EXHIBIT 10(iii)(n)
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT is made as of December 13, 1999 (the
"Agreement"), by and among Xxxxxxxxx World Industries, Inc., a Pennsylvania
corporation (the "Company"), and Xxxxxx X. Xxxxx, an individual and resident of
Lancaster County, Pennsylvania (the "Executive").
The Executive is currently serving as the Chairman of the Board, President
and Chief Executive Officer of the Company. The Company desires to provide for
the continued employment of the Executive and the Executive desires to enter
into an employment contract with the Company.
In order to effect the foregoing, the Company and the Executive desire to
enter into an employment agreement on the terms and conditions set forth in this
Agreement. Accordingly, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. DEFINED TERMS.
The definitions of capitalized terms used in this Agreement, unless
otherwise defined herein, are provided in the last Section hereof.
2. EMPLOYMENT.
The Company hereby agrees to employ the Executive, and the Executive hereby
agrees to serve the Company and its subsidiaries and affiliates, on the terms
and conditions set forth herein, during the Term of this Agreement.
3. TERM OF AGREEMENT.
The Term will commence on the date first above written (the "Effective
Date") and shall continue until the fifth anniversary of the Effective Date
Time; provided, that commencing on
the second anniversary of the Effective Date and on each succeeding anniversary
thereafter, the Term of this Agreement shall automatically be extended for one
(1) additional year unless the Company or the Executive shall have given written
notice to the other at least 180 days prior to any such anniversary date to the
effect that the Term of this Agreement shall not be extended. Notwithstanding
anything in this Agreement to the contrary, the Company may terminate this
Agreement in the event of Executive's Disability; provided, that any such
termination shall not, by itself, terminate the Executive's employment with the
Company.
4. POSITION AND DUTIES.
During the Term of this Agreement, the Executive shall serve as Chairman of
the Board, President and Chief Executive Officer of the Company and a member of
the Board and shall also serve in any other executive officer position of the
Company or its subsidiaries and affiliates as the Board may reasonably request.
The Executive shall be the chief executive officer of the Company and shall have
such duties and responsibilities as are customary for the Executive's position
and such other duties not inconsistent therewith as the Board of Directors may
reasonably assign from time to time. During the Term of this Agreement,
excluding any periods of vacation and sick leave to which the Executive is
entitled under the Company's policies and practices (as the same may be
increased in the future), the Executive shall devote substantially all his
working time and efforts to the business and affairs of the Company and its
subsidiaries and affiliates and shall diligently and faithfully perform his
duties to the best of his ability; provided, however, that the Executive may
engage in activities relating to personal matters (including personal financial
matters) and in such corporate, industry, civic and charitable activities,
including membership on corporate and charitable boards of directors or trustees
of non-
-2-
affiliated companies and organizations, so long as such service does not
substantially interfere with the performance of his duties hereunder or violate
his obligations under Section 10 hereof.
5. COMPENSATION AND RELATED MATTERS.
5.1 BASE SALARY. The Company shall pay, or cause to be paid, to the
Executive an annual base salary ("Base Salary") during the Term of this
Agreement, which shall be at an initial rate of not less than $800,000 per year.
The Base Salary shall be paid in accordance with the Company's payroll practices
for its senior officers, but not less frequently than monthly, in arrears. For
purposes of this Agreement, "Base Salary" shall include any increases in Base
Salary during the Term of this Agreement. The Base Salary in effect from time to
time shall not be decreased during the Term of this Agreement except in
connection with across-the-board salary reductions similarly affecting all
senior officers of the Company and all senior officers of any person in control
of the Company which have been agreed to by the Executive. Compensation of the
Executive by Base Salary payments shall not be deemed exclusive and shall not
prevent the Executive from participating in any other compensation or benefit
plan of the Company. The Base Salary payments (including any increased Base
Salary payments) 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 the
Executive's Base Salary.
