Exhibit 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (this "Agreement") is made
as of August 15, 2001, (the "Effective Date") among Xxxxxx Holdings, Inc., a
Massachusetts corporation ("Holdings"), The Xxxxxxx Xxxxxx Company, a
Massachusetts corporation (the "Company"), and Xxxxxxxxx X. Xxxxx, XX
("Executive") and shall replace in its entirety the Employment Agreement made as
of October 30, 1996, among Executive, Xxxxxx Holdings Corp., a Massachusetts
corporation, and the Company (the "Prior Agreement"). Certain capitalized terms
that are used in this Agreement are defined in paragraph 11.
The parties agree as follows:
1. EMPLOYMENT. Holdings and the Company agree to employ Executive, and
Executive hereby accepts employment with Holdings and the Company, upon the
terms and conditions set forth in this Agreement for the period beginning on the
"Effective Date" and ending as provided in paragraph 4 (the "Employment
Period").
2. POSITION AND DUTIES.
(a) During the Employment Period, Executive shall serve as the President,
Chief Executive Officer and Chairman of the Board of Holdings and the Company
and shall have the normal duties, responsibilities and authority of such
positions, subject to any limitations imposed by the bylaws of Holdings or the
Company and to the power of the boards of directors of Holdings and the Company
to expand or limit such duties, responsibilities and authority and to override
actions of the Executive.
(b) Executive shall report to the boards of directors of Holdings and the
Company and Executive shall devote his best efforts and his full business time
and attention (except for permitted vacation periods and reasonable periods of
illness or other incapacity) to the business and affairs of Holdings and the
Company. Executive shall perform his duties and responsibilities to the best of
his abilities in a diligent, trustworthy, businesslike and efficient manner.
(c) Executive's principal office and place of employment shall be at the
Company's facility located in the Atlanta, Georgia metropolitan area, unless a
different place is agreed upon by the Company and the Executive. For all
purposes of this Agreement, Holdings' and the Company's principal executive
offices shall be located wherever Executive has his principal office and place
of employment. This paragraph 2(c) is a material part of this Agreement.
3. COMPENSATION.
(a) BASE SALARY. Executive's base salary shall be $650,000 per annum
initially. On each January 1 occurring after the Effective Date and during the
Employment Period, the Executive's base salary then in effect shall be increased
by the applicable Cost of Living Amount. The Company's Board of Directors may in
its discretion increase Executive's
base salary at such times and in such amounts as the Board of Directors
determines but at no time shall Executive's base salary, in effect from time to
time, be decreased. As used in this Agreement, "Base Salary" means the
Executive's base salary as adjusted and in effect from time to time. Executive's
Base Salary shall be payable by the Company in regular installments in
accordance with the Company's general payroll practices.
(b) ANNUAL CASH BONUS PLAN. Executive shall be a participant in the
Company's Annual Cash Bonus Plan and be eligible for an annual award under such
plan at a maximum award level equal to no less than one hundred percent (100%)
of Executive's Base Salary in effect during the calendar year for which the
award is made.
(c) VACATION. Executive shall be entitled to four (4) weeks paid vacation
annually.
(d) FRINGE BENEFITS. Executive shall receive the fringe benefits described
on Exhibit A to this Agreement and such other benefits as are made available to
executive level employees of the Company and such other benefits, payments or
allowances as the Company's Board of Directors (or an appropriate committee of
the board) may from time to time make available to Executive. Without prejudice
to Executive's rights under this Agreement, the Company reserves the right (i)
to modify the terms of any benefit plan that is generally made available to
executive level employees of the Company and in which Executive participates so
long as such changes affect all plan participants equally (or in proportion to
their respective interests), and (ii) to make reasonable changes in benefits
established for Executive at the direction of the Company's Board of Directors,
so long as the benefits available to Executive after giving effect to such
change are not materially different from those being provided prior to such
change.
(e) BUSINESS EXPENSES. The Company shall reimburse Executive for all
reasonable and necessary expenses incurred by him in connection with the
performance of his duties and responsibilities pursuant to this Agreement which
are consistent with the Company's policies in effect from time to time with
respect to travel, entertainment and other business expenses, subject to the
Company's reasonable requirements with respect to reporting and documentation of
such expenses.
