be deemed an original, but which together shall constitute one
and the same instrument.
20. Further Assurances. Each party shall cooperate and take such action as
may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement.
21. Binding Effect. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective permitted successors and
assigns.
22. SAR Contingency. With regard to 200,000 of the Option
Shares (the "Authorized Option Shares"), those shares are within the current
authorized shares under the Plan and are therefore granted under the Plan
without contingency. The Authorized Option Shares shall constitute the Option
Shares which first vest pursuant to Section 3 hereof. With regard to the Option
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Shares over and above the Authorized Option Shares (the "Contingent Option
Shares"), the Option as it relates to such Option Shares is granted hereby
subject to the condition that, at the 2000 Annual Meeting of Shareholders of the
Company, the shareholders approve an amendment to the Plan authorizing
sufficient additional shares of Common Stock under the Plan to permit the
Contingent Option Shares to be granted thereunder or, prior to that Annual
Meeting, sufficient shares of Common Stock otherwise become available under the
Plan to permit the Contingent Option Shares to be granted thereunder. If such
condition is not met, the Contingent Option Shares shall thereupon immediately
be converted to stock appreciation rights granted under the Plan, with the terms
and conditions thereof such as to approximate as closely as possible the
economic value of the Contingent Option Shares to the Optionee. The Company
shall then issue to the Optionee a new stock option agreement relating to the
Authorized Option Shares to replace this Agreement and a stock appreciation
rights agreement relating to the stock appreciation rights so granted.
23. Arbitration. In the event that there shall be a dispute between the
parties hereto arising out of or relating to this Agreement or the breach
thereof, the parties agree that such dispute shall be resolved in accordance
with Section 12.8 of the Employment Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
XXXXXX XXXX EDUCATORS CORPORATION
By:/s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chairman
OPTIONEE
/s/ Xxxxx X. Lower II
-----------------------------------------
Xxxxx X. Lower II
80102595_4.Doc
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