(PAGE NUMBERS REFER TO PAPER DOCUMENT ONLY.)
EXHIBIT 10.42
EMPLOYMENT AGREEMENT
--------------------
AGREEMENT, dated September 5, 2001 between CONSUMER PROGRAMS
INCORPORATED, a Missouri corporation (the "Corporation"), and XXXX
XXXXXX (the "Executive").
WHEREAS, the Corporation desires to employ the Executive in
the capacity of Senior Executive Vice President, Operations and the
Executive will serve as one of the key executives of the
Corporation;
WHEREAS, there is much competition for the type of business
performed by the Corporation in the locales in which the
Corporation operates, and the Corporation and Executive acknowledge
that the Corporation is active in the product markets in which it
competes;
WHEREAS, Executive, during his employment, will be entrusted
with confidential information;
WHEREAS, Executive and the Corporation recognize and
acknowledge that, to ensure the continued growth and stability of
the Corporation, it is necessary to obtain an agreement from
Executive not to compete with the Corporation and not to disclose
confidential information of the Corporation; and
WHEREAS, the Corporation desires that the Executive commence
and continue employment with the Corporation as a result of his
potential for making future contributions to the Corporation,
and the Executive is willing to make a commitment to commence and
continue such employment upon the terms and subject to the
conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises
contained herein and other good and valuable consideration, the
parties hereto hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "Affiliated Companies" shall mean any corporation
(or other business entity) controlling, controlled by or under
common control with the Corporation.
(b) "Beneficiary" shall mean the person designated in
writing by the Executive as his beneficiary under this Agreement,
or in the absence of such designation, his estate.
(c) "Cause" shall mean:
(1) prior to a Change of Control, (i) conduct or
activity of the Executive materially detrimental to the
Corporation's reputation or business (including financial)
operations; (ii) gross or habitual neglect or breach of duty or
misconduct of the Executive in discharging the duties of his
position; or (iii) prolonged absence by the Executive from his
duties (other than on account of illness or disability) without the
consent of the Corporation.
(2) after a Change of Control, (i) an act or acts
of dishonesty on the Executive's part which are intended to result
in his substantial personal enrichment at the expense of the
Corporation; (ii) any material violation by the Executive of his
obligations and covenants pursuant to this Agreement which is
demonstrably willful and deliberate on the Executive's part and
which results in material injury to the Corporation; or
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(iii) the conviction of Executive of a felony or of a crime
involving moral turpitude.
(d) A "Change of Control" shall mean a change in control
of a nature that would be required to be reported in response to
Item 1(a) of the Current Report on Form 8-K, as in effect on the
date hereof, pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended ("Exchange Act") or would have
been required to be so reported but for the fact that such event
had been "previously reported" as that term is defined in Rule
12b-2 of Regulation 12B of the Exchange Act unless the transactions
that give rise to the change in control are approved or ratified by
a majority of the members of the Incumbent Board of CPI Corp. who
are not employees of the Corporation; provided that, without
limitation, notwithstanding anything herein to the contrary, such
a change in control shall be deemed to have occurred if (a) any
Person is or becomes the beneficial owner (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of
CPI Corp. representing 40% or more of the combined voting power
of CPI Corp.'s then outstanding securities ordinarily (apart from
rights accruing under special circumstances) having the right to
vote at elections of directors ("Voting Securities"), (b)
individuals who constitute the Board of CPI Corp. on the date
hereof (the "Incumbent Board") cease for any reason to constitute
at least a majority thereof, provided that any person becoming
a director subsequent to the date hereof whose election, or
nomination for election by CPI Corp.'s shareholders, was approved
by a vote of at least three-quarters of the directors comprising
the Incumbent Board (either by a specific vote or by approval of
the proxy statement of CPI Corp. in which such person is named as
a nominee for director, without objection to such nomination)
shall be, for
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purposes of this clause (b), considered as though such person were
a member of the Incumbent Board, or (c) approval by the
stockholders of CPI Corp. of a reorganization, merger
or consolidation, in each case, with respect to which persons who
were the stockholders of CPI Corp. immediately prior to such
reorganization, merger or consolidation do not, immediately
thereafter, own, directly or indirectly, more than 50% of the
combined voting power entitled to vote generally in the election of
directors of the reorganized, merged or consolidated company's
then outstanding voting securities, or a liquidation or dissolution
of CPI Corp. or of the sale of all or substantially all of the
assets of CPI Corp. For purposes of this Agreement, the term
"Person" shall mean and include any individual, corporation,
partnership, group, association or other "person," as such term is
used in Section 14(d) of the Exchange Act, other than CPI Corp.,
the Corporation or an Affiliated Company or any employee benefit
plan(s) sponsored or maintained by the Corporation or any
Affiliated Company.
(e) "Code" shall mean the Internal Revenue Code of 1986,
as may be amended from time to time.
(f) "Continuing Directors" shall have the meaning set
forth in Paragraph 3(G) of Article Ten of CPI Corp.'s Certificate
of Incorporation.
(g) "Fiscal Year" shall mean the Fiscal Year of the
Corporation.
