AMENDED AND RESTATED EMPLOYMENT AGREEMENT

Exhibit 10(q)

AMENDED AND RESTATED

THIS AMENDED AND RESTATED AGREEMENT is made and entered into as of this 1st day of October, 2002, by and between XXXXXX, INC., a Delaware corporation (the “Company”), and Xxxxx Xxx XxxxxxXxxxxx (“Executive”).

WITNESSETH:

WHEREAS, the Company and Executive entered into an Employment Agreement, dated as of June 1, 1999, which Agreement became effective on August 19, 1999 (“Prior Employment Agreement”); and

WHEREAS, the parties now desire to modify the Prior Employment Agreement in a number of respects and to restate such agreement as hereinafter provided; and

WHEREAS, Executive desires to continue his employment with the Company on the terms and conditions provided herein;

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, the parties hereby agree as follows:

1. Employment and Term.

(a) Subject to the terms and conditions of this Agreement, the Company hereby employs Executive, and Executive hereby accepts employment, as President of the ICS Group of the Company and shall have such responsibilities, duties and authority as may from time to time be assigned to Executive by the Chief Executive Officer or the Board. Executive hereby agrees that during the Term of this Agreement he will devote substantially all his working time, attention and energies to the diligent performance of his duties for the Company.

(b) Unless earlier terminated as provided herein, Executive’s employment under this Agreement shall be for a rolling, two-year term (the “Term”) commencing on the Effective Time (as defined in subsection (c) below), and shall be deemed to extend automatically, without further action by either the Company or Executive, each day for an additional day, such that the remaining term of the Agreement shall continue to be two years; provided, however, that either party may, by written notice to the other, cause this Agreement to cease to extend automatically and, upon such notice, the “Term” of this Agreement shall be the two years following the date of such notice and this Agreement shall terminate upon the expiration of such Term.

(c) This amended and restated Agreement is effective October 1, 2002 (“Effective Time”) and supersedes the Prior Employment Agreement in its entirety and any rights under the Prior Employment Agreement are terminated on the Effective Time.

2. Compensation and Benefits. As compensation for Executive’s services during the Term of this Agreement, Executive shall be paid and receive the compensation and benefits set forth in subsections (a) through (e) below:

(a) An annual base salary (“Base Salary”) of One Hundred Fifty Thousand and No/100 Dollars ($150,000.00), prorated for any partial year of employment. Executive’s Base Salary shall be subject to annual review at such time as the Company conducts salary reviews for its Executives generally. Executive’s Base Salary shall be payable in accordance with the Company’s regular payroll practices in effect from time to time.

(b) Executive shall be eligible to participate in the Executive Management Annual Incentive Program (“Incentive Program”) and such other annual incentive plans as may be established by the Company from time to time for individuals at Executive’s level. The

Company will establish individual and financial performance goals each year under the Incentive Program, and Executive’s annual Target Bonus shall be fifty percent (50%) of Base Salary. The annual incentive bonus payable under this subsection (b) shall be payable as a lump sum at the same time bonuses are paid to other executives, unless Executive elects to defer all or a portion of such bonus pursuant to any deferral plan established by the Company for such purpose.

(c) Executive shall be entitled to participate in, or receive benefits under, any “employee benefit plan” (as defined in Section 3(3) of ERISA) or employee benefit arrangement made generally available by the Company to its Executives, including plans providing retirement, 401 (k) benefits, health care (including Exec-U-Care), life insurance, disability and similar benefits.

(d) Executive is eligible for vacation in accordance with the Company’s standard vacation policy. Executive will be provided a vehicle in accordance with the Company’s automobile policy. Executive will be promptly reimbursed by the Company for all reasonable business expenses Executive incurs and properly reports in carrying out Executive’s duties and responsibilities under this Agreement.

3. Termination.

3.1 Termination. The Company shall have the right to terminate Executive’s employment under this Agreement at any time during the Term by notice to Executive. Executive shall have the right to terminate his employment at any time during the Term by notice to the Company. If the Company terminates Executive’s employment under this Agreement for Cause (as defined in Section 5.2), disability (as determined by the Company), or upon Executive’s death, or if Executive terminates his employment, the Company’s obligations under this Agreement shall cease as of the date of termination; provided, however, that Executive will

