1
EXHIBIT 10.20
REVISED 12/19/97
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "AGREEMENT") is entered into
by and between Xxxxxx International Inc., a Delaware corporation ("COMPANY"),
and Xxxxx X. Xxxx ("EXECUTIVE") on this 31st day of December, 1997, to be
effective on the 31st day of December, 1997 ("EFFECTIVE DATE").
W I T N E S S E T H :
WHEREAS, Company desires to employ Executive and Executive desires to
be employed upon the terms and conditions set forth herein;
WHEREAS, Company and Executive are parties to an Executive Employment
Agreement dated November 27, 1996, which they desire to amend and fully restate
upon the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the premises, mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE 1
TERM AND NATURE OF EMPLOYMENT
1.1 TERM OF EMPLOYMENT. Subject to the terms and conditions of this
Agreement, Company hereby employs Executive and Executive hereby accepts
employment with Company for a term beginning on the date on the Effective Date
as set forth above through and including December 31, 2000 (the "INITIAL
TERM"), unless this Agreement and Executive's employment hereunder are sooner
terminated pursuant to Article 5. On each anniversary of the Effective Date
(a "RENEWAL DATE") the term of this Agreement shall automatically renew and
extend for a period of three years from the Renewal Date (a "RENEWAL TERM")
unless written notice of nonrenewal is delivered from one party to the other at
least sixty days prior to the Renewal Date. The Agreement shall remain in
force during the Initial Term and any Renewal Term until terminated in
accordance with Article 5. The Initial Term together with each Renewal Term
shall hereinafter be referred to collectively as the "EMPLOYMENT PERIOD."
1.2 PRINCIPAL DUTIES. Executive's employment hereunder shall be
in the capacity of President and Chief Executive Officer. In such capacity,
Executive shall perform the duties for which he currently is responsible as an
executive officer of Company. Executive shall perform his duties hereunder
in accordance with any lawful instructions, rules, regulations or policies made
or adopted by Company's Board of Directors, including those applicable to
Company's Executives generally, provided
2
that Executive shall not have his duties, authority, areas of responsibility,
offices, immediate or support staff reduced or eliminated during the Employment
Period. During the Employment Period, Executive shall devote his full time,
and best efforts and skills to the business and interests of Company, do his
utmost to further enhance and develop Company's best interests and welfare, and
endeavor to improve his ability and knowledge of Company's business,
particularly as it relates to his duties hereunder, in an effort to increase
the value of his services for the mutual benefit of the parties hereto. During
the Employment Period, it shall not be a violation of this Agreement for
Executive to (a) serve on corporate, civic, or charitable boards or committees
(except for Boards or committees of a Competing Business (as defined in Section
4.1)), (b) deliver lectures, fulfill teaching or speaking engagements, (c)
manage personal investments, so long as such activities do not materially
interfere with performance of Executive's responsibilities under this
Agreement.
1.3 PLACE OF PERFORMANCE. Executive shall perform his duties
hereunder at the principal executive offices of Company at One Xxxxxxxx Centre,
0000 Xxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000, or at such other place where
Company's principal executive offices subsequently may be located. Executive
acknowledges subject to Section 5.3(c) hereof, and agrees that Company may
require Executive to travel and render services in different locations from
time to time incident to the performance of his duties hereunder.
1.4 AFFILIATES. The term "AFFILIATES" shall mean any person or
entity controlled by or under common control with Company.
ARTICLE 2
COMPENSATION
For and in consideration of the performance by Executive of the
services, terms, conditions, covenants and agreements contained in this
Agreement, Company shall pay to Executive at the times, in the amounts and in
the manner herein provided, the following:
2.1 BASE COMPENSATION. As the principal consideration for the
services to be performed by Executive hereunder during the Employment Period,
Executive shall be entitled to receive as base compensation from Company a
salary of not less than Twenty-Eight Thousand and No/100's Dollars ($28,000.00)
per month (the "BASE SALARY"), which shall be prorated for any partial
employment period and payable in the manner and on the timetable in which
Company's payroll is customarily handled, or at such more frequent intervals as
Company and Executive may hereafter agree to from time to time. No overtime
compensation shall be payable to Executive. Company's Board of Directors shall
review Executive's performance at least annually and shall make any adjustments
to Executive's compensation that it deems, in its sole discretion, appropriate,
provided that at no time during the Employment Period shall Executive's
compensation be adjusted to an amount below the Base Salary. Company shall be
entitled to withhold from all amounts of compensation payable under this
Article 2 such amounts on account of payroll taxes and similar matters as are
required
-2-
3
by any applicable law, rule, or regulation of any appropriate governmental
authority. Such compensation shall continue to be paid during any period of
physical or mental incapacity unless and until Executive's employment is
terminated as herein provided.
2.2 STOCK GRANT AND OPTION. As additional consideration for
Executive's performance of his obligations under Article 3 and Article 4 of
this Agreement, Company has previously, granted to Executive 220,000 restricted
shares of Company's Common Stock, and an option to purchase 97,712 shares of
Company's Common Stock, subject to the terms and conditions of Company's 1996
Key Employee Stock Plan and 1997 Long-Term Incentive Plan, and the terms of the
specific agreements relating to the grants of restricted stock and stock
options. Executive hereby acknowledges and agrees that Company's grant to
Executive of such Common Stock and options, together with other compensation
payable to Executive hereunder, is reasonable and adequate independent
consideration for Executive's performance of his obligations under Articles 3
and 4 of this Agreement.
2.3 BONUSES AND BENEFITS. In addition to the Base Salary and
stock grant and option described above, Company shall provide Executive with
the following during the Employment Period:
(a) Bonuses, when payable, based upon and subject to
such terms and conditions as determined annually under the Xxxxxx
Incentive Compensation Plan.
(b) Participation in any present or future disability,
medical, health, dental, insurance, pension, profit-sharing, thrift,
retirement, investment, and stock appreciation plans, and any other
benefit, bonus or compensation plans on the same terms generally
available to all of Company's Executives generally or its executive
officers in particular;
(c) Payment or reimbursement, as the case may be, of
reasonable business expenses (within limits that may be established by
Company's Board of Directors) incurred in connection with the
performance of his duties hereunder, such expense payment or
reimbursement being subject to, and made in accordance with Company's
policies and procedures of Executive expense payment or reimbursement
in effect from time to time;
(d) Access to and use of Company's health club facility
in accordance with the policies and procedures governing such
facility;
(e) At the option of Executive each year either (1) use
of a current model Company vehicle comparable to a fully equipped
Cadillac, plus reimbursement of the full cost of repairs, maintenance,
gasoline, oil and cleaning, or (2) an automobile allowance of
$1,700.00 per month;
(f) Use of a Company paid full membership in a local area
country club of the Executive's choice, and
-3-
4
(g) Reimbursement of the reasonable costs of tuition,
books and travel incurred for Executive's continuing education in
general business or continuing professional education. For each
fiscal year during the Employment Period the reimbursement shall not
exceed ten percent of Executive's annual base compensation as set
forth in Section 2.1.