(h) "Permanent Disability" shall mean the inability of
Executive to perform the services contemplated by Section 4 hereof
for a period of at least one hundred eighty (180) consecutive
calendar days or for thirty-five (35) weeks (whether or not
consecutive) in any twelve (12) month period on account of any
sickness, injury or other infirmity or disability.
(i) "Retirement" shall mean the Executive's voluntary or
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involuntary termination of employment with the Corporation except
for termination on account of (A) Cause as defined in Subsection
6(b) hereof, (B) death or (C) Permanent Disability before attaining
age sixty-five (65).
(j) "Term of Employment" shall have the meaning set
forth in Section 3 hereof.
(k) "Vesting Percentage" shall mean the percentage of
Supplemental Retirement Benefits, death benefits, and disability
benefits in which Executive has a nonforfeitable interest (except
in the event of termination for Cause) based upon the number of
Years of Service Executive has completed, determined as follows:
Completed Years Vesting
of Service Percentage
--------------- ----------
0 0%
1 10%
2 20%
3 30%
4 40%
5 50%
6 60%
7 70%
8 80%
9 90%
10 100%
Notwithstanding anything herein to the contrary, if Executive's
employment with the Corporation terminates following a Change of
Control, unless such termination is for Cause, for purposes of
Subsections 5(g), 5(h), and 5(i) of this Agreement Executive shall
be deemed to have completed ten (10) Years of Service and his or
her Vesting Percentage shall be deemed to be 100%.
(l) "Year of Service" shall mean any Fiscal Year during
which the Executive has worked for the Corporation at least one
thousand (1,000) hours, including Fiscal Years prior to the
effective date of this Agreement.
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2. EMPLOYMENT. The Corporation hereby employs and engages
the services of the Executive as one of its key executives
initially in the position of Senior Executive Vice President,
Operations of the Corporation for the Term of Employment set forth
in Section 3. The Executive agrees to serve the Corporation for
the Term of Employment as provided herein.
3. TERM OF EMPLOYMENT. The Executive's Term of Employment
shall be a period commencing on October 1, 2001 and ending one (1)
year thereafter; provided, however, that upon the expiration of the
aforesaid period (the "Expiration Date") and upon each anniversary
of the Expiration Date, the Term of Employment shall automatically
be extended for an additional one (1) year period unless Executive
or the Corporation notifies the other in writing at least sixty
(60) days prior to the commencement of such one (1) year period of
an intention to terminate this Agreement. Notwithstanding anything
herein to the contrary, the Term of Employment shall terminate upon
Executive's death or Permanent Disability as set forth in
subsection 6(a) hereof or upon the Corporation's termination of
Executive's employment for Cause pursuant to subsection 6(b)
hereof. The Term of Employment shall also terminate upon the
Executive's attainment of age 65, unless the Board of Directors
requests that the Executive extend his service to the Corporation
after age 65. No such extension after age 65 shall exceed one
year, provided that the Term may thereafter be renewed from year to
year by request of the Board of Directors.
4. POSITION AND DUTIES.
(a) Prior to a Change of Control, during the Term of
Employment, the Executive shall serve the Corporation in such
capacity as the Corporation may determine. After a Change of
Control, during the Term of Employment, the Executive's position,
authority and responsibilities, the type of work he is
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asked to perform, and the status and stature of the people with
whom he is asked to work, shall be comparable to that existing with
respect to the Executive as of the date immediately prior to the
Change of Control, and after a Change of Control the Executive's
services shall be performed at the location where the Executive was
employed as of the date immediately prior to the Change of Control,
or at such other location as may be mutually agreed between the
Corporation and the Executive.
(b) The Executive agrees to devote his full business
time during normal business hours to the business and affairs of
the Corporation (except as otherwise provided herein) and to use
his best efforts to promote the interests of the Corporation and
its Affiliated Companies and to perform faithfully and efficiently
the responsibilities assigned to him in accordance with the terms
of this Agreement to the extent necessary to discharge such
responsibilities, except for (i) service on corporate, civic or
charitable boards or committees not significantly interfering with
the performance of such responsibilities and (ii) periods of
vacation and sick leave to which he is entitled. It is expressly
understood and agreed that the Executive's continuing service on
any boards and committees with which he shall be connected, as a
member or otherwise, as of the date hereof, or any such service
approved by the Corporation during the Term of Employment,
shall not be deemed to interfere with the performance of the
Executive's services to the Corporation pursuant to this
subparagraph 4(b).
5. COMPENSATION AND OTHER CONDITIONS OF EMPLOYMENT.
(a) Base Salary. During the Term of Employment, the
Executive shall receive an annual base salary (the "Base Salary"),
in equal installments payable bi-weekly or at such other intervals
as salary is normally paid by the
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Corporation to its employees, at an annual rate established by the
Corporation and any Affiliated Companies as of the date hereof.
Executive's Base Salary for the Corporation's Fiscal Year 2001 is
set forth on Exhibit A, attached hereto and incorporated herein.
The Base Salary shall be reviewed at least once each year and may
be increased at any time and from time to time by action of the
Board of Directors of CPI Corp., any committee thereof or any
individual having authority to take such action, in accordance with
the Corporation's regular practices. Any increase in the Base
Salary shall not serve to limit or reduce any other obligation
of the Corporation hereunder, and after such increase the Base
Salary shall not be reduced from such increased level.
