Exhibit 10.11
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EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated February 26, 2001 by and
between The Premcor Refining Group Inc. (the "Company") and Xxxx X. Xxxx (the
"Executive").
WHEREAS, the Company considers it essential to its best interests and the
best interests of its stockholders to xxxxxx the employment of Executive by the
Company during the term of this Agreement and Executive is willing to accept
Executive's employment on the terms hereinafter set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein and for other good and valuable consideration, the parties agree as
follows:
1. Term of Employment; Executive Representation.
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a. Employment Term. Subject to the provisions of Section 8 of this
Agreement, Executive shall be employed by the Company for the three-year
period commencing on February 26, 2001 and ending on February 25, 2004 (the
"Employment Term") on the terms and subject to the conditions set forth in
this Agreement. Notwithstanding the preceding sentence, commencing February
26, 2004, and on each anniversary thereof thereafter (each anniversary, an
"Extension Date"), the Employment Term shall be automatically extended for
an additional one-year period, unless either party provides the other party
hereto with 90 days' written notice prior to the next Extension Date that
the Employment Term shall not be so extended. For the avoidance of doubt,
the term "Employment Term" shall include any extension that becomes
applicable pursuant to the preceding sentence.
b. Executive Representation. Executive hereby represents to the Company
that the execution and delivery of this Agreement by Executive and the
Company and the performance by Executive of the Executive's duties
hereunder shall not constitute a breach of, or otherwise contravene, the
terms of any employment agreement or other agreement or policy to which
Executive is a party or otherwise bound.
2. Position.
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a. While employed hereunder, Executive shall serve as the Company's
Executive Vice-President and Chief Financial Officer and as an Executive
Vice-President of Premcor Inc. and Premcor USA Inc. However, nothing
contained herein shall in any way restrict the ability of the Company to
assign Executive, with his consent, to other positions of equivalent status
within the Company. In such positions, Executive shall have such duties and
authority as shall be determined from time to time by the Board of
Directors of the Company (the "Board"), and the Executive shall report
directly to the Chief Executive Officer of the Company. If requested, the
Executive shall also serve as a
member of the Board or the boards of any affiliates of the Company without
additional compensation.
b. While employed hereunder, Executive will devote Executive's full
business time and best efforts to the performance of Executive's duties
hereunder and will not engage in any other business, profession or
occupation for compensation or otherwise which would conflict with the
rendition of such services either directly or indirectly; provided that
nothing herein shall preclude Executive, subject to the prior approval of
the Chief Executive Officer, from accepting appointment to the board of
directors or trustees of any business corporation or any charitable
organization, provided in each case, and in the aggregate, that such
activities do not interfere with the performance of Executive's duties
hereunder or conflict with Section 9. Any compensation earned by Executive
for serving in such director or trustee capacity shall be the sole and
exclusive property of Executive.
3. Base Salary. While employed hereunder, the Company shall pay Executive a
base salary (the "Base Salary") at the annual rate of $375,000, payable in
regular installments in accordance with the Company's usual payment practices.
Executive shall be entitled to such increases in Executive's Base Salary, if
any, as may be determined from time to time in the sole discretion of the Board,
and any such increased Base Salary shall be deemed to be Executive's "Base
Salary" for purposes of this Agreement.
4. Bonuses.
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a. Signing Bonus. As consideration for Executive's entering into this
Agreement, the Company shall pay Executive a one-time signing bonus of
$100,000, payable as soon as practicable after the date hereof.
b. Annual Bonus. With respect to each calendar year while employed
hereunder, Executive shall be eligible to earn an annual bonus award
pursuant to the Company's annual incentive plan (the "Annual Incentive
Plan") in an amount to be determined at the sole discretion of the Board in
consultation with the Chief Executive Officer. Executive's Annual Bonus
Opportunity (as defined in the Annual Incentive Plan) shall be 150% of Base
Salary and his Annual Target Bonus (as defined in the Annual Incentive
Plan) shall be 100% of Base Salary. However, Executive's Annual Bonus
Opportunity and Annual Target Bonus shall be subject to change based upon
modifications made from time to time to the Annual Incentive Plan by the
Company's management team, which team shall include the Executive,
provided, however, that in any such modification of the Annual Incentive
Plan Executive's Annual Bonus Opportunity and Annual Target Bonus shall be
no less than that of other similarly situated officers of the Company,
including any Executive Vice President thereof. Notwithstanding the
foregoing, Executive shall be entitled to an annual bonus of at least
$236,950 and $100,000 for calendar years 2000 and 2001, respectively.