2.4 VACATION. During the Employment Period, Executive shall
accrue paid vacation time in such amounts and at such times as determined by
Company's Board of Directors, in its sole discretion; provided, however, that
the minimum amount of paid vacation to which Executive shall be entitled shall
be no less than that to which he is entitled as an Executive of Company
immediately prior to the effective date of this Agreement. If such vacation
time is not taken by Executive during the term of this Agreement, Executive
may, at his option, receive a lump sum payment of cash value of the vacation
pay in lieu thereof, or carry the vacation time forward.
ARTICLE 3
CONFIDENTIAL INFORMATION; PROPERTY RIGHTS
3.1 NON-DISCLOSURE OBLIGATION OF EXECUTIVE. For purposes of this
Article 3, all references to Company shall mean and include its Affiliates (as
defined in Section 1.4) Executive hereby acknowledges, understands and agrees
that whether developed by Executive or others employed by or in any way
associated with Executive or Company, all Confidential Information, as defined
in Section 3.2, is the exclusive and confidential property of Company and shall
be at all times regarded, treated and protected as such in accordance with this
Agreement. Executive acknowledges that all such Confidential Information is in
the nature of a trade secret. Failure to xxxx any writing confidential shall
not affect the confidential nature of such writing or the information contained
therein.
3.2 DEFINITION OF CONFIDENTIAL INFORMATION. "CONFIDENTIAL
INFORMATION" shall mean information, whether or not originated by Executive,
which is used in Company's business and (a) is proprietary to, about or created
by Company; (b) gives Company some competitive business advantage or the
opportunity of obtaining such advantage, or the disclosure of which could be
detrimental to the interests of Company; (c) is designated as Confidential
Information by Company, known by the Executive to be considered confidential by
Company, or from all the relevant circumstances considered confidential by
Company, or from all the relevant circumstances should reasonably be assumed by
Executive to be confidential and proprietary to Company; or (d) is not
generally known by non-Company personnel. Such Confidential Information
includes, but is not limited to, the following types of information and other
information of a similar nature (whether or not reduced to writing or
designated as confidential):
1. Work product resulting from or related to work or
projects performed or to be performed for Company or for clients of
Company, including but not limited to data bases, draft and other
non-public written documents, the interim and final lines of inquiry,
hypotheses, research and conclusions related
-4-
5
thereto and the methods, processes, procedures, analyses, techniques
and audits used in connection therewith;
2. Computer software of any type or form in any stage of
actual or anticipated research and development, including but not
limited to programs and program modules, routines and subroutines,
processes, algorithms, design concepts, design specifications (design
notes, annotations, documentation, flow charts, coding sheets, and the
like), source codes, object codes and load modules, programming,
program patches and system designs;
3. Information relating to Company's proprietary rights
prior to any public disclosure thereof, including but not limited to
the nature of the proprietary rights, production data, technical and
engineering data, test data and test results, the status and details
of research and development of products and services, and information
regarding acquiring, protecting, enforcing and licensing proprietary
rights (including, without limitation, patents, copyrights and trade
secrets);
4. Internal Company personnel and financial information,
vendor names and other vendor information (including vendor
characteristics, services and agreements), purchasing and internal
cost information, internal service and operational manuals, and the
manner and methods of conducting Company's business;
5. Marketing and development plans, price and cost data,
price and fee amounts, pricing and billing policies, quoting
procedures, marketing techniques and methods of obtaining business,
forecasts and forecast assumptions and volumes, and future plans and
potential strategies of Company which have been or are being
discussed;
6. Names of customers and their representatives,
contracts and their contents and parties, customer services, and the
type, quantity, specifications and contents of products and services
purchased, leased, licensed or received by customers of Company;
7. Information provided to Company by any actual or
potential customer, government agency, or other third party (including
businesses, consultants and other entities and individuals); and
8. Contracts with, or developed by Company for use with,
agents of Company, including, without limitation, the terms and
conditions thereof.
-5-
6
3.3 EXCLUSIONS FROM CONFIDENTIAL INFORMATION. "CONFIDENTIAL
INFORMATION" shall not include information publicly known other than as a
result of a disclosure by Executive in breach of Section 3.1, and the general
skills and experience gained during Executive's work with Company which
Executive could reasonably have been expected to acquire in similar work with
another company. The phrase "PUBLICLY KNOWN" shall mean readily accessible to
the public in a written publication and, shall not include information which is
only available by a substantial searching of the published literature or
information the substance of which must be pieced together from a number of
different publications and sources. The burden of proving that information or
skills and experience are not Confidential Information shall be on the party
asserting such exclusion.
3.4 COVENANTS OF EXECUTIVE. As a consequence of Executive's
acquisition or anticipated acquisition of Confidential Information, Executive
will occupy a position of trust and confidence with respect to Company's
affairs and business. In view of the foregoing and of the consideration to be
provided to Executive, Executive agrees that it is reasonable and necessary
that Executive make the following covenants:
(a) At any time during or after the termination of the
Employment Period, Executive will not disclose Confidential
Information to any person or entity, either inside or outside of
Company, other than as necessary in carrying out duties on behalf of
Company, without obtaining Company's prior written consent (unless
such disclosure is compelled pursuant to court order or subpoena, and
at which time Executive gives notice of such proceedings to Company),
and Executive will take all reasonable precautions to prevent
inadvertent disclosure of such Confidential Information. This
prohibition against Executive's disclosure of Confidential Information
includes, but is not limited to, disclosing the fact that any
similarity exists between the Confidential Information and information
independently developed by another person or entity, and Executive
understands that such similarity does not excuse Executive from
abiding by his covenants or other obligations under this Agreement.
(b) At any time during or after the termination of the
Employment Period, Executive will not use, copy or transfer
Confidential Information other than as necessary in carrying out his
duties on behalf of Company, without first obtaining Company's prior
written consent, and will take all reasonable precautions to prevent
inadvertent use, copying or transfer of such Confidential Information.
