1
Exhibit 10.7
EMPLOYMENT AGREEMENT - XXXXX X. XXXXX
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APRIL 1, 1998
PAGE 1 OF 12
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made in Medina, Ohio
and is entered into on this 4th day of April, 1998, and effective as of April 1,
1998, by and between Corrpro Companies, Inc., an Ohio corporation (the
"Company"), and Xxxxx X. Xxxxx ("Executive").
WITNESSETH:
In consideration of the recitals, the mutual covenants and agreements
contained in this Agreement, and other good and valuable consideration, the
parties agree as follows:
SECTION 1 - TERM AND DUTIES.
(a) TERM. The Company shall employ Executive, subject to the
provisions of this Agreement, for a three-year term effective
April 1, 1998 and ending on March 31, 2001. This Agreement at
all times may otherwise be terminated in accordance with the
provisions of this Agreement.
(b) SUBSEQUENT TERM. Executive and the Company may, but shall be
under no obligation to, negotiate terms and conditions of any
subsequent term of employment. In the event, however, that
Executive remains in the employ of the Company after the term
of this Agreement without the parties having entered into a
new employment agreement or extending this Agreement, then 1)
the terms of this Agreement shall not be applicable, 2)
Executive shall be an employee-at-will subject to the
benefits, programs, and policies of the Company then in
effect, and 3) either party may terminate the employment
relationship at any time with or without cause.
(c) DUTIES. During his employment pursuant to this Agreement,
Executive shall serve as Executive Vice President, South
Central Region, of the Company, and shall be responsible for
the duties attendant to such office. Executive shall report to
the Chief Executive Officer (or such other officer as
determined by the Chief Executive Officer), and shall be
subject to the policies and procedures adopted by the Company
from time to time. Executive agrees to serve as an officer or
director of such of the Company's subsidiaries or affiliates
as the Company may reasonably request.
(d) CHANGES IN STATUS. The Company agrees that it will not,
without Executive's consent, (i) assign to Executive duties
materially inconsistent with or which materially diminish his
current positions, authority, duties, responsibilities and
status with the Company, or (ii) materially change his title
as currently in effect, or (iii) require Executive to perform
duties which would necessitate changing his present residence,
or (iv) remove him from, or fail to re-elect him to, any of
such positions, except in connection with the termination of
his employment as provided for in this Agreement. Except as so
limited, the powers and duties of Executive are to be more
specifically determined and set by the Company from time to
time.
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SECTION 2 - COMPENSATION AND BENEFITS.
(a) BASE SALARY. During his employment pursuant to this Agreement,
Executive shall receive an annual base salary of One Hundred
Sixty Thousand Dollars ($160,000) as compensation for his
services to the Company (the "Base Compensation"), such
compensation to be payable in regular installments in
accordance with Company policy for salaried employees.
(b) SALARY ADJUSTMENTS. Effective as of the first day of each
fiscal year of the Company during Executive's employment
pursuant to this Agreement, the Base Compensation shall be
subject to review and a recommendation by the Chief Executive
Officer of the Company to the Board of Directors (or its
designated committee) and any adjustment shall be subject to
the approval of the Board or its designated committee. In the
event the Base Compensation is adjusted, such adjusted Base
Compensation (adjusted either upward or downward) shall be
payable to Executive under this Agreement for that fiscal
year; provided that any downward adjustment shall be limited
to ten percent (10%) of Base Compensation unless the Base
Compensation of all Senior Level Executives (all persons with
the title Vice President and above employed by the Company) of
the Company are similarly affected by a reduction in excess of
10%.
(c) VACATION. Executive shall be entitled to four weeks of paid
vacation each year of this Agreement to be taken in accordance
with Company policy then in effect.
(d) ANNUAL BONUS PLAN. Executive shall be a participant in the
Company's annual bonus plan subject to the attainment of
performance objectives and other provisions of such plan as in
effect each year of this Agreement.