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5. Equity Arrangements. Executive shall be granted an option to purchase
120,000 shares of the common stock of Premcor Inc. (the "Common Stock") pursuant
to the terms of the Premcor Inc. 1999 Stock Incentive Plan (the "Stock Incentive
Plan"). The option shall have a per share exercise price of $9.90.
The options for 60,000 shares shall vest ratably over the three years
following the date hereof (1/3 per year), and the options for the remaining
60,000 shares shall vest on the earlier of the seventh anniversary of the grant
date or upon the achievement of the share prices set forth below for the Common
Stock: (i) following an initial public offering, as an average closing price for
any 180 day consecutive period, or (ii) in a Change in Control:
Per Share Price % Vested
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below $12.00 0%
$12.00 - $14.99 10%
$15.00 - $17.99 20%
$18.00 - $19.99 30%
$20.00 - $24.99 50%
$25.00 - $29.99 75%
above $29.99 100%
The specific terms of such grant shall be set forth in a separate option
agreement, and shall be subject to the terms of the Stock Incentive Plan.
6. Employee Benefits.
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a. Welfare and Pension Benefits. The Company shall provide Executive
during the term of his employment hereunder with coverage under all
employee pension and welfare benefit programs, plans and practices in
accordance with the terms thereof, which the Company generally makes
available to its senior executives; provided, however, that the Company
shall reimburse Executive for the cost of COBRA continuation coverage
(elected by Executive under his prior employer's group health plan) during
the first 30 days of the Employment Term (after which time Executive will
be eligible for coverage under the Company's medical plan pursuant to this
Section 6(a)).
b. Vacation and Other Perquisites. Executive shall also be entitled to a
minimum of four weeks of paid vacation in each calendar year and sick leave
days in each calendar year as established under the Company's policies as
in effect from time to time, which shall be taken at such times as are
consistent with Executive's responsibilities hereunder. In addition, the
Company shall reimburse Executive for the reasonable cost of financial and
tax preparation and planning services listed on Exhibit A incurred by
Executive during the calendar year 2001, upon presentation by Executive
from time to time of appropriately itemized accounts of such expenditures.
Such accounts shall be subject to approval by the Chief Executive Officer.
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7. Business Expenses. Executive is authorized to incur reasonable expenses in
carrying out his duties and responsibilities under this Agreement, including,
without limitation, expenses for travel and similar items related to such duties
and responsibilities. The Company will reimburse Executive for all such expenses
upon presentation by Executive from time to time of appropriately itemized and
approved (consistent with the Company's policy) accounts of such expenditures.
8. Termination. The Executive's employment hereunder may be terminated by
either party at any time and for any reason; provided that Executive will be
required to give the Company at least 60 days advance written notice of any
resignation of Executive's employment. Notwithstanding any other provision of
this Agreement, the provisions of this Section 8 shall exclusively govern
Executive's rights upon termination of employment with the Company and its
affiliates. Upon termination of Executive's employment for any reason, Executive
agrees to resign, as of the date of such termination, from the Board and the
board of directors of any of the Company's affiliates.
a. By the Company For Cause or by Executive Resignation Without Good
Reason.
(i) Executive's employment hereunder may be terminated by the Company
for Cause (as defined below) at any time or, upon 60 days prior
written notice, by Executive without Good Reason (as defined below).
(ii) For purposes of this Agreement, "Cause" shall mean (A)
Executive's continued failure to substantially perform Executive's
duties hereunder (other than as a result of total or partial
incapacity due to physical or mental illness) for a period of 30 days
following written notice by the Company to Executive of such failure,
(B) dishonesty in the performance of Executive's duties hereunder, (C)
an act or acts on Executive's part constituting a felony under the
laws of Missouri, (D) Executive's willful malfeasance or willful
misconduct in connection with Executive's duties hereunder or any act
or omission which is materially injurious to the financial condition
or business reputation of the Company or any of its subsidiaries or
affiliates, or (E) Executive's breach of the restrictive covenants set
forth in Section 9 hereof.
