Exhibit 10.23(a)
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is made
and entered into as of the 24th day of October, 1997, by and between Xxxxx'x
General Stores, Inc., an Iowa corporation (the "Company"), and Xxxxxxx X. Xxxxx
("Xxxxx").
WHEREAS, the Board of Directors of the Company (the "Board of
Directors") recognizes that the dedication of Xxxxx as an officer and director
to the affairs and welfare of the Company has resulted in a long and successful
association; and
WHEREAS, the Board of Directors further recognizes that the Company has
grown and prospered as a result of its association with Xxxxx, and has
determined that it is in the best interests of the Company and its shareholders
to preserve this association so as to enable the Company to further benefit from
Xxxxx'x superior knowledge and expertise in all of its present and future
business endeavors; and
WHEREAS, the Company and Xxxxx are parties to an Employment Agreement
dated as of March 2, 1992, as amended by a First Amendment to Employment
Agreement date as of January 9, 1997 (together, the "Original Agreement"),
providing for the employment of Xxxxx to serve as the Treasurer of the Company
under the terms and conditions set forth therein; and
WHEREAS, the Board of Directors has further determined that it is
appropriate and in the best interests of the Company and its shareholders to
modify the existing contractual arrangements with respect to Xxxxx'x employment
by the Company, with the concurrence of Xxxxx, and to amend and restate the
Original Agreement to reflect the same; and
WHEREAS, the Board of Directors has further determined that it is in
the best interest of the Company and its shareholders to assure that the Company
will have the continued dedication of Xxxxx, notwithstanding the possibility,
threat or occurrence of a Change of Control (as defined below) of the Company,
and to further encourage Xxxxx'x full attention and dedication to the Company
currently and in the event of any threatened or pending Change of Control, and
to provide Xxxxx with compensation arrangements upon a Change of Control which
provide him with compensation for expected losses that he would suffer in the
event of a Change of Control and which are competitive with those of other
corporations, and, in order to accomplish these objectives, has determined to
cause the Company to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. For purposes of this Agreement, and in addition to
the other definitions set forth herein, the following terms shall have the
following meanings:
a) "Change of Control" shall mean:
(i) the acquisition (other than from the Company) by any
Person (as hereinafter defined), entity or "group" within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange
Act"), (excluding for this purpose, the Company or any employee benefit plan of
the Company, which acquires beneficial ownership of voting securities of the
Company) of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of twenty percent (20%) or more of either the then
outstanding shares of Common Stock, no par value, of the Company or the combined
voting power of the Company's then outstanding voting securities entitled to
vote generally in the election of directors (hereinafter referred to as the
"Common Stock"), unless such beneficial ownership was acquired as a result of an
acquisition of shares of Common Stock by the Company which, by reducing the
number of shares outstanding, increases the proportionate number of shares
beneficially owned by such Person, entity or "group" to twenty percent (20%) or
more of the Common Stock of the Company then outstanding; provided, however,
that if a Person, entity or "group" shall become the beneficial owner of twenty
percent (20%) or more of the Common Stock of the Company then outstanding by
reason of share purchases by the Company and shall, after such share purchases
by the Company, become the beneficial owner of any additional shares of Common
Stock of the Company, then such Person, entity or "group" shall be deemed to
have met the conditions hereof; or
(ii) individuals who, as of the date hereof, constitute the
Board of Directors (as of the date hereof, the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board of Directors, provided
that any person becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's shareholders, was approved
by a vote of at least a majority of the directors then comprising the Incumbent
Board (other than an election or nomination of an individual whose initial
assumption of office is in connection with an actual or threatened election
contest relating to the election of the directors of the Company, as such terms
are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act)
shall be, for purposes of this Agreement considered as though such person were a
member of the Incumbent Board; or
(iii) approval by the shareholders of the Company of a
reorganization, merger, consolidation (in each case, with respect to which
persons who were the shareholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter, own more
than fifty percent (50%) of the combined voting power entitled to vote generally
in the election of directors of the reorganized, merged or consolidated
company's then outstanding voting securities) or a liquidation or dissolution of
the Company or of the sale of all or substantially all of the assets of the
Company.