(e) BENEFIT PLANS. During his employment pursuant to this
Agreement, subject to eligibility and applicable employee
contributions, and except as otherwise expressly provided in
this Agreement, Executive shall be entitled to participate on
substantially the same terms as other Senior Level Executives
in all employee benefit and executive benefit plans, pension
plans, medical benefit plans, group life insurance plans,
hospitalization plans, or other employee welfare plans that
the Company may adopt from time to time during Executive's
employment pursuant to this Agreement, and as such plans may
be modified, amended, terminated, or replaced from time to
time. In addition, Executive shall receive such other
compensation as the Board of Directors of the Company (or a
committee thereof designated by the Board) may from time to
time determine to pay Executive whether in the form of
bonuses, stock options, incentive compensation or otherwise.
(f) FRINGE BENEFITS. During his employment pursuant to this
Agreement, and except as otherwise provided in this Agreement,
Executive shall be entitled to participate on substantially
the same terms and conditions as other Senior Level Executives
in all fringe benefits provided such personnel, such as sick
pay and company car or car allowance.
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(g) EXPENSE REIMBURSEMENTS. The Company shall reimburse, in
accordance with Company policy, Executive's ordinary and
reasonable business expenses, including professional dues and
expenses, incurred in furtherance of Executive's performance
of Executive's duties under this Agreement.
SECTION 3 - TIME COMMITMENT AND PERFORMANCE. Executive shall devote his
best efforts and all of his business time, attention, and skill to the business
and the operations of the Company and shall perform his duties and conduct
himself at all times in a manner consistent with his appointment as Executive
Vice President, South Central Region, of the Company; except, however, Executive
may serve on corporate, civic, or charitable boards or committees and manage his
personal investments and affairs provided such activities do not interfere with
the performance of Executive's duties under this Agreement and provided
Executive keeps the Chief Executive Officer reasonably informed of Executive's
commitments.
SECTION 4 - COMPETITIVE ACTIVITY. From the effective date of this
Agreement and one (1) year following the later of (i) termination of Executive's
employment with the Company, or (ii) termination of any consulting agreement
which the parties may enter into immediately subsequent to termination of
Executive's employment, Executive will not, directly or indirectly, either for
himself or on behalf of any other corporation, partnership, person, group, or
entity:
(a) enter into any contract or agreement, or own, directly or
indirectly, any interest in, or engage in or conduct in any
manner or capacity (whether as shareholder, consultant,
advisor, principal, agent, partner, officer, director,
employee, or otherwise), any business competitive with any
line of business then being conducted or planned to be
conducted by the Company;
(b) attempt to divert or take away, in any manner, the business or
patronage of any customer or potential customer of the Company
or otherwise take from or deprive the Company of any business
opportunity;
(c) attempt to hire or employ, whether as an employee, agent,
independent contractor or otherwise, any employee of the
Company; or
(d) materially interfere, in any manner, with the business, trade,
good will, sources of supply, or customers of the Company.
For purposes of this Section 4, there shall be disregarded any interest
of Executive arising solely from the ownership of less than a five percent (5%)
equity interest in a corporation whose stock is regularly traded on any national
securities exchange or regularly traded in the over-the-counter market.
Executive acknowledges and agrees that the restrictions contained in this
Section 4 are reasonable and necessary for the protection of the business
interests of the Company and that such restrictions are not unduly burdensome in
scope or duration.
SECTION 5 - PROPRIETARY INFORMATION/INVENTIONS.
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PAGE 4 OF 12
(a) PROPRIETARY INFORMATION. During his employment pursuant to
this Agreement and at any time thereafter, Executive shall not
disclose, or cause to be disclosed in any manner, to any
corporation, partnership, person, group, or entity (other than
to Company employees or authorized representatives, or in the
ordinary course of business consistent with Company policy
regarding trade secrets) or otherwise use for any purpose
other than the Company's business, any trade secrets or
confidential or proprietary information of the Company,
including, but not limited to, the following:
(a) the Company's customer or prospective
customer lists;
(b) information concerning the Company's
promotional, pricing, or marketing
practices;
(c) the Company's business records; and
(d) the Company's trade secrets and other
confidential and proprietary information.