(b) Annual Bonus. After a Change of Control, in
addition to the Base Salary, the Executive shall be awarded for
each Fiscal Year during the Term of Employment an annual bonus (the
"Annual Bonus") (pursuant to any bonus plan or program of the
Corporation, any incentive plan or program of the Corporation, or
otherwise) in cash at least equal to the highest bonus paid or
payable to the Executive in respect of any of the Fiscal Years
during the three Fiscal Years immediately prior to the date of the
Change of Control. Prior to a Change of Control, the amount of the
Executive's Annual Bonus shall be determined in accordance with the
Corporation's regular practice. The bonus plan applicable to
Executive for Fiscal Year 2001 is set forth on Exhibit B, attached
hereto.
(c) Other Compensation Plans. After a Change of
Control, in addition to the Base Salary and Annual Bonus payable
as hereinabove provided, during the Term of Employment, the
Executive shall be entitled to participate in all other
compensation plans and programs, including, without limitation,
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savings plans, stock option plans, and retirement plans of the
Corporation and its Affiliated Companies (collectively, the
"Savings Plans"), on a basis at least equivalent to that provided
by the Corporation and its Affiliated Companies to the Executive
under such programs immediately prior to the date of the Change of
Control. Prior to a Change of Control, the Executive's entitlement
to participate in the Savings Plans shall be determined in
accordance with the Corporation's regular practice. Prior to a
Change of Control, nothing herein shall be construed to prevent the
Corporation from amending or altering any such plans in
accordance with the terms thereof. All agreements between the
Corporation and the Executive existing on the date hereof providing
for special pension, retirement or similar benefits are continued
by this Agreement.
(d) Benefit Plans. After a Change of Control, during
the Term of Employment, the Executive, his spouse, or his
dependents, as the case may be, shall be entitled to receive all
amounts which he, his spouse or his dependents are or would have
been entitled to receive as benefits under all other benefit plans
of the Corporation and its Affiliated Companies, including, without
limitation, medical, dental, disability, group life, accidental
death and travel accident insurance plans and programs
(collectively, the "Benefit Plans") on a basis at least as
favorable to the Executive as on the date immediately prior to the
date of the Change of Control. Prior to a Change of
Control, the Executive's and such other persons' entitlement to
participate in the Benefit Plans shall be determined in accordance
with the Corporation's regular practice.
(e) Expenses. During the Term of Employment, the
Executive shall be entitled to receive prompt reimbursement for all
reasonable expenses
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incurred by the Executive in accordance with the regular policies
and procedures of the Corporation.
(f) Office and Support Staff. After a Change of Control
the Executive shall be entitled to an office or offices of a size
and with furnishings and other appointments, and to secretarial and
other assistance, at least equal to those provided to the
Executive as of the date immediately prior to the date of the
Change of Control.
(g) Death Benefits. In the event of Executive's death
after completion of at least ten (10) Years of Service, unless (1)
Executive's employment with the Corporation was terminated for
Cause or (2) Executive (or his Beneficiary) is entitled to receive
Supplemental Retirement Benefits pursuant to subsection 5(i), the
Corporation shall pay to Executive's Beneficiary an annual death
benefit equal to forty percent (40%) (but not to exceed
$150,000) of the highest annual Base Salary paid to Executive from
and after fiscal year 2001 (as defined in subsection 5(a) hereof),
payable in equal monthly installments, commencing with the month
following the month of Executive's death and ending with the
two-hundred fortieth (240th) month following the month of
Executive's death. In the event that Executive dies before
age 65 but has not completed at least ten (10) Years of Service
with the Corporation, death benefits shall be reduced to an amount
equal to the benefits determined under the preceding sentence
multiplied by the Vesting Percentage applicable to Executive.
(h) Disability Benefits. In the event of Executive's
Permanent Disability prior to attaining age 65 and prior to
termination of employment with the Corporation, unless Executive's
employment with the Corporation was terminated for Cause, the
Corporation shall pay Executive annual disability
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benefits equal to forty percent (40%) (but not to exceed
$150,000) of the highest annual Base Salary paid to Executive from
and after fiscal year 2001, payable in equal monthly installments,
commencing with the month following the month in which
Executive terminated employment as a result of Permanent Disability
and ending on the earlier of (i) the month in which Executive
reaches age 65 or (ii) the month of his death. In the event
that at the time of Permanent Disability Executive has not
completed at least ten (10) Years of Service, the disability
benefits shall be reduced to an amount equal to the benefits
determined under the preceding sentence multiplied by the Vesting
Percentage applicable to Executive. Disability benefits pursuant
to this subsection (h) shall be reduced by any amounts paid to
Executive under the Corporation's long-term disability insurance
policy, but shall not be reduced for any payments received by
Executive from Social Security or from any disability insurance
coverage individually owned by Executive.
(i) Supplemental Retirement Benefits.