(b) "Annual Increase" shall take effect on each January 1 for which the
benefit at issue is payable and shall mean fifty percent (50%) of the annual
increase in the National Consumer Price Index for the City of Des Moines, Iowa,
as published by the United States Bureau of Labor Statistics.
(c) "Annual Bonus" shall mean any bonus payable at the discretion of
the Board of Directors of the Company, on such terms and in such amounts as it
shall determine.
(d) "Employment Period" shall mean the term of Xxxxx'x employment under
this Agreement, as set forth in Section 2 hereof.
(e) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(f) "Accrued Obligations" shall mean (i) Xxxxx'x Salary through the
Date of Termination at the rate in effect on the Date of Termination, (ii) the
product of the Annual Bonus paid to Xxxxx for the last full fiscal year and a
fraction, the numerator of which is the number of days in the current fiscal
year through the Date of Termination, and the denominator of which is 365 and
(iii) any compensation previously deferred (together with any accrued interest
thereon) and not yet paid by the Company and any accrued vacation pay not yet
paid by the Company.
(g) "Person" shall mean any individual, firm, corporation or other
entity, and shall include any successor (by merger or otherwise) and all
"affiliates" and "associates" of such entity (as those terms are defined in Rule
12b-2 of the General Rules and Regulations under the Exchange Act).
2. EMPLOYMENT AND TERM. The Company agrees to employ Xxxxx, and Xxxxx
agrees to serve the Company, as Treasurer of the Company until August 1, 2001,
unless his employment is otherwise terminated as provided herein; provided,
however, that in the event of a Change of Control during the foregoing
Employment Period, this Agreement shall continue in full force and effect for an
additional period of three (3) years following the expiration of the Employment
Period (until August 1, 2004).
3. DUTIES OF XXXXX. During the period of his employment in the
capacity of Treasurer, Xxxxx agrees to devote all professional skill and energy
to the faithful and full satisfaction of his duties as Treasurer. It is agreed
and understood that Xxxxx will perform all duties assigned to him, which shall
be substantially the same as those performed by Xxxxx as Treasurer of the
Company prior to the date of this Agreement (including status, offices, titles
and reporting requirements), to the full satisfaction of the Board of Directors.
The Company agrees that Xxxxx shall have such authority and discretion as is
necessary to fully and faithfully perform his duties in a proper and efficient
manner, subject to review by the Board of Directors.
During the period of his employment, it shall not be a violation of
this Agreement for Xxxxx to (i) serve on corporate, civil or charitable boards
or committees, (ii) deliver lectures or fulfill speaking engagements and (iii)
manage personal investments, so long as such activities do not significantly
interfere with the performance of Xxxxx'x responsibilities as an employee of the
Company in accordance with this Agreement. It is expressly understood and agreed
that to the extent that any such activities have been conducted by Xxxxx prior
to the date hereof, the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent to the date hereof
shall not thereafter be deemed to interfere with the performance of Xxxxx'x
responsibilities to the Company.
4. COMPENSATION. The Company shall pay to Xxxxx an annual salary of One
Hundred Forty-Five Thousand Dollars ($145,000), payable in equal monthly
installments, or such other amount as shall be mutually agreed upon by the
Company and Xxxxx (the "Salary"). In addition, Xxxxx and/or Xxxxx'x family shall
be entitled to receive all benefits presently provided or those which may
hereafter be provided generally by the Company to its employees, officers or
directors, including health insurance and life insurance. With respect to such
health insurance benefits, the Company agrees that at all times the health
insurance coverages available to Xxxxx and his spouse under such plans shall
include provisions providing for lifetime benefits payable on behalf of Xxxxx
and his spouse of not less than One Million Dollars ($1,000,000) each, or such
other amount as the Company and Xxxxx may specifically agree upon in writing,
subject, however, to any limitations, restrictions or conditions that shall from
time to time be necessary to satisfy the requirements of applicable federal or
state laws and regulations.