5.2 BENEFIT PLANS. During the Term, the Executive and his eligible
dependents shall be entitled to participate in and receive benefits under all
"employee benefit plans" (as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended from time to time ("ERISA")), and
employee benefit arrangements in which senior officers of the Company generally
participate, including without limitation, (i) all savings, deferred
-3-
compensation, profit sharing and retirement plans, practices, policies and
programs and (ii) all welfare benefit plans, practices, policies and programs
(including all medical, prescription, dental, disability, employee life
insurance, group life insurance, group hospitalization, health, accidental death
and travel accident insurance plans and programs) as are made generally
available to senior officers of the Company, subject to and on a basis
consistent with the terms, conditions and overall administration of such plans,
practices, policies and programs, including provisions which permit such plans,
practices, policies and programs to be modified or terminated, provided, that if
the Company reduces the benefits provided under or terminates any such employee
benefit plan, practice, policy or program in which the Executive participates,
the Company shall offer to the Executive participation in another plan or
program that provides the Executive with benefits at least comparable to those
that were reduced or eliminated. The Executive's participation in such employee
benefit plans, practices, policies and programs shall be at a level appropriate
for the Executive's position. Such employee benefit plans, practices, policies
and programs, shall include, without limitation, the plans, programs, policies
and practices in which the Executive participates on the date of this Agreement.
5.3 INCENTIVE COMPENSATION. During the Term of this Agreement, the
Executive shall be entitled to participate in and receive benefits under all
annual incentive (bonus) plans and long-term incentive compensation plans in
which other senior officers of the Company generally participate, including all
restricted share, performance restricted share and stock option plans of the
Company. The Executive's participation in such incentive plans shall be at a
level appropriate for the Executive's position. Without limiting the generality
of the foregoing, the Company shall provide the Executive with an annual
incentive opportunity, as a percentage of the Executive's Base Salary at target
performance levels, that is not less than the
-4-
opportunity provided to the Executive on the date of this Agreement, which
levels shall be reasonable and shall be adjusted for extraordinary events. Such
incentive compensation shall be subject to and on a basis consistent with the
terms, conditions and overall administration of such plans, including provisions
which permit such plans to be modified or terminated, provided, that if the
Company reduces the incentive compensation opportunities provided under or
terminates any such plan in which the Executive participates, the Company shall
offer to the Executive participation in another plan that provides the Executive
with an incentive compensation opportunity at least comparable to that which was
reduced or eliminated. Such incentive compensation plans shall include, without
limitation, the plans in which the Executive participates on the date of this
Agreement.
5.4 OTHER BENEFITS. The Executive shall participate on the same terms and
conditions as all other senior officers of the Company in all other benefit
plans, programs, or arrangements as may be now or hereafter sponsored or
maintained for senior officers of the Company generally and shall participate on
the same terms and conditions as other senior officers generally participate.
5.5 FRINGE BENEFITS. During the Term of this Agreement, the Executive
shall be entitled to receive all perquisites and fringe benefits which the
Company makes available to senior officers of the Company generally, including,
but not limited to, all perquisites and fringe benefits provided to the
Executive on the date of this Agreement.
5.6 EXPENSES. During the Term of this Agreement, the Executive is
authorized to incur, and shall be reimbursed by the Company for all reasonable
and customary business-related expenses, including travel, entertainment, gifts
and similar items, incurred by the Executive in connection with his employment
hereunder.
-5-
5.7 WORKING FACILITIES. During the Term of this Agreement, the Company
shall furnish the Executive with offices and working facilities in the Company's
principal executive offices and shall provide secretarial and other assistance
suitable to Executive's position and adequate for the performance of his duties
hereunder.
5.8 VACATION. During the Term of this Agreement, the Executive shall be
entitled to vacation in accordance with the Company's current policies and
practices, provided that the Executive shall be entitled to not less than six
(6) weeks of vacation during each year of this Agreement, or such greater period
as the Board shall approve, without reduction in salary or other benefits.
5.9 ANNUAL REVIEW. During the Term of this Agreement, the Board (or the
compensation committee of the Board) shall in good faith review the Executive's
total compensation package (including but not limited to the Base Salary
provided for in Section 5.1, the benefit plans provided for in Section 5.2 and
the short and long-term incentive compensation opportunity provided for in
Section 5.3) at least annually for possible increase, taking into account, among
other things, (i) the performance of the Executive, (ii) the performance of the
Company, and (iii) the overall compensation of executives in similar positions
at comparable companies.