This prohibition against Executive's use, copying, or transfer of
Confidential Information includes, but is not limited to, selling,
licensing or otherwise exploiting, directly or indirectly, any
products or services (including data bases, written documents and
software in any form) which embody or are derived from Confidential
Information, or exercising judgment in performing analyses based upon
knowledge of Confidential Information.
3.5 RETURN OF CONFIDENTIAL MATERIAL. Executive shall turn over to
Company all originals and copies of materials containing Confidential
Information in the Executive's possession, custody, or control upon request or
upon termination of the Executive's employment with Company. Executive agrees
to attend a termination
-6-
7
interview with the General Counsel to confirm turnover of such materials and to
discuss any questions the undersigned may have about his continuing obligations
under this Agreement.
3.6 INVENTIONS. Any and all inventions, products, discoveries,
improvements, copyrightable works, trademarks, service marks, ideas, processes,
formulae, methods, designs, techniques or trade secrets (collectively
hereinafter referred to as "INVENTIONS") made, developed, conceived or
resulting from work performed by Executive (alone or in conjunction with
others, during regular hours of work or otherwise) while he is employed by
Company and which may be directly or indirectly useful in, or related to, the
business of Company (including, without limitation, research and development
activities of Company), or which are made using any equipment, facilities,
Confidential Information, materials, labor, money, time or other resources of
Company, shall be promptly disclosed by Executive to his supervisor, shall be
deemed Confidential Information for purposes of this Agreement, and shall be
Company's exclusive property. Executive shall, upon Company's request, execute
any documents and perform all such acts and things which are necessary or
advisable in the opinion of Company to cause issuance of patents to, or
otherwise obtain recorded protection of right to intellectual property for,
Company with respect to Inventions that are to be Company's exclusive property
under this Section 3.6, or to transfer to and vest in Company full and
exclusive right, title and interest in and to such Inventions; provided,
however, that the expense of securing any such protection of right to
Inventions shall be borne by Company. In addition, Executive shall, at
Company's expense, assist Company in any proper manner in enforcing any
Inventions which are to be or become Company's exclusive property hereunder
against infringement by others. Executive shall keep confidential and will
hold for Company's sole use and benefit any Invention that is to be Company's
exclusive property under this Section 3.6 for which full recorded protection of
right has not been or cannot be obtained.
ARTICLE 4
COVENANT NOT TO COMPETE; NON-INTERFERENCE
4.1 PROHIBITED EXECUTIVE ACTIVITIES. Executive agrees that except
in the ordinary course of his employment hereunder during the Employment
Period, Executive shall not during the Employment Period and for a period of
one (1) year thereafter within any geographic area in which Company conducts
business during the Employment Period (all references to Company shall include
its Affiliates as defined in Section 1.4):
(a) Directly or indirectly, engage or invest in, own,
manage, operate, control or participate in the ownership, management,
operation or control of, be employed by, associated or in any manner
connected with, or render services or advice to, any Competing
Business (as defined below) provided, however, that the Executive may
invest in the securities of any enterprise with the power to vote up
to 5% of the capital stock of such enterprise (but without otherwise
participating in the activities of such enterprise) if such securities
are listed on
-7-
8
any national or regional securities exchange or have been registered
under Section 12(g) of the Securities Exchange Act of 1934;
(b) Directly or indirectly, either as principal, agent,
independent contractor, consultant, director, officer, employee,
employer, advisor (whether paid or unpaid), stockholder, partner or in
any other individual or representative capacity whatsoever, either for
his own benefit or for the benefit of any other person or entity,
solicit, divert or take away, any customers or clients of Company; or
(c). Directly or indirectly, either as principal, agent,
independent contractor, consultant, director, officer, Executive,
Company, advisor (whether paid or unpaid), stockholder, partner or in
any other individual or representative capacity whatsoever, either for
his own benefit or for the benefit of any other person or entity,
either (1) hire, attempt to hire, contact or solicit with respect to
hiring any Executive of Company, (2) induce or otherwise counsel,
advise or encourage any Executive of Company to leave the employment
of Company, or (3) induce any distributor, representative or agent of
Company to terminate or modify its relationship with Company.
"COMPETING BUSINESS" shall mean any individual, business, firm, company,
partnership joint venture, organization, or other entity whose products or
services compete, in whole or in part, at any time during the Employment Period
with the products or services of Company or its Affiliates in any domestic or
international market area.
The provisions of this Section 4.1 shall not apply to Executive if
this Agreement is terminated pursuant to the provisions of Section 5.3(c)
hereof.
4.2 ESSENTIAL NATURE OF ARTICLE 4. It is acknowledged, understood
and agreed by and between the parties hereto that the covenants made by
Executive in Section 4.1 are essential elements of this Agreement and that, but
for the agreement of the Executive to comply with such covenants, Company would
not have entered into this Agreement.
4.3 NECESSITY AND REASONABLENESS OF ARTICLE 4. Executive hereby
specifically acknowledges and agrees that:
(a) Company has expended and will continue to expend
substantial time, money and effort in developing (1) its business in
which the designs, plans, manuals and specifications are valuable
trade secrets, and (2) a valuable list of customers and agents, and
information about their technical problems and needs, purchasing
habits, idiosyncracies and internal purchasing procedures;
(b) Executive will, in the course of his Employment, be
personally entrusted with and exposed to the trade secrets of Company;
-8-
9
(c) Company, during the term of this Agreement and after
its termination, will be engaged in its highly competitive business in
which many firms, including Company, compete;
(d) A substantial portion of Company's business is
conducted outside the United States;
(e) Company, pursuant to acquiring certain patents,
technology and associated trade secrets and know-how, will further
develop its worldwide business;
(f) Executive could, after having access to Company's
financial records, contracts, patents, technology and associated trade
secrets and know-how and, after receiving further training by and
experience with Company, and after reviewing Company's trade secrets,
become a competitor;
(g) Company will suffer great loss and irreparable harm
if Executive terminates his employment and enters directly or
indirectly, into competition with Company;
(h) The temporal and other restrictions contained in this
Article 4 are in all respects reasonable and necessary to protect the
business goodwill, trade secrets, prospects and other business
interests of Company;
(i) The enforcement of this Agreement in general, and of
this Article 4 in particular, will not work an undue or unfair
hardship on Executive or otherwise be oppressive to him, it being
specifically acknowledged and agreed by Executive that he has
activities and other business interests and opportunities which will
provide him adequate means of support if the provisions of this
Article 4 are enforced after termination of his employment with
Company; and
(j) the enforcement of this Agreement in general, and of
this Article 4 in particular, will neither deprive the public of
needed goods or services nor otherwise be injurious to the public.
