EXHIBIT 10(y)
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of this 28th day
of April, 1998, by and between XXXXXX, INC., a Delaware corporation
(the "Company"), and Xxxxxx X. Xxxxxxx ("Executive").
W I T N E S S E T H:
WHEREAS, the Company and Executive desire to enter
into an agreement providing for Executive's employment by
Company and specifying the terms and conditions of such
employment; and
WHEREAS, Executive desires to continue his
employment with the Company on the terms and conditions
provided herein; and
WHEREAS, Executive's services for the Company will
benefit Xxxxxx International, Inc. ("BII"), which is the
parent corporation of the Company;
NOW, THEREFORE, in consideration of the premises
and the mutual covenants and agreements contained herein,
the parties hereby agree as follows:
1. Purpose. The purpose of this Agreement is to
create an understanding which shall provide the basis for
Executive's continued employment by the Company.
2. Employment and Term. (a) Subject to the terms
and conditions of this Agreement, the Company hereby employs
Executive, and Executive hereby accepts employment, as Group
President Outdoor Sports of the Company or other positions
to which he may be assigned and shall have such
responsibilities, duties and authority that are consistent
with such positions as may from time to time be assigned to
Executive. Executive hereby agrees that during the Term of
this Agreement he will devote substantially all his working
time, attention and energies to the diligent performance of
his duties, provided that the Executive may also serve on
boards of directors or trustees of other companies and
organizations, as long as such service does not materially
interfere with the performance of his duties hereunder and
is with the prior approval of the President and Chief
Executive Officer of Xxxxxx, Inc.
(b) Unless earlier terminated as provided herein,
Executive's employment under this Agreement shall be for a
rolling, eighteen month term (the "Term") commencing on May
18, 1998, and shall be deemed to automatically, without
further action by either the Company or Executive, extend
each day for an additional day, such that the remaining term
of the Agreement shall continue to be eighteen months;
provided, however, that (i) either party may, by written
notice to the other, cause this Agreement to cease to extend
automatically and, upon such notice, the "Term" of this
Agreement shall be the eighteen months following the date of
such notice and this Agreement shall terminate upon the
expiration of such Term, and (ii) the Term of this Agreement
shall not extend beyond the date Executive attains age 65,
unless the parties otherwise agree in writing. If no such
notice to cease to extend has been given and this Agreement
is terminated pursuant to Section 5.1 or Section 5.2 hereof,
for the purposes of calculating and assessing the damages to
Executive as a result of such termination, the remaining
Term of this Agreement shall be deemed to be eighteen months
from the date of such termination (or, if earlier, the date
Executive attains age 65).
3. Compensation and Benefits. As compensation
for his services during the Term of this Agreement,
Executive shall be paid and receive the amounts and benefits
set forth in subsections (a) through (d) below:
(a) An annual base salary ("Base Salary") of
Three Hundred Twenty-Five Thousand Dollars ($325,000.00),
prorated for any partial year of employment. Executive's
Base Salary shall be subject to annual review for increases
at such time as the Company conducts salary reviews for its
executive officers generally. Executive's salary shall be
payable bi-monthly, or in accordance with the Company's
regular payroll practices in effect from time to time for
executive officers of the Company.
(b) Executive shall be eligible to participate in
the Target Incentive Plan and, to the extent designated by
the President and Chief Executive Officer of the Company,
such other annual incentive plans as may be established by
the Company from time to time for its executive officers.
The President and Chief Executive Officer will establish
individual performance goals each year under the incentive
plans, and Executive's annual Target Bonus shall be 50% of
Base Salary; as provided in the Target Incentive Plan,
bonuses may be adjusted up or down based on attainment of
individual and corporate performance objectives. Maximum
bonus attainable is 200% of target (100% of base salary).
The annual incentive bonus payable under this subsection (b)
shall generally be payable as a lump sum no later than
fifteen (15) business days after approval of the bonus by
the Compensation Committee of the Board, unless Executive
elects to defer all or a portion of such amount to any
deferral plan established by the Company for such purpose.
(c) Executive shall be entitled to participate
in, or receive benefits under, any "employee benefit plan"
(as defined in Section 3(3) of ERISA) or employee benefit
arrangement made available generally by the Company to its
executive officers (whether such plan or arrangement is
established by the Company or BII), including plans
providing retirement, 401(k) benefits, deferred
compensation, health care, life insurance, disability and
similar benefits. Xxxxxx'x ExecUcare program will also be
provided to Executive and his dependents.
