AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.8
AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
EXECUTIVE EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (“Agreement”) is made to be effective
as of December 30, 2008, between X. X. Xxxxx Corporation, an Ohio corporation (the “Company”), and
Xxxxxx X. Xxxxx (“Executive”) under the following circumstances:
A. The parties originally entered into this Agreement effective as of
June 5, 2000 (the “Original Agreement Date”), and subsequently amended
the Agreement to extend the Term of Employment (as defined in Section
2); and
B. Pursuant to Section 12 of the Agreement, the parties desire to amend
and restate the Agreement in its entirety to comply with the
requirements of Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”).
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND THE MUTUAL COVENANTS CONTAINED HEREIN,
THE COMPANY AND EXECUTIVE AGREE AS FOLLOWS:
Section 1. Employment. The Company hereby agrees to continue to employ Executive,
and Executive hereby agrees to continue to be employed by the Company, on the terms and conditions
set forth herein.
Section 2. Term of Employment. The term of employment of Executive by the Company
under this Agreement commenced on June 5, 2000 and shall end on August 30, 2009 (the “Term of
Employment”).
Section 3. Position and Duties.
(a) Position. The Company shall continue to employ Executive as, and Executive shall
continue to serve as, Senior Vice President — Finance, Chief Financial Officer and Secretary of the
Company or any other position within the discretion of the Board of Directors of the Company, with
his duties, authority and responsibilities to be as reasonably assigned by the Chief Executive
Officer or the Board of Directors of the Company consistent with the applicable titles and
positions.
(b) Duties. Executive shall devote his full-time efforts to the business and affairs
of the Company and shall perform his duties faithfully, diligently, and to the best of his ability
and in conformity with the policies of the Company and under and subject to such reasonable
directions and instructions as the Board of Directors and the Chief Executive Officer of the
Company may issue from time to time.
Section 4. Compensation and Related Matters.
(a) Salary. The Company shall pay Executive a base salary of not less than $220,000
per year payable in approximately equal installments in accordance with the Company’s normal pay
schedule. In the event the Company shall at any time or times after the Original Agreement Date
increase Executive’s base salary, then Executive’s base salary under this Agreement for any period
after any such increase shall be not less than the last amount to which the Company increased the
base salary of Executive (such base salary including increases granted after the Original Agreement
Date is hereinafter referred to as “Basic Salary”). Compensation of Executive by Basic Salary
payments shall not be deemed exclusive and shall not prevent Executive from participating in any
other compensation or benefit plan of the Company. The Basic Salary payments hereunder shall not
in any way limit or reduce any other obligation of the Company hereunder, and no other
compensation, benefit or payment hereunder shall in any way limit or reduce the obligation of the
Company to pay Executive’s Basic Salary hereunder.
(b) Expenses. During the Term of Employment, Executive shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by Executive in performing services
hereunder, including all reasonable expenses of travel and living expenses while away from home on
business or at the request of and in the service of the Company, provided that such expenses are
incurred and accounted for in accordance with the policies and procedures established by the
Company.
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(c) Other Benefits. During the Term of Employment:
(1) Executive shall be entitled to receive such perquisites and fringe benefits historically
provided by the Company to its senior executives, including, without limitation, a monthly
automobile allowance which shall be payable on the first pay period of each month and bi-weekly
health club dues. Any perquisite provided pursuant to this Section 4(c) shall be subject to the
following requirements: (i) the amount of expenses eligible for reimbursement or benefits provided
during any taxable year of Executive may not affect the expenses eligible for reimbursement or
benefits to be provided in any other taxable year of Executive; (ii) any reimbursement of an
eligible expense shall be made on or before the last day of the taxable year of Executive following
the taxable year of Executive in which the expense was incurred; and (iii) the right to such
reimbursement or benefit may not be subject to liquidation or exchange for another benefit.