(iii) If Executive's employment is terminated by the Company for
Cause or by Executive without Good Reason, Executive shall be entitled
to receive:
(A) the Base Salary through the date of termination;
(B) any annual bonus earned but unpaid as of the date of
termination for any previously completed calendar year;
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(C) reimbursement for any unreimbursed business expenses
properly incurred by Executive in accordance with Company policy
prior to the date of Executive's termination; and
(D) such employee benefits, if any, as to which Executive may be
entitled under the employee benefit plans of the Company (the
amounts described in clauses (A) through (D) hereof being
referred to as the "Accrued Rights").
Following such termination of Executive's employment by the Company
for Cause or by Executive without Good Reason, except as set forth in this
Section 8(a), Executive shall have no further rights to any compensation or
any other benefits under this Agreement.
b. Disability or Death.
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(i) Executive's employment hereunder shall terminate upon Executive's
death or if Executive becomes physically or mentally incapacitated, as
determined pursuant to the Company's long-term disability program as
may be in effect from time to time (the "LTD Program"), and is
therefore unable, for a period of time as determined under the LTD
Program, to perform Executive's duties (such incapacity is hereinafter
referred to as "Disability"). Any question as to the existence of the
Disability of Executive as to which Executive and the Company cannot
agree shall be determined in writing by a qualified independent
physician mutually acceptable to Executive and the Company. If
Executive and the Company cannot agree as to a qualified independent
physician, each shall appoint such a physician and those two
physicians shall select a third who shall make such determination in
writing. The determination of Disability made in writing to the
Company and Executive shall be final and conclusive for all purposes
of the Agreement.
(ii) Upon termination of Executive's employment hereunder for either
Disability or death, Executive or Executive's estate (as the case may
be) shall be entitled to receive:
(A) the Accrued Rights; and
(B) a pro rata portion of Executive's annual target bonus based
upon the percentage of the calendar year that shall have elapsed
through the date of termination of the Executive's employment,
payable when such bonus would have otherwise been payable had
Executive's employment not terminated.
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Following Executive's termination of employment due to death or
Disability, except as set forth in this Section 8(b), Executive shall have
no further rights to any compensation or any other benefits under this
Agreement.
c. By the Company Without Cause, Expiration of Employment Term, or
Resignation by Executive for Good Reason.
(i) The Executive's employment hereunder may be terminated by the
Company without Cause, by the Company's election not to extend the
Employment Term, or, upon 60 days prior written notice, by Executive's
resignation for Good Reason.
(ii) In the event that the Company elects not to extend the
Employment Term pursuant to Section 1, unless Executive's employment
is earlier terminated pursuant to paragraphs (a), (b) or (c) of this
Section 8, Executive's termination of employment hereunder (whether or
not Executive continues as an employee of the Company thereafter)
shall be deemed to occur on the close of business on the day
immediately preceding the next scheduled Extension Date.
(iii) For purposes of this Agreement, "Good Reason" shall mean: (A) a
reduction in Executive's Base Salary or annual bonus opportunity or
target bonus (other than any general salary reduction affecting at
least the majority of salaried employees or annual incentive plan
changes affecting all similarly situated officers of the Company,
including any Executive Vice President, and provided that the
establishment of reasonable performance targets by the Board will not
constitute a reduction of annual bonus opportunity or target bonus),
(B) a substantial diminution of Executive's duties and
responsibilities, or (C) a transfer of Executive's primary workplace
by more than thirty-five (35) miles from the Executive's workplace
immediately prior to such transfer.
Notwithstanding the foregoing, none of the events described in
clauses (A), (B) or (C) of this Section 8(c)(ii) shall constitute Good
Reason unless Executive shall have notified the Company in writing
describing the events which constitute Good Reason and then only if
the Company shall have failed to cure such event within thirty (30)
days after the Company's receipt of such written notice. However, any
termination of Executive's employment by the Company after delivery by
the Executive to the Company of such notice shall be deemed to be a
termination without Cause if Good Reason did exist at the time such
notice was given by Executive.