Upon termination of employment under any circumstances, Executive or
his estate or representatives, shall promptly return to the Company all
property of the Company including any and all electronic devices and
related data storage devices and shall destroy or erase any data which
cannot be returned. This Section 5 shall survive the termination of
this Agreement.
(b) INVENTIONS. Executive will communicate to the Company promptly
and fully and hereby assigns all of Executive's rights in all
inventions or improvements made or conceived by Executive
(alone or jointly with others) during Executive's employment
and for a period of one year thereafter, which are along the
lines of the business, work or investigations of the Company
or which result from or are suggested by any work Executive
may do for the Company. Executive agrees that any such
invention or improvement, whether or not patentable, shall be
and remain the sole and exclusive property of the Company.
Executive agrees to keep and maintain adequate and current
written records of all such inventions or improvements at all
stages thereof, which records shall be and remain the property
of the Company. Executive agrees to take such actions and
execute such documents and instruments, including but not
limited to patent applications, as the Company requests to
vest or maintain title to such inventions or improvements in
the Company or otherwise to carry out the intent of this
agreement. There shall be excluded from the operation of this
Agreement the Executive's inventions and improvements,
patented and unpatented, which were made prior to Executive's
employment by the Company, and which, if Executive has any
such inventions, are listed on an attached exhibit.
SECTION 6 - COMPENSATION DURING DISABILITY. Executive shall receive his
Base Compensation (net of applicable withholdings) during the first ninety (90)
business days of absence due
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EMPLOYMENT AGREEMENT - XXXXX X. XXXXX
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APRIL 1, 1998
PAGE 5 OF 12
to Disability (as hereinafter defined). In the event of Executive's Disability
and a determination by the Board of Directors that sufficient reasonable
accommodations for the Disability cannot be made, the Company may terminate
Executive's employment under this Agreement. If the Company terminates
Executive's employment under this Agreement because of Executive's Disability,
the Company shall pay to Executive the amounts, and provide to Executive the
benefits, specified in Section 7 hereof. The amount of benefits to be paid by
the Company to Executive under this Section 6 or under Section 7 shall be
reduced by any amount paid or to be paid pursuant to Company sponsored
disability plans. For purposes of this Agreement, "Disability" shall mean
Executive's inability, through physical or mental illness or accident or other
cause, to perform his major and substantial duties on a full time basis as
determined by a physician hired by the Board of Directors for this determination
(the "Company Physician"). If the physician regularly attending Executive (the
"Executive Physician") disagrees with the opinion of the Company Physician, the
Company Physician and the Executive Physician shall choose a third consulting
physician (the expense of which shall be borne by the Company), and the written
opinion of the third consulting physician shall be conclusive as to such
disability. In conjunction with this Section 6, Executive consents to such
examination, to furnish any medical information requested by any examining
physician, and to waive any applicable physician-patient privilege that may
arise because of such examination. All physicians, except the Executive
Physician, selected hereunder must be board-certified in the specialty most
closely related to the nature of the disability alleged to exist.
SECTION 7 - RESIGNATION DUE TO COMPANY FAILING TO HONOR ITS OBLIGATIONS
AND TERMINATION WITHOUT GOOD CAUSE OR DUE TO DISABILITY.
(a) GENERALLY. Executive may resign his employment and terminate
this Agreement if the Company fails to honor its obligations,
subject to the procedures as provided in this Section 7. The
Company may terminate Executive's employment for any reason at
any time upon 30 days notice to Executive, provided that the
Company pay Executive the amounts as determined in this
Section 7. Anything to the contrary contained in this
Agreement notwithstanding, (i) if the Company fails to honor
any of its obligations under this Agreement, and if the
Company does not cure the determined failure within thirty
(30) days after a determination of a failure in accordance
with the procedures set forth below and if as a result
Executive resigns his employment with the Company or (ii) the
Company terminates Executive's employment with the Company
under this Agreement without Good Cause (as defined in Section
8), or (iii) if Executive's employment terminates by reason of
Disability as provided for in Section 6 hereof, Executive
shall be entitled to receive and the Company shall pay to
Executive the following:
(1) SALARY. Executive's Base Compensation earned through
the date of resignation or termination and a lump sum
payment for any unused vacation shall be paid on or
before the next regularly scheduled pay-date after
the effective date of the resignation or termination.