5. TERMINATION OF EMPLOYMENT. (a) Death or Disability. Xxxxx'x
employment under this Agreement shall terminate automatically upon Xxxxx'x
death. If the Company determines in good faith that the Disability of Xxxxx has
occurred (pursuant to the definition of "Disability" set forth below), it may
give to Xxxxx written notice of its intention to terminate Xxxxx'x employment as
Treasurer of the Company. In such event, Xxxxx'x employment with the Company
shall terminate effective on the thirtieth (30th) day after receipt of such
notice by Xxxxx (the "Disability Effective Date"), provided that,
within the thirty (30) days after such receipt, Xxxxx shall not have returned to
full-time performance of his duties. For purposes of this Agreement, "Disability
means disability or incapacity of Xxxxx which, at least twenty-six (26) weeks
after its commencement, is determined by the Board of Directors upon competent
medical advice to be such as to prevent Xxxxx from performing substantially all
of the duties as Treasurer of the Company.
Notwithstanding any Disability on the part of Xxxxx, the Company shall
continue at all times to offer and provide health insurance coverages to Xxxxx
and his spouse, in accordance with the plans, programs, practices and policies
provided by the Company during the 90-day period immediately preceding the
Disability Effective Date or, if more favorable to Xxxxx, as in effect at any
time thereafter with respect to other key employees and their families, until
the death of Xxxxx and his spouse, except to the extent such coverage is or
otherwise becomes available to Xxxxx and his spouse under the Medicare program
of benefits.
(b) Cause. The Company may terminate Xxxxx'x employment for "Cause."
For purposes of this Agreement, "Cause" means (i) an act or acts of personal
dishonesty taken by Xxxxx and intended to result in substantial personal
enrichment of Xxxxx at the expense of the Company, (ii) repeated violations by
Xxxxx of Xxxxx'x obligations under Section 3 of this Agreement which are
demonstratively willful and deliberate on Xxxxx'x part and which are not
remedied in a reasonable period of time after receipt of written notice from the
Company or (iii) the conviction of Xxxxx of a felony when such conviction is no
longer subject to direct appeal.
(c) Good Reason. Xxxxx'x employment may be terminated by Xxxxx
for Good Reason. For purposes of this Agreement, "Good Reason" means:
(i) the assignment to Xxxxx of any duties inconsistent in any
respect with Xxxxx'x position (including status, office, titles and reporting
requirements), authority, duties or responsibilities as contemplated by Section
3 of this Agreement, or any other action by the Company which results in a
diminution in such position, authority, duties or responsibilities, excluding
for this purpose an isolated, insubstantial and inadvertent action not taken in
bad faith and which is remedied by the Company promptly after receipt of notice
thereof given by Xxxxx;
(ii) Any failure by the Company to comply with the provisions
of Section 4 of this Agreement, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by Xxxxx;
(iii) the Company's requiring Xxxxx to be based at any
office or location
other than the Company's Corporate Headquarters facility in Ankeny,
Iowa, except for travel reasonably required in the performance of Xxxxx'x
responsibilities;
(iv) any purported termination by the Company of Xxxxx'x
employment otherwise than for death, Disability or Cause as expressly permitted
by this Agreement; or
(v) any failure by the Company to comply with and satisfy
Section 13(c) of this Agreement.
For purposes of this Section 5(c), any good faith determination of
"Good Reason" made by Xxxxx shall be conclusive.
(d) Notice of Termination. Any termination by the Company for Cause or
by Xxxxx for Good Reason shall be communicated by Notice of Termination to the
other party hereto given in accordance with Section 14(b) of this Agreement. For
purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of Xxxxx'x employment under the provision so
indicated and (iii) if the Date of Termination (as defined below) is other than
the date of receipt of such notice, specifies the termination date (which date
shall be not more than fifteen (15) days after the giving of such notice). The
failure by Xxxxx to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason shall not waive any
right of Xxxxx hereunder or preclude Xxxxx from asserting such fact or
circumstance in enforcing his rights hereunder.
(e) Date of Termination. "Date of Termination" means the date of
receipt of the Notice of Termination or any later date specified therein, as the
case may be; provided, however, that (i) if Xxxxx'x employment is terminated by
the Company other than for Cause or Disability, the Date of Termination shall be
the date on which the Company notifies Xxxxx of such termination and (ii) if
Xxxxx'x employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of Xxxxx or the Disability Effective
Date, as the case may be.