(iv) If Executive's employment is terminated by the Company without
Cause (other than by reason of death or Disability), as a result of
the Company's nonrenewal of the Employment Term pursuant to Section 1
hereof, or by Executive's resignation for Good Reason, Executive shall
be entitled to receive:
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(A) the Accrued Rights;
(B) subject to Executive's continued compliance with the
provisions of Section 9, an amount equal to two (the
"Severance Multiplier") times the sum of the (1) then Base
Salary and (2) then annual target bonus, payable in
accordance with normal payroll practices of the Company in
substantially equal installments over the 24 month period
following termination of employment; provided that the
aggregate amount described in this clause (B) shall be
reduced by the present value of any other cash severance or
termination benefits payable to Executive under any other
plans, programs or arrangements of the Company or its
affiliates; and
(C) any rights to which Executive is entitled pursuant to
the certain Stock Option Agreements, of even date herewith,
by and between Executive and the Company, as well as any
rights to which Executive is entitled under the Premcor Inc.
1999 Stock Incentive Plan.
Notwithstanding the foregoing, in the event Executive's
employment is terminated under this Section 8(c) at any time
following a Change of Control (defined below), the Severance
Multiplier shall be increased from two to three, and any
severance amounts payable pursuant to Section 8(c)(iv)(B)
shall be payable in the form of a single, lump sum cash
payment within 10 days following termination of employment.
(D) The Company, at its expense, shall provide the
Executive with the reasonable job relocation counseling
services of a firm chosen from time to time by the
Executive, for a period not to exceed 18 months after the
Date of Termination.
(E) The Company shall maintain in full force and effect,
for the Executive's continued benefit, until the earlier of
(1) one year after the date of the termination of
Executive's employment or (2) the Executive's commencement
of full time employment with a new employer, all life
insurance, medical, dental, health and accident and
disability plans, programs or arrangements in which the
Executive was entitled to participate immediately prior to
the termination of Executive's employment at a cost to the
Executive no greater than the Executive paid while employed
by the Company, provided that the Executive's continued
participation is possible under the general terms and
provisions of such plans and programs. In the event that the
Executive's participation is barred, the Company shall
arrange to provide the Executive, at the Company's expense,
with benefits substantially similar to those which the
Executive is entitled to receive under such plans, programs
or arrangements, or pay cash in an amount after tax
sufficient to enable the Executive to purchase substantially
similar coverage for a one year period
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on an individual basis, at a cost to the Executive no
greater than the Executive paid while employed. In the case
of the Executive's commencement of full time employment with
a new employer within the one year period, the Company
agrees to make up any differential in benefits between what
the Executive would have received from the Company in the
one year period and what the Executive receives from his new
employer, so that the Executive is ensured of receiving the
same benefits which he would have been entitled to receive
from the Company had his employment with the Company
continued for the one year period at a cost to the Executive
no greater than the Executive paid while employed.
Following Executive's termination of employment by the Company
without Cause (other than by reason of Executive's death or
Disability), as a result of the Company's nonrenewal of the Employment
Term pursuant to Section 1 hereof, or by Executive's resignation for
Good Reason, except as set forth in this Section 8(c), Executive shall
have no further rights to any compensation or any other benefits under
this Agreement.
d. Notice of Termination. Any purported termination of employment by
the Company or by Executive (other than due to Executive's death)
shall be communicated by written Notice of Termination to the other
party hereto in accordance with Section 11(h) hereof. For purposes of
this Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of employment
under the provision so indicated.
e. Definition of Change of Control. For purposes hereof, "Change of
Control" shall mean any transaction, the result of which is that any
Person (an "Acquiring Person") other than (i) Blackstone (defined
below) or (ii) any Person, a majority of whose voting equity is owned
by Blackstone, becomes the beneficial owner, directly or indirectly,
of shares of stock of the Company or Premcor USA Inc. entitling such
Acquiring Person to exercise 50% or more of the total voting power of
all classes of stock of the Company or Premcor USA, Inc., as the case
may be, entitled to vote in elections of directors. For purposes
hereof, "Blackstone" shall mean, collectively, The Blackstone Group,
Blackstone Capital Partners III Merchant Banking Fund L.P., and their
affiliates (other than the Company and its subsidiaries) and "Person"
shall mean a "person" as such term is used for purposes of Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as amended.
