SECOND AMENDED AND RESTATED AGREEMENT
This is the Second Amended and Restated Agreement (the "Agreement")
between Xxxxxx X. Xxxxxxx ("Xxxxxxx") and Xxxxxxxx'x Inc. ("Xxxxxxxx'x" or
the "Company") intended to be effective as of April 3, 1997.
WHEREAS, Xxxxxxx has served as a director of Xxxxxxxx'x since 1987;
and
WHEREAS, in November 1994, Xxxxxxx was elected to serve as Chairman
of the Board in accordance with the terms of an agreement effective as of
November 23, 1994 (the "Original Agreement"); and
WHEREAS, in connection with the retirement of the President and
Chief Executive Officer of Xxxxxxxx'x, Xxxxxxx was elected to serve in the
additional capacity of Chief Executive Officer and in light of additional
services to be performed by Xxxxxxx, an Amended and Restated Agreement
("the Amended and Restated Agreement") was entered into between Xxxxxxx
and Xxxxxxxx'x which superseded the Original Agreement in all respects
from and after October 4, 1996; and
WHEREAS, Xxxxxxx ceased all duties as Chief Executive Officer
effective February 7, 1997;
WHEREAS, financial circumstances made it prudent and necessary for
Xxxxxxxx'x to file for reorganization pursuant to Title 11 of the United
States Code and Xxxxxxx, at the request of the Board of Xxxxxxxx'x, shall
continue to serve as Chairman of the Board of Xxxxxxxx'x and hold other
Board positions and to devote time to Xxxxxxxx'x affairs in those
capacities in 1997; and
WHEREAS, this Agreement is intended to supersede both the Original
Agreement and the Amended and Restated Agreement in all respects from and
after April 3, 1997 and all obligations pursuant to such other Agreements
shall be deemed to have been satisfied as of the Effective Date of this
Agreement; and
WHEREAS, in recognition of the foregoing and the services to be
performed by Xxxxxxx during periods on and after April 3, 1997, the Board
has authorized the arrangements set forth in this Agreement subject to any
approval or modification which may be required by the United States
Bankruptcy Court for the District of Delaware where the Xxxxxxxx'x case is
pending;
NOW, THEREFORE, the parties hereby agree to agree as follows:
1. Effective April 3, 1997, Xxxxxxx shall serve as (a) Chairman
of the Board of Xxxxxxxx'x; (b) a member of the Executive Committee of the
Board of Xxxxxxxx'x, and (c) a member of the Nominating Committee of
Xxxxxxxx'x.
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2. For Xxxxxxx'x services in the positions listed in paragraph 1,
Xxxxxxxx'x will pay to Xxxxxxx: (a) $2,000; (b) $500 for each meeting of
the Board or each meeting of any Committee of the Board of which Xxxxxxx
is a member attended in person by Xxxxxxx; (c) $200 for any such Board or
Committee meeting attended by Xxxxxxx by telephone for each such meeting
which is one (1) hour or more in duration; and (d) reimbursement of all
actual and necessary business expenses incurred by Xxxxxxx in connection
with attendance at or participation in Board and Committee meetings
including, without limitation, his reasonable travel expenses (upon
submission by Xxxxxxx of reasonable substantiation thereof).
3. Xxxxxxx also agrees that as Chairman of the Board he will be
available to devote his time to Xxxxxxxx'x affairs for up to 40 calendar
days between April 3, 1997 and July 7, 1997, and up to 60 calendar days
between July 8, 1997 and December 31, 1997 and such additional days as the
Board shall deem necessary and appropriate. For these services, Xxxxxxx
shall be compensated by Xxxxxxxx'x at the rate of $2,000 per day plus the
cost of actual and necessary expenses incurred in the performance of such
duties, including, without limitation, his reasonable travel expenses
(subject to submission by him of reasonable substantiation thereof). The
foregoing days of service and payments therefore shall be in addition to
the meeting days and payments therefore provided in paragraph 2 above.
4. Either Xxxxxxx xx Xxxxxxxx'x may terminate this Agreement at
will with or without cause, immediately effective upon written notice.