(2) Executive shall be entitled to participate in the Company’s Executive Supplemental Pension
Plan and Executive Variable Life Insurance Plan, as either of the same may be amended from time to
time, or any substitute or successor plans;
(3) Executive shall be entitled to participate in the Company’s Short-Term Incentive Plan
(STIPS), as the same may be amended from time to time, or any substitute or successor plan, at a
maximum annual level equal to 60% of his Basic Salary; and
(4) Executive shall be entitled to receive all other employee benefits, including, without
limitation, medical, dental, disability, 401(k), retirement, group life and accidental death
insurance benefits as are or in the future may be provided by the Company to its senior executives.
Section 5. Termination. For purposes of this Agreement, “termination” or any form
thereof shall mean a “separation from service,” within the meaning of Treasury Regulation
§1.409A-1(h), with the Company and all persons with whom the Company would be considered a single
employer under Sections 414(b) and (c) of the Code.
(a) Termination of Employment Other Than by Executive. Executive’s employment
hereunder may be terminated without any breach of this Agreement only under the following
circumstances:
(1) Death. Executive’s employment hereunder shall
terminate upon his death.
(2) Disability. If, as a result of Executive’s incapacity
due to physical or mental illness, Executive shall have been absent from
his duties hereunder on a full-time basis for the entire period of four
(4) consecutive months, and within ten (10) days after written Notice of
Termination (as defined in Section 5(d)) is given (which may occur
before or after the end of such four (4) month period) shall not have
returned to the performance of his duties hereunder on a full-time
basis, the Company may terminate Executive’s employment hereunder for
“Disability.”
(3) Cause. The Company may terminate Executive’s
employment hereunder for Cause. For purposes of this Agreement, the
Company shall have “Cause” to terminate Executive’s employment hereunder
only upon:
(i) The willful and continued refusal by Executive to perform his
duties with the Company (other than any such refusal resulting from his
incapacity due to physical or mental illness), after a demand for
substantial performance is delivered to Executive by the Company which
specifically identifies the manner in which it is believed that
Executive has refused substantially to perform his duties;
(ii) Conviction of Executive of any felony; or
(iii) Willful and gross misconduct materially and demonstrably
injurious to the Company.
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(b) Termination of Employment by Executive. Executive may terminate his employment
hereunder for Good Reason. As used herein, “Good Reason” means any of the following:
(1) The assignment to Executive, without his consent, of any duties
materially inconsistent with his position, duties, responsibilities and
status with the Company on the Original Agreement Date, or a change in
Executive’s responsibilities, as in effect on the Original Agreement
Date, which materially diminishes Executive’s responsibilities with the
Company when considered as a whole; provided, however, that the
foregoing shall not constitute Good Reason if done in connection with
the termination of Executive’s employment because of Disability or for
Cause.
(2) A reduction by the Company in Executive’s Basic Salary.
(3) Failure by the Company to comply with the provisions of Section
4(c).
(4) The Company’s requiring Executive, without his consent, to be
based anywhere other than the location where Executive is based on the
Original Agreement Date, if the same requires Executive to relocate his
principal residence; or, in the event Executive consents to being based
anywhere other than such location, the failure by the Company to pay (or
reimburse Executive for) all reasonable moving expenses incurred by
Executive relating to a change of Executive’s principal residence in
connection with such relocation.
(5) The failure of the Company to obtain the assumption of this
Agreement by any successor as provided in Section 9.
(c) Notice of Termination. Any termination of Executive’s employment by the Company
or by Executive other than a termination pursuant to Section 5(a)(1) shall be communicated by
written Notice of Termination to the other party. 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 Executive’s employment under the provision so indicated.
(d) Date of Termination. “Date of Termination” shall mean (i) if Executive’s
employment is terminated by his death, the date of his death, (ii) if Executive’s employment is
terminated pursuant to Section 5(a)(2), ten (10) days after Notice of Termination is given
(provided that Executive shall not have returned to the performance of his duties on a full-time
basis during such ten (10) day period), or (iii) if Executive’s employment is terminated for any
other reason, the date on which the Notice of Termination is given; provided that, in each case,
such date also constitutes the date of Executive’s “separation from service,” within the meaning of
Treasury Regulation §1.409A-1(h).