4.4 JUDICIAL MODIFICATION. Executive agrees that if a court of
competent jurisdiction determines that the length of time or any other
restriction, or portion thereof, set forth in this Article 4 is overly
restrictive and unenforceable, the court shall reduce or modify such
restrictions to those which it deems reasonable and enforceable under the
circumstances, and as so reduced or modified, the parties hereto agree that the
restrictions of this Article 4 shall remain in full force and effect.
Executive further agrees that if a court of competent jurisdiction determines
that any provision of this Article 4 is invalid or against public policy, the
remaining provisions of this Article 4 and the remainder of this Agreement
shall not be affected thereby, and shall remain in full force and effect.
4.5 SURVIVAL OF COVENANTS. The covenants and agreements of
Executive set forth in this Article 4 are of a continuing nature and shall
survive the expiration,
-9-
10
termination or cancellation of the remainder of this Agreement regardless of
the reason for such therefor and shall survive the termination, if any, of the
Executive's employment.
4.6 NONCOMPETITION PAYMENTS. Upon termination of Executive's
employment with Company for any reason pursuant to this Agreement, Company
shall pay to Executive , in addition to amounts otherwise payable herein, (a) a
single lump sum payment equal to six (6) months of Base Salary, and (b) twelve
(12) monthly installments equal to his monthly Base Salary, as defined in
Section 2.1, ("NONCOMPETITION PAYMENTS"), provided that:
(i) any payments made to Executive pursuant to Section 5.3 shall
be applied against and reduce the NonCompetition Payments payable to
Executive under this Section 4.6; and
(ii) there shall be no NonCompetition Payments payable for any
period in which Executive is in breach of the obligations set forth in
Articles 3 and 4 of this Agreement.
ARTICLE 5
TERMINATION
5.1 COMPANY TERMINATION
(a) Notwithstanding any other provision of this
Agreement, at any time during the Employment Period, including,
without limitation, the Initial Term, this Agreement and Executive's
employment hereunder shall terminate upon his death, and Company shall
have the right, in its sole and absolute discretion, to terminate this
Agreement and Executive's employment hereunder at any time by giving
him written notice of such termination (1) for "Cause" (as defined
below), or (2) if Executive shall suffer a Disability (as defined
below). In the event of Executive's death during the Employment
Period, the Company shall (i) pay to Executive's estate an amount
equal to one year's Base Salary, (ii) pay to Executive's estate a pro
rata portion of any bonus which would have been payable but for
Executive's death; (iii) vest Executive fully in any Company stock
grant and stock options held by Executive at his death.
(b) "CAUSE" shall mean any of the following events:
1. An act or acts of personal dishonesty taken
by the Executive and intended to result in substantial
personal enrichment of the Executive at the expense of the
Company;
2. Repeated violations by the Executive of
Executive's obligations under this Agreement or under written
policies of the Company which are demonstrably willful on the
Executive's part, and for
-10-
11
which Executive has received more than one written warning that
specifies each area of Executive's violations;
3. Executive's conviction or pleas of nolo
contendere or equivalent pleas of a felony in a court of
competent jurisdiction;
4. Executive's use of illegal drugs as
evidenced by a drug test authorized by Company; or
5. Executive's conviction or the entry of a plea
of nolo contendere or equivalent plea in a court of competent
jurisdiction of any crime or offense involving moral
turpitude.
(c) "DISABILITY" shall mean any mental or physical
illness, impairment or condition which renders the Executive incapable
of performing any material portion of his duties for a continuous
period of six (6) months.
5.2 TERMINATION BY EITHER PARTY. Subject to the provisions of
Section 5.3(a), Company may at any time, for any reason, with or without Cause,
terminate this Agreement and Executive's employment hereunder. Executive may
terminate this Agreement at any time and for any reason. Each of Company's and
Executive's option to terminate this Agreement pursuant to this Section 5.2
shall be exercised by delivery of a written notice to Executive or Company, as
applicable, specifying the effective date of such termination which in no event
shall be sooner than expiration of thirty (30) calendar days following delivery
of such written notice.
5.3 EFFECT OF TERMINATION.
(a) "TERMINATION BY COMPANY WITHOUT CAUSE." If Company
terminates this Agreement for any reason other than pursuant to the
terms of Section 5.1 and such termination is not within one year of a
Change in Control (as defined in 5.3(b) below), then Company shall:
(1) pay to Executive an amount equal to the greater of (i) his total
Base Salary for the remainder of the Employment Period, or (ii) one
month of Base Salary for each full year of service completed with
Company as of the date of termination, (2) continue Executive's
participation in company's medical, health, and dental plans, as
provided in Section 2.3(b) of this Agreement, for the remainder of the
Employment Period, subject to COBRA required benefits thereafter, (3)
cause Executive to be fully vested in any stock options and stock
grants held by Executive, and (4) pay to Executive such amounts as are
due under the Xxxxxx Incentive Compensation Plan referred to in
Section 2.3(a) of this Agreement. Company shall at its option, make
such payments either in one lump sum on the effective date of
termination or over the remainder of the Employment Period as if the
Agreement had not been terminated.
(b) "TERMINATION BY COMPANY WITHOUT CAUSE AFTER CHANGE IN
CONTROL." If Company terminates this Agreement for any reason other
than pursuant to the terms of Section 5.1 and such termination occurs
within one year of the
-11-
12
occurrence of a Change in Control, then Company shall: (1) pay to
Executive an amount equal to 2.99 times (a) his annualized Base Salary
in effect upon the occurrence of the Change of Control and 2.99 times
(b) the greater of (x) the bonus paid to Executive for the year
preceding the year in which the Change of Control occurs or (y) a
target bonus of $243,000, (2) continue Executive's participation in
Company's medical, health, and dental plans, as provided in Section
2.3(b) of this Agreement, for the remainder of the Employment Period,
subject to COBRA required benefits thereafter, and (3) cause Executive
to be fully vested in any stock options or stock grants held by
Executive. Company shall make such payments in one lump sum on the
effective date of termination. A "CHANGE IN CONTROL" shall be deemed
to have occurred at any time after the date of this Agreement that (i)
any person (other than those persons who own more than 10% of the
combined voting power of the Company's outstanding voting securities
on the date hereof) becomes the beneficial owner, directly or
indirectly, of 30% or more of the combined voting power of the
Company's then outstanding voting securities, or (ii) individuals who
at the beginning of any period of two consecutive fiscal years
constitute the Company's Board of Directors cease for any reason to
constitute a majority of such Board of Directors at any time during
such two-year period.