be entitled to whatever benefits are payable to Executive pursuant to the terms of any health, life insurance, disability, welfare, retirement or other plan or program maintained by the Company in which Executive participates. If the Company terminates Executive during the Term of this Agreement other than for Cause (and such termination does not result from Executive’s disability or death), Executive shall be entitled to receive the compensation and benefits provided in subsections (a) through (c) below. Unless specified otherwise, the time periods in subsections (a) through (c) below shall be the lesser of (i) the 12-month period (the twenty-four (24) month period if Executive’s date of termination of employment is on or after the date of a Change in Control, as defined in Section 5.3) commencing on the date of Executive’s termination of employment, or (ii) the time period remaining from the date of Executive’s termination until he attains age 65 (such time period under (i) or (ii) is hereinafter referred to as the “Severance Period”). Except as otherwise provided herein, the Company agrees that if Executive terminates employment and is entitled to compensation and benefits under this Section 3.1, he shall not be required to mitigate damages by seeking other employment, nor shall any amount he earns reduce the amount payable by the Company hereunder. Executive agrees that the compensation and benefits provided pursuant to this Section 3.1 shall be the only severance benefits payable to Executive by the Company and its affiliates as a result of Executive’s termination of employment and Executive hereby waives his rights (if any) to any severance benefits under any other plan or program of the Company and its affiliates. The compensation and benefits payable or to be provided under subsections (a) through (c) below shall cease in the event of Executive’s death after termination of employment.

(a) Base Salary - Executive will continue to receive his Base Salary as then in effect (subject to withholding of all applicable taxes) for the Severance Period in the same

manner as it was being paid as of the date of termination; provided, however, that the salary payments provided for hereunder shall be paid in a single lump sum payment, to be paid not later than 30 days after his termination of employment; provided, further, that the amount of such lump sum payment shall be determined by taking the salary payments to be made and discounting them to their Present Value (as defined in Section 5.11) on the date Executive’s employment under this Agreement is terminated.

(b) Bonuses and Incentives - Executive shall receive bonus payments from the Company for each month of the Severance Period in an amount for each such month equal to one-twelfth of the average of the bonuses earned by him for the two fiscal years in which bonuses were paid immediately preceding the fiscal year in which such termination occurs. Any bonus amounts that Executive had previously earned from the Company but which may not yet have been paid as of the date of termination shall be payable on the date such amounts are payable to other executives and Executive’s termination shall not affect the payment of such bonus. Executive shall also receive a prorated bonus for any uncompleted fiscal year at the date of termination (assuming the Target Award level has been achieved for such year), based upon the number of days that he was employed during such fiscal year. The bonus amounts determined herein shall be paid in a single lump sum payment, to be paid not later than 30 days after termination of employment; provided, that the amount of such lump sum payment representing the monthly bonus payments shall be determined by taking the monthly bonus payments to be made and discounting them to their Present Value on the date Executive’s employment under this Agreement is terminated.

(c) Health and Life Insurance Coverage - The health care (including Exec-U-Care) and group term life insurance benefits coverage provided to Executive at his date of

termination shall be continued for the Severance Period at the same level and in the same manner as then provided to actively employed executive participants as if his employment under this Agreement had not terminated. Any additional coverages Executive had at termination, including dependent coverage, will also be continued for such period on the same terms, to the extent permitted by the applicable policies or contracts. Any costs Executive was paying for such coverages at the time of termination shall be paid by Executive by separate check payable to the Company each month in advance. If the terms of any benefit plan referred to in this Section, or the laws applicable to such plan, do not permit continued participation by Executive, then the Company will arrange for other coverage at its expense providing substantially similar benefits (including the same deductible and co-payment levels provided under the Company’s policy). The benefits provided in this subsection (c) shall cease if Executive obtains other employment and, as a result of such other employment, health care and life insurance benefits are available to Executive.

(d) Effect of Lump Sum Payment. The lump sum payments under subsections (a) and (b) above shall not alter the amounts Executive is entitled to receive under the benefit plans described in subsections (c) and (d). Benefits under such plans shall be determined as if Executive had received such payments monthly over the Severance Period.

(e) Stock Options. As of Executive’s date of termination, the vesting and exercisability of all outstanding Time Options and Performance Options held by Executive (and any other outstanding stock options granted to Executive by the Company) shall be determined in accordance with the stock option agreements for such options.

3.2 Release of Claims - To be entitled to any of the compensation and benefits described above in Section 3.1, Executive shall sign a release of claims in the form required by

the Company. No payments shall be made under Section 3.1 until such release has been properly executed and delivered to the Company and until the expiration of the revocation period, if any, provided under the release. If the release is not properly executed by the Executive and delivered to the Company within the reasonable time periods specified in the release, the Company’s obligations under Section 3.1 will terminate.