Section 6. Compensation Upon Termination or During Disability.
(a) Disability. During any period that Executive fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness (“Disability Period”),
Executive shall continue to receive his Basic Salary in accordance with the Company’s normal pay
schedule at the rate then in effect for such period until his employment is terminated pursuant to
Section 5(a)(2), provided that payments of Basic Salary so made to Executive shall be reduced by
the sum of the amounts, if any, payable to Executive at or prior to the time of any such salary
payment under disability benefit plans of the Company and which were not previously applied to
reduce any payment of Basic Salary.
(b) Death. If Executive’s employment is terminated by his death, the Company shall
pay to Executive’s estate his full Basic Salary through the Date of Termination in accordance with
the Company’s normal pay schedule at the rate in effect on the date of death and shall thereafter
have no further obligations to Executive under this Agreement.
(c) Termination for Cause. If Executive’s employment is terminated for Cause, the
Company shall pay Executive his full Basic Salary through the Date of Termination in accordance
with the Company’s normal pay schedule at the rate in effect at the time Notice of Termination is
given and the Company shall have no further obligations to Executive under this Agreement.
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(d) Termination for Good Reason or Without Cause. In the event Executive terminates
his employment with the Company for Good Reason or the Company terminates Executive’s employment
for any reason other than for Cause or Disability, in either case at any time prior to the
expiration of the Term of Employment, Executive shall be entitled to the following payments and
benefits:
(1) The Company shall pay to Executive, not later than thirty (30) days following the Date of
Termination, Executive’s accrued but unpaid Basic Salary through the Date of Termination plus
compensation for current unused vacation and compensation days in accordance with the applicable
personnel policy.
(2) In lieu of any further payments of salary or bonus to Executive after the Date of
Termination, the Company shall pay to Executive, not later than ten (10) days following the Date of
Termination, a lump sum cash severance payment (the “Severance Payment”) equal to the total
compensation (including bonus) paid to or accrued for the benefit of Executive by the Company for
services rendered during the twelve-month period immediately preceding the Date of Termination.
(3) Notwithstanding anything in this Agreement to the contrary, if Executive is a “specified
employee” (within the meaning of Section 409A of the Code and the Treasury Regulations promulgated
thereunder and as determined under the Company’s policy for determining specified employees) on the
Date of Termination, any payment under this Section 6(d) that is required to be delayed pursuant to
Section 409A(a)(2)(B)(i) of the Code shall not be paid until the first business day of the seventh
month following the Date of Termination (or, if earlier, Executive’s death).
(4) After payment of the sums described in subparagraphs (d)(1) and (d)(2) above, the Company
shall have no further obligations to Executive under this Agreement; provided that Executive’s
right to receive payments under this Agreement shall not decrease the amount of, or otherwise
adversely affect, any other benefits payable to Executive under any other plan, agreement or
arrangement relating to employee benefits provided by the Company.
(e) Voluntary Termination by Executive Without Good Reason. In the event Executive
terminates his employment with the Company without Good Reason, the Company shall pay to Executive
his full Basic Salary through the Date of Termination in accordance with the Company’s normal pay
schedule at the rate then in effect and the Company shall have no further obligations to Executive
under this Agreement.
(f) Mitigation Not Required. Executive shall not be required to mitigate the amount
of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall
the amount of any payment or benefit provided for him in this Section 6 be reduced by any
compensation earned by Executive as the result of employment by another employer or by reason of
Executive’s receipt of or right to receive any retirement or other benefits after the Date of
Termination or otherwise.
Section 7. Non-Competition; Confidentiality
(a) Period. During Executive’s employment with the Company and for a period of one
(1) year following any termination of Executive’s employment with the Company (other than following
a Hostile Change of Control (as defined below)), Executive shall not, as a shareholder, employee,
officer, director, partner, consultant or otherwise, engage directly or indirectly in any business
or enterprise which is in Competition with the Company (as defined below).