4. TERM AND TERMINATION.
(a) The Employment Period shall initially extend until August 15, 2004 but
shall be extended for an additional one-year period on each Anniversary Date
unless either the Company or Executive gives the other written notice at least
60 days prior to such Anniversary Date of its or his intention not to further
extend the term of this Agreement; provided that (i) the Employment Period shall
terminate prior to such date upon Executive's resignation, Retirement or death
and (ii) the Employment Period may be terminated by the Company at any time
prior to such date for Cause, Executive's Disability or Without Cause.
(b) Any termination of Executive's employment by the Company pursuant to
clause 4(a) (ii) above, and any termination of Executive's employment by the
Executive pursuant to paragraph 4(a) (i) above, shall be communicated by written
Termination Notice given to the
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other party hereto; provided that in the case of Executive's death, a
Termination Notice shall be deemed to have been given as of the date of his
death; and, provided further that, in the case of a termination for Cause, there
shall also have been delivered to the Executive the Board of Directors'
resolution to be delivered if and as provided in the definition of Cause. For
purposes of this Agreement, a "Termination Notice" 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 the Executive's employment under the
provision so indicated.
(c) "Termination Date" means (i) if this Agreement is terminated for
Disability, 30 days after Termination Notice is given (provided that the
Executive shall not have returned to the performance of his duties on a
full-time basis during such 30-day period), (ii) if Executive resigns or takes
Retirement, the date specified in the Executive's Termination Notice (or if no
Termination Notice is given, the date upon which such termination is effective),
(iii) if Executive dies, on the last day of the month next succeeding the month
during which Executive's death occurs, and (iv) if the Executive's employment is
terminated for any other reason, the date on which a Termination Notice is
given.
5. SEVERANCE COMPENSATION.
(a) GENERAL. If Executive resigns, terminates employment by his death or
Retirement or is terminated for Cause, the Company will pay Executive his Base
Salary in effect at the time the Termination Notice is given (or deemed given)
through the Termination Date and neither Holdings nor the Company shall have any
further obligations to Executive under this Agreement. Without prejudice to any
accrued and vested rights Executive may have under the Supplemental Retirement
Agreement, the Annual Cash Bonus Plan, the Retirement Savings Plan or the
Severance Pay Plan and except as otherwise required by law, all of Executive's
rights to fringe benefits from the Company will cease as of the Termination
Date.
(b) DISABILITY. During any period that the Executive fails to perform his
duties as a result of incapacity due to mental illness or physical illness or
injury, he shall continue to receive his full Base Salary and benefits until the
Company terminates his employment for Disability. Thereafter, he will be
entitled to major medical health insurance coverage under the Company's employee
group health insurance (or substantially similar health insurance) until the
third anniversary of the Termination Date or until the Executive obtains
employment with another employer that makes health insurance available to its
employees, whichever occurs first, and shall be entitled to receive disability
benefits in accordance with the disability income insurance plan or plans
maintained by the Company covering Executive at the Termination Date. Without
prejudice to any accrued and vested rights Executive may have under the
Supplemental Retirement Agreement, the Annual Cash Bonus Plan or the Retirements
Savings Plan and except as otherwise required by law or as provided in this
paragraph 5(b), all of Executive's rights to fringe benefits from the Company
will cease as of the Termination Date.