6. COMPENSATION IN THE EVENT OF EXECUTIVE'S DISABILITY.
During the Term of this Agreement, during any period that the Executive
fails to perform the Executive's full-time duties hereunder as a result of
incapacity due to physical or mental illness, the Company shall pay, or cause to
be paid, to the Executive his Base Salary at the rate in effect at the
commencement of any such period, together with all compensation and benefits
payable to the Executive under the terms of any compensation or benefit plan,
program or
-6-
arrangement maintained by the Company for the benefit of the Executive during
such period, until this Agreement is terminated by the Company for Disability;
provided, however, that such payments shall be reduced by the sum of the
amounts, if any, payable to the Executive at or prior to the time of any such
payment under disability benefit plans of the Company, which amounts were not
previously applied to reduce any such payment.
7. TERMINATION COMPENSATION AND BENEFITS.
7.1 If the Executive's employment is terminated for any reason during the
Term of this Agreement, the Company shall pay to the Executive (or in accordance
with Section 11.2 in the event of the Executive's death), (i) the Executive's
Base Salary through the Date of Termination at the rate in effect immediately
prior to the time the Notice of Termination is given, (ii) all compensation and
benefits (other than severance compensation and benefits) payable to the
Executive through the Date of Termination or thereafter under the terms of any
compensation or benefit plan, program or arrangement maintained by the Company
during such period, including any short-term or long-term incentive compensation
to which the Executive is entitled, by virtue of previous awards, in accordance
with the terms of the long-term incentive plans in which Executive participates,
and (iii) any unreimbursed expenses payable pursuant to Section 5.6 of the
Agreement that were incurred before the Date of Termination.
7.2 In the event the Executive's employment is terminated during the Term
of this Agreement by the Executive for Good Reason or by the Company for any
reason other than Cause, death of the Executive or Disability, the Company shall
(i) pay the Executive, in addition to amounts payable under Section 7.1 and 7.3,
a lump sum cash payment to be made within thirty (30) days after the Date of
Termination equal to three times the sum of (x) the higher of the Base Salary in
effect immediately prior to the occurrence of the event or circumstance upon
which the
-7-
Notice of Termination is based or the Base Salary in effect immediately prior to
the date of the Notice of Termination, and (y) the highest of the annual bonus
that may be earned by the Executive if target performance levels are achieved in
the year in which the Date of Termination occurs or the highest annual bonus
earned by the Executive in respect of the three (3) years immediately preceding
the year in which the Date of Termination occurs, in any case, pursuant to any
annual incentive (bonus) plan maintained by the Company, and (ii) continue the
benefits provided for in Section 5.2 of this Agreement for thirty-six (36)
additional months.
7.3 If the Executive's employment is terminated for any reason during the
Term of this Agreement, the Company shall pay the Executive's normal post-
termination compensation and benefits (other than severance compensation and
benefits) to the Executive as such payments become due. Such normal post-
termination compensation and benefits (other than severance compensation and
benefits) shall be determined under, and paid in accordance with the Company's
retirement, insurance and other compensation or benefit plans, programs and
arrangements (other than this Agreement), as applicable.
7.4 (a) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any payment, benefit, or distribution by the
Company or its affiliates to or for the benefit of the Executive, whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise (a "Payment"), would be subject to the excise tax imposed
by Section 4999 of the Code, or any interest or penalties with respect to such
excise tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the "Excise Tax"), then the Executive
shall be entitled to receive an additional payment ("Gross-Up Payment") in an
amount such that after payment by the Executive of all taxes (including any
interest or penalties imposed with respect to such taxes),
-8-
including, without limitation, any income taxes and Excise Tax imposed upon the
Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal
to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of Section 7.4(c) hereof, all
determinations required to be made under this Section 7.4, including whether a
Gross-Up Payment is required and the amount of such Gross-Up Payment and the
assumptions to be used in arriving at such determinations, shall be made by the
Company's principal outside accounting firm (the "Accounting Firm") which shall
provide detailed supporting calculations both to the Board and the Executive
within fifteen (15) business days after the Date of Termination and/or such
earlier date(s) as may be requested by the Company or the Executive (each such
date and the Date of Termination shall be referred to as a "Determination Date"
for purposes of this Section 7.4(b) and Section 7.5 hereof). All fees and
expenses of the Accounting Firm shall be borne solely by the Company. The
initial Gross-Up Payment, if any, as determined pursuant to this Section 7.4(b),
shall be paid by the Company to the Executive within thirty (30) days of the
receipt of the Accounting Firm's determination. If the Accounting Firm
determines that no Excise Tax is payable by the Executive, it shall furnish the
Executive with a written opinion that failure to report the Excise Tax on the
Executive's applicable federal income tax return would not result in the
imposition of a negligence or similar penalty. Any determination by the
Accounting Firm under this Section 7.4(b) shall be binding upon the Company and
the Executive. As a result of the uncertainty in the application of Section 4999
of the Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments which will not have been made
by the Company should have been made ("Underpayment") consistent with the
calculations required to be made hereunder. In the event that the Company
exhausts its
-9-
remedies pursuant to Section 7.4(c) and the Executive thereafter is required to
make a payment of any Excise Tax, the Accounting Firm shall determine the amount
of the Underpayment that has occurred and any such Underpayment shall be
promptly paid by the Company to or for the benefit of the Executive.