(b) Competition with the Company. For purposes of this Agreement, (i) the words
“Competition with the Company” shall be deemed to include competition with the Company or any
entity controlling, controlled by or under common control with the Company (an “Affiliate”), or
their respective successors or assigns, or the business of any of them, and (ii) a business or
enterprise shall be deemed to be in Competition with the Company if it is engaged in any business
activity which is the same or comparable to any business activity of the Company or any Affiliate
from time to time during the Term of Employment in any geographic area (whether within or outside
the United States) in which the Company or any Affiliate conducted such business. Notwithstanding
the foregoing, nothing herein contained shall prevent Executive from purchasing and holding for
investment less than 3% of the shares of any corporation the shares of which are regularly traded
either on a national securities exchange or in the over-the-counter market.
(c) Interpretation of Covenant. The parties hereto agree that the duration and area
for which the covenant not to compete set forth in this Section 7 is to be effective are
reasonable. In the event that any court determines that the time period or the area, or both of
them, are unreasonable and that such covenant is to that extent unenforceable, the parties hereto
agree that the
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covenant shall remain in full force and effect for the greatest time period and in the
greatest area that would not render it unenforceable. The parties intend that this covenant shall
be deemed to be a series of separate covenants, one for each and every county of each and every
state of the United States of America where the covenant not to compete is intended to be
effective. The provisions of this Section 7 shall survive any termination of this Agreement.
(d) Prohibition on Disclosure or Use. Executive shall at all times keep and maintain
Confidential Information (as defined below) confidential, and Executive shall not, at any time,
either during or subsequent to the Term of Employment, either directly or indirectly, use any
Confidential Information for Executive’s own benefit or divulge, disclose, or communicate any
Confidential Information to any person or entity in any manner whatsoever other than employees or
agents of the Company having a need to know such Confidential Information, and only to the extent
necessary to perform their responsibilities on behalf of the Company and other than in the
performance of Executive’s duties hereunder.
(e) Definition of Confidential Information. “Confidential Information” shall mean any
and all information (excluding information in the public domain) related to the business of the
Company or any Affiliate, including without limitation all processes; inventions; trade secrets;
computer programs; engineering or technical data, drawings, or designs; manufacturing techniques;
information concerning pricing and pricing policies; marketing techniques; plans and forecasts; new
product information; information concerning suppliers; methods and manner of operations; and
information relating to the identity and location of all past, present, and prospective customers.
(f) Equitable Relief. Executive’s obligations contained in this Section 7 are of
special and unique character which gives them a peculiar value to the Company, and the Company
cannot be reasonably or adequately compensated in damages in an action at law in the event
Executive breaches such obligations. Executive therefore expressly agrees that, in addition to any
other rights or remedies which the Company may possess, the Company shall be entitled to injunctive
and other equitable relief in the form of preliminary and permanent injunctions without bond or
other security in the event of any actual or threatened breach of said obligations by Executive.
(g) Definition of Change of Control. A “Hostile Change of Control” shall be deemed to
have occurred if (i) any “person” (as that term is used in §13(d) and §14(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) on the Original Agreement Date), including
any “group” as such term is used in Section 13(d)(3) of the Exchange Act on the Original Agreement
Date (an “Acquiring Person”), shall hereafter acquire (or disclose the previous acquisition of)
beneficial ownership (as that term is defined in Section 13(d) of the Exchange Act and the rules
thereunder on the Original Agreement Date) of shares of the outstanding stock of any class or
classes of the Company which results in such person or group possessing more than 50.1% of the
total voting power of the Company’s outstanding voting securities ordinarily having the right to
vote for the election of directors of the Company (a “Control Acquisition”); or (ii) as the result
of, or in connection with, any tender or exchange offer, merger or other business combination, sale
of assets or contested election, or any combination of the foregoing transactions (“Transaction”),
the persons who were directors of the Company immediately before the completion of the Transaction
shall cease to constitute a majority of the Board of Directors of the Company or any successor to
the Company. Anything contained in this paragraph (g) to the contrary notwithstanding, a “Hostile
Change of Control” shall not be deemed to have occurred if the Control Acquisition or the
Transaction is approved by a majority of the directors of the Company who were directors of the
Company before the completion of the Control Acquisition or the Transaction.