(d) The Company will provide membership
initiation fees and dues at a Country Club to be determined
by mutual agreement between the Executive and the President
and Chief Executive Officer. Executive is eligible for
three weeks vacation his first year of employment and four
weeks each year thereafter. Executive will be provided an
annual physical examination and Executive will be provided
an automobile per company policy. Financial and estate
planning and income tax preparation will be provided through
Xxxxxx'x outside consultant, Coopers & Xxxxxxx.
Exhibit A, attached and made part of this
agreement, lists additional considerations for Executive,
guaranteed by the Company.
4. Confidentiality and Noncompetition.
(a) Executive acknowledges that, prior to and
during the Term of this Agreement, the Company (and BII) has
furnished and will furnish to Executive Confidential
Information which could be used by Executive on behalf of a
competitor of the Company (or BII) to the Company's (or
BII's) substantial detriment. Moreover, the parties
recognize that Executive during the course of his employment
with the Company may develop important relationships with
customers and others having valuable business relationships
with the Company (and BII). In view of the foregoing,
Executive acknowledges and agrees that the restrictive
covenants contained in this Section are reasonably necessary
to protect the Company's (and BII's) legitimate business
interests and good will.
(b) Executive agrees that he shall protect the
Company's (and BII's) Confidential Information and shall not
disclose to any Person, or otherwise use, except in
connection with his duties performed in accordance with this
Agreement, any Confidential Information; provided, however,
that Executive may make disclosures required by a valid
order or subpoena issued by a court or administrative agency
of competent jurisdiction, in which event Executive will
promptly notify the Company of such order or subpoena to
provide the Company an opportunity to protect its interests.
Executive's obligations under this Section 4(b) shall
survive any expiration or termination of this Agreement,
provided that Executive may after such expiration or
termination disclose Confidential Information with the prior
written consent of the President and Chief Executive Officer
of the Company.
(c) Upon the termination or expiration of his
employment hereunder, Executive agrees to deliver promptly
to the Company all Company (and BII) files, customer lists,
management reports, memoranda, research, Company forms,
financial data and reports and other documents supplied to
or created by him in connection with his employment
hereunder (including all copies of the foregoing) in his
possession or control, and all of the Company's (and BII's)
equipment and other materials in his possession or control.
Executive's obligations under this Section 4(c) shall
survive any expiration or termination of this Agreement.
(d) Upon the termination or expiration of his
employment under this Agreement for whatever reason,
Executive agrees that he shall not enter into or engage in
the design, manufacture, marketing or sale of any products
similar to those produced or offered by the Company or its
affiliates in the area of North America, either as an
individual, partner or joint venturer, or as an employee,
agent or salesman, or as an officer, director, or
shareholder of a corporation for a period of eighteen months
from the date of his termination of employment.
(e) Executive acknowledges that if he breaches or
threatens to breach this Section 4, his actions may cause
irreparable harm and damage to the Company (and BII) which
could not be compensated in damages. Accordingly, if
Executive breaches or threatens to breach this Section 4,
the Company (and BII) shall be entitled to seek injunctive
relief, in addition to any other rights or remedies of the
Company (or BII).The existence of any claim or cause of
action by Executive against the Company (or BII), whether
predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company (and
BII) of Executive's agreement under this Section 4 (e).
5. Termination.
5.1 By Executive. Executive shall have the right
to terminate his employment hereunder by Notice of
Termination (as described in Section 7) if (i) the Company
materially breaches this Agreement and such breach is not
cured within thirty (30) days after written notice of such
breach is given by Executive to the Company; or (ii)
Executive determines that his termination is for Good Reason
(as defined in Section 6.7). If Executive terminates his
employment hereunder pursuant to clauses (i) or (ii) of this
Section 5.1, Executive shall be entitled to receive, as
damages payable as a result of, and arising from, a breach
of this Agreement, the compensation and benefits set forth
in subsections (a) through (g) below. The time periods in
(a) through (e) below shall be the lesser of the eighteen
(18) month period stated therein or the time period
remaining from the date of Executive's termination to the
end of the Term of this Agreement. If Executive terminates
his employment other than pursuant to clauses (i) or (ii) of
this Section 5.1, the Company's obligations under this
Agreement shall cease as of the date of such termination.