(c) WITHOUT CAUSE. If Executive is involuntarily terminated by the Company
Without Cause, (i) Executive shall be entitled to continue to receive his Base
Salary (as in effect on the Termination Date) for thirty-six (36) months
following the Termination Date (such date, the "End Date") so long as Executive
has not breached the provisions of paragraphs 6, 7 or 8,
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(ii) the Company will maintain in full force and effect, for Executive's
continued benefit, until the End Date, all life, medical and dental insurance
programs in which Executive was entitled to participate so long as his continued
participation is possible under the general terms and provisions of such
programs (provided that, in the event Executive's participation in any such
program is barred, the Company will arrange to provide the Executive with
benefits substantially similar to those which he was entitled to receive under
such program), (iii) notwithstanding any provision in the Annual Cash Bonus Plan
to the contrary, the Executive shall become fully vested and have a
non-forfeitable interest in the benefit which he has accrued under the Annual
Cash Bonus Plan as of the Termination Date (and shall be given full credit under
the Annual Cash Bonus Plan for the benefit that he would have accrued for the
plan year during which the Termination Date occurs (which determination may take
into account whether Company performance goals established by the plan or its
administrator for such year have been met, but which may not take into account
whether personal performance goals established by the plan or its administrator
for such year have been met) if he were employed by the Company on the last day
of such plan year), and (iv) Executive will be entitled to service credit under
the Supplemental Retirement Agreement through the End Date. The amounts payable
in respect of accrued benefits under the Annual Cash Bonus Plan shall be payable
at the time provided for in, and in accordance with the provisions of, the
Annual Cash Bonus Plan. The amounts payable pursuant to this paragraph 5(c) in
respect of Base Salary may be payable, at Executive's discretion, in one lump
sum payment within 30 days following the Termination Date equal to the present
value (determined using a discount rate equal to the "prime" rate of interest
charged by Chase Manhattan Bank in New York plus two percentage points) of the
payments otherwise payable pursuant to this paragraph 5(c). This paragraph 5(c)
sets forth Executive's exclusive remedy for a termination of his employment
Without Cause and Executive shall have no other right or remedy against Holdings
or the Company in connection therewith.
(d) The Executive's right to receive payments under this Agreement shall
not decrease the amount of, or otherwise adversely affect, any other benefits
payable to the Executive under any plan, agreement or arrangement relating to
employee benefits provided by the Company (or an Affiliated Corporation);
provided, however, that the amounts payable to the Executive under paragraph
5(c)(i) shall be reduced by the amount of any severance compensation payable to
Executive under the Company's Severance Pay Plan.
(e) The Executive shall not be required to mitigate the amount of any
payment provided for in this paragraph 5 by seeking other employment or
otherwise, nor shall the amount of any payment or benefit provided for in this
paragraph 5 be reduced by any compensation earned by the Executive as the result
of employment by another employer or by reason of the Executive's receipt of or
right to receive any retirement or other benefits after the date of termination
of employment or otherwise (except as otherwise provided in this paragraph 5).
6. CONFIDENTIAL INFORMATION. The Executive acknowledges that the non-public
information obtained by him while employed by Holdings and the Company
concerning the business or affairs of Holdings, the Company or any other
Subsidiary of Holdings ("Confidential Information") are the property of
Holdings, the Company or such other Subsidiary. For purposes of this Agreement,
the term "Confidential Information" does not include information that Executive
can demonstrate (a) was in Executive's possession prior to his initial
employment by the Company, provided that such information is not known by
Executive to be subject to another
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confidentiality agreement with, or other obligation of secrecy to, the Company
or another party, (b) is generally available to the public and became generally
available to the public other than as a result of a disclosure in violation of
this Agreement, or (c) became available to Executive on a non-confidential basis
from a third party, provided that such third party is not known by Executive to
be bound by a confidentiality agreement with, or other obligation of secrecy to,
the Company or another party or is otherwise prohibited from providing such
information to Executive by a contractual, legal or fiduciary obligation.
Executive agrees that he will not disclose Confidential Information to any
person (other than employees of Holdings, the Company or any Subsidiary thereof
or any other person expressly authorized by Holdings' Board of Directors to
receive Confidential Information) or use for his own account any Confidential
Information without the prior written consent of Holdings' Board of Directors.
Executive shall deliver to the Company at the termination of the Employment
Period, or at any other time Holdings' Board of Directors may request in
writing, all memoranda, notes, plans, records, reports, computer tapes and
software and other documents and data (and copies thereof) containing
Confidential Information or Work Product which he may then possess or have under
his control.
7. WORK PRODUCT. Executive agrees that all inventions, innovations,
improvements, developments, methods, designs, analyses, reports and all similar
or related information which relate to Holdings' or the Company's or any of its
Subsidiaries' actual or anticipated business, research and development or
existing or future products or services and which are conceived, developed or
made by Executive while employed with the Company ("Work Product") belong to
Holdings, the Company or such Subsidiary. Upon the written request of Holdings'
Board of Directors, Executive will promptly disclose such Work Product to
Holdings' Board of Directors and perform all actions reasonably requested by
Holdings' Board of Directors (whether during or after the Employment Period) to
establish and confirm such ownership.