(c) "TERMINATION BY EXECUTIVE WITH GOOD CAUSE AFTER
CHANGE IN CONTROL." If Executive terminates this Agreement for Good
Cause (defined below) and such termination occurs within one year of
the occurrence of a Change in Control, then Company shall: (1) pay
to Executive an amount equal to 2.99 times (a) his annualized Base
Salary in effect upon the occurrence of the Change of Control and 2.99
times (b) the greater of (x) the bonus paid to Executive for the year
preceding the year in which the Change of Control occurs or (y) a
target bonus of $243,000, (2) continue Executive's participation in
Company's medical, health, and dental plans, as provided in Section
2.3(b) of this Agreement, for the remainder of the Employment Period,
subject to COBRA required benefits thereafter, and (3) cause Executive
to be fully vested in any stock options or stock grants held by
Executive. "GOOD CAUSE" shall mean the occurrence of any of the
following events:
(i) the assignment by Company to the Executive of
duties that are materially inconsistent with the Executive's
office with Company at the time of such assignment, or the
removal by Company from the Executive of a material portion of
those duties usually appertaining to the Executive's office
with Company at the time of such removal;
(ii) a material change by Company, without the
Executive's prior written consent, in the Executive's
responsibilities to Company, as such responsibilities are
ordinarily and customarily required from time to time of a
senior officer of a corporation engaged in Company's business;
(iii) any removal of the Executive from, or any
failure to reelect or to reappoint the Executive to, the
office stated in Section 1.2;
-12-
13
(iv) Company's direction that the Executive
discontinue service (or not seek reelection or reappointment)
as a director, officer or member of any corporation or
association of which the Executive is a director, officer, or
member at the date of this Agreement;
(v) a reduction by Company in the amount of the
Executive's salary in effect at the time of the occurrence of
a Change in Control or the failure of Company to pay such
salary to the Executive at the time and in the manner
specified in this Agreement;
(vi) other than with respect to the annual
performance bonus specified in Article 2 or, as made with the
Executive's prior written consent, the discontinuance (without
comparable replacement) or material reduction by Company of
the Executive's participation in any bonus or other employee
benefit arrangement (including, without limitation, any
profit-sharing, thrift, life insurance, medical, dental,
hospitalization, stock option or retirement plan or
arrangement) in which the Executive is a participant under the
terms of this Agreement, as in effect on the date hereof or as
may be improved from time to time hereafter;
(vii) the moving by Company of the Executive's
principal office space, related facilities, or support
personnel, from Company's principal operating offices, or
Company's requiring the Executive to perform a majority of his
duties outside Company's principal operating offices for a
period of more than 30 consecutive days;
(viii) the relocation, without the Executive's prior
written consent, of Company's principal executive offices to a
location outside the county in which such offices are located
at the time of the signing of this Agreement;
(ix) in the event Company requires the Executive
to reside at a location more than 25 miles from Company's
principal executive offices, except for occasional travel in
connection with Company business to an extent and in a manner
which is substantially consistent with the Executive's current
business travel obligations;
(x) in the event the Executive consents to a
relocation of Company's principal executive offices, the
failure of Company to (A) pay or reimburse the Executive on
an after-tax basis for all reasonable moving expenses incurred
by the Executive in connection with such relocation or (B)
indemnify the Executive on an after-tax basis against any
loss realized by the Executive on the sale his principal
residence in connection with such relocation;
(xi) the failure of Company to continue to provide
the Executive with office space, related facilities and
support personnel (including, without limitation,
administrative and secretarial assistance) that are
-13-
14
commensurate with the Executive's responsibilities to and
position with Company, and no less than those prior to this
Agreement;
(xii) the failure by Company to promptly reimburse
the Executive for the reasonable business expenses incurred by
the Executive in the performance of his duties for Company, in
accordance with this Agreement.
(d) Subject to the provisions of Section 4.6, 5.1 or 5.3,
upon termination of this Agreement and Executive's employment
hereunder by either Company or Executive, Executive shall have no
right to receive any compensation or benefits for any period
subsequent to the effective date of such termination, or for any
period prior to such date which have not been earned or vested as of
such date except as may be provided for in any employee benefit plan
relating to such benefits, including the Company's 1996 Key Employee
Stock Plan and the Company's 1997 Long-Term Incentive Plan.
(e) Company's right of termination shall be in addition
to and shall not affect Company's rights and remedies under Articles 3
and 4, and Section 6.1 of this Agreement, and Company's rights and
remedies shall survive termination of Executive's employment
hereunder.
(f) For purposes of this Agreement, Executive's years of
service shall include service with the Company, service with any
predecessor entity in which all or part of Company's business was
conducted, and service with any Affiliate, as defined in Section 1.4.
5.4 RESIGNATION FROM OFFICES. Any provision of this Agreement to
the contrary notwithstanding, Executive shall immediately resign from any
offices held with Company or its Affiliates upon written request by the
Company. Any resignation made pursuant to a written request by Company under
this Section 5.4 shall not affect Executive's rights under this Agreement for
any compensation or payment.
5.5 RELEASE OF FOREIGN RIGHTS. If, during the course of
Executives employment with Company or its Affiliates, Executive may acquire any
compensation, retirement, severance or other similar rights or benefits under
the laws of a country other than the United States of America,
("EXTRATERRITORIAL RIGHTS") then the compensation and benefits of this
Agreement shall supersede and replace such Extraterritorial Rights to the
extent permitted by law. Furthermore, to the extent the Extraterritorial
Rights may not be superseded under the applicable law, any payments or benefits
under applicable law, shall reduce any payments or benefits under this
Agreement on a dollar for dollar basis for any amounts paid Executive for any
Extraterritorial Rights. By entering into this Agreement Executive expressly
acknowledges:
(a) Executive's domicile is the United States of America;
(b) Executive acknowledges that the employment
relationship with Company and its Affiliates is to be governed solely
by reference to the laws of
-14-
15
the State of Texas, regardless of any services rendered in a
jurisdiction outside the State of Texas;
(c) Executive expressly waives and releases any rights
under the laws of any country other than the United States of America
for any Extraterritorial Rights as heretofore defined; and
(d) Executive expressly acknowledges and agrees that the
payments and benefits under this Agreement have been bargained for in
lieu of any Extraterritorial Rights.