Except as provided in Section 5.4(a), the Company agrees
that if Executive terminates employment and is entitled to
benefits under this Section 5.1, he shall not be required to
mitigate damages , nor shall any amount he earns reduce the
amount payable by the Company hereunder.
(a) Base Salary - Executive will
continue to receive his Base Salary as then in
effect (subject to withholding of all applicable
taxes) for a period of eighteen (18) months from
his date of termination in the same manner as it
was being paid as of the date of termination;
provided, however, that the salary payments
provided for hereunder shall be paid in a single
lump sum payment, to be paid not later than 30
days after his termination of employment;
provided, further, that the amount of such lump
sum payment shall be determined by taking the
salary payments to be made and discounting them to
their Present Value (as defined in Section 5.4(e))
on the date Executive's employment under this
Agreement is terminated.
(b) Bonuses and Incentives - Executive shall
receive bonus payments from the Company for the
eighteen (18) months following the month in which
his employment under this Employment Agreement is
terminated in an amount for each such month equal
to one-twelfth of the average of the bonuses
earned by him for the two fiscal years in which
bonuses were paid immediately preceding the fiscal
year in which such termination occurs. Any bonus
amounts that Executive had previously earned from
the Company but which may not yet have been paid
as of the date of termination shall not be
affected by this provision. Executive shall also
receive a prorated bonus for any uncompleted
fiscal year at the date of termination (assuming
the Target Award level will be achieved for such
year), based upon the number of days that he was
employed during such fiscal year divided by 365
days. The bonus amounts determined herein shall
be paid in a single lump sum payment, to be paid
not later than 30 days after termination of
employment; provided, that, with respect to the 12
months payments, the lump sum amount shall be
determined by taking the twelve monthly bonus
payments to be made and discounting them to their
Present Value (as defined in Section 5.4(e)) on
the date Executive's employment under this
Agreement is terminated.
(c) Health and Life Insurance Coverage - The
health and group term life insurance benefits
coverage provided to Executive at his date of
termination shall be continued at the same level
and in the same manner as if his employment under
this Agreement had not terminated (subject to the
customary changes in such coverages if Executive
retires, reaches age 65 or similar events),
beginning on the date of such termination and
ending on the date eighteen (18) months from the
date of such termination. Any additional
coverages Executive had at termination, including
dependent coverage, will also be continued for
such period on the same terms, to the extent
permitted by the applicable policies or contracts.
Any costs Executive was paying for such coverages
at the time of termination shall be paid by
Executive by separate check payable to the Company
each month in advance. If the terms of any
benefit plan referred to in this Section, or the
laws applicable to such plan, do not permit
continued participation by Executive, then the
Company will arrange for other coverage at its
expense providing substantially similar benefits.
(d) Employee Retirement Plans - To the extent
permitted by the applicable plan, Executive will
be entitled to continue to participate, consistent
with past practices, in all employee retirement
plans maintained by the Company in effect as of
his date of termination to the extent such plans
are still maintained by the Company (whether such
plans are established by the Company or BII).
Executive's participation in such retirement plans
shall continue for a period of eighteen (18)
months from the date of termination of his
employment under this Agreement (at which point he
will be considered to have terminated employment
within the meaning of the plans) and the
compensation payable to Executive under (a) and
(b) above shall be treated (unless otherwise
excluded) as compensation under the plan. For
purposes of the Xxxxxx 401(k) Plan, he will
receive an amount equal to the Company's
contributions to the plan, assuming Executive had
participated in such plan at the maximum
permissible contributions level. If continued
participation in any plan is not permitted by the
plan or by applicable law, the Company shall pay
to Executive and, if applicable, his beneficiary,
a supplemental benefit equal to the present value
on the date of termination of employment under
this Agreement (calculated as provided in the
plan) of the excess of (i) the benefit Executive
would have been paid under such plan if he had
continued to be covered for the 18-month period
(less any amounts Executive would have been
required to contribute), over (ii) the benefit
actually payable under such plan. The Company
shall pay such additional benefits (if any) in a
lump sum.
(e) Effect of Lump Sum Payment. The lump sum
payments under (a) or (b) above shall not alter
the amounts Executive is entitled to receive under
the benefit plans described in this section.
Benefits under such plans shall be determined as
if Executive had remained employed and received
such payments over a period of eighteen (18) months.