(c) The Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Company of an Underpayment. Such notification shall be given as soon as
practicable but no later than ten (10) business days after the Executive is
informed in writing of such claim and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the thirty (30)
day period following the date on which he gives such notice to the Company (or
such shorter period ending on the date that any payment of taxes with respect to
such claim is due). If the Company notifies the Executive in writing prior to
the expiration of such period that it desires to contest such claim, the
Executive shall:
(i) give the Company any information reasonably requested by
the Company relating to such claim;
(ii) take such action in connection with contesting such claim
as the Company shall reasonably request in writing from time to time,
including, without limitation accepting legal representation with respect
to such claim by an attorney reasonably selected by the Company;
(iii) cooperate with the Company in good faith in order to
effectively contest such claim; and
-10-
(iv) permit the Company to participate in any proceeding
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax, including interest and
penalties with respect thereto, imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions
of this Section 7.4(c), the Company shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forgo any
and all administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option, either
direct the Executive to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner, and the Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall advance the amount of such
payment to the Executive on an interest-free basis and shall indemnify and hold
the Executive harmless, on an after-tax basis, from any Excise Tax or income
tax, including interest or penalties with respect thereto, imposed with respect
to such advance or with respect to any imputed income with respect to such
advance; and provided, further, that any extension of the statute of limitations
relating to payment of taxes for the taxable year of the Executive with respect
to which such contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Company's control of the contest shall be
limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and the
-11-
Executive shall be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Executive of an amount advanced by
the Company pursuant to Section 7.4(c) hereof, the Executive becomes entitled to
receive any refund with respect to such claim, the Executive shall (subject to
the Company's compliance with the requirements of Section 7.4(c) hereof)
promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after the
receipt by the Executive of an amount advanced by the Company pursuant to
Section 7.4(c) hereof, a determination is made that the Executive shall not be
entitled to any refund with respect to such claim and the Company does not
notify the Executive in writing of its intent to contest such denial of refund
prior to the expiration of thirty (30) days after such determination, then such
advance shall be forgiven and shall not be required to be repaid.
7.5 The payments provided for in Section 7.4 hereof (other than Section
7.4(c) and (d)) shall be made not later than the thirtieth (30th) day following
each Determination Date; provided, however, that if the amounts of such payments
cannot be finally determined on or before such day, the Company shall pay to the
Executive on such day an estimate, as determined by the Executive, of the
minimum amount of such payments to which the Executive is clearly entitled and
shall pay the remainder of such payments (together with interest at the rate
provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can
be determined but in no event later than the forty-fifth (45th) day after each
Determination Date. In the event that the amount of the estimated payments
exceeds the amount subsequently determined to have been due, such excess shall
constitute a loan by the Company to the Executive, payable on the fifth
-12-
(5th) business day after demand by the Company (together with interest at the
rate provided in Section 1274(b)(2)(B) of the Code).
8. TERMINATION PROCEDURES.
8.1 NOTICE OF TERMINATION. During the Term of this Agreement, any
purported termination of the 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 12 hereof. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this Agreement relied upon
and, in the case of a termination by the Company for Cause or by the Executive
for Good Reason, shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated. Further, a Notice of Termination
for Cause is required to include a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters (3/4) of the entire membership
of the Board at a meeting of the Board which was called and held for the purpose
of considering such termination (after reasonable notice to the Executive and an
opportunity for the Executive, together with the Executive's counsel, to be
heard before the Board) finding that, in the good faith opinion of the Board,
the Executive was guilty of conduct set forth in the definition of Cause herein,
and specifying the particulars thereof in detail.