6. OBLIGATIONS OF THE COMPANY UPON TERMINATION OF
EMPLOYMENT. (a) Death of Xxxxx. In the event of the death of Xxxxx during the
term hereof, the Company shall pay to Xxxxx'x spouse, commencing on the first
day of the month following his death and continuing for a period of twelve (12)
months thereafter, benefits equal to the monthly installments of Salary which
was then being paid to Xxxxx pursuant to Section 4 herein. Immediately following
such one-year period, the Company shall commence the payment of monthly benefits
to Xxxxx'x spouse equal in amount to one-fourth (1/4) of the monthly
installments of Salary which was being paid to Xxxxx at
the time of his death under Section 4 herein, which monthly benefits shall be
paid for a period of twenty (20) years or until the death of Xxxxx'x spouse,
whichever occurs first. In addition, the Company shall continue at all times to
offer and provide health insurance coverage to Xxxxx'x spouse, in accordance
with the plans, programs, practices and policies provided by the Company under
the terms of this Agreement at the time of Xxxxx'x death, until the death of
Xxxxx'x spouse, except to the extent such coverage is or otherwise becomes
available to Xxxxx'x spouse under the Medicare program of benefits.
(b) Cause; Other than for Good Reason. If Xxxxx'x employment shall be
terminated for Cause, Xxxxx'x employment under this Agreement shall terminate
without further obligations to Xxxxx (other than the obligation to pay to Xxxxx
his Salary through the Date of Termination plus the amount of any compensation
previously deferred by Xxxxx, together with accrued interest thereon). If Xxxxx
terminates employment other than for Good Reason, this Agreement shall terminate
without further obligations to Xxxxx, other than those obligations accrued or
earned and vested (if applicable) by Xxxxx through the Date of Termination,
including for this purpose, all Accrued Obligations. All such Accrued
Obligations shall be paid to Xxxxx in a lump sum in cash within thirty (30) days
of the Date of Termination.
(c) Good Reason; Other than for Cause or Disability. If the Company
shall terminate Xxxxx'x employment other than for Cause, Disability, or death or
if Xxxxx shall terminate his employment for Good Reason at any time during the
Employment Period, except during a three-year period following any Change of
Control (in which case the provisions of Section 6(d) shall apply), then in such
event:
(i) the Company shall pay to Xxxxx in a lump sum in cash
within thirty (30) days after the Date of Termination the aggregate of the
following amounts:
A. to the extent not theretofore paid, Xxxxx'x Salary
through the Date of Termination; and
B. the product of (x) the highest Annual Bonus paid to Xxxxx
during the three (3) fiscal years preceding the fiscal year in which the Date of
Termination occurs (the "Recent Bonus") and (y) a fraction, the numerator of
which is the number of days in the current fiscal year through the date of
Termination and the denominator of which is 365; and
C. the product of (x) two (2.0) and (y) the sum of (i) the
Salary and (ii) the Recent Bonus; and
D. in the case of compensation previously deferred by Xxxxx,
all amounts previously deferred (together with any accrued interest thereon) and
not yet paid
by the Company, and any accrued vacation pay not yet paid by the Company; and
(ii) for a two-year period following the Date of Termination,
the Company shall continue benefits to Xxxxx and/or Xxxxx'x family at least
equal to those which would have been provided to them in accordance with the
plans, programs, practices and policies provided under this Agreement if Xxxxx'x
employment had not been terminated, including health insurance and life
insurance, in accordance with the most favorable plans, practices, programs or
policies provided by the Company and its subsidiaries during the 90-day period
immediately preceding the Date of Termination or, if more favorable to Xxxxx, as
in effect at any time thereafter with respect to other key employees and their
families. Notwithstanding the foregoing, however, the Company shall continue at
all times to offer and provide the above-described health insurance coverages to
Xxxxx and his spouse until their respective dates of death, except to the extent
such coverage is or otherwise becomes available to Xxxxx and his spouse under
the Medicare program of benefits.