f. (i) In the event it shall be determined that any payment,
benefit or distribution (or combination thereof) by the Company,
or by any other member of the same affiliated group with the
Company (as determined under Code Section 280G(d)(5)) for the
benefit of the Executive (whether paid or payable or distributed
or distributable pursuant to the terms of this Agreement, or
otherwise) (a "Payment") would be subject to the excise tax
imposed by Section 4999 of the
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Internal Revenue Code of 1986, as amended from time to time (the
"Code"), or any interest or penalties are incurred by the
Executive with respect to such excise tax (other than interest or
penalties incurred as a result of the failure of the Executive to
file any tax return, or pay any tax (except any such failure to
pay tax in accordance with the terms hereof), required by
applicable law or to be filed or paid by the Executive) (such tax
together with any such interest and penalties, hereinafter
collectively referred to as the "Excise Tax"), the Executive
shall be entitled to receive an additional payment (a "Gross-Up
Payment") in an amount such that after payment by the Executive
of taxes (including payroll taxes and any interest or penalties
imposed with respect to such taxes, other than interest or
penalties imposed as a result of the failure of the Executive to
file any tax return or pay any tax (except any such failure to
pay tax in accordance with the terms hereof), required by
applicable law to be filed or paid by the Executive), including,
without limitation, any income taxes (and any interest and
penalties imposed with respect thereto, other than interest or
penalties imposed as a result of the failure of the Executive to
file any tax return or pay any tax (except any such failure to
pay tax in accordance with the terms hereof), required by
applicable law to be filed or paid by the Executive) and the
Excise Tax imposed upon the Gross-Up Payment, the Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(ii) Subject to the provisions of subsection 8(g)(iii), all
determinations required to be made under this subsection 8(g),
including whether and when a Gross-Up Payment is required and the
amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by
Deloitte & Touche LLP or, if Deloitte & Touche LLP is unable or
unwilling to serve, then such nationally recognized accounting
firm as the Company shall select (Deloitte & Touche LLP or such
other accounting firm being the "Accounting Firm" ), which shall
provide detailed supporting calculations both to the Company and
the Executive within fifteen (15) business days of the receipt of
notice from the Executive that there has been a Payment, or such
earlier time as is requested by the Company. All fees and
expenses of the Accounting Firm shall be borne solely by the
Company. Any Gross-Up Payment, as determined pursuant to this
Section 8(g), shall be paid by the Company to the Executive
within five (5) days after the receipt of the Accounting Firm's
determination. If the Accounting Firm determines that no Excise
Tax is payable by the Executive, it shall so indicate to the
Executive in writing. Any determination by the Accounting Firm
shall be binding upon the Company and the Executive. As a result
of the uncertainty in the application of Section 4999 of the Code
at the time of the initial determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made
("Underpayment"), consistent with the calculations required to be
made hereunder. In the event that the Corporation exhausts its
remedies pursuant to subsection 8(g)(iii) and the Executive
thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the
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Underpayment that has occurred and any such Underpayment shall be
promptly paid by the Corporation to or for the benefit of the
Executive.