ARTICLE 6
GROSS-UP PAYMENTS
6.1 CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment
or distribution by the Company or any of its affiliates (as that term
is defined in the regulations promulgated under the Securities
Exchange Act of 1934, as amended) under this Agreement to or for the
benefit of Executive (any such payments or distributions being
individually referred to herein as a "PAYMENT," and any two or more of
such payments or distributions being referred to herein as
"PAYMENTS"), would be subject to the excise tax imposed by Section
4999 of the Code (such excise tax, together with any interest thereon,
any penalties, additions to tax, or additional amounts with respect to
such excise tax, and any interest in respect of such penalties,
additions to tax or additional amounts, being collectively referred
herein to as the "EXCISE TAX"), then Executive shall be entitled to
receive an additional payment or payments (individually referred to
herein as a "GROSS-UP PAYMENT" and any two or more of such additional
payments being referred to herein as "GROSS-UP PAYMENTS") in an amount
such that after payment by Executive of all taxes (as defined in
Section 6(k)) imposed upon the Gross-Up Payment, Executive retains an
amount of such Gross-Up Payment equal to the Excise Tax imposed upon
the Payments.
(b) Subject to the provisions of Section 6(c) through
(i), any determination (individually, a "DETERMINATION") required to
be made under this Section 6(b), including whether a Gross-Up Payment
is required and the amount of such Gross-Up Payment, shall initially
be made, at the Company's expense, by nationally recognized tax
counsel mutually acceptable to the Company and Executive ("TAX
COUNSEL"). Tax Counsel shall provide detailed supporting legal
authorities, calculations, and documentation both to the Company and
Executive within 15 business days of the termination of Executive's
employment, if applicable, or such other time or times as is
reasonably requested by the Company or Executive. If Tax Counsel
makes the initial Determination that no Excise Tax is payable by
Executive with respect to a Payment or Payments, it
-15-
16
shall furnish Executive with an opinion reasonably acceptable to
Executive that no Excise Tax will be imposed with respect to any such
Payment or Payments. Executive shall have the right to dispute any
Determination (a "DISPUTE") within 15 business days after delivery of
Tax Counsel's opinion with respect to such Determination. The
Gross-Up Payment, if any, as determined pursuant to such Determination
shall, at the Company's expense, be paid by the Company to Executive
within five business days of Executive's receipt of such
Determination. The existence of a Dispute shall not in any way affect
Executive's right to receive the Gross-Up Payment in accordance with
such Determination. If there is no Dispute, such Determination shall
be binding, final and conclusive upon the Company and Executive,
subject in all respects, however, to the provisions of Section 6(c)
through (i) below. As a result of the uncertainty in the application
of Sections 4999 and 280G of the Code, it is possible that Gross-Up
Payments (or portions thereof) which will not have been made by the
Company should have been made ("UNDERPAYMENT"), and if upon any
reasonable written request from Executive or the Company to Tax
Counsel, or upon Tax Counsel's own initiative, Tax Counsel, at the
Company's expense, thereafter determines that Executive is required to
make a payment of any Excise Tax or any additional Excise Tax, as the
case may be, Tax Counsel shall, at the Company's expense, determine
the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to Executive.
(c) The Company shall defend, hold harmless, and
indemnify Executive on a fully grossed-up after tax basis from and
against any and all claims, losses, liabilities, obligations, damages,
impositions, assessments, demands, judgements, settlements, costs and
expenses (including reasonable attorneys', accountants', and experts'
fees and expenses) with respect to any tax liability of Executive
resulting from any Final Determination (as defined in Section 6(j))
that any Payment is subject to the Excise Tax.
(d) If a party hereto receives any written or oral
communication with respect to any question, adjustment, assessment or
pending or threatened audit, examination, investigation or
administrative, court or other proceeding which, if pursued
successfully, could result in or give rise to a claim by Executive
against the Company under this Section 6 ("CLAIM"), including, but not
limited to, a claim for indemnification of Executive by the Company
under Section 6(c), then such party shall promptly notify the other
party hereto in writing of such Claim ("TAX CLAIM NOTICE").
(e) If a Claim is asserted against Executive ("EXECUTIVE
CLAIM"), Executive shall take or cause to be taken such action in
connection with contesting such Executive Claim as the Company shall
reasonably request in writing from time to time, including the
retention of counsel and experts as are reasonably designated by the
Company (it being understood and agreed by the parties hereto that the
terms of any such retention shall expressly provide that the Company
shall be solely responsible for the payment of any and all fees and
disbursements of such counsel and any experts) and the execution of
powers of attorney, provided that:
-16-
17
(i) within 30 calendar days after the Company
receives or delivers, as the case may be, the Tax Claim Notice
relating to such Executive Claim (or such earlier date that
any payment of the taxes claimed is due from Executive, but in
no event sooner than five calendar days after the Company
receives or delivers such Tax Claim Notice), the Company shall
have notified Executive in writing ("ELECTION NOTICE") that
the Company does not dispute its obligations (including, but
not limited to, its indemnity obligations) under this
Agreement and that the Company elects to contest, and to
control the defense or prosecution of, such Executive Claim at
the Company's sole risk and sole cost and expense; and
(ii) the Company shall have advanced to Executive
on an interest-free basis, the total amount of the tax claimed
in order for Executive, at the Company's request, to pay or
cause to be paid the tax claimed, file a claim for refund of
such tax and, subject to the provisions of the last sentence
of Section 6(g), xxx for a refund of such tax if such claim
for refund is disallowed by the appropriate taxing authority
(it being understood and agreed by the parties hereto that the
Company shall only be entitled to xxx for a refund and the
Company shall not be entitled to initiate any proceeding in,
for example, United States Tax Court) and shall indemnify and
hold Executive harmless, on a fully grossed-up after tax
basis, from any tax imposed with respect to such advance or
with respect to any imputed income with respect to such
advance; and
(iii) the Company shall reimburse Executive for any
and all costs and expenses resulting from any such request by
the Company and shall indemnify and hold Executive harmless,
on fully grossed- up after-tax basis, from any tax imposed as
a result of such reimbursement.