3.3 Sale of Business - If all or substantially all of the assets of the business unit for which Executive works are sold by the Company and Executive receives a bona fide offer of employment from the purchaser of such assets for a position and with compensation and benefits comparable to those Executive then has with the Company, Executive shall not, as a result of such transaction, be entitled to compensation and benefits under Section 3.1 arising from his termination of employment with the Company. If Executive does not receive such a bona fide offer of employment with comparable compensation and benefits from the purchaser, then the other provisions of this Section 3 shall apply.

4. Confidentiality and Noncompetition.

(a) Executive acknowledges that, prior to and during the Term of this Agreement, the Company has furnished and will furnish to Executive Confidential Information which could be used by Executive on behalf of a competitor of the Company to the Company’s substantial detriment. Moreover, the parties recognize that Executive during the course of his employment with the Company may develop important relationships with customers and others having valuable business relationships with the Company. In view of the foregoing, Executive acknowledges and agrees that the restrictive covenants contained in this Section are reasonably necessary to protect the Company’s legitimate business interests and good will.

(b) Executive agrees that he shall protect the Company’s Confidential Information and shall not disclose to any Person, or otherwise use, except in connection with his duties performed in accordance with this Agreement, any Confidential Information at any time, including following the termination of his employment with the Company for any reason; provided, however, that Executive may make disclosures required by a valid order or subpoena issued by a court or administrative agency of competent jurisdiction, in which event Executive will promptly notify the Company of such order or subpoena to provide the Company an opportunity to protect its interests. Executive’s obligations under this Section 4(b) shall survive any expiration or termination of this Agreement for any reason, provided that Executive may after such expiration or termination disclose Confidential Information with the prior written consent of the Board.

(c) Upon the termination or expiration of his employment hereunder, Executive agrees to deliver promptly to the Company all Company files, customer lists, management reports, memoranda, research, Company forms, financial data and reports and other documents supplied to or created by him in connection with his employment hereunder (including all copies of the foregoing) in his possession or control, and all of the Company’s equipment and other materials in his possession or control. Executive’s obligations under this Section 4(c) shall survive any expiration or termination of this Agreement.

(d) Upon the termination or expiration of his employment under this Agreement, Executive agrees that for a period of one (1) year from his date of termination, he shall not (i) enter into or engage in the design, manufacture, marketing or sale of any products similar to those produced or offered by the Company or its affiliates in the area of North America, either as an individual, partner or joint venturer, or as an Executive, agent or salesman,

or as an officer, director, or shareholder of a corporation, (ii) divert or attempt to divert any person, concern or entity which is furnished products or services by the Company from doing business with the Company or otherwise change its relationship with the Company, or (iii) solicit, lure or attempt to hire away any of the Executives of the Company with whom the Executive interacted directly or indirectly while employed with the Company.

(e) Executive acknowledges that if he breaches or threatens to breach this Section 4, his actions may cause irreparable harm and damage to the Company which could not be compensated in damages. Accordingly, if Executive breaches or threatens to breach this Section 4, the Company shall be entitled to seek injunctive relief, in addition to any other rights or remedies of the Company. The existence of any claim or cause of action by Executive against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company of Executive’s agreement under this Section 4(e).

5. Definitions. For purposes of this Agreement the following terms shall have the meanings specified below:

5.1 “Board” or “Board of Directors”. The Board of Directors of Xxxxxx International, Inc.

5.2 “Cause”. The involuntary termination of Executive by the Company for the following reasons shall constitute a termination for Cause:

(a) If the termination shall have been the result of an act or acts by Executive which have been found in an applicable court of law to constitute a felony;

(b) If the termination shall have been the result of an act or acts by Executive which are in the good faith judgment of the Company to be in violation of law or of policies of the Company and which result in material damage to the Company;

(c) If the termination shall have been the result of an act or acts of proven dishonesty by Executive resulting or intended to result directly or indirectly in gain or personal enrichment to the Executive at the expense of the Company; or

(d) Upon the willful and continued failure by the Executive substantially to perform his duties with the Company (other than any such failure resulting from incapacity due to mental or physical illness not constituting a disability), after a demand in writing for substantial performance is delivered by the Company.