(iii) The Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would
require the payment by the Company of the Gross-Up Payment. Such
notification shall be given as soon as practicable but no later
than ten (10) business days after the Executive is informed in
writing of such claim and shall apprize the Company of the nature
of such claim and the date on which such claim is requested to be
paid. The Executive shall not pay such claim prior to the
expiration of the thirty (30) day period following the date on
which it gives such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such
claim is due). If the Company notifies the Executive in writing
prior to the expiration of such period that it desires to contest
such claim, the Executive shall:
(A) give the Company any information requested by the
Company relating to such claim;
(B) take such action in connection with contesting such
claim as the Company shall reasonably request in writing
from time to time, including, without limitation, accepting
legal representation with respect to such claim by an
attorney reasonably selected by the Company;
(C) cooperate with the Company in good faith in order to
effectively contest such claim; and
(D) permit the Company to participate in any proceedings
relating to such claim; provided, however, that the Company
shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold
the Executive harmless, on an after-tax basis, for any
Excise Tax or income tax (including interest and penalties
with respect thereto, other than interest or penalties
imposed as a result of the failure of the Executive to file
any tax return or pay any tax (except any such failure to
pay tax in accordance with the terms hereof), required by
applicable law to be filed or paid by the Executive) imposed
as a result of such representation and payment of costs and
expenses, Without limitation on the foregoing provisions of
this subsection 8(g)(iii), the Company shall control all
proceedings taken in connection with such content and, at
its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such
claim and may, at its sole option, either direct the
Executive to pay the tax claimed and xxx for a refund or
contest the claim in any permissible manner, and the
Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court
of initial
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jurisdiction and in one or more appellate courts, as the
Company shall determine; provided, however, that of the
Company directs the Executive to pay such claim and xxx for
a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis, and
shall indemnify and hold the Executive harmless, on an
after-tax basis, from any excise Tax or income tax
(including interest or penalties with respect thereto, other
than interest or penalties imposed as a result of the
failure of the Executive to file any tax return or pay any
tax (except any such failure to pay tax in accordance with
the terms hereof), required by applicable law to be filed or
paid by the Executive) imposed with respect to such advance
or with respect to any imputed income with respect to such
advance; and provided, further, that if the Executive is
required to extend the statute of limitations to enable the
Company to contest such claim, the Executive may limit this
extension solely to such contested amount. The Company's
control of the contest shall be limited to issues with
respect to which a Gross-Up Payment would be payable
hereunder and the Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(iv) If, after the receipt by the Executive of an amount advanced
by the Company pursuant to subsection 8(g)(iii), the Executive
becomes entitled to receive any refund with respect to such
claim, the Executive shall (subject to the Company's complying
with the requirements of subsection 8(g)(iii)) promptly pay to
the Company the amount of such refund (together with any interest
paid or credited thereon after taxes applicable thereto). If,
after the receipt by the Executive of an amount advanced by the
Company pursuant to subsection 8(g)(iii), a determination is made
that the Executive shall not be entitled to any refund with
respect to such claim and the Company does not notify the
Executive in writing of its intent to contest such denial of
refund prior to the expiration of thirty (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 Gross-Up Payment
required to be paid.
9. Nondisclosure of Confidential Information; Non-Solicitation.
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a. At any time during or for a period of three years after
Executive's employment with the Company, Executive shall not, without
the prior written consent of the Company, use, divulge, disclose or
make accessible to any other person, firm, partnership, corporation or
other entity any Confidential Information (as hereinafter defined)
pertaining to the business of the Company or any of its subsidiaries,
except (i) while employed by the Company, in the business of and for
the benefit of the Company, or (ii) when required to do so by a court
of competent jurisdiction, by any governmental agency having
supervisory authority over the business of the Company, or
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by any administrative body or legislative body (including a committee
thereof) with jurisdiction to order Executive to divulge, disclose or
make accessible such information. For purposes of this Section 8(a),
"Confidential Information" shall mean non-public information
concerning the financial data, strategic business plans, and other
non-public, proprietary and confidential information of the Company,
its subsidiaries, Blackstone (defined above), and their respective
affiliates as in existence as of the date of Executive's termination
of employment that, in any case, is not otherwise available to the
public (other than by Executive's breach of the terms hereof).
b. In the course of Executive's employment Executive will acquire
knowledge of Confidential Information and trade secrets. Executive
acknowledges that the Confidential Information and trade secrets which
the Company has provided and will provide to him could play a
significant role were he to directly or indirectly be engaged in any
business that competes with the Company or its subsidiaries. Executive
agrees that, without the prior written consent of the Company, (i)
during his employment with the Company and for a period of two years
thereafter he shall not, on his own behalf or on behalf of any person,
firm or company, directly or indirectly, solicit the business of any
person or entity that has been a client or customer of the Company or
its subsidiaries at any time during the 12 months immediately
preceding such solicitation, and (ii) during his employment with the
Company or for a period of one year thereafter he shall not, on his
own behalf or on behalf of any person, firm or company, directly or
indirectly, solicit or offer employment to any person who has been
employed by the Company, its subsidiaries, or Blackstone in an
executive or management capacity at any time during the 12 months
immediately preceding such solicitation.
c. Executive and the Company agree that the foregoing covenants not
to solicit are a reasonable covenant under the circumstances, and
further agree that if in the opinion of any court of competent
jurisdiction such restraints are not reasonable in any respect, such
court shall have the right, power and authority to excise or modify
such provision or provisions of these covenants as, to the court,
shall appear not reasonable and to enforce the remainder of the
covenant as so amended.