(f) Subject to the provisions of Section 6(e) hereof, the
Company shall have the right to defend or prosecute, at the sole cost,
expense and risk of the Company, such Executive Claim by all
appropriate proceedings, which proceedings shall be defended or
prosecuted diligently by the Company to a Final Determination;
provided, however, that (i) the Company shall not, without Executive's
prior written consent, enter into any compromise or settlement of such
Executive Claim that would adversely affect Executive, (ii) any
request from the Company to Executive regarding any extension of the
statute of limitations relating to assessment, payment, or collection
of taxes for the taxable year of Executive with respect to which the
contested issues involved in, and amount of, the Executive Claim
relate is limited solely to such contested issues and amount, and
(iii) the Company's control of any contest or proceeding shall be
limited to issues with respect to the Executive Claim and Executive
shall be entitled to settle or contest, in his sole and absolute
discretion, any other issue raised by the Internal Revenue Service or
any other taxing authority. So long as the Company is diligently
defending or prosecuting such Executive Claim, Executive shall provide
or cause to be provided to the Company any information reasonably
requested by the Company that relates to such Executive Claim, and
shall
-17-
18
otherwise cooperate with the Company and its representatives in good
faith in order to contest effectively such Executive Claim. The
Company shall keep Executive informed of all developments and events
relating to any such Executive Claim (including, without limitation,
providing to Executive copies of all written materials pertaining to
any such Executive Claim), and Executive or his authorized
representatives shall be entitled, at Executive's expense, to
participate in all conferences, meetings and proceedings relating to
any such Executive Claim.
(g) If, after actual receipt by Executive of an amount of
a tax claimed (pursuant to an Executive Claim) that has been advanced
by the Company pursuant to Section 6(e)(ii) hereof, the extent of the
liability of the Company hereunder with respect to such tax claimed
has been established by a Final Determination, Executive shall
promptly pay or cause to be paid to the Company any refund actually
received by, or actually credited to, Executive with respect to such
tax (together with any interest paid or credited thereon by the taxing
authority and any recovery of legal fees from such taxing authority
related thereto), except to the extent that any amounts are then due
and payable by the Company to Executive, whether under the provisions
of this Agreement or otherwise. If, after the receipt by Executive of
an amount advanced by the Company pursuant to Section 6(e)(ii), a
determination is made by the Internal Revenue Service or other
appropriate taxing authority that Executive shall not be entitled to
any refund with respect to such tax claimed, and the Company does not
notify Executive in writing of its intent to contest such denial of
refund prior to the expiration of 30 days after such determination,
then such advance shall be forgiven and shall not be required to be
repaid and the amount of such advance shall offset, to the extent
thereof, the amount of any Gross-Up Payments and other payments
required to be paid hereunder.
(h) With respect to any Executive Claim, if the Company
fails to deliver an Election Notice to Executive within the period
provided in Section 6(e)(i) hereof or, after delivery of such Election
Notice, the Company fails to comply with the provisions of Section
6(e)(ii) and (iii) and (f) hereof, then Executive shall at any time
thereafter have the right (but not the obligation), at his election
and in his sole and absolute discretion, to defend or prosecute, at
the sole cost, expense and risk of the Company, such Executive Claim.
Executive shall have full control of such defense or prosecution and
such proceedings, including any settlement or compromise thereof. If
requested by Executive, the Company shall cooperate, and shall cause
its Affiliates to cooperate, in good faith with Executive and his
authorized representatives in order to contest effectively such
Executive Claim. The Company may attend, but not participate in or
control, any defense, prosecution, settlement or compromise of any
Executive Claim controlled by Executive pursuant to this Section 6(h)
and shall bear its own costs and expenses with respect thereto. In
the case of any Executive Claim that is defended or prosecuted by
Executive, Executive shall, from time to time, be entitled to current
payment, on a fully grossed-up after tax basis, from the Company with
respect to costs and expenses incurred by Executive in connection with
such defense or prosecution.
-18-
19
(i) In the case of any Executive Claim that is defended
or prosecuted to a Final Determination pursuant to the terms of this
Section 6(i), the Company shall pay, on a fully grossed-up after tax
basis, to Executive in immediately available funds the full amount of
any taxes arising or resulting from or incurred in connection with
such Executive Claim that have not theretofore been paid by the
Company to Executive, together with the costs and expenses, on a fully
grossed-up after tax basis, incurred in connection therewith that have
not theretofore been paid by the Company to Executive, within ten
calendar days after such Final Determination. In the case of any
Executive Claim not covered by the preceding sentence, the Company
shall pay, on a fully grossed-up after tax basis, to Executive in
immediately available funds the full amount of any taxes arising or
resulting from or incurred in connection with such Executive Claim at
least ten calendar days before the date payment of such taxes is due
from Executive, except where payment of such taxes is sooner required
under the provisions of this Section 6(i), in which case payment of
such taxes (and payment, on a fully grossed-up after tax basis, of any
costs and expenses required to be paid under this Section 6(i)) shall
be made within the time and in the manner otherwise provided in this
Section 6(i).
(j) For purposes of this Agreement, the term "FINAL
DETERMINATION" shall mean (A) a decision, judgment, decree or other
order by a court or other tribunal with appropriate jurisdiction,
which has become final and non-appealable; (B) a final and binding
settlement or compromise with an administrative agency with
appropriate jurisdiction, including, but not limited to, a closing
agreement under Section 7121 of the Code; (C) any disallowance of a
claim for refund or credit in respect to an overpayment of tax unless
a suit is filed on a timely basis; or (D) any final disposition by
reason of the expiration of all applicable statutes of limitations.
(k) For purposes of this Agreement, the terms "TAX" and
"TAXES" mean any and all taxes of any kind whatsoever (including, but
not limited to, any and all Excise Taxes, income taxes, and employment
taxes), together with any interest thereon, any penalties, additions
to tax, or additional amounts with respect to such taxes and any
interest in respect of such penalties, additions to tax, or additional
amounts."
ARTICLE 7
MISCELLANEOUS
7.1 INJUNCTIVE RELIEF. Because of the unique nature of the
Confidential Information, Executive acknowledges, understands and agrees that
Company will suffer immediate and irreparable harm if Executive fails to comply
with any of his obligations under Articles 3 or 4 of this Agreement, and that
monetary damages will be inadequate to compensate Company for such breach.
Accordingly, Executive agrees that Company shall, in addition to any other
remedies available to it at law or in equity, be entitled to temporary,
preliminary, and permanent injunctive relief to enforce the terms of
-19-
20
Articles 3 and 4 without the necessity of proving inadequacy of legal remedies
or irreparable harm.