(f) Effect of Death or Retirement. The benefits
payable or to be provided under subsections (c) or
(d) above shall cease or be modified in the event
of the Executive's death or election to commence
retirement benefits under the Company's retirement
plan, provided that nothing in this subsection (f)
shall limit Executive's rights to receive Company
benefits as a retiree.
(g) Stock Options. For purposes of the 1992 Plan
and other stock option programs of the Company in
which the Executive may participate, Executive
shall be deemed to have completed one eighteen
months (18) of service with the Company.
5.2 By Company. The Company shall have the right
to terminate Executive's employment under this Agreement at
any time during the Term by Notice of Termination (as
described in Section 7), (i) for Cause, as defined herein,
(ii) if Executive becomes Disabled, or (iii) upon
Executive's death. If the Company terminates Executive's
employment under this Agreement pursuant to clauses (i)
through (iii) of this Section 5.2, the Company's obligations
under this Agreement shall cease as of the date of
termination; provided, however, that if Executive's
employment terminates as a result of death or Disability,
the benefits payable under this Agreement and the other
benefit plans of the Company upon Executive's death or
Disability shall be provided by the Company. If the Company
terminates Executive during the Term of this Agreement other
than pursuant to clauses (i) through (iii) of this Section
5.2, Executive shall be entitled to receive, as damages
payable as a result of, and arising from, a breach of this
Agreement, the compensation and benefits provided in
subsections (a) through (g) of Section 5.1 above for the
time periods, and subject to the provisions (including the
nonmitigation provision) and limitations therein.
5.3 Additional Agreements Upon Termination. In
the event Executive's employment is terminated by Executive
under clause (ii) of Section 5.1, or by the Company other
than under clauses (i) through (iii) of Section 5.2 within
twenty-four (24) months following the date of a Change in
Control or the death or incapacity (as defined in the next
two sentences) of Xxxxxx X. Xxxxxx, the provisions set forth
below shall apply, provided that such provisions shall only
apply in each case to the extent that the damages payable to
Executive for termination of his employment under Sections
5.1 or 5.2 do not already provide such benefits under the
plan or program. For purposes of this Agreement, Xx. Xxxxxx
shall be considered incapacitated if he is determined to be
permanently unable to perform his duties as Chairman of the
Board of Xxxxxx International, Inc. The Board of Xxxxxx
International, Inc. shall have the authority to make the
determination whether Xx. Xxxxxx is incapacitated under this
Agreement and shall also have the authority to determine
whether Xx. Xxxxxx has ceased to be incapacitated hereunder.
(a) Stock Options. As of his date of
termination, all outstanding stock options granted to
Executive shall become 100% vested and immediately
exercisable. Notwithstanding the other provisions of
Executive's stock options, Executive shall have a period of
not less than 3 months from his date of termination to
exercise such options (to the extent such period does not
extend beyond the original term of the option).
6. Definitions. For purposes of this Agreement
the following terms shall have the meanings specified below:
6.1 "Board" or "Board of Directors" - The Board
of Directors of the Company.
6.2 "Cause" - For the purposes of this Agreement,
"cause" shall be defined as any of the following acts by
Executive: (a) any act that constitutes a fraud, felony or
gross malfeasance of duty on the part of the Executive and
that results in material injury to the Company (or BII) ;
(b) Executive's willful and continued failure to devote his
full business time and efforts to the performance of duties
for the Company; (c) any action or failure to act that is in
knowing insubordination to the directives of Executive's
superiors, if lawful, ethical, and germane to Executive's
responsibilities; (d) any continuing failure on the part of
Executive to perform the major responsibilities of his
position in a professional and competent manner; (e) any
willful disclosure of trade secrets; (f) any breach or
threatened breach of this Agreement; or (g) any willful
refusal to carry out the policies and directives of the
Chief Executive Officer of the Company or his designee;
provided, however, that in the case of (b), (d) or (f)
above, such conduct shall not constitute cause unless a
notice is delivered to Executive by the Chairman of the
Board of the Company or his designee pursuant to Section 7
setting forth with specificity (i) the conduct deemed to
qualify as cause, (ii) reasonable action that would remedy
such objection, and (iii) a reasonable time (not less than
thirty days) within which Executive may take such remedial
action, and Executive shall not have taken such specified
remedial action within such specified reasonable time. Upon
termination for cause, the Company shall pay to Executive
only that portion of Executive's Base Salary which has
accrued to Executive to the date of termination but which
has not been paid.