(2) SEVERANCE. Severance payments for a period of one
year (two years if Executive is terminated by the
Company without Good Cause within the period three
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EMPLOYMENT AGREEMENT - XXXXX X. XXXXX
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months before or twelve months after a Change in
Control as defined in EXHIBIT A) shall be paid in
consecutive periodic payments commencing on the first
pay day in the month following such resignation or
termination in the aggregate amount (net of any
required withholdings and Disability payment offsets
as provided in Section 6) equal to one year (two
years if Executive is terminated by the Company
without Good Cause within the period three months
before or twelve months after a change in Control as
defined in EXHIBIT A) of Executive's Base
Compensation then in effect, provided that in the
event of Executive's death prior to the receipt of
all payments, any remaining payments shall cease to
be made. During the period which severance is
payable, the Company agrees to provide, through a
group life insurance arrangement or individual life
insurance policy or otherwise, life insurance with a
death benefit at least equal to the remaining
severance payments. Upon Executive's death during the
severance period and prior to receipt of all
severance payments, the death benefit shall be
payable to Executive's designated beneficiary or, if
none, to Executive's estate.
(3) BENEFITS. Following any resignation or termination
for which a payment under Section 7(a)(2) is owing,
Executive, or his spouse and eligible dependents in
the event of Executive's death, shall continue to
participate at the expense of the Company for a
period of twelve (12) months following such
resignation or termination in the same or comparable
hospital, medical, accident, disability and life
insurance benefits as Executive participated in
immediately prior to resignation or termination of
his employment unless by law, the terms of any
insurance policy or the terms of the applicable
benefit plans, continued coverage is not permitted.
Executive and eligible dependents may continue
coverage under such benefit plan for subsequent
periods and subject to applicable premium
contributions, to the extent permitted by law or by
such plans. To the extent that during Executive's
employment, any such benefits were part of a program
of benefits for Senior Level Executives of the
Company, generally, then any subsequent modification,
substitution, or termination of any such benefits,
generally, shall also apply to Executive and to the
benefits available to Executive pursuant to this
Section 7(a)(3).
(4) EARLY CESSATION OF BENEFITS. All benefits (other than
those with respect to which continuation is required
by law) under Section 7(a)(3) above shall cease upon
the death of Executive and his spouse.
(5) ANNUAL BONUS PLANS. An amount equal to a full year's
participation in the annual bonus plan then in effect
as provided for in Section 2 hereof shall be paid to
Executive within the time period prescribed by such
plan, (i.e. the Executive will be paid based upon
actual results as if the Executive had been employed
the full twelve months and had received the full
twelve month Base Compensation). In addition, any
payments due Executive under the incentive plans then
in effect as provided for in Section 2 hereof (other
than any annual bonus plans) in
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EMPLOYMENT AGREEMENT - XXXXX X. XXXXX
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accordance with the terms of such plans shall be paid
to Executive within the time period prescribed by
such plans.
(b) PROCEDURES. For purposes of this Section 7, the following
procedure shall be used to determine whether the Company has
failed to honor any of its obligations under this Agreement;
(i) Executive shall submit a claim to the Company's Board of
Directors specifically identifying the nature of the failure;
(ii) within thirty (30) days of receipt of such claim, the
Board of Directors shall determine whether they agree with
Executive that a failure has occurred and shall communicate,
in writing, their determination to Executive; and (iii) if
Executive disagrees with the determination of the Board of
Directors, Executive, within ten (10) days of Executives's
receipt of such determination, may submit the claim to
arbitration in accordance with the provisions of Section 16 of
this Agreement, and such determination shall be final and
binding upon the Company and Executive.