(1) In the event of Executive's Retirement after
completion of at least ten (10) Years of Service, unless
Executive's employment with the Corporation was terminated for
Cause, the Corporation shall pay Executive retirement benefits for
twenty (20) years in an annual amount equal to forty percent (40%)
(but not to exceed $150,000) of the highest annual Base Salary paid
to Executive from and after fiscal year 2001 ("Supplemental
Retirement Benefits"). In the event of Executive's Retirement
before completion of ten (10) Years of Service, Corporation shall
pay Executive retirement benefits on the same terms as set
forth in the preceding sentence except that retirement benefits
shall be reduced to an amount equal to Supplemental Retirement
Benefits multiplied by the Vesting Percentage.
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(2) Supplemental Retirement Benefits shall be
payable in two hundred forty (240) equal monthly installments
commencing with the month following the later of (i) the month of
Executive's Retirement or (ii) the month during which Executive
reaches age sixty-five (65). If Executive dies prior to the end of
the two hundred forty (240) month period during which Supplemental
Retirement Benefits are payable, Supplemental Retirement Benefits
shall be payable during the remainder of such 240-month period to
his Beneficiary.
(3) Notwithstanding anything herein to the
contrary, in the event of Executive's termination of employment
with the Corporation prior to attaining age 65 as a result of
Permanent Disability, if Executive attains age 65 and his
employment with the Corporation was not terminated for Cause, the
Corporation shall pay to Executive the Supplemental Retirement
Benefits set forth in this Subsection 5(i) in accordance with
Executive's Vesting Percentage, commencing as of the month
following the month in which Executive attains age 65; provided,
however, that any Supplemental Retirement Benefits paid pursuant to
this sentence shall be reduced by any amounts paid to Executive
under the Corporation's long-term disability insurance policy (but
shall not be reduced for any payments received by Executive from
Social Security or from any disability insurance coverage
individually owned by Executive) for the same period.
(j) Survivability of Death and Supplemental Retirement
Benefits. In the event of Executive's Retirement or death,
Executive's entitlement to death benefits pursuant to Subsection
5(g) hereof and Supplemental Retirement Benefits pursuant to
Subsection 5(i) hereof shall survive the Term of Employment and
Executive or his or her Beneficiary shall be entitled to such
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death benefits and Supplemental Retirement Benefits based on the
same terms and conditions as would have been applicable had his
death or Retirement, as the case may be, occurred during the Term
of Employment.
6. TERMINATION OF EMPLOYMENT.
(a) Death or Permanent Disability. Except for the
obligations of the Corporation set forth in this Subsection 6(a),
this Agreement shall terminate automatically upon the Executive's
death or Permanent Disability. In the event of such termination,
the Corporation shall pay to the Executive's Beneficiary or, in the
event of Permanent Disability, the Executive or his legal
representative, all benefits and Base Salary accrued through the
date of termination, including, without limitation, amounts payable
under any plan referred to in Subsection 5(d) plus any benefits to
which Executive may be entitled pursuant to Subsection 5(g),
Subsection 5(h) or Subsection 5(i) hereof.
(b) Cause. The Corporation may terminate the
Executive's employment for Cause. If the Executive's employment is
terminated for Cause, the Corporation shall pay the Executive his
full accrued Base Salary through the effective date of the
termination of his employment (which shall be no earlier than the
date of receipt of notice thereof) at the rate in effect at the
time of such termination, and the Corporation shall have no further
obligations to the Executive under this Agreement.
(c) Notification Prior to One Year Extension. Either
Executive or the Corporation may terminate this Agreement by
notifying the other party in writing of an intention to do so at
least sixty (60) days prior to the commencement of a one-year
extension period described in Section 3 hereof.
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(d) Payments for Involuntary Termination Without Cause.
(1) If prior to a Change of Control (i) the
Corporation terminates Executive's employment (other than for Cause
pursuant to subsection 6(b) hereof), or (ii) the Executive's
employment terminates by reason of the Corporation's termination of
this Agreement pursuant to subsection 6 (c) hereof, the Corporation
shall pay Executive following such involuntary termination his or
her full accrued Base Salary through the date of termination of
employment plus an amount equal to one hundred percent (100%) of
Executive's Base Salary for the fiscal year in which termination
occurs, payable in twenty-six (26) equal bi-weekly installments or
at such other intervals as salary is normally paid by the
Corporation to its employees. In addition, within ninety (90) days
after conclusion of the Fiscal Years in which the Executive's
employment is involuntarily terminated without Cause, the
Corporation shall pay the Executive the Annual Bonus he would have
earned for the Fiscal Year, if any, prorated on the basis of the
percentage of the Fiscal Year preceding such termination of
Executive's employment. The payments pursuant to this Subsection
6(d)(1) and any payments to which Executive may be entitled
pursuant to Subsections 5(g), 5(h), and 5(i) shall be in full
discharge of any claims, actions, demands or damages of every
nature and description which Executive might have or might assert
against the Corporation or any Affiliated Company in connection
with or arising from the termination of Executive's employment or
the termination of this Agreement.