8. NONCOMPETE NON-SOLICITATION.
(a) Executive acknowledges that in the course of his employment with
Holdings and the Company he will become familiar with the trade secrets and
other confidential information of Holdings, the Company and other Subsidiaries
of Holdings and that his services will be of special, unique and extraordinary
value to Holdings and the Company. Therefore, Executive agrees that, during the
Employment Period and for two years thereafter (or one year thereafter, if
Executive's employment is terminated Without Cause) (the "Noncompete Period"),
he shall not directly or indirectly own, manage, control, participate in,
consult with, render services for, or in any manner engage in any business
competing with the businesses of Holdings and the Company or any of its
Subsidiaries which (i) exist on the date of the termination of Executive's
employment or (ii) are commenced during the Noncompete Period (but, for purposes
of this clause (ii) only if Holdings, the Company or such Subsidiary had
determined prior to the Termination Date to enter into such business or had
committed substantial resources prior to the Termination Date to determine the
feasibility of entering into such business), within the United States and any
other geographical area in which Holdings or any of its Subsidiaries engage in
such businesses. Nothing herein shall prohibit Executive from being a passive
owner of not more than 2% of the outstanding stock of any class of a corporation
which is publicly traded so long as Executive has no active participation in the
business of such corporation.
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(b) During the Noncompete Period, Executive shall not directly or
indirectly through another entity (i) induce or attempt to induce any employee
of Holdings, the Company or any other Subsidiary of Holdings to leave the employ
of such person, or in any way interfere with the employee relationship between
Holdings, the Company or any other Subsidiary of Holdings and any employee
thereof, (ii) hire any person who was an employee of Holdings, the Company or
any other Subsidiary of Holdings at any time during the Employment Period (other
than individuals who have not been employed by Holdings, the Company or any
other Subsidiary of Holdings for a period of at least one year prior to
employment by Executive directly or indirectly through another entity), or (iii)
induce or attempt to induce any customer, supplier, licensee or other person
having a business relationship with Holdings, the Company or any other
Subsidiary of Holdings to cease doing business with Holdings, the Company or
such other Subsidiary of Holdings, or interfere materially with the relationship
between any such customer, supplier, licensee or other person having a business
relationship with Holdings, the Company or any other Subsidiary of Holdings.
(c) If, at the time of enforcement of this paragraph 8, a court shall hold
that the duration, scope or area restrictions stated herein are unreasonable
under circumstances then existing, the parties agree that the maximum duration,
scope or area reasonable under such circumstances shall be substituted for the
stated duration, scope or area and that the court shall be allowed to revise the
restrictions contained herein to cover the maximum period, scope and area
permitted by law.
(d) In the event of the breach or a threatened breach by Executive of any
of the provisions of this paragraph 8, each of Holdings and the Company, in
addition and supplementary to other rights and remedies existing in its favor,
may apply to any court of law or equity of competent jurisdiction for specific
performance or injunctive or other relief in order to enforce or prevent any
violations of the provisions hereof (without posting a bond or other security).
9. INCAPACITY. Without prejudice to Executive's rights under this
Agreement, if at any time during the term of this Agreement Executive is absent
from his duties with the Company for 30 consecutive days as a result of
incapacity due to mental illness or physical illness or injury, each of
Holdings' and the Company's boards of directors may appoint an interim Chairman
of the Board, President and Chief Executive Officer or assume extended
management responsibilities for the duration of Executive's absence. Unless
Executive's employment has been terminated previously under this Agreement,
Executive shall be permitted to resume performance of his duties and
responsibilities under this Agreement upon regaining the capacity to do so.