(c) SOLE REMEDY. The payments provided in this Section 7 shall
represent the sole remedy for any claim Executive may have
arising out of the Company's failure to honor its obligations
and termination without Good Cause. The Company may condition
payment of amounts due under this Section 7 (other than
payments due to Disability) upon the receipt of a release and
covenant not to xxx in a form reasonably satisfactory to the
Company.
SECTION 8 - TERMINATION FOR GOOD CAUSE.
(a) GENERALLY. The Company shall have the right to terminate
Executive's employment with the Company under this Agreement
for Good Cause. As used in this Agreement, the term "Good
Cause" shall mean:
(1) personal dishonesty within the course of employment
with the Company which evidences a want of integrity
or is a breach of trust;
(2) persistent failure to abide by reasonable rules and
regulations governing the transaction of business of
the Company as the Company's Board of Directors may
from time to time adopt or approve;
(3) persistent inattention to duties, or the commission
of acts within employment with the Company amounting
to gross negligence or willful misconduct.
(4) misappropriation of funds or property of the Company
or committing any fraud against the Company or
against any other person or entity in the course of
employment with the Company;
(5) misappropriation of any corporate opportunity, or
otherwise obtaining personal profit from any
transaction which is adverse to the interests of the
Company or
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EMPLOYMENT AGREEMENT - XXXXX X. XXXXX
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to the benefits of which the Company is entitled;
(6) The conviction of a felony; or
(7) any material violation of the terms of this
Agreement.
(b) PROCEDURES. Executive's employment shall in no event be
considered to have been terminated by the Company for Good
Cause if such termination took place as the result of (i) bad
judgment or negligence, or (ii) any act or omission reasonably
believed in good faith to have been in or not opposed to the
interest of the Company. Executive shall not be deemed to have
been terminated for Good Cause unless and until there shall
have been delivered to him a copy of a resolution duly adopted
by the affirmative vote of not less than a majority of the
entire membership of the Board of Directors (excluding
Executive if a member of the Board) at a meeting of the Board
(after reasonable notice to Executive and an opportunity for
him, together with his counsel, to be heard before the Board),
finding that, in the good faith opinion of the Board,
Executive was guilty of any of the conduct set forth above in
clauses (a)-(c),(e) and (g) above. However, pending a final
determination of the Board, the Board shall have the authority
to place Executive on "leave of absence status", with or
without pay in the sole discretion of the Board as determined
by a majority of the Board.
(c) FURTHER OBLIGATIONS. In the event that the Company shall
terminate Executive's employment under this Agreement for Good
Cause, the Company shall have no further obligation to
Executive under this Agreement except to pay his Base
Compensation and unused vacation earned through the date of
termination, on or before the next regularly scheduled pay
date after termination and to perform such other obligations
as imposed by law.
SECTION 9 - VOLUNTARY TERMINATION OTHER THAN SECTION 7. Executive may
voluntarily terminate his employment with the Company under this Agreement,
other than as provided in Section 7 hereof, upon not less than ninety (90) days
prior written notice to the Company. In the event that Executive terminates his
employment pursuant to this Section 9, the Company shall have no further
obligation to Executive under this Agreement except to pay his Base Compensation
and unused vacation earned through the date of resignation and to perform such
other obligations as imposed by law..
SECTION 10 - TERMINATION UPON DEATH. Executive's employment under this
Agreement shall terminate upon the death of Executive. Upon such termination,
Executive's designated beneficiary, or his personal representative shall receive
the payments/benefits described below from the Company:
(a) SALARY. Executive's unpaid Base Compensation earned through
the date of termination and a lump sum payment for any unused
vacation shall be paid on or before the next regularly
scheduled pay date after termination.
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(b) BONUS. An amount equal to a full year's participation in the
annual bonus plan then in effect as provided for in Section
2(d) hereof shall be paid within the time period prescribed by
such plan (i.e. the Executive will be paid based upon actual
results as if the Executive had been employed the full twelve
months and had received the full twelve month Base
Compensation).
(c) BENEFITS. Benefits will continue for Executive's spouse and
eligible dependents in accordance with Company policy and as
required by law.