8.2 DATE OF TERMINATION. "Date of Termination," with respect to any
purported termination of the Executive's employment during the Term of this
Agreement, shall mean (i) if the Executive's employment is terminated by his
death, the date of his death, (ii) if the Executive's employment is terminated
by the Executive other than for Good Reason, the date specified in the Notice of
Termination (which shall not be less than one hundred eighty (180)
-13-
days) after such Notice of Termination is given, (iii) if the Executive's
employment is terminated by the Company for Cause, on the date that the Notice
of Termination is sent by the Board in accordance with Section 8.1, and (iv) if
the Executive's employment is terminated for any other reason, the date
specified in the Notice of Termination (which shall not be less than sixty (60)
days) after such Notice of Termination is given.
9. NO MITIGATION.
The Company agrees that, if the Executive's employment hereunder is
terminated during the Term of this Agreement, the Executive is not required to
seek other employment or to attempt in any way to reduce any amounts payable to
the Executive by the Company hereunder. Further, the amount of any payment or
benefit provided for hereunder (other than pursuant to Section 7.4(d) hereof)
shall not be reduced by any compensation earned by the Executive as the result
of employment by another employer, by retirement benefits, by offset against any
amount claimed to be owed by the Executive to the Company, or otherwise.
10. CONFIDENTIALITY AND NONCOMPETITION.
10.1 The Executive shall not, during or after the Term of this Agreement,
without the prior written consent of the Company disclose to any entity or
person any information which is treated as confidential by the Company or any of
their subsidiaries or affiliates (each, a "Company Entity"), and is not
generally known or available in to the public, provided, that the Executive may
make disclosures of such confidential information (i) during the Term of this
Agreement in the course of and to the extent required by and consistent with the
performance of his duties hereunder, and (ii) to the extent required by law or
legal process.
10.2 Except as permitted by the Company with its prior written consent,
the Executive shall not, during the Executive's employment with the Company and
for the period ending
-14-
twenty-four (24) months after the Executive's employment with the Company
terminates for any reason, directly or indirectly, own, enter into the employ of
or render, any services (whether as a consultant or otherwise) to any person,
firm or corporation within the United States or any foreign country in which the
Company is doing or is contemplating doing business on the Date of Termination
which is a competitor of any Company Entity with respect to products which any
Company Entity is then producing or services which any Company Entity is then
providing (a "Competitor"), or approach, canvass, solicit, or otherwise endeavor
to entice away from the Company, any customer in respect of any service or
product in any way competitive with the services or products supplied by any
Company Entity to such customer, or solicit the services of, or endeavor to
entice away from the Company, any director, executive officer or employee of the
Company; provided, that it shall not be a violation of this provision for the
Executive to be employed by, or render services to, a Competitor, if the
Executive renders those services only with respect to those lines of business of
the Competitor which are not directly competitive with a line of business of any
Company Entity or are located in any country in which the Company does not do
business and was not contemplating doing business on the Date of Termination.
10.3 The Executive acknowledges and agrees that any breach of this Section
10 by the Executive will result in immediate and irreparable harm to the
Company, the amount of which will be extremely difficult to ascertain, and that
the Buyer could not be reasonably or adequately compensated by damages in an
action at law. For these reasons, the Company shall have the right to obtain
such preliminary, temporary or permanent mandatory or restraining injunctions,
orders or decrees as may be necessary to protect the Company against or on
account of any breach by the Executive of the provisions of this Section 10
without proof of any actual damage caused to the Company.
-15-
11. SUCCESSORS; BINDING AGREEMENT.
11.1 In addition to any obligations imposed by law upon any successor to
the Company, the Company will 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, as the case may be, 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. Failure of the Company to obtain such assumption and agreement
upon the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to compensation from the Company in
the same amount and on the same terms as the Executive would be entitled to
hereunder if the Executive were to terminate the Executive's employment for Good
Reason, except that, for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination.
11.2 This Agreement shall inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive shall
die while any amount would still be payable to the Executive hereunder (other
than amounts which, by their terms, terminate upon the death of the Executive)
if the 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 the Executive's
estate.