10. Specific Performance. Executive acknowledges and agrees that the
Company's remedies at law for a breach or threatened breach of any of the
provisions of Section 9 would be inadequate and, in recognition of this
fact, Executive agrees that, in the event of such a breach or threatened
breach, in addition to any remedies at law, the Company, without posting
any bond, shall be entitled to cease making any payments or providing any
benefit otherwise required by this Agreement and obtain equitable relief in
the form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be
available.
11. Miscellaneous.
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a. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Missouri, without regard to
conflicts of laws principles thereof.
b. Entire Agreement/Amendments. This Agreement contains the entire
understanding of the parties with respect to the employment of Executive by
the Company. There are no restrictions, agreements, promises, warranties,
covenants or undertakings between the parties with respect to the subject
matter herein other than those expressly set forth herein. This Agreement
may not be altered, modified, or amended except by written instrument
signed by the parties hereto. This Agreement supercedes all prior
agreements and understandings (including verbal agreements) between
Executive and the Company and/or its affiliates regarding the terms and
conditions of Executive's employment with the Company and/or its affiliates
c. No Waiver. The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver
of such party's rights or deprive such party of the right thereafter to
insist upon strict adherence to that term or any other term of this
Agreement.
d. Severability. In the event that any one or more of the provisions of
this Agreement shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions of this Agreement shall not be affected thereby.
e. Assignment. This Agreement shall not be assignable by Executive. This
Agreement may be assigned by the Company to a company which is a successor
in interest to substantially all of the business operations of the Company.
Such assignment shall become effective when the Company notifies Executive
of such assignment or at such later date as may be specified in such
notice. Upon such assignment, the rights and obligations of the Company
hereunder shall become the rights and obligations of such successor
company, provided that any assignee expressly assumes the obligations,
rights and privileges of this Agreement.
f. Mitigation. If the Executive's employment hereunder is terminated for
any reason, the Executive shall not be subject to any duty or obligation to
seek alternate employment or other sources of income or benefits, or to
mitigate his damages, or to any similar duty or obligation, and, except as
specifically provided with respect to the continuation of benefits, all
payment and other obligations of the Company under this Agreement shall not
be subject to any rights of set-off, duty to mitigate or other reduction,
and shall be paid and performed in full notwithstanding any alternate
employment or other sources of income or benefits obtained or received or
receivable by the Executive.
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g. Successors; Binding Agreement. This Agreement shall inure to the
benefit of and be binding upon personal or legal representatives,
executors, administrators, successors, heirs, distributes, devises and
legatees.
h. Notice. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to
the respective addresses set forth below Agreement, or to such other
address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be
effective only upon receipt.
If to the Company:
The Premcor Refining Group Inc.
Attention: Corporate Secretary
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
If to Executive:
To the most recent address of Executive set forth in the personnel
records of the Company.
i. Withholding Taxes. The Company may withhold from any amounts payable
under this Agreement such Federal, state and local taxes as may be required
to be withheld pursuant to any applicable law or regulation.
j. Counterparts. This Agreement may be signed in counterparts, each of
which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
k. Legal and Professional Fees. The Corporation shall pay to the
Executive all reasonable legal and professional fees and expenses incurred
by the Executive in seeking to obtain or enforce any right or benefit
provided by this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
THE PREMCOR REFINING GROUP INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------
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Name: Xxxxxx X. Xxxxx
-----------------------------
Title: Executive Vice President
-----------------------------
XXXX X. XXXX
/s/ Xxxx X. Xxxx
-----------------------------
000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxxx 00000
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EXHIBIT A
(Financial and Tax Preparation and Planning Services)
. Financial consulting services and tax preparation and planning services from
AYCO, Inc.
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