SECTION 11 - POST TERMINATION CONSULTING AND COOPERATION. For a period
of six (6) months following the termination of Executive's employment under this
Agreement, regardless of whether such termination is by Executive or by the
Company or whether it is with or without Good Cause, Executive, at the sole
discretion of the Company, shall provide the Company and its designated agents,
advisors, and executives with such consultation as the Company may reasonably
require up to a maximum of twenty (20) hours per week. However, Executive shall
have no consulting obligation under this Section 11 if he resigns under
circumstances, which entitle him to payments under Section 7 hereof. Company
shall pay Executive an hourly rate of one hundred fifty dollars ($150.00) per
hour and reimburse Executive for all reasonable expenses and out-of-pocket costs
incurred in connection with fulfilling his obligations under this Section 11.
The Company shall endeavor to schedule such consulting so that Executive's
obligations under this Section 11 to assist Company shall not unreasonably
interfere with Executive's business prospects or responsibilities to a new
employer.
SECTION 12 - BREACHES AND REMEDIES. Executive acknowledges and agrees
that in the event that Executive violates the undertakings set forth in Section
4 or 5 hereof, other than in an immaterial fashion, in addition to any other
rights or remedies to which it may be entitled under law or this Agreement, the
Company shall, except as prohibited by applicable law, cease making any
severance or other payments hereunder and shall be entitled to enforce the
provisions of Section 4 or 5 by injunction or other equitable relief, without
having to prove irreparable harm or inadequacy of money damages.
SECTION 13 - SEVERABILITY. The provisions contained in this Agreement
are severable and in the event any provision shall be held to be invalid,
unenforceable or overbroad, in whole or in part, by a court of competent
jurisdiction, the remainder of such provision and of this Agreement shall not be
affected thereby and shall be given full force and effect.
SECTION 14 - NOTICES. Any notices, requests, demands, or other
communications provided for by this Agreement shall be sufficient if made in
writing delivered personally or if sent by registered or certified mail, return
receipt requested.
SECTION 15 - SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the Company, its successors and assigns, and to
the benefit of Executive, his heirs and legal representatives, except that
Executive's duties to perform future services are expressly agreed to be
personal and not to be assignable or transferable.
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SECTION 16 - APPLICABLE LAW, ARBITRATION AND JURISDICTION. This
Agreement shall be governed by and construed under the laws of the State of
Ohio. The parties agree that any dispute arising out of this employment
relationship except for disputes arising under Sections 4 and 5 of this
Agreement shall be settled by arbitration conducted in accordance with the rules
of conciliation and arbitration of the American Arbitration Association, such
arbitration to be conducted in Cleveland, Ohio, or at such other location as the
parties may agree. Costs of such arbitration, including Executive's attorneys
fees (to the extent such fees are reasonable), shall be borne by the Company.
With respect to disputes arising under Sections 4 and 5 of this Agreement,
Executive and the Company consent and submit themselves to the jurisdiction of
the courts of the State of Ohio.
SECTION 17 - AMENDMENT. This Agreement may be amended only by a written
document signed by both parties.
SECTION 18 - NO WAIVER. No waiver by either party at any time of any
breach by the other party of, or compliance with, any condition or provision of
this Agreement to be performed by the other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same time or any prior or
subsequent time.
SECTION 19 - HEADINGS. The headings contained in this Agreement are for
reference only and shall not affect the meaning or interpretation of any
provision of this Agreement.
SECTION 20 - PRIOR AGREEMENTS. This Agreement supersedes in all
respects all prior agreements between the parties, whether written or oral,
regarding the subject matter hereof, including, but not limited to, the
employment agreement entered into between the parties effective April 1, 1997.
SECTION 21 - RESTRICTIONS OF PAYMENTS OR PERFORMANCE. To the extent the
Company is unable to make any of the payments or perform any of the obligations
hereunder due to restrictions imposed by law, by the Company's Articles of
Incorporation or Code of Regulations, or by loan agreements or other contracts
to which the Company is or becomes party to, the Company agrees to take such
reasonable steps as are necessary to remove such restrictions. In the event the
Company is unable to remove such restrictions, Executive and the Company shall
enter into negotiations to effect reasonable alternatives. The Company's
obligations shall be suspended until such time as such restrictions are removed
or such reasonable alternatives are effected.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
CORRPRO COMPANIES, INC.