6.3 "Change in Control" - Either
(a) the acquisition, directly or
indirectly, by any "person" (as such term is used
in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended) within any
twelve (12) month period of securities of BII
representing an aggregate of fifty percent (50%)
or more of the combined voting power of BII's then
outstanding securities (excluding the acquisition
by persons who own such amount of securities on
the date hereof, or acquisitions by persons who
acquire such amount through inheritance);
(b) Xxxxxx X. Xxxxxx (i) ceases to own at least
50.1% of the combined voting power of the then
outstanding securities of the sole general partner
of Xxxxxx Holding Company, L.P. ("Xxxxxx
Partnership"), a limited partnership which holds
and owns voting securities of BII, or counsel to
the Xxxxxx Partnership is unable at any time to
provide a legal opinion that ownership of at least
50.1% of the combined voting power of the then
outstanding securities is sufficient to control
the sole general partner, or (ii) ceases to direct
personally (and not through a representative) by
his ownership of the voting power of the sole
general partner of the Xxxxxx Partnership, the
voting and dispositive power of all of the shares
of BII's voting securities owned by the Xxxxxx
Partnership;
(c) Xxxxxx X. Xxxxxx personally and the Xxxxxx
Partnership in the aggregate cease to own at least
50.1% of the combined voting power of BII's then
outstanding securities; or
(d) During any period of two consecutive years,
individuals who at the beginning of such period
constitute the Board or BII, cease for any reason
to constitute at least a majority thereof, unless
the election of each new director was approved in
advance by a vote of at least a majority of the
directors then still in office who were directors
at the beginning of the period; or
(e) consummation of (i) a merger, consolidation or
other business combination of BII with any other
"person" (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934,
as amended) or affiliate thereof, other than a
merger, consolidation or business combination
which would result in the outstanding common stock
of BIII immediately prior thereto continuing to
represent (either by remaining outstanding or by
being converted into common stock of the surviving
entity or a parent or affiliate thereof) at least
fifty percent (50%) of the outstanding common
stock of BII (or such surviving entity or parent
or affiliate thereof) that is outstanding
immediately after such merger, consolidation or
business combination, or (ii) a plan of complete
liquidation of BII or an agreement for the sale or
disposition by BII of all or substantially all of
BII's assets; or
(f) the occurrence of any other event or circumstance
which is not covered by (a) through (e) above which the
Board of BII determines affects control of BII and adopts
a resolution that such event or circumstance constitutes a
Change in Control for the purposes of this Agreement.
6.4 "Code" - The Internal Revenue Code of 1986,
as it may be amended from time to time.
6.5 "Confidential Information" - All technical,
business, and other information relating to the business of
the Company or its subsidiaries or affiliates, including,
without limitation, technical or nontechnical data,
formulae, compilations, programs, devices, methods,
techniques, processes, financial data, financial plans,
product plans, and lists of actual or potential customers or
suppliers, which (i) derives economic value, actual or
potential, from not being generally known to, and not being
readily ascertainable by proper means by, other Persons, and
(ii) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy or confidentiality.
Such information and compilations of information shall be
contractually subject to protection under this Agreement
whether or not such information constitutes a trade secret
and is separately protectable at law or in equity as a trade
secret. Confidential Information does not include
confidential business information which does not constitute
a trade secret under applicable law two years after any
expiration or termination of this Agreement.
6.6 "Disability" or "Disabled". Executive's
inability as a result of physical or mental incapacity to
substantially perform his duties for the Company on a full-
time basis for a period of six (6) consecutive months.