10. EXECUTIVE REPRESENTATIONS. Executive hereby represents and warrants to
Holdings and the Company that (a) the execution, delivery and performance of
this Agreement by Executive does not and will not conflict with, breach, violate
or cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound, (b) Executive is
not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity with which this
Agreement would conflict or constitute a breach thereof and (c) upon the
execution and delivery of this Agreement by Holdings and the Company, this
Agreement shall be the valid and
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binding obligation of Executive, enforceable against Executive in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting the enforceability of
contractual obligations and creditor's rights generally and to federal and state
constitutional proscriptions and by the application of equitable principles by
courts of competent jurisdiction, sitting at law or in equity.
11. CERTAIN DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Affiliated Corporation" means any corporation that is a member of the
"affiliated group" (as defined in Section 1504 of the Code) of which the Company
is a member.
"Anniversary Date" means any or a specific anniversary of the Effective
Date, as the context requires.
"Cause" means (a) conviction of Executive for a felony, or the entry by
Executive of a plea of guilty or nolo contendere to a felony, (b) a willful and
material breach by Executive of paragraph 6, 7 or 8 of this Agreement, (c) the
commission of an act of fraud involving dishonesty for personal gain which is
materially injurious to the Company, (d) the willful and continued refusal by
the Executive to substantially perform his duties with the Company (other than
any such refusal resulting from his incapacity due to mental illness or physical
illness or injury), after a demand for substantial performance is delivered to
the Executive by the Company's Board of Directors, where such demand
specifically identifies the manner in which the Company's Board of Directors
believes that the Executive has refused to substantially perform his duties and
the passage of a reasonable period of time for Executive to comply with such
demand or (e) the willful engaging by the Executive in gross misconduct
materially and demonstrably injurious to the Company or its Subsidiaries. For
purposes of this paragraph, no act or failure to act on the Executive's part
shall be considered "willful" unless done, or omitted to be done, by the
Executive not in good faith and without reasonable belief that his action or
omission was in the best interest of the Company or its Subsidiaries.
Notwithstanding the foregoing, with respect to termination for Cause arising out
of conduct described in clause (b), (c), (d) or (e) above, the Executive may not
be terminated for Cause unless there shall have been delivered to the Executive
a copy of a resolution duly adopted by the affirmative vote of not less than
three-quarters of the entire Board of Directors of the Company, at a meeting of
such board called and held for that purpose (after reasonable notice to the
Executive and an opportunity for the Executive, together with his counsel or
other advisors, to be heard at such meeting), finding that in the good faith
opinion of the board the Executive had engaged in conduct described above in
clause (b), (c), (d), or (e) of the first sentence of this paragraph and
specifying the particulars thereof in detail. Such a finding by the Board of
Directors of the Company is a prerequisite to a termination for Cause pursuant
to clauses (b), (c), (d) or (e) above; provided, however, that such a finding
may be challenged, by appropriate judicial process, on the merits (i.e., that
Cause did not exist) or on the basis that the board's finding was not made in
good faith (provided that proof that Cause for termination existed shall be a
complete defense to any showing that the board's findings was not made in good
faith).
"Code" means the Internal Revenue Code of 1986, as amended.
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"Cost of Living Amount" means an amount calculated by multiplying the Base
Salary then in effect by a fraction, (a) the numerator of which shall be the
amount (not less than zero) by which the latest Cost of Living Index available
as of the time of determination exceeds the Cost of Living Index for the same
period during the immediately preceding year, and (b) the denominator of which
shall be the latest Cost of Living Index for the same period during the
immediately preceding year.
"Cost of Living Index" means the Consumer Price Index for All Urban
Consumers, Atlanta, Georgia (1967-100) prepared by the Bureau of Labor
Statistics of the United States Department of Labor for the relevant period;
provided that if the index shall cease to be published, the parties shall use as
the index, the most comparable index published by the United States Government.
"Disability" means the Executive shall have been absent from his duties
with the Company for 26 consecutive weeks as a result of incapacity due to
mental illness or physical illness or injury, and he shall not have returned to
the full-time performance of his duties within 30 days after written notice of
termination of this Agreement is given by the Company's Board of Directors.
"End Date" is defined in paragraph 5(c).