7.2 ACTION BY AND CONSENT OF COMPANY. All rights and remedies of
Company hereunder shall be exercised by the Company solely by the Compensation
Committee of the Company's Board of Directors.
7.3 NOTICES. Any notice, instruction, authorization, request or
demand required hereunder shall be in writing, and shall be delivered either by
personal delivery, by telegram, telex, telecopy or similar facsimile means, by
certified or registered mail, return receipt requested, or by courier or
delivery service, addressed to the parties hereto at the principal offices of
Company at the address indicated beneath its signature on the execution page of
this Agreement, and also to Executive at his home address indicated beneath his
signature on the execution page of this Agreement, or at such other address and
number as a party shall have previously designated by written notice given to
the other party in the manner hereinabove set forth. Notices shall be deemed
given when received, if sent by facsimile means (confirmation of such receipt
by confirmed facsimile transmission being deemed receipt of communications sent
by facsimile means); and when delivered and receipted for (or upon the date of
attempted delivery where delivery is refused), if hand-delivered, sent by
express courier or delivery service, or sent by certified or registered mail,
return receipt requested.
7.4 AMENDMENT AND WAIVER. This Agreement may be amended, modified
or superseded only by written instrument executed by all parties hereto. Any
waiver of the terms, provisions, covenants, representations, warranties, or
conditions hereof shall be made only by a written instrument executed and
delivered by the party waiving compliance. Any waiver granted by Company shall
be effective only if executed and delivered by a duly authorized executive
officer of Company other than Executive. The failure of any party at any time
or times to require performance of any provisions hereof, shall in no manner
effect the right to enforce the same. No waiver by any party of any condition
or provision, or the breach of any term, provision, representation, or warranty
contained in this Agreement in one or more instances shall be deemed to be or
construed as a further or continuing waiver of any such condition or breach or
a waiver of any other condition or the breach of any other term, provision,
covenant, representation, or warranty.
7.5 SUCCESSORS AND ASSIGNS. All of the terms, provisions,
covenants, representations, warranties, and conditions of this Agreement shall
bind, be enforceable by, and inure to the benefit of, the parties hereto, but
this Agreement and the rights and obligations hereunder shall not be assignable
or delegable by any party; provided, however, that this Agreement and all of
Company's rights and obligations hereunder may be assigned or delegated by it,
in whole, but not in part, to, and shall be binding upon and inure to the
benefit of, any of its successors or assigns, but such assignment or delegation
by Company shall not relieve it of any of its obligations hereunder.
7.6 DEFINITIONS, GENDER AND CERTAIN REFERENCES. As used in this
Agreement, each parenthetically or quoted capitalized term in the introduction,
recitals and other
-20-
21
Sections of this Agreement shall have the meaning so ascribed to it. Whenever
the context requires, the gender of all words used herein shall include the
masculine, feminine and neuter, and the number of all words shall include the
singular and plural. References to Articles or Sections shall be to Articles
or Sections of this Agreement unless otherwise specified. The headings and
captions used in this Agreement are solely for convenient reference and shall
not affect the meaning or interpretation of any article, section or paragraph
herein, or this Agreement. The terms "HEREOF," "HEREIN" or "HEREUNDER" shall
refer to this Agreement as a whole and not to any particular Section.
7.7 GOVERNING LAW AND SEVERABILITY. This Agreement has been
executed and is performable in Xxxxxxxxxx County, Texas. The validity,
interpretation, construction, and performance of this Agreement shall be
governed by the internal law, and not the law of conflicts, of the State of
Texas. Each party hereto hereby acknowledges and agrees that it has had the
opportunity to consult with its own legal counsel in connection with the
negotiation of this Agreement, and that it has bargaining power equal to that
of the other party hereto in connection with the negotiation, execution and
delivery of this Agreement. Accordingly, the parties hereto agree that the
rule of contract construction that an agreement shall be construed against the
drafter shall have no application in the construction or interpretation of this
Agreement. The invalidity of any provision of this Agreement shall not affect
any other provision of this Agreement, which shall remain in full force and
effect, nor shall the invalidity of a portion of any provision of this
Agreement affect the balance of such provision.
7.8 EXPENSES. Each party hereto shall pay all of its respective
fees and expenses of attorneys, accountants and other persons employed by it in
connection with the resolution of any dispute between the parties hereto
arising out of or relating to this Agreement.
7.9 CONSULTING AGREEMENT. Company may, at its option, retain
Executive as a consultant following Executive's termination of employment on
such terms as may be agreed to by Executive and Company.
7.10 ENTIRE AGREEMENT. No agreements or representations, oral or
otherwise, express or implied, have been made by any party hereto with respect
to the subject matter hereof that are not set forth expressly in this
Agreement. This Agreement supersedes and cancels any prior agreement,
arrangement or understanding entered into between Company and Executive
relating to the subject matter hereof, except any agreement entered into
pursuant to Company's 1996 Key Employee Stock Plan as contemplated by Section
2.2 of this Agreement and the Company's 1997 Long-Term Incentive Plan.
7.11 COUNTERPARTS. The parties may execute this Agreement in any
number of counterparts, each of which is an original, but all of which together
constitute one and the same instrument.
-21-
22
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the date first above written.
COMPANY:
XXXXXX INTERNATIONAL INC.
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
Address: One Xxxxxxxx Center
P. O. Box 1863
0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
EXECUTIVE:
/s/ XXXXX X. XXXX
-----------------------------------------
Name: Xxxxx X. Xxxx
Address: 00 Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxx 00000
[INTENTIONALLY LEFT BLANK]
-22-
23
COMPANY ACKNOWLEDGMENT
STATE OF TEXAS )
)
COUNTY OF XXXXXXXXXX )
Before me, the undersigned authority, on this date personally appeared
, of Xxxxxx International
Inc., a Delaware corporation, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that he executed
the same for the purposes and consideration therein expressed, in the capacity
stated, and as the act and deed of said corporation.
Given under my hand and seal this day of , 199 .
-----------------------------------------
Notary Public in and for
The State of Texas
My Commission Expires:
---------
EXECUTIVE ACKNOWLEDGMENT
STATE OF TEXAS )
)
COUNTY OF XXXXXXXXXX )
Before me, the undersigned authority, on this date personally appeared
Xxxxx X. Xxxx, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
Given under my hand and seal this 31st day of December, 1997.
/s/ Xxxxxxxx X. Xxxxx
-----------------------------------------
Notary Public in and for
The State of Texas
My Commission Expires: 5-21-2000
---------
-23-