(2) If following a Change of Control (i) the
Corporation terminates Executive's employment (other than for Cause
pursuant to Subsection 6(b) hereof),or (ii) the Executive's
employment terminates by reason of the Corporation's termination of
this Agreement pursuant to subsection 6(c)
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hereof, the Corporation shall, at the time of such involuntary
termination, make a lump sum cash payment to Executive equal to
200% of his or her Base Salary for the Fiscal Year of termination.
In addition to the payment pursuant to this Subsection 6(d)(2) and
any payments to which Executive may be entitled pursuant to
Subsections 5(g), 5(h) and 5(i), Executive shall be entitled to all
remedies available under this Agreement or at law in respect of
any damages suffered by Executive as a result of an involuntary
termination of employment without Cause.
(e) Notwithstanding the provisions of subsections
6(c)(i) and (ii) above, unless the Board of Directors requests that
the Term of Employment be extended after Executive's attaining age
65 in accordance with the provisions of section 3 above, (i) no
severance payment shall be payable to the Executive after age 65;
and (ii) the amount of the severance payable pursuant to subsection
6(d)(i) shall be reduced by an amount equal to one month of Base
Salary for every month of Executive's employment after he attains
age 64. If, however, the Term of Employment is extended at the
request of the Board of Directors after Executive's attaining age
65, the severance payment shall continue to be payable and shall
not be subject to reduction pursuant to subsection 6(d)(ii) to the
extent of such extension.
7. GROSS-UP FOR PARACHUTE TAX.
(a) General. In the event that following a Change of
Control Executive becomes entitled to any payments (whether
pursuant to this Employment Agreement or any other plan,
arrangement or agreement) from the Corporation in the nature of
compensation ("Parachute Payments") that in the opinion of a
certified public accounting firm (selected in the manner set forth
in Subsection 7(b)) or that under the provisions of a notice of
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assessment from the Internal Revenue Service causes imposition of
the tax under Section 4999 of the Code or any similar tax that may
hereafter be imposed (the "Excise Tax"), the Corporation shall pay
Executive, at the time specified in Subsection 7(d), the Gross-Up
Payment (as determined in accordance with Subsection 7(c)).
(b) Selection of C.P.A. Within fifteen (15) days after
any determination of Executive's employment following a Change of
Control, the majority of the Continuing Directors as of the date
immediately prior to the Change of Control shall select a
certified public accounting firm (the "C.P.A.") to determine the
amount, if any, of the Excise Tax and the amount, if any, of the
Gross-Up Payments.
(c) Amount of Gross-Up Payments.
(1) The Gross-Up Payments shall be in an amount
such that the net amount retained by Executive with respect to the
Parachute Payments and Gross-Up Payments, after deduction of any
Excise Tax to which the Parachute Payments may be subject and any
federal, state, and local income taxes and Excise Tax upon the
Gross-Up Payments, shall be equal to the gross amount of the
Parachute Payments.
(2) For purposes of determining the amount of the
Gross-Up Payments, Executive shall be deemed to pay federal income
taxes at the applicable rate of federal income taxation for the
calendar year in which the Gross-Up Payment is to be made and state
and local income taxes at the applicable rate of taxation for the
calendar year in which the Gross-Up Payment is to be made.
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(3) In the event that the Excise Tax is
subsequently determined to exceed the amount taken into account at
the time the Gross-Up Payment is made pursuant to Subsection
7(d)(1) hereof (including any excess attributable to any Parachute
Payments the existence or amount of which could not be accurately
determined at the time of the Gross-Up Payment), the Corporation
shall make an additional Gross-Up Payment in respect of such excess
(plus any interest and addition to tax payable with respect to
such excess) within fifteen (15) days after the amount of such
excess is determined by the C.P.A. or by the Internal Revenue
Service (the "IRS") in a notice of assessment.
(d) Timing of Gross-Up Payments. Gross-Up Payments
other than Gross-Up Payments pursuant to Subsection 7(c)(3) shall
be paid not later than forty-five (45) days following payment of
any Parachute Payments to which the Gross-Up Payments are
attributable; provided, however, that if the amount of such
Gross-Up Payment or portion thereof cannot be finally determined on
or before such day, the Corporation shall pay to Executive on
such day an estimate, as determined in good faith by the
Corporation, of the minimum amount of such payments and shall pay
the remainder of such payments (together with interest at the
applicable federal rate provided in Section l274(d) of the Code) as
soon as the amount thereof can be determined by the C.P.A., but in
no event later than forty-five (45) days after payment of such
Parachute Payments.
(e) Corporation's Right to Designate Tax Representative;
Assignment of Refund Proceeds. If the IRS proposes an assessment
of the Excise Tax against Executive or proposes an additional
assessment of Excise Tax in excess of the amount previously
reported by Executive:
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(1) Executive shall within five (5) days after
receipt from the IRS of notice of the proposed Excise Tax
assessment notify the Corporation in writing and furnish the
Corporation with copies of all correspondence from the IRS relating
to the proposed Excise Tax assessment.