Unless earlier terminated, this Agreement shall terminate on December 31,
1997 or upon Jeld Wen's or affiliates ("Jeld Wen") sale or other
disposition of its position as Xxxxxxxx'x lender (unless some or all of
such interest is converted to equity as party of a Plan of Xxxxxxxx'x),
whichever is earlier. Upon termination of this Agreement, Xxxxxxxx'x will
pay Xxxxxxx payments due under paragraphs 2 and 3 for services performed
and expenses incurred prior to termination. Xxxxxxxx'x shall have no
further obligation to Xxxxxxx except as provided in paragraph 9 below and
as provided in the following sentence. In the event that Jeld Wen
continues its financial support of Xxxxxxxx'x at the same level as
committed on April 3, 1997 (i.e. a $50 million DIP facility in addition to
the pre-petition loans), and this Agreement is terminated prior to
December 31, 1997, in addition to payments to Xxxxxxx pursuant to
paragraphs 2 and 3 above for services performed prior to termination,
Xxxxxxxx'x shall pay to Xxxxxxx an amount equal to the product of: $2,000
times 100 minus the number of days Xxxxxxx performed services for
Xxxxxxxx'x between April 3, 1997 and the date of termination. For
purposes of calculation in the preceding sentence, days Xxxxxxx spent in
Board or Committee meetings shall not be counted for purposes of the
subtraction from 100 days provided above.
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5. All notices and other communications shall be in writing,
either hand delivered or mailed by first class registered mail, postage
prepaid, if to Xxxxxxx at the address set forth below under Xxxxxxx'x
signature, or, if to Xxxxxxxx'x, at 00 Xxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, attention of the Secretary, or at such other address as either
party shall designate by written notice to the other. No notice shall be
deemed to have been given until actually received by the party to whom it
is addressed; provided, that a certified or registered mail return receipt
shall be conclusive evidence of such receipt.
6. This Agreement may not be changed, waived, discharged or
terminated orally, but only by an instrument in writing, signed by the
party against which enforcement of such change, waiver, discharge or
termination is sought, or by order of a court with jurisdiction and
authority to enter such order.
7. Neither this Agreement nor any rights or obligations hereunder
may be assigned by either party without the written consent of the other,
except that this Agreement will be binding upon and inure to the benefit
of any successor or successors of Xxxxxxxx'x whether by merger,
consolidation, sale of assets or otherwise and reference herein to
Xxxxxxxx'x is intended to include any such successor or successors.
8. Xxxxxxxx'x agrees to pay the reasonable fees and expenses of
Xxxxxxx'x counsel in connection with the negotiation of this Agreement.
9. From the effective date of this Agreement, Xxxxxxx will be
entitled to indemnification by Xxxxxxxx'x and limitation of liability for
acts and omissions in his capacity as a director of Xxxxxxxx'x or any
subsidiary to the fullest extent provided by the Restated Certificate of
Incorporation and By-laws of Xxxxxxxx'x as in effect or the effective date
of this Agreement or to any greater extent provided by any amendment to
those documents.
10. This Agreement shall be governed by and construed in
accordance with the internal laws of The Commonwealth of Massachusetts.
This Agreement embodies the entire agreement of the parties with respect
to the subject matter hereof and supersedes all prior agreements and
understandings, including the Original Agreement and the Amended and
Restated Agreement. If any one or more of the provisions of this
Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such provision shall be in effective to the
extent, but only to the extent, of such invalidity, illegibility or
unenforceability without invalidating the remainder of such invalid,
illegal or unenforceable provision or provisions or any other provision
hereof.
11. Nothing in this Agreement shall be construed to make Xxxxxxx
an employee of Xxxxxxxx'x it being understood that Xxxxxxx is an
independent contractor and is entitled to no rights as an employee of
Xxxxxxxx'x.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
XXXXXXXX'X INC.
By: ____________________________
Name:
Title:
________________________________
Xxxxxx X. Xxxxxxx
c/o RKS, Inc.
0000 Xxxxx Xxxx Xxxxxx Xxxx
Xxxxxxxx Xxxxxx, Xxxxxxx 00000
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