Section 8. Waiver. The failure of either party to this Agreement to insist, in any
one or more instances, upon the performance of any of the terms, covenants or conditions of this
Agreement by the other party hereto, shall not be construed as a waiver or as a relinquishment of
any right granted hereunder to the party failing to insist on such performance, or as a waiver of
the future performance of any such term, covenant or condition, but the obligations hereunder of
both parties hereto shall remain unimpaired and shall continue in full force and effect.
Section 9. Successors; Binding Agreement.
(a) The Company shall require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of the
Company and its subsidiaries 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 succession had
taken place. Failure of the Company to obtain such agreement prior to the effectiveness of any
such succession shall be a breach of this Agreement and such failure shall constitute Good Reason
under Section 6(d). As used in this Agreement, “Company” shall mean the Company as defined above
and any successor to its business and/or assets as aforesaid which executes
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and delivers the agreement provided for in this Section 9 or which otherwise becomes bound by
all the terms and provisions of this Agreement by operation of law.
(b) 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. If Executive should die while any amounts would still be payable to him hereunder if he
had continued to live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to his devisee, legatee or other designee or, if there
be no such designee, to his estate.
Section 10. Arbitration. Any dispute or controversy arising out of or relating to
this Agreement, or any breach thereof, shall be settled by arbitration in accordance with the rules
of the American Arbitration Association. The award of the arbitrator shall be final, conclusive,
and nonappealable and judgment upon such award rendered by the arbitrator may be entered in any
court having jurisdiction thereof. The arbitrator shall be an arbitrator qualified to serve in
accordance with the rules of the American Arbitration Association and one who is approved by both
the Company and Executive. In the absence of such approval, each party shall designate a person
qualified to serve as an arbitrator in accordance with the rules of the American Arbitration
Association and the two persons so designated shall select the arbitrator from among those persons
qualified to serve in accordance with the rules of the American Arbitration Association. The
arbitration shall be held in Columbus, Ohio or such other place as may be agreed upon at the time
by the parties to the arbitration.
Section 11. Notices. Notices and all other communications provided for in this
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 in the case
of Executive, to the address (or to the facsimile number) on file with the records of the Company
and in the case of the Company, to the principal executive offices of the Company, provided that
all notices to the Company shall be directed to the attention of the Company’s Chief Executive
Officer with copies to the Secretary of the Company and to its Board of Directors, or to such other
address as either party may have furnished to the other in writing in accordance herewith, except
that notices of change of address shall be effective only upon receipt.
Section 12. Miscellaneous. No provisions of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in a writing signed by
Executive and a duly authorized officer of the Company. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreements
or representations, oral or otherwise, express or implied, with respect to the subject matter
hereof have been made by either party which are not set forth expressly in this Agreement. The
validity, interpretation, construction and performance of this Agreement shall be governed by the
laws (but not the law of conflicts of laws) of the State of Ohio.
Section 13. Validity. The invalidity or unenforceability of any provisions of this
Agreement shall not affect the validity or enforceability of any other provisions of this
Agreement, which shall remain in full force and effect.
Section 14. Prior Agreements. This Agreement supersedes all prior agreements and
understandings between Executive and the Company regarding the terms and conditions of Executive’s
employment by the Company.
Section 15. Compliance with Section 409A of the Code. It is intended that this
Agreement comply with Section 409A of the Code and the Treasury Regulations promulgated thereunder,
and this Agreement will be interpreted, administered and operated accordingly. Nothing herein
shall be construed as an entitlement to or guarantee of any particular tax treatment to Executive,
and neither the Company nor the Board of Directors of the Company shall have any liability to
Executive for a failure to comply with the requirements of Section 409A of the Code.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year
above written.
| X. X. XXXXX CORPORATION |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Title: | Senior Vice President — Treasurer | |||
| /s/ Xxxxxx X. Xxxxx | ||||
| Xxxxxx X. Xxxxx | ||||
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