(d) Good Reason; Other than for Cause or Disability, following a Change
of Control. If, during a three year period following any Change of Control, the
Company shall terminate Xxxxx'x employment other than for Cause, Disability, or
death or if Xxxxx shall terminate his employment for Good Reason:
(i) the Company shall pay to Xxxxx in a lump sum in cash on
the thirtieth (30th) day following the Date of Termination the aggregate of the
following amounts:
A. to the extent not theretofore paid, Xxxxx'x Salary through the
Date of Termination; and
B. the product of (x) the Recent Bonus and (y) a fraction, the numerator
of which is the number of days in the current fiscal year through the date
of Termination and the denominator of which is 365; and
C. the product of (x) three (3.0) and (y) the sum of (i) the
Salary and (ii) the Recent Bonus; and
D. in the case of compensation previously deferred by Xxxxx, all
amounts previously deferred (together with any accrued interest thereon) and not
yet paid by the Company, and any accrued vacation pay not yet paid by the
Company; and
(ii) for a three-year period following the Date of
Termination, the Company shall continue benefits to Xxxxx and/or Xxxxx'x family
at least equal to those which would have been provided to them in accordance
with the plans, programs, practices and policies provided under this Agreement
if Xxxxx'x employment had not been
terminated, including health insurance and life insurance, in accordance with
the most favorable plans, practices, programs or policies provided by the
Company and its subsidiaries during the 90-day period immediately preceding the
Date of Termination or, if more favorable to Xxxxx, as in effect at any time
thereafter with respect to other key employees and their families.
Notwithstanding the foregoing, however, the Company shall continue at all times
to offer and provide the above-described health insurance coverages to Xxxxx and
his spouse until their respective dates of death, except to the extent such
coverage is or otherwise becomes available to Xxxxx and his spouse under the
Medicare program of benefits.
(e) Alternative Excise Tax Cap. Notwithstanding the provisions of
Section 6(d) hereof, if any payments or benefits received or to be received by
Xxxxx (whether pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company, any person whose actions result in a
Change of Control or any person affiliated with the Company or such person)
constitute "parachute payments" within the meaning of Section 280G(b)(2)(A) of
the Code and the value thereof exceeds 2.99 times Xxxxx'x "base amount," as
defined in Section 280G(b)(3) of the Code, then, in lieu thereof, the Company
shall pay to Xxxxx, as soon as practicable following the Date of Termination but
in no event later than thirty (30) days thereafter, a lump sum cash payment
equal to 2.99 times his "base amount" (the "Alternative Severance Payment"),
reduced as provided below. The value of the payments to be made under Section
6(e) and Xxxxx'x base amount shall be determined in accordance with temporary or
final regulations, if any, promulgated under Section 280G of the Code and based
upon the advice of the tax counsel referred to below.
The Alternative Severance Payment shall be reduced by the amount of any
other payment or the value of any benefit received or to be received by Xxxxx in
connection with a Change of Control of the Company or his termination of
employment unless (i) Xxxxx shall have effectively waived his receipt or
enjoyment of such payment or benefit prior to the date of payment of the
Alternative Severance Payment, (ii) in the opinion of tax counsel selected by
the Company's independent auditors, such other payment or benefit does not
constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the
Code, or (iii) in the opinion of such tax counsel, the Alternative Severance
Payment plus all other payments or benefits which constitute "parachute
payments" within the meaning of Section 280G(b)(2) of the Code are reasonable
compensation for services actually rendered within the meaning of Section
280G(b)(4) of the Code or are otherwise not subject to disallowance as a
deduction by reason of Section 280G of the Code. The value of any non-cash
benefit or any deferred payment or benefit shall be determined in accordance
with the principles of Section 280G(d)(3) and (4) of the Code.
(f) Section 162(m) Limitation. In the event that the payments due to Xxxxx
under this Section 6 exceed the "reasonable compensation" limitations of Section
162(m)
of the Code, that portion thereof that would not be deductible by the Company in
the taxable year in which the payment is due shall be deferred by the Company
and paid to Xxxxx on the date that is sixteen (16) months following the Date of
Termination, together with interest thereon at the rate provided in Section
7872(f)(2) of the Code.
7. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent
or limit Xxxxx'x continuing or future participation in any benefit, bonus,
incentive or other plans, programs, policies or practices, provided by the
Company and for which Xxxxx may qualify, including but not limited to the
Non-Qualified Supplemental Executive Retirement Plan of the Company (the "SERP")
(or any successor plan), nor shall anything herein limit or otherwise affect
such rights as Xxxxx may have under the SERP or any stock option or other
agreements with the Company. Amounts which are vested benefits or which Xxxxx is
otherwise entitled to receive under any plan, policy, practice or program of the
Company at or subsequent to the Date of Termination, including but not limited
to the SERP, shall be payable in accordance with the SERP or such plan, policy,
practice or program.
8. FULL SETTLEMENT. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against Xxxxx
or others. In no event shall Xxxxx be obligated to seek other employment or take
any other action by way of mitigation of the amounts payable to Xxxxx under any
of the provisions of this Agreement, but such payments shall be reduced to the
extent of Xxxxx'x other earned income (if any) during any remaining portion of
the Employment Period. Following any Change of Control, the Company agrees to
pay, to the full extent permitted by law, all legal fees and expenses which
Xxxxx may reasonably incur as a result of any contest (regardless of the outcome
thereof) by the Company or others (including Xxxxx) of the validity or
enforceability of, or liability under, any provision of this Agreement or any
guarantee of performance thereof, plus in each case interest at the applicable
Federal rate provided for in Section 7872(f)(2) of the Code.
9. RETIREMENT OF XXXXX. Provided that this Agreement or an extension
thereof remains in effect, it is understood that Xxxxx shall retire on the last
day of the calendar year during which he reaches sixty-five (65) years of age.
In such event, the Board of Directors of the Company, at its sole option, may
offer to extend Xxxxx'x employment on a year-to-year basis after the calendar
year in which Xxxxx reaches age sixty-five (65). At the conclusion of each year
it will be presumed that Xxxxx will retire unless the Board of Directors
determines to offer to extend Xxxxx'x employment for an additional year.
Following the retirement of Xxxxx, the Company shall continue at all
times to offer
and provide health insurance coverages to Xxxxx and his spouse, in accordance
with the most favorable plans, programs, practices and policies provided by the
Company during the 90-day period immediately preceding the effective date of
Xxxxx'x retirement or, if more favorable to Xxxxx, as in effect at any time
thereafter with respect to other key employees and their families, until the
death of Xxxxx and his spouse, except to the extent such coverage is or
otherwise becomes available to Xxxxx and his spouse under the Medicare program
of benefits, and provided further that Xxxxx and his spouse shall pay the same
contribution as that required by other Company employees receiving such benefits
until they reach sixty-five (65) years of age.
10. AVAILABILITY OF XXXXX AFTER RETIREMENT. Following his retirement,
Xxxxx shall at reasonable times and insofar as his physical condition may
permit, hold himself available at the written request of the Board of Director's
of the Company to consult with and advise the officers, directors, and other
representatives of the Company. Such requests for Xxxxx'x service shall,
however, be structured so that reasonable allowances are made for Xxxxx'x needs
for vacation time and for other considerations of his physical well-being. All
such services shall be provided by Xxxxx at his place of residence unless
otherwise agreed to by Xxxxx. Xxxxx shall not be required to devote any
prescribed hours to consulting with and giving advice to the officers,
directors, and other representatives of the Company in order to be eligible to
receive any benefits that may be available to him under the SERP or any other
plan or program of the Company.
If Xxxxx'x physical condition shall prevent him from consulting and
advising with the officers, directors or other representatives of the Company,
the benefits that may be available to Xxxxx under the SERP or any other plan or
program of the Company shall nonetheless be paid as and to the extent therein
provided.
Xxxxx shall be reimbursed by the Company for all reasonable expenses
incurred as a consultant and advisor, including expenses for travel,
communication, entertainment and similar items, upon presentation of itemized
accounts of such expenditures.
11. DISCRETION OF BOARD OF DIRECTORS. Notwithstanding any other term or
provision of this Agreement to the contrary, nothing stated herein is intended
to, nor shall it be construed, to abrogate, limit, alter or affect the
authority, rights and privileges of the Board of Directors of the Company to
remove Xxxxx as Treasurer of the Company, without Cause, or during the term of
this Agreement to elect as Treasurer of the Company a person other than Xxxxx,
as provided by the laws of the State of Iowa; provided, however, it is expressly
agreed and understood that, in the event any one or any combination of such
events occurs, unless Xxxxx is terminated for Cause as defined in Section 5(b)
hereof, Xxxxx shall be entitled to terminate his employment for Good Reason (as
defined in Section 5(c) hereof) and receive the benefits described in either
Section
6(c) or Section 6(d) of this Agreement, as applicable, in consideration thereof.
