Exhibit 10.18
THE XXXXXXX CO.
April 29, 2004
Xxxxx X. Xxxxxxx
RE: Employment Relationship with The Xxxxxxx Co. (the "Company")
Dear Xxxx:
This letter agreement sets forth our agreement and understanding
as to the essential terms of our continued employment with the Company.
Although not required by law or the Company's policies, due to your
length of service for the Company, we are pleased to offer you the
benefit described below, subject to the terms and conditions contained
herein.
1. Severance Payment Upon a Change in Control. In the event that
your employment is terminated as a result of a "Change in Control" of
the Company (as defined below), you will be entitled to the following
compensation and benefits (collectively, the "Severance Payment"):
(a) the Company shall immediately pay you an amount equal to
your then-current monthly base salary multiplied by twelve;
(b) for a period of twelve months following such termination,
the Company shall provide you with such benefits, including health
insurance, which you are receiving as of the date of termination;
(c) the Company shall immediately pay you an amount equal to the
most recent annual bonus (if any) previously paid to you; and
(d) the Company agrees that under its 1990 Key Employee
Incentive Plan and any other plan under which you are a participant,
with respect to all grants made to you (i) all stock options,
regardless of the terms and conditions of the grant(s) thereof, shall
immediately become fully vested and may thereafter be exercised by you
at any time through their applicable expiration date(s); (ii) all
restrictions on Restricted Stock shall be immediately removed; (iii)
all conditions under which receipt of Deferred Stock was or is deferred
shall immediately be deemed fulfilled or waived; and (iv) all
conditions with respect to receipt, vesting and transferability of
Stock-Based awards shall immediately be waived, fulfilled of lapsed.
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April 29, 2004
You shall not be entitled to the Severance Payment unless the
termination of your employment is due to a "Change in Control". For
purposes of this letter, the term "Change in Control" shall mean: (i)
approval by the shareholders of the Company of (x) a reorganization,
merger, consolidation or other form of corporate transaction or series
of transactions, in each case, with respect to which persons who were
the shareholders of the Company immediately prior to such transaction
do not, immediately thereafter, own more than 50% of the reorganized,
merged or consolidated company's then outstanding voting securities, in
substantially the same proportions as their ownership immediately prior
to such transaction, (y) a liquidation or dissolution of the Company or
(z) the sale of all or substantially all of the assets of the Company
(unless such reorganization, merger, consolidation or other corporate
transaction, liquidation, dissolution or sale is subsequently
abandoned); or (ii) the resignation of Xxxxx X. Xxxxxx as both Chairman
and CEO of the Company, his death, or his absence from the day to day
business affairs of the Company for more than 90 consecutive days due
to disability or incapacity; provided, however, any transaction in
which Eastchester Enterprises, Inc., Gunhill Enterprises, Inc., Xxxxx
X. Xxxxxx or any of their affiliates or parties related thereto is the
acquiring party shall not constitute a "Change of Control" as that term
is used herein, and which triggers the payment obligations of the
Company under this Section 1.
2. Restrictive Covenants. At all times while you are employed
by the Company and for a two-year period after the termination of your
employment with the Company for any reason, you shall not:
(a) directly or indirectly, engage in or have any interest in any
business or entity (whether as an employee, officer, director, partner,
agent, security holder, creditor, consultant or otherwise) that
directly or indirectly (or through any affiliated entity) engages in
competition with the Company (based on the business in which the
Company was engaged or was actively planning on being engaged as of the
date of termination of your employment and in the geographic areas in
which the Company operated or was actively planning on operation as of
date of termination);
(b) divulge, communicate, use to the detriment of the Company or
for the benefit of any other person or persons, or misuse in any way,
any confidential information pertaining to the business of the Company
(which shall include, but not be limited to, information concerning the
Company's financial condition, prospects, technology, customers,
suppliers, sources of leads and methods of doing business);
(c) directly or indirectly, for yourself or for any other
person, firm, corporation, partnership, association or other entity (1)
employ or attempt to employ or enter into any contractual arrangement
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April 29, 2004
with any employee or former employee of the Company, unless such
employee or former employee has not been employed by the Company for a
period in excess of six months, and/or (2) call on or solicit any of
the actual or targeted prospective clients of the Company on behalf of
any person or entity in connection with any business competitive with
the business of the Company.
3. Enforcement of Letter Agreement. You recognize that a breach
of any of the provisions of Section 2, above, would cause irreparable
damage to the Company's business and that such damage would be
difficult or impossible to measure. Therefore, in the event of a
violation or a threatened violation by Spiegel of the terms of Section
2, which violation or threatened violation has been proven by a
preponderance of the evidence in a court of competent jurisdiction, you
hereby acknowledge and agree that the Company will have the right, in
addition to all other remedies available to it at law or in equity, to
affirmative or negative injunctive relief from a court of competent
jurisdiction.
4. Miscellaneous.
(a) This letter agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Florida.
(b) This letter agreement may be amended only by a written
document signed by the parties.
(c) This letter agreement constitutes the entire agreement of the
parties hereto and supercedes all prior agreements, understandings,
negotiations and discussions, both written and oral, between the parties
hereto with respect to the subject matter hereof and is not intended to
confer upon any other person any rights or remedies hereunder except as
expressly provided herein.
(d) The language of all parts of this letter agreement shall in
all cases be construed as a whole, according to its fair meaning.
However, in the event that a court of competent jurisdiction deems any
provision hereof to be unreasonable, void or unenforceable, such
provision(s) of this letter agreement declared void, unreasonable or
unenforceable shall be deemed revised to the minimum amount necessary
in order to be valid and enforceable, and if such provision(s) cannot
be so revised, such provision(s) shall be deemed severed from the
remainder of this letter agreement, which shall continue in all other
respects to be valid and enforceable.
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April 29, 2004
(e) This letter agreement shall be binding upon the heirs,
executors, administrators, successors and assigns of all parties.
(f) You declare that you have read and understand all the terms
of this letter agreement; that you have had ample opportunity to
review it with your attorney before signing it; that no promise,
inducement, or agreement has been made except as expressly provided in
this letter agreement; that it contains the entire agreement between
the parties; and that you enter into this letter agreement fully,
voluntarily, knowingly and without coercion.
(g) The parties shall execute and deliver any other instruments
or documents and take any further actions after the execution of this
letter agreement, which may be reasonably required for the
implementation of this letter agreement and the transactions
contemplated hereby.
If the foregoing is agreeable with you, please acknowledge your
understanding and agreement by signing in the space provided below and
delivering a copy of this letter to us.
Sincerely,
THE XXXXXXX CO. THE XXXXXXX CO.
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxx Xxxxxxx
BY: Xxxxx X. Xxxxxx, President BY: Xxxxxx Xxxxxxx,
Chairman of the
Compensation Committee
AGREED AND ACCEPTED:
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Date: April 29, 2004