With respect to clauses (b), (c) or (d) above of this Section, Executive shall not be deemed to have been involuntarily terminated for Cause unless and until a notice is delivered to Executive by the Company setting forth (i) the conduct deemed to qualify as Cause, (ii) reasonable action that would remedy such objectionable conduct, and (iii) a reasonable time (not less than thirty days) within which Executive may take such remedial action, and Executive shall not have taken such specified remedial action within such specified reasonable time.

5.3 “Change in Control”. For purposes of this Agreement, Change in Control shall mean (a) the acquisition, directly or indirectly, by any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than any member of the Xxxxxx Group, of securities of Xxxxxx International, Inc. representing an aggregate of more than 50% of the combined voting power of Xxxxxx International, Inc.’s then outstanding securities (excluding the acquisitions by persons who acquire such amount through inheritance); (b) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board, cease for any reason to constitute at least a majority thereof, unless the election of each new director was approved in advance by a vote of at least a majority of the directors then still in office who were directors at the beginning of the period; (c) consummation of (i) a merger,

consolidation or other business combination of Xxxxxx International, Inc. with any other “person” (as such term is used in Sections 13(d) and 14(d) of Exchange Act) or affiliate thereof, other than a merger, consolidation or business combination which would result in the outstanding common stock of Xxxxxx International, Inc. immediately prior thereto continuing to represent (either by remaining ouststanding or by being converted into common stock of the surviving entity or a parent or affiliate thereof) more than 50% of the outstanding common stock of the Xxxxxx International, Inc. or such surviving entity or partners or affiliate thereof, outstanding immediately after such merger, consolidation or business combination, or (ii) a plan of complete liquidation of Xxxxxx International, Inc. or an agreement for the sale or disposition by Xxxxxx International, Inc. or all or substantially all of Xxxxxx International, Inc.’s assets; or (d) a sale of more than 50% of the assets of Xxxxxx International, Inc.; provided that none of the events described in clauses (b) through (d) shall be deemed a Change in Control if, immediately following such event, the Xxxxxx Group owns 50% or more of the combined voting power of Xxxxxx International, Inc.’s then outstanding securities.

5.4 “Code”. The Internal Revenue Code of 1986, as it may be amended from time to time.

5.5 “Confidential Information”. All technical, business, and other information relating to the business of the Company or its subsidiaries or affiliates, including, without limitation, technical or nontechnical data, formulae, compilations, programs, devices, methods, techniques, processes, financial data, financial plans, product plans, and lists of actual or potential customers or suppliers, which (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other Persons, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its

secrecy or confidentiality. Such information and compilations of information shall be contractually subject to protection under this Agreement whether or not such information constitutes a trade secret and is separately protectable at law or in equity as a trade secret. Confidential Information does not include confidential business information which does not constitute a trade secret under applicable law two years after any expiration or termination of this Agreement.

5.6 “Xxxxxx Brothers Merchant Banking Partners”. Xxxxxx Brothers Merchant Banking Partners II, L.P., a Delaware limited partnership.

5.7 “Xxxxxx Group”. Xxxxxx Brothers Merchant Banking Partners and (i) any Affiliate (as defined in the Employee Stockholder Agreement) of Xxxxxx Brothers Merchant Banking Partners, (ii) any Associates (as defined in the Employee Stockholder Agreement) of Xxxxxx Brothers Merchant Banking Partners, (iii) the heirs, executors, administrators, testamentary trustees, legatees or beneficiaries of any member of the Xxxxxx Group, and (iv) a trust, the beneficiaries of which, or a corporation or partnership, the stockholders or general or limited partners of which, include only Xxxxxx Brothers Merchant Banking Partners, Affiliates and Associates of Xxxxxx Brothers Merchant Banking Partners, their spouses, their lineal descendants and any other members of their families, if, in cases of clauses (ii) through (iv) above, such Person agrees in writing to be bound by the terms of the Employee Stockholder Agreement as a member of the Xxxxxx Group.

5.8 “Person”. Any individual, corporation, bank, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or other entity.

5.9 “Present Value”. The term “Present Value” on any particular date shall have the same meaning as provided in Section 280G(d)(4) of the Code.