12. CONFIDENTIAL INFORMATION; RESTRICTIVE COVENANT. (a) During the
period of his employment, Xxxxx shall hold in fiduciary capacity for the benefit
of the Company all secret or confidential information, knowledge or data
relating to the Company or any of its subsidiaries, and their respective
businesses, which shall have been obtained by Xxxxx during Xxxxx'x employment by
the Company or any of its subsidiaries and which shall not be or become public
knowledge (other than by acts by Xxxxx or his representatives in violation of
this Agreement). During a three (3) year period following termination of Xxxxx'x
employment with the Company, Xxxxx shall not, without the prior written consent
of the Company, communicate or divulge any such information, knowledge or data
to anyone other than the Company and those designated by it.
(b) While this Agreement remains in effect and Xxxxx is entitled to
compensation or benefits pursuant to Sections 4 through 6 hereof (or, in the
event of termination of his employment for Good Reason, for a period of three
(3) years thereafter), Xxxxx shall not directly or indirectly associate with,
participate in or render service to, whether as an employee, officer, director,
consultant, independent contractor or otherwise, any organization that is
engaged in business in competition with the Company, and he shall not himself
engage in any such business on his own account.
(c) In the event of a demonstrated breach of this Section 12, the
parties agree that the Company shall be entitled to seek equitable relief in a
court of competent jurisdiction to prevent any anticipated continuing breach of
the terms and conditions of this Section 12 and to secure the enforcement
thereof. The foregoing remedy shall be exclusive and in lieu of any other remedy
otherwise available to the Company under law.
13. SUCCESSORS. (a) This Agreement is personal to Xxxxx and without the
prior written consent of the Company shall not be assignable by Xxxxx otherwise
than by will or the laws of descent and distribution. This Agreement shall inure
to the benefit of and be enforceable by Xxxxx'x legal representatives.
(b) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
(c) The Company agrees and covenants to require (i) any successor or
assignee (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company through a Change of Control or otherwise, and any, (ii) within its
lawful power to do so, any party effecting or taking steps to accomplish a
Change of Control, to assume expressly 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 or Change of Control had taken
place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
14. MISCELLANEOUS. (a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Iowa, without reference to principles
of conflict of laws. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect. This Agreement may not be
amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If the Company, to Xxxxx'x General Stores, Inc., P. O. Xxx 0000, Xxx Xxxxxxxxxxx
Xxxxxxxxx, Xxxxxx, Xxxx 00000, Attention: President; and if to Xxxxx, to his
address appearing on the books of the Company, or to his residence, or to such
other address as either party shall have furnished to the other in writing in
accordance herewith. Notice and communications shall be effective when actually
received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
(e) The Company's or Xxxxx'x failure to insist upon strict compliance
with any provision hereof shall not be deemed to be a waiver of such provision
or any other provision thereof.
(f) This Agreement contains the entire understanding of the Company and
Xxxxx with respect to the subject matter hereof. The Original Agreement between
Xxxxx and the Company, as defined in the preambles hereof, is hereby terminated
and shall be of no further force or effect.
(g) No change, amendment or modification of this Agreement shall be
valid unless the same be in writing and signed by the Company and Xxxxx.
(h) This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute
one and the same instrument with the same force and effect as if all the parties
had executed the same document.
IN WITNESS WHEREOF, the respective parties have caused this Agreement
to be executed as of the day and year first above written.
XXXXX'X GENERAL STORES, INC.
By: /s/ Xxxxxx X. Xxxx
------------------------------
Xxxxxx X. Xxxx, President
ATTEST:
/s/ Xxxx X. Xxxxxx
--------------------------
Xxxx X. Xxxxxx, Secretary
/s/ Xxxxxxx X. Xxxxx
--------------------------
Xxxxxxx X. Xxxxx