By:
-------------------------------
Its: -------------------------------
"COMPANY"
-------------------------------
Xxxxx X. Xxxxx
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EXHIBIT A
TO
EMPLOYMENT AGREEMENT
BETWEEN
CORRPRO COMPANIES, INC.
AND EXECUTIVE
For purposes of Section 7(a) of the Agreement, "Change in Control" means and
shall have occurred at any time during Executive's employment pursuant to this
Agreement, and if any of the following shall occur:
(i) The Company is merged, consolidated, or reorganized into or
with another corporation or other Legal Person, and
immediately after such merger, consolidation, or
reorganization Voting Securities entitled to exercise a
majority of the Voting Power of the surviving or resulting
corporation or other Legal Person are not (A) Voting
Securities of the Company outstanding immediately prior to
such merger, consolidation or reorganization, or (B)
securities received in exchange for such Voting Securities of
the Company.
(ii) Any person becomes the Beneficial Owner of Voting Securities
representing twenty percent or more of the combined Voting
Power of the Company. The change in control shall be deemed to
have occurred no later than the date on which a report is
filed on Schedule 13D or Schedule 14D-1 as promulgated
pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), disclosing that any Person has become
the Beneficial Owner of Voting Securities representing twenty
percent or more of the combined voting power of the Company.
(iii) A "change in control" or possible "change in control" which
would be required to be disclosed in response to an item in
Form 8-K or Schedule 14A in connection with the filing of a
report or proxy statement with the Securities and Exchange
Commission pursuant to the Exchange Act, has or may have
occurred or will or may occur in the future pursuant to any
then existing contract or transaction. The change in control
will be deemed to have occurred no later than the date on
which the Company files such report or proxy statement with
the Securities and exchange Commission disclosing the "change
in control" or possible "change in control."
(iv) During any consecutive six (6) month period commencing before
or after the date of this Agreement, individuals who at the
beginning of such six (6) month period constituted a majority
of the Board of Directors of the Company cease serving on the
Board; however, if a person ceases to serve as a director of
the Company for any reason not related to the Company (as, for
example, because of family reasons, or health reasons, or a
lack or time), then such cessation shall not be considered as
a "cessation" under this Exhibit A, and any replacement
director shall, for purposes of this Exhibit A, be treated as
the same person as the director who so ceased serving.
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(b) Any reference in this Exhibit A to a section of the Exchange Act, a
rule or regulation promulgated under the Exchange Act, or any schedule,
form or report promulgated under the Exchange Act or any subdivision or
item included in any of the foregoing, shall be deemed to refer to any
successor, replacement or amended section, rule, regulation, schedule,
form, report, subdivision, or item in effect at the time a
determination is made. The following words and phrases when used in
this Exhibit A, shall have the meanings indicated:
(i) PERSON shall have the meaning used in Section 12 (d)(3) or
Section 14(d)(2) of the Exchange Act, and shall also include
all affiliates and associates of such Person as defined in
Rule 12b-2 promulgated under the Exchange Act.
(ii) LEGAL PERSON means any Person other than a natural person,
including any entity which can acquire, hold and dispose of
property in its own name, a fictitious name, or in the name of
its owners or owners.
(iii) BENEFICIAL OWNER shall have the meaning defined under Rule
13d-3 promulgated under the Exchange Act, but without the
sixty (60) days limitation specified in paragraph (3)(1)(I) of
said Rule.
(iv) VOTING SECURITIES means any stock or securities entitling the
holder to exercise Voting Power.
(v) VOTING POWER means the right to vote in the election of
directors or persons serving in a similar capacity with a
corporation or other Legal Person, or if there is no board of
directors or similar body, the right to vote to retain or
dismiss the management or the Legal Person.