(2) The Corporation shall be authorized to
designate an attorney and/or accountant (the "Tax Representative")
to serve as Executive's exclusive representative with respect to
all proceedings with the IRS relating to the proposed Excise Tax
assessment, including but not limited to negotiating a settlement
or compromise of the proposed Excise Tax assessment, filing a claim
for refund with respect thereto, and seeking judicial review of any
disallowance of a claim for refund. Executive hereby agrees to
execute an appropriate power of attorney authorizing the Tax
Representative to represent Executive with respect to the Excise
Taxes. Executive further agrees to take any other appropriate
actions reasonably requested by the Tax Representative in
connection therewith; provided, however, that the Corporation shall
reimburse Executive for any expenses incurred by Executive as a
result of compliance with such requests.
(3) If the Tax Representative files a claim for
refund of Excise Taxes with respect to which the Corporation has
made a Gross-Up Payment and such refund claim is allowed by the IRS
or by the final judgment of a court of competent jurisdiction,
Executive shall endorse the refund check payable to the Corporation
and shall send the refund check to the Corporation not later than
five (5) days after receipt from the IRS.
(4) If the Corporation designates a Tax
Representative, the Corporation shall pay all of his or her
professional fees and expenses and hold Executive harmless from any
claims in connection therewith. The Tax
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Representative shall keep Executive timely informed of all
significant developments in the Excise Tax matter and shall send to
Executive copies of all correspondence relating thereto.
(5) Notwithstanding anything herein to the
contrary, if the Corporation is in material breach of any of its
obligations pursuant to this Agreement, the Corporation's rights
pursuant to this Subsection 7(e) shall be extinguished and
Executive shall have the right to revoke any power of attorney
executed pursuant to this Subsection 7(e).
8. NO OBLIGATION TO MITIGATE DAMAGES. The Executive shall
not be obligated to mitigate any damages by seeking other
employment or otherwise, and no amount payable hereunder and no
benefit or service credit for benefits shall be reduced in the
event that the Executive shall accept alternative employment.
9. BENEFITS PAYABLE ONLY FROM CORPORATE ASSETS.
(a) No Trust. Nothing contained in this Agreement, and
no action taken pursuant to its provisions by either party hereto
shall create, or be construed to create, a trust of any kind, or a
fiduciary relationship between the Corporation and the Executive or
his or her Beneficiary.
(b) Executive's Status as Unsecured General Creditor.
The payment of any benefits hereunder to the Executive or his
Beneficiary shall be made from assets which shall continue, for all
purposes, to be a part of the general assets of the Corporation; no
person shall have or acquire any interest in such assets by virtue
of the provisions of this Agreement. To the extent that the
Executive or his Beneficiary acquires a right to receive payments
from the Corporation under the provisions hereof, such right shall
be no greater than the right of any unsecured general creditor of
the Corporation.
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(c) Recovery of Cost of Providing Benefits. In the
event that, in its discretion, the Corporation purchases an
insurance policy insuring the life of the Executive to enable the
Corporation to recover, in whole or in part, the cost of providing
any benefits hereunder, neither the Executive nor his Beneficiary
under this Agreement shall have or acquire any rights whatsoever
therein. The Corporation shall be the sole owner and beneficiary
of any such policy and, as such, shall possess and may exercise all
incidents of ownership therein.
10. DETERMINATION OF BENEFITS AND CLAIMS PROCEDURE. The
Corporation shall make all determinations as to rights to benefits
under this Agreement. Subject to and in compliance with the
specific procedures contained in the applicable regulations
promulgated under the Employee Retirement Income Security Act of
1974, as amended: (i) any decision by the Corporation
denying a claim for benefits under this Agreement by the Executive
or his Beneficiary shall be stated in writing by the Corporation
and delivered or mailed to the claimant; (ii) each such notice
shall set forth the specific reasons for the denial, written to the
best of the Corporation's ability in a manner that may be
understood without legal or actuarial counsel; and (iii) the
Corporation shall afford a reasonable opportunity to the claimant
whose claim for benefits has been denied for a review of the
decision denying such claim.
11. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement
shall prevent or limit the Executive's continuing or future
participation in any benefit, bonus, incentive or other plan or
program provided by the Corporation or any Affiliated Companies and
for which the Executive may qualify, nor shall anything herein
limit or otherwise affect such rights as the Executive may have
under any other agreements with the Corporation or any Affiliated
20
Companies. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan or
program of the Corporation or any Affiliated Companies shall be
payable in accordance with the terms of such plan or program.
12. FULL SETTLEMENT. After a Change of Control, the
Corporation's obligation to make the payments provided for herein
and otherwise to perform its obligations hereunder shall not be
affected by any circumstances, including, without limitation, any
set-off, counterclaim, recoupment, defense or other right which the
Corporation may have against the Executive or others. Unless it is
finally determined by a court of competent jurisdiction after all
available appeals that the Corporation has validly terminated the
Executive's employment for Cause, the Corporation agrees to pay, to
the full extent permitted by law, all legal fees and expenses which
the Executive may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Corporation or others of
the validity or enforceability of, or liability under, any
provision of this Agreement or any guarantee of performance
thereof, plus, in each case, interest compounded quarterly, on the
total unpaid amount determined be payable hereunder, such interest
to be calculated on the basis of the prime commercial lending rate
announced by Firstar Bank, N.A. in effect from time to time, for
the period commencing on the date of such contest and ending on the
date on which the Corporation shall pay such amount.