12. NOTICES.
For the purpose of this Agreement, notices and all other communications
provided for in the Agreement shall be in writing and shall be deemed to have
been duly given when delivered
-16-
or mailed by United States registered mail, return receipt requested, postage
prepaid, addressed to the respective addressees set forth below, or to such
other address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective
only upon actual receipt:
To the Company:
Xxxxxxxxx World Industries, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Senior Vice President, Human Resources
Telecopy: 000-000-0000
To the Executive:
At the Executive's residence address as maintained by the Company
in the regular course of its business for payroll purposes.
13. MISCELLANEOUS.
If the Executive, in his capacity as a director, votes for, or in his
capacity as an officer, approves in writing, any action that will adversely
affect the Executive's rights under this Agreement, such vote or approval shall
be deemed to constitute the Executive's consent to such action under this
Agreement; otherwise, no provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
and signed by the Executive and such officers as may be specifically designated
by the Board. No waiver by any party hereto at any time of any breach by any
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 any
party which are not expressly set forth in this Agreement. This Agreement sets
forth the entire agreement of the parties hereto in
-17-
respect of the subject matter contained herein and supersedes all prior
agreements, promises, covenants, arrangements, communications, representations
or warranties, whether oral or written, by any officer, employee or
representative of any party hereto; and any prior agreement of the parties
hereto in respect of the subject matter contained herein is hereby terminated
and canceled, except as otherwise provided in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the Commonwealth of Pennsylvania, without giving effect to choice
of law principles.
All references to sections of the Code shall be deemed also to refer to any
successor provisions to such sections. There shall be withheld from any
payments provided for hereunder any amounts required to be withheld under
federal, state or local law and any additional withholding amounts to which the
Executive has agreed. The obligations under this Agreement of the Company or
the Executive which by their nature and terms require satisfaction after the end
of the Term shall survive such event and shall remain binding upon such party.
14. VALIDITY.
The invalidity or unenforceability of any provision of this Agreement shall
not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
15. COUNTERPARTS.
This Agreement may be executed in several counterparts, each of which shall
be deemed to be an original but all of which together will constitute one and
the same instrument.
16. SETTLEMENT OF DISPUTES; ARBITRATION.
All claims by the Executive for benefits under this Agreement shall be in
writing and shall be directed to and initially determined by the Board. Any
denial by the Board of a claim
-18-
for benefits under this Agreement shall be delivered to the Executive in writing
and shall set forth the specific reasons for the denial and the specific
provisions of this Agreement relied upon. The Board shall afford a reasonable
opportunity to the Executive for a review of the decision denying a claim and
shall further allow the Executive to appeal to the Board a decision of the Board
within sixty (60) days after notification by the Board that the Executive's
claim has been denied. To the extent permitted by applicable law and subject to
the right of the Company to seek equitable relief in a court pursuant to Section
10.3, any further dispute or controversy arising under or in connection with
this Agreement shall be settled exclusively by arbitration in Allegheny County,
Pennsylvania, in accordance with the Commercial Arbitration Rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction.
17. FEES AND EXPENSES.
The Company shall pay to the Executive all reasonable legal fees and
expenses incurred by the Executive in disputing any termination or in seeking in
good faith to obtain or enforce any benefit or right provided by this Agreement
or in connection with any tax audit or proceeding to the extent attributable to
the application of Section 4999 of the Code to any payment or benefit provided
hereunder; provided, however, the Company shall not be required to pay to the
Executive legal fees and expenses to the extent such legal fees and expenses
were incurred in connection with a contest controlled by the Company pursuant to
Section 7.4(c) hereof in connection with which the Company complied with its
obligations under said Section 7.4(d). Such payments shall be made within
thirty (30) business days after delivery of the Executive's written request for
payment accompanied with such evidence of fees and expenses incurred as the
Company reasonably may require.
-19-
18. COORDINATION OF BENEFITS. Notwithstanding anything in this Agreement
to the contrary, if the Executive is paid "Severance Payments" under that
certain Agreement dated as of October 1________, 1999 between the Company and
the Executive in connection with a Change of Control (as defined therein), then
this Agreement (including Section 10.2 hereof) shall forthwith terminate and the
Executive shall not be entitled to the payment of any amounts under this
Agreement other than pursuant to Section 7.1 hereof (and any amounts theretofore
paid to the Executive pursuant to Section 7.2, hereof shall be credited against
any "Severance Payments" to which the Executive is entitled under said Change in
Control Agreement).