"Good Reason" means, unless Executive shall have consented in writing
thereto, any of the following:
(a) except as provided in paragraph 9, a material reduction in Executive's
title, duties, responsibilities or status, as compared to such title, duties,
responsibilities or status on the Effective Date;
(b) the assignment to Executive of a material amount of different or
additional duties that are significantly inconsistent with Executive's office on
the Effective Date;
(c) the imposition on Executive of business travel obligations
substantially greater than his business travel obligations during the year prior
to the Effective Date; or
(d) any material breach of this Agreement on the part of Holdings or the
Company;
provided, however, that Executive shall not have the right to terminate his
employment for "Good Reason" unless he shall have given thirty (30) days prior
written notice to the Board of Directors of the Company in which Executive sets
forth in reasonable detail the circumstances that Executive believes constitute
"Good Reason" pursuant to the preceding clauses (a) through (d) and the Company
shall not have remedied the matter within said thirty (30) day period; and
provided, further, however that the fact that the Company does or does not so
remedy said matter shall not be deemed an admission by the Company that such
circumstances constitute "Good Reason".
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"Person" means an individual, a partnership, a joint venture, a
corporation, an association, a joint stock company, a limited liability company,
a trust, an unincorporated organization or a government or any department or
agency or political subdivision thereof.
"Retirement" means termination of Executive's employment in accordance with
the Company's normal retirement policy generally applicable to its salaried
employees (or, at Executive's election, at any time [after attaining age 60] or
at any earlier time upon the occurrence of any event entitling Executive to
receive disability benefits under any long-term disability policy maintained by
the Company that covers the Executive) or in accordance with any other
retirement arrangement established with the Executive's consent with respect to
the Executive.
"Retirement Savings Plan" means the Company's Defined Contribution 40l(k)
savings plan in effect as of the Effective Date as the same is amended from time
to time.
"Severance Pay Plan" means the Company's Severance Pay Plan for Exempt
Employees, in effect as of the Effective Date, as the same is amended from time
to time.
"Subsidiary" means with respect to any corporation, another corporation of
which the securities having a majority of the voting power in electing directors
are, at the time of determination, owned by the first corporation, directly or
through one or more Subsidiaries.
"Supplemental Retirement Agreement" means the Supplemental Executive
Retirement Agreement between the Executive and the Company as amended though the
Effective Date.
"Termination Date" is defined in paragraph 4(c).
"Termination Notice" is defined in paragraph 4(b).
"Without Cause" means an involuntary termination of Executive's employment
by the Company other than for Cause or due to Executive's death or Disability or
a termination of employment by Executive for Good Reason.
12. SURVIVAL. Paragraphs 6, 7 and 8 shall survive and continue in full
force in accordance with their terms notwithstanding any termination of the
Employment Period.
13. EXPENSES. The Company shall pay all of Executive's expenses (including
reasonable attorneys' fees and expenses) paid by Executive in connection with
the negotiation and preparation of this Agreement and all related documents. In
the event Executive prevails in any arbitration or litigation arising out of his
termination of employment or his seeking to obtain or enforce any right or
benefit provided by this Agreement or by any other plan or arrangement
maintained by the Company under which he is or may be entitled to receive
benefits, the Company shall pay all reasonable legal fees and related expenses
(including the costs of experts, evidence and counsel and other such expenses
included in connection with any litigation or appeal) incurred by the Executive
in such an arbitration or litigation. To the extent any of the foregoing expense
reimbursement generates taxable income to the Executive, the Executive will be
paid an additional amount to defray tax liability resulting from such expense
reimbursement (and such additional payment). The Company further agrees to pay
prejudgment interest on any
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money judgment against the Company obtained by the Executive in any arbitration
or litigation against it to enforce such rights calculated at the Prime Rate as
reported in the Wall Street Journal in effect from time to time from the date it
is determined that payment(s) to him should have been made under this Agreement.
14. NOTICES. Any notice provided for in this Agreement shall be in writing
and shall be either personally delivered, or mailed by first class mail, return
receipt requested, to the recipient at the address below indicated:
NOTICES TO EXECUTIVE:
--------------------
Xxxxxxxxx X. Xxxxx, XX
Chairman and Chief Executive Officer
0000 Xxxx Xxxx Xxxx
Xxxxxxx, XX 00000
NOTICES TO HOLDINGS OR THE COMPANY:
----------------------------------
c/o The Xxxxxxx Xxxxxx Company
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxx
Executive Vice President
with copies to:
Berkshire Partners LLC
Xxx Xxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxx
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or on the second business day after being deposited for delivery with the United
States Postal Service.