6. Termination Procedures. During the Term of this Agreement, any purported termination of Executive’s employment (other than by reason of death) shall be communicated by written Notice of Termination from one party hereto to the other party hereto in accordance with Section 10. A Notice of Termination for Cause is required to include the information set forth in Section 5.2. “Date of Termination,” with respect to any purported termination of Executive’s employment during the Term of this Agreement, shall mean (i) if Executive’s employment is terminated by his death, the date of his death, (ii) if Executive’s employment is terminated for disability, thirty (30) days after Notice of Termination is given (provided that Executive shall not have returned to the full-time performance of Executive’s duties during such thirty (30) day period), and (iii) if Executive’s employment is terminated for any other reason, the date specified in the Notice of Termination (which, in the case of a termination by the Company, shall not be less than thirty (30) days, except in the case of a termination for Cause; and in the case of a termination by the Executive, shall not be less than thirty (30) days nor more than sixty (60) days, respectively, from the date such Notice of Termination is given).

7. Contract Non-Assignable. The parties acknowledge that this Agreement has been entered into due to, among other things, the special skills of Executive, and agree that this Agreement may not be assigned or transferred by Executive, in whole or in part, without the prior written consent of the Company.

8. Successors: Binding Agreement.

8.1 In addition to any obligations imposed by law upon any successor to, or transferor of, the Company, the Company will require any successor to, or transferor of, all or substantially all of the business and/or assets of the Company (whether direct or indirect, by purchase, merger, reorganization, liquidation, consolidation or otherwise) to expressly assume and agree to perform

this Agreement, in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place.

8.2 This Agreement shall inure to the benefit of and be enforceable by Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees and by the Company’s successors and assigns. If Executive shall die while any amount would still be payable to Executive hereunder (other than amounts which, by their terms, terminate upon the death of Executive) if Executive had continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to the executors, personal representatives or administrators of Executive’s estate.

9. Other Agents. Nothing in this Agreement is to be interpreted as limiting the Company from employing other personnel on such terms and conditions as may be satisfactory to the Company.

10. Notices. All notices, requests, demands and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given if delivered or seven days after mailing if mailed, first class, certified mail, postage prepaid:

	To the Company:	Xxxxxx International, Inc.
		X.X. Xxx 00000
		Xxxxxxxx, Xxxxxx 00000-0000
		ATTN: Xxxxx Xxxxxxxx

	With a copy to:	Xxxxxxx X. Xxxxxx, III
		Xxxxxx International, Inc.
		X.X. Xxx 00000
		Xxxxxxxx, Xxxxxx 00000-0000

	To the Executive:	Xxxxx Xxx XxxxxxXxxxxx
		Xxxxxx, Inc.
		X.X. Xxx 00000
		Xxxxxxxx, Xxxxxx 00000-0000

Any party may change the address to which notices, requests, demands and other communications shall be delivered or mailed by giving notice thereof to the other party in the same manner provided herein.

11. Provisions Severable. If any provision or covenant, or any part thereof, of this Agreement should be held by any court to be invalid, illegal or unenforceable, either in whole or in part, such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of the remaining provisions or covenants, or any part thereof, of this Agreement, all of which shall remain in full force and effect.

12. Waiver. Failure of either party to insist, in one or more instances, on performance by the other in strict accordance with the terms and conditions of this Agreement shall not be deemed a waiver or relinquishment of any right granted in this Agreement or the future performance of any such term or condition or of any other term or condition of this Agreement, unless such waiver is contained in a writing signed by the party making the waiver.

13. Indemnification. During the term of this Agreement and after Executive’s termination for a period of time equal to the Severance Period, the Company shall indemnify Executive and hold Executive harmless from and against any claim, loss or cause of action arising from or out of Executive’s performance as an officer, director or employee of the Company or any of its subsidiaries or other affiliates or in any other capacity, including any fiduciary capacity, in which Executive serves at the Company’s request, in each case to the maximum extent permitted by law and under the Company’s Articles of Incorporation and By-Laws (the “Governing Documents”), provided that in no event shall the protection afforded to Executive hereunder be less than that afforded under the Governing Documents as in effect on the date of this Agreement except for changes mandated by law. During the Term and for a

period of time equal to the Severance Period, Executive shall be covered in accordance with the terms of any policy of directors and officers liability insurance maintained by the Company for the benefit of its officers and directors.

14. Amendments and Modifications: Governing Law. This Agreement may be amended or modified only by a writing signed by both parties hereto. The validity and effect of this Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.

	EXECUTIVE:


	/s/ Xxxxx X. XxxxxxXxxxxx
	Xxxxx Xxx XxxxxxXxxxxx


	COMPANY:
	XXXXXX, INC.


	By: /s/ Xxxxx X. Xxxxxxxx

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AMENDED AND RESTATED EMPLOYMENT AGREEMENT

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