6.7 "Good Reason" A "Good Reason" for
termination by Executive of Executive's employment shall
mean the occurrence (without the Executive's express written
consent) within the twenty-four (24) month period following
the date of (a) a Change in Control, or (b) the death or
incapacity (as defined in Section 5.3) of Xxxxxx X. Xxxxxx,
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), (v), (vi) or
(vii) 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:
(i) the assignment to Executive without his
consent of any duties inconsistent with Executive's status
as the Group President Outdoor Sports of the Company, or a
substantial adverse alteration in the nature or status of
the Executive's responsibilities from those in effect
immediately prior to the Change in Control or death or
incapacity of Xx. Xxxxxx (other than any such alteration
primarily attributable to the fact that the Company may no
longer be a public company);
(ii) a reduction by the Company in Executive's
Base Salary as in effect on the date hereof or as the same
may be increased from time to time;
(iii) the relocation of Executive without his
consent to a location more than fifty (50) miles from the
work location immediately prior to the Change in Control or
death or incapacity of Xx. Xxxxxx, or the Company's
requiring Executive without his consent to be based anywhere
other than the Executive's principal office, except for
required travel on the Company's business to an extent
substantially consistent with Executive's present business
travel obligations;
(iv) the failure by the Company, without
Executive's consent, to pay to Executive any portion of
Executive's current compensation (including Base Salary and
bonus), or to pay to the Executive any portion of an
installment of deferred compensation under any deferred
compensation program of the Company, within seven (7) days
of the date such compensation is due;
(v) the failure by the Company to continue in
effect any compensation plan in which Executive participates
immediately prior to the Change in Control or death or
incapacity of Xx. Xxxxxx, which is material to Executive's
total compensation or any substitute plans adopted prior to
the Change in Control or death or incapacity of Xx. Xxxxxx,
unless an equitable arrangement (embodied in an ongoing
substitute or alternative plan) has been made with respect
to such plan, or the failure by the Company to continue the
Executive's participation in such plan (or in such
substitute or alternative plan) on a basis not materially
less favorable, both in terms of the amount of benefits
provided and the level of Executive's participation relative
to other participants, as existed at the time of the Change
in Control or death or incapacity of Xx. Xxxxxx;
(vi) the failure by the Company to continue to
provide Executive with benefits substantially similar to
those enjoyed by Executive under any of the Company's
pension, life insurance, medical, health and accident or
disability plans in which Executive was participating at the
time of the Change in Control or death or incapacity of Xx.
Xxxxxx, the taking of any action by the Company which would
directly or indirectly materially reduce any of such
benefits or deprive Executive of any material fringe benefit
enjoyed by Executive at the time of the Change in Control or
death or incapacity of Xx. Xxxxxx, or the failure by the
Company to provide Executive with the number of paid
vacation days to which the Executive is entitled under this
Agreement; or
(vii) any purported termination of Executive's
employment which is not effected pursuant to a Notice of
Termination satisfying the requirements of Section 7.1; for
purposes of this Agreement, no such purported termination
shall be effective.
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 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.
6.8 "Person". Any individual, corporation, bank,
partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or other entity.
7. Termination Procedures.
7.1 Notice of Termination. During the Term of
this Agreement, any purported termination of 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
11. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the
specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of
Executive's employment under the provision so indicated.
Further, a Notice of Termination for Cause is required to
include a copy of the written reasons for such termination
(after reasonable notice to Executive and an opportunity for
Executive, together with Executive's counsel, to be heard)
finding that, in good faith opinion, Executive was guilty of
conduct set forth in one or more of the clauses of the
definition of Cause herein, and specifying the particulars
thereof in detail.
7.2 Date of Termination. "Date of Termination,"
with respect to any purported termination of Executive's
employment during the Term of this Agreement, shall mean (i)
if Executive's employment is terminated by his death, the
date of his death, (ii) if Executive's employment is
terminated for Disability, thirty (30) days after Notice of
Termination is given (provided that Executive shall not have
returned to the full-time performance of Executive's duties
during such thirty (30) day period), and (iii) if
Executive's employment is terminated for any other reason,
the date specified in the Notice of Termination (which, in
the case of a termination by the Company, shall not be less
than thirty (30) days (except in the case of a termination
for Cause) and, in the case of a termination by the
Executive, shall not be less than fifteen (15) days nor more
than sixty (60) days, respectively, from the date such
Notice of Termination is given).
8. Contract Non-Assignable. The parties
acknowledge that this Agreement has been entered into due
to, among other things, the special skills of Executive, and
agree that this Agreement may not be assigned or transferred
by Executive, in whole or in part, without the prior written
consent of the Company.
9. Successors; Binding Agreement.
9.1 In addition to any obligations imposed by law
upon any successor or transferor to the Company, the Company
will require any successor or transferor to all or
substantially all of the business and/or assets of the
Company (whether direct or indirect, by purchase, merger,
reoganization, liquidation, consolidation or otherwise) 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 prior to 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 after a Change in
Control, except that, for purposes of implementing the
foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination.