15. SEVERABILITY. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed,
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construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
16. COMPLETE AGREEMENT. This Agreement, those documents expressly referred
to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way,
including without limitation the Prior Agreement. Without limiting the
foregoing, Executive acknowledges and agrees that he has no rights under the
Prior Agreement or the Amended and Restated Employment Agreement made as of
November 1, 1993 among Executive, Xxxxxx Holdings Corp. and the Company against
Holdings or the Company because a "Change of Control" as defined in the Prior
Agreement may have occurred.
17. COUNTERPARTS. This Agreement may be executed in separate counterparts,
each of which is deemed to be an original and all of which taken together
constitute one and the same agreement.
18. SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and inure to
the benefit of and be enforceable by Executive, Holdings, the Company and their
respective heirs, successors and assigns, except that no party may assign his or
its rights or delegate his or its obligations hereunder without the prior
written consent of the other parties to this Agreement.
19. CHOICE OF LAW. This Agreement will be governed by and construed in
accordance with the domestic law of the State of New York, without giving effect
to any choice of law or conflict of law provision or rule (whether of the State
of New York or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of New York.
20. AMENDMENT AND WAIVER. The provisions of this Agreement may be amended
or waived only with the prior written consent of the Company and Executive, and
no course of conduct or failure or delay in enforcing the provisions of this
Agreement shall affect the validity, binding effect or enforceability of this
Agreement.
[The remainder of the page is left intentionally blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
XXXXXX HOLDINGS, INC.
By: /S/ XXXXXXX X. XXXXX
-------------------------------
Its TREASURER
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THE XXXXXXX XXXXXX COMPANY
By: /S/ XXXXXXX X. XXXXX
-------------------------------
Its TREASURER
-------------------------------
By: /S/ XXXXX X. XXXXX
-------------------------------
XXXXXXXXX X. XXXXX, XX
By: Xxxxx X. Xxxxx, his
attorney-in-fact
EXHIBIT A TO EMPLOYMENT AGREEMENT
This Exhibit A is appended to and shall be considered a part of the
Employment Agreement dated as of August 15, 2001 (the "Agreement") among Xxxxxx
Holdings, Inc. ("Holdings"), The Xxxxxxx Xxxxxx Company (the Company") and
Xxxxxxxxx X. Xxxxx, XX (the "Executive"). Capitalized terms used but not defined
in this Exhibit A shall have the respective meanings given such terms in the
Agreement.
In addition to those benefits set forth in the foregoing Employment
Agreement, the Company will provide the following benefits to Executive:
1. DISABILITY, HEALTH AND LIFE INSURANCE. The Company will provide
Executive with long-term disability insurance that provides coverage at 67% of
Base Salary (and if the Company fails to provide or keep in force such
disability insurance, the Company will be obligated to make payments to
Executive in such amounts and at such times as Executive would have been
entitled under such insurance), major medical health insurance and life
insurance with a death benefit equal to 250% of Base Salary.
2. COMPANY CAR. Executive will be paid a monthly car allowance of $1,000.
3. COUNTRY CLUB FEES AND DUES. The Company or Holdings will pay all
periodic dues and fees (not to exceed $4,000 annually) for Executive's
membership in one country club or similar club or organization of Executive's
choice (provided that to the extent that any of such fees or any initiation fee
heretofore paid by the Company or Holdings are refundable, any such refund shall
be made to the Company and if Executive sells such membership the Company will
be entitled to receive from (but only to the extent of) the sale proceeds, the
amount of the initiation fee it paid on Executive's behalf).
4. SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT AND TRUST. Executive,
Holdings and the Company will retain the Supplemental xecutive Retirement
Agreement and The Xxxxxxxxx X. Xxxxx Retirement Trust.
5. COMPANY LOAN. The Company agrees that, on August 15, 2001, it shall
enter into an Amended and Restated Promissory Note with Executive in the
principal amount of $4,336,445 in the form attached hereto.