19. DEFINITIONS.
For purposes of this Agreement, the following terms shall have the meaning
indicated below:
(a) "Base Salary" shall have the meaning stated in Section 5.1
hereof.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Cause" for termination by the Company of the Executive's
employment, for purposes of this Agreement, shall mean (i) the willful and
continued failure by the Executive to substantially perform the Executive's
duties hereunder (other than any such failure resulting from the Executive's
incapacity due to physical or mental illness or any such actual or anticipated
failure after the issuance of a Notice of Termination for Good Reason by the
Executive pursuant to Section 8.1) after a written demand for substantial
performance is delivered to the Executive by the Board, which demand
specifically identifies the manner in which the Board believes that the
Executive has not substantially performed the Executive's duties, or (ii) the
willful engaging by the Executive in conduct which is demonstrably and
materially injurious to the Company,
-20-
monetarily or otherwise, including but not limited to fraud or embezzlement by
the Executive, or (iii) the Executive's conviction (or entering into a plea
bargain admitting guilt) of any felony, or (iv) a material breach by the
Executive of this Agreement, including a violation of Section 10. For purposes
of clauses (i) and (ii) of this definition, no act, or failure to act, on the
Executive's part shall be deemed "willful" unless done, or omitted to be done,
by the Executive not in good faith and without reasonable belief that the
Executive's act, or failure to act, was in the best interest of the Company.
(d) "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
(e) "Date of Termination" shall have the meaning stated in Section
8.2 hereof.
(f) "Disability" shall be deemed the reason for the termination of
this Agreement by the Company, if, as a result of the Executive's incapacity due
to physical or mental illness, the Executive shall have been absent from the
full-time performance of the Executive's duties hereunder for a period of six
(6) consecutive months.
(g) "Excise Tax" shall have the meaning stated in Section 7.4(a)
hereof.
(h) "Executive" shall mean the individual named in the first
paragraph of this Agreement.
(i) "Good Reason" for termination by the Executive of the
Executive's employment shall mean the occurrence (without the Executive's
express written consent), of any one of the following acts by the Company, or
failures by the Company to act, unless, in the case of any act or failure to act
described in paragraphs (i) or (ii) below, such act or failure to act is
corrected prior to the Date of Termination specified in the Notice of
Termination given in respect thereof:
-21-
(i) the assignment to the Executive of any duties inconsistent
with the Executive's status as an executive officer of the Company or a
substantial alteration in the nature or status of the Executive's
responsibilities consistent with the title set forth in Section 4;
(ii) any material breach of any provision of this Agreement by
the Company;
(iii) the relocation of the Executive's principal place of
employment to a location more than 50 miles from the Executive's principal place
of employment (unless such relocation is closer to the Executive's principal
residence) or the Company's requiring the Executive to be based anywhere other
than such principal place of employment (or permitted relocation thereof) except
for required travel on the Company's business to an extent substantially
consistent with the Executive's present business travel obligations;
(iv) a reduction by the Company in the Executive's Base Salary
as in effect on the date hereof or as the same may be increased from time to
time except for across-the-board salary reductions similarly affecting all
senior officers of the Company and all senior officers of any person in control
of the Company; or
(v) the failure by the Company to continue in effect any
employee benefit plan or incentive compensation plan in which the Executive
currently participates which is material to the Executive's total compensation,
unless such plan or arrangement has been replaced by a new plan on a basis not
materially less favorable, both in terms of the amount or timing of payment of
benefits provided and the level of the Executive's participation relative to
other participants.
The Executive's right to terminate the Executive's employment for Good
Reason shall not be affected by the Executive's incapacity due to physical or
mental illness. The Executive's
-22-
continued employment shall not constitute consent to, or a waiver of rights with
respect to, any act or failure to act constituting Good Reason hereunder.
(j) "Gross-Up Payment" shall have the meaning stated in Section 7.4(a)
hereof.
(k) "Notice of Termination" shall have the meaning stated in Section
8.1 hereof.
(l) "Severance Payments" shall mean those payments described in
Section 7.2 hereof.
(m) "Term" shall have the meaning stated in Section 3 hereof.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first above written.
XXXXXXXXX WORLD INDUSTRIES, INC.
By: /s/
------------------------------------------
Name: Xxxxxxx X. Xxxxx
----------------------------------------
Title: Senior Vice President, Human Resources
---------------------------------------
Executive
/s/
---------------------
-23-