9.2 This Agreement shall inure to the benefit of
and be enforceable by Executive's personal or legal
representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If Executive
shall die while any amount would still be payable to
Executive hereunder (other than amounts which, by their
terms, terminate upon the death of Executive) if 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 Executive's estate.
10. Other Agents. Nothing in this Agreement is
to be interpreted as limiting the Company from employing
other personnel on such terms and conditions as may be
satisfactory to the Company.
11. Notices. All notices, requests, demands and
other communications required or permitted hereunder shall
be in writing and shall be deemed to have been duly given if
delivered or seven days after mailing if mailed, first
class, certified mail, postage prepaid:
To the Company: Xxxxxx International, Inc.
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: D. Xxxxxx XxXxxxx
To the Executive: Xxxxxx X. Xxxxxxx
000 Xxxxxxxx Xxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Any party may change the address to which notices, requests,
demands and other communications shall be delivered or
mailed by giving notice thereof to the other party in the
same manner provided herein.
12. Provisions Severable. If any provision or
covenant, or any part thereof, of this Agreement should be
held by any court to be invalid, illegal or unenforceable,
either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or
enforceability of the remaining provisions or covenants, or
any part thereof, of this Agreement, all of which shall
remain in full force and effect.
13. Waiver. Failure of either party to insist,
in one or more instances, on performance by the other in
strict accordance with the terms and conditions of this
Agreement shall not be deemed a waiver or relinquishment of
any right granted in this Agreement or the future
performance of any such term or condition or of any other
term or condition of this Agreement, unless such waiver is
contained in a writing signed by the party making the waiver.
14. Amendments and Modifications. This Agreement
may be amended or modified only by a writing signed by both
parties hereto.
15. Governing Law. The validity and effect of
this Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Alabama.
16. Arbitration of Disputes; Expenses. All
claims by Executive for compensation and benefits under this
Agreement shall be in writing. Any denial of a claim for
benefits under this Agreement shall be delivered to
Executive in writing and shall set forth the specific
reasons for the denial and the specific provisions of this
Agreement relied upon. The Company shall afford a
reasonable opportunity to Executive for a review of a
decision denying a claim and shall further allow Executive
to appeal a decision within sixty (60) days after
notification that Executive's claim has been denied. To the
extent permitted by applicable law, any further dispute or
controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration in
Montgomery, Alabama, in accordance with the rules of the
American Arbitration Association then in effect. Judgment
may be entered on the arbitrator's award in any court having
jurisdiction. In the event the Executive incurs legal fees
and other expenses in seeking to obtain or to enforce any
rights or benefits provided by this Agreement and is
successful, in whole or in part, in obtaining or enforcing
any such rights or benefits through settlement, arbitration
or otherwise, the Company shall promptly pay Executive's
reasonable legal fees and expenses incurred in enforcing
this Agreement and the fees of the arbitrator. Except to
the extent provided in the preceding sentence, each party
shall pay its own legal fees and other expenses associated
with any dispute.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day and year first above written.
EXECUTIVE:
______________________________
XXXXXX X. XXXXXXX
Group President Outdoor Sports
COMPANY:
XXXXXX, INC.
By:___________________________
XXXX X. PANETTIERE
President
& Chief Executive Officer
Witness:_____________________
Exhibit A
Additional considerations guaranteed to Xx. Xxxxxx X. Xxxxxxx
for his joining the Company as Group President Outdoor Sports
by April 28, 1998 are:
1. Design and provision of a Supplemental Executive Retirement
Plan providing, at age 65, nine years which combined with
nine years earned via the Xxxxxx Pension Plan will provide a
total of 18 years retirement benefit at age 65. Attached is
a chart indicating service credit under this arrangement.
2. A separate commitment (letter) to provide options on 30,000
shares of Xxxxxx A to vest over a three year period from
date of hire will be sent shortly after commencement of
employment. Strike price to be average of high and low on
date of employment.
3. Paid vacation of three weeks first year, four weeks each
year thereafter.
4. Waiver of one year waiting period for disability benefit
coverage. Coverage begins on employment date.
5. Guaranteed CY `98 bonus of not less than $100,000. Bonus
could be greater than $100,000 if bonus plan calculation
generates an amount greater than $100,000 guarantee.
6. Initial office location of Executive will be in the St.
Louis, Missouri area.