13. COVENANTS.
(a) Non-Competition
(1) Executive recognizes that during the course of
Executive's employment with the Corporation, Executive has been and
will be instructed about and become acquainted with confidential
information
21
of the Corporation, including, without limitation, customer lists,
methods of sales, the existence and contents and terms of this
Agreement, methods of sales procurement, sales procurement
techniques, sales procedures and equipment/supply information,
equipment and supply acquisition procedures and processes and
sources, customer evaluation procedures, customer maintenance and
supply maintenance procedures and corresponding information
relating to persons, firms and corporations which are or may become
customers of the Corporation and, further, companies from which the
Corporation obtains various products and supplies for sale, resale
and distribution to customers of the Corporation. This
confidential information further includes, but is not limited to,
customer identity, supplier identity and terms, purchase terms,
sales techniques, purchase conditions and rates, customer needs,
billing procedures and processes, contacts and customer
information. Further, Executive agrees and acknowledges that the
development and assemblage and maintenance of the customer base of
the Corporation has taken extraordinary time, money, resources,
training, and effort by the Corporation and its employees.
(2) Executive agrees that he will not during the
Term of Employment and for a period of two (2) years following
cessation of his employment at the Corporation ("Restricted
Period"), for any cause or reason, directly or indirectly:
(A) engage in any business in competition with
the Corporation and its Affiliates or supply and sell to present
customers, former customers and prospects of the Corporation and
its Affiliates; or
(B) own, manage, operate, control, advise, be
employed by, consult, or materially participate in, or be
materially involved
22
in any manner with the ownership, management, operation or control
of, individually or through any other entity or device, any
business that competes with the business then conducted by the
Corporation or any Affiliate; provided, however, that mere
ownership as an investor of not more than five percent (5%) of the
securities of a corporation or other business enterprise shall not
in and of itself be deemed to violate this Section 13(a)(2)(B).
(b) Nondisclosure of Confidential Information.
(1) Executive will not, except as authorized
by the Corporation in writing, during or at any time after the
termination of Executive's employment with the Corporation,
directly or indirectly, use for himself or herself or others, or
disclose, communicate, divulge, furnish to, or convey to any other
person, firm, or corporation, any secret or confidential
information, knowledge or data of the Corporation or that of third
parties obtained by Executive during the period of his employment
with the Corporation. Such information, knowledge or data
includes, without limitation, the following:
(A) Secret or confidential matters of a
technical nature such as, but not limited to, methods, know-how,
formulations, compositions, processes, discoveries, machines,
inventions, computer programs, and similar items or research
projects involving such items,
(B) Secret or confidential matters of a
business nature such as, but not limited to, marketing
policies or strategies, information about costs, price lists,
purchasing and purchasing policies, profits, market, sales or lists
of customers, customer history information, and
23
(C) Secret or confidential matters
pertaining to future developments such as, but not limited to,
research and development or future marketing or merchandising.
(2) Executive, upon termination of his employment
with the Corporation, or at any other time upon the Corporation's
request, shall deliver promptly to the Corporation all manuals,
letters, notes, notebooks, reports, formulations, computer programs
and similar items, memoranda, lists of customers, customer history
information and all other materials and copies thereof relating in
any way to the Corporation's business and in any way obtained by
Executive during the term of employment with the Corporation which
are in his possession or under his control and Executive will not
make or retain any copies of any of the foregoing and will so
represent to the Corporation upon termination of his or her
employment.
(c) Inducement.
(1) Executive agrees that during the Term of
Employment and during the Restricted Period, Executive shall not
use any confidential information for the purposes of inducing or
attempting to induce any present, former, or prospective customer
of the Corporation or its Affiliates to become a customer of
Executive or any person, firm, or corporation, or business
association with which Executive is affiliated in any capacity with
respect to the markets supplied by the Corporation or its
Affiliates.
(2) Executive agrees that during the Term of
Employment and during the Restricted Period, Executive shall not
directly or indirectly solicit for employment or employ any of the
Corporation's employees to work for Executive or any business
association with which/whom Executive is affiliated, or to work for
any other company in the markets supplied by the
24
Corporation or its Affiliates.
(d) Interest of Parties. Executive agrees that the
duration of the limitations set forth in this Section 13 are
reasonable under the circumstances, considering Executive's
position with the Corporation and other relevant factors, and that
this will not constitute a serious handicap to Executive in
securing future employment.
(e) Disclosure to Corporation. Executive shall
promptly communicate and disclose to the Corporation all
information, observations and data obtained by Executive in the
course of Executive's employment. All written materials, records
and documents made by Executive or coming into Executive's
possession during the Term of Employment concerning any inventions,
products, processes or equipment, manufactured, used, developed,
investigated or considered by the Corporation or any Affiliated
Companies shall be the property of the Corporation, and upon
termination of the Term of Employment, or upon request of the
Corporation during the Term of Employment, Executive shall promptly
deliver the same to the Corporation. Executive agrees to render to
the Corporation such reports of the activities of the business
undertaken by Executive or conducted under Executive's direction
during the Term of Employment as the Corporation may reasonably
request.
(f) Inventions.
(1) Executive shall promptly communicate and
disclose in writing to the Corporation all those inventions and
developments whether patentable or not, as well as patents and
patent applications (hereinafter collectively called "Inventions"),
made, conceived, developed or purchased by Executive, or under
which Executive acquires the right to grant licenses or to become
licensed, alone or jointly with others, during the Term of
Employment,
25
which have arisen or may arise out of Executive's employment, or
relate to any matters pertaining to, applicable to, or useful in
connection with, the business or affairs of the Corporation or any
Affiliated Companies. All of Executive's right, title and interest
in, to and under all such inventions, licenses and rights to
grant licenses shall be the sole property of the Corporation. Any
such inventions disclosed to anyone by Executive within one (1)
year after the termination of the Term of Employment for any cause
whatsoever shall be deemed to have been made or conceived by
Executive during the Term of Employment.
(2) As to all such inventions, Executive
shall, upon request of the Corporation, during the Term of
Employment or thereafter:
(A) Execute all documents which the
Corporation shall deem necessary or proper to enable it to
establish title to such inventions, or other rights, and to enable
it to file and prosecute applications for letters patent of the
United States and any foreign country; and
(B) Do all things (including the giving
of evidence in suits and other proceedings) which the Corporation
shall deem necessary or proper to obtain, maintain or to assert
patents for any and all such inventions or to assert its rights in
any inventions not patented.
All expenses incident to any action required by the
Corporation or taken on its behalf pursuant to the provisions of
this paragraph shall be borne by the Corporation including without
limitation a reasonable payment for Executive's time and expenses
involved in case he or she is not then in its employ.
(g) Litigation. Executive agrees that during the
Term of Employment or thereafter, Executive shall do all things,
including the giving
26
of evidence in suits and other proceedings, which the Corporation
shall deem necessary or proper to obtain, maintain or assert rights
accruing to the Corporation during the Term of Employment and in
connection with which Executive has knowledge, information or
expertise. All reasonable expenses incurred by Executive during
the Term of Employment or thereafter in fulfilling the duties set
forth in this Section, shall be reimbursed by the Corporation to
the full extent legally appropriate including, without limitation,
a reasonable payment for Executive's time in the event this
Agreement has terminated prior to the time Executive renders such
assistance, advice and counsel.
14. EQUITY. The parties hereto agree that the services to be
rendered by Executive are special, unique and of an extraordinary
character. In the event of the breach by Executive of any of the
provisions of this Agreement, the Corporation, in addition and as
a supplement to such other rights and remedies as may exist in its
favor, may apply to any court of law or equity having jurisdiction
to enforce the specific performance of this Agreement, and/or may
apply for injunctive relief against any act which would violate any
of the provisions of this Agreement.
15. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties hereto with respect to the subject
matter hereof.
16. NO ASSIGNMENT.
(a) This Agreement is personal to the Executive and
without the prior written consent of the Corporation shall not be
assignable by the Executive other than by will or the laws of
descent and distribution. This Agreement shall inure to the
benefit of and be enforceable by the Executive's legal
representatives and Beneficiary.
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(b) This Agreement shall inure to the benefit of and be
binding upon the Corporation and its successors. The Corporation
shall require any successor to all or substantially all of the
business and/or assets of the Corporation, whether direct or
indirect, by purchase, merger, consolidation, acquisition of stock,
or otherwise, by an agreement in form and substance satisfactory to
the Executive, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent as the
Corporation would be required to perform if no such succession had
taken place.
17. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, and this
Agreement shall be construed in all respects as if such invalid or
unenforceable provision or clause were omitted.
18. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Missouri, without
reference to principles of conflict of laws. The captions of this
Agreement are not part of the provisions hereof and shall have no
force or effect. This Agreement may not be amended or modified
other than by a written agreement executed by the parties hereto or
their respective successors and legal representatives.
(b) In the event that litigation is required to enforce
any provision of this Agreement, subject to the provisions of
Section 12 hereof, the prevailing party shall be entitled to
reasonable attorneys fees.
(c) All notices and other communications hereunder shall
be in writing and shall be given by hand delivery to the other
party or by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
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If to the Executive:
-------------------
Xxxx Xxxxxx
If to the Corporation:
---------------------
Consumer Programs Incorporated
0000 Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: J. Xxxxx Xxxxxxx, Chairman and CEO
or to such other address as either party shall have furnished to
the other in writing in accordance herewith. Notice and
communications shall be effective when actually received by the
addressee.
(d) This Agreement contains the entire understanding of
the parties hereto with respect to the subject matter hereof.
(e) The Corporation may withhold from any amounts
payable under this Agreement such federal, state or local taxes as
shall be required to be withheld pursuant to any applicable law or
regulation.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement in duplicate, all as of the day and year first above
written.
CONSUMER PROGRAMS INCORPORATED
By: /s/ J. Xxxxx Xxxxxxx
--------------------------------
J. Xxxxx Xxxxxxx, Chairman
and Chief Executive Officer
By: /s/ Xxxx Xxxxxx
--------------------------------
Executive
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