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EXHIBIT 10(gg)
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of November 2,
1998 (the "Effective Date") by Xxxxxx Industries, Inc., a Delaware corporation
(the "Company"), and Xxxxxx X. Xxxxxxx, an individual (the "Executive").
The parties, intending to be legally bound, agree as follows:
1. EMPLOYMENT TERMS AND DUTIES
(i) Employment. The Company hereby employs the Executive, and the
Executive hereby accepts employment by the Company, upon the terms and
conditions set forth in this Agreement.
(ii) Duties. The Executive will have such duties as are assigned or
delegated to the Executive by the Board of Directors of the Company (the
"Board"), and will serve as President and Chief Executive Officer of the
Company. The Executive will devote his entire business time, attention, skill,
and energy to the business of the Company. Nothing in this Section 1.2,
however, will prevent the Executive from engaging in additional activities in
connection with personal investments and community affairs that are not
inconsistent with the Executive's duties under this Agreement. If the Executive
is elected as a director of the Company or as a director or officer of any of
its affiliates, the Executive will fulfill his duties as such director or
officer without additional compensation.
(iii) Relocation to Company Executive Offices. The Executive agrees
to be physically present and begin performing his duties under this Agreement
on a full-time basis at the Company's executive office in Florence, Alabama no
later than November 2, 1998. The actual date on which the Executive arrives at
the Company's executive offices in accordance with this Section 1.3 is
hereafter referred to as the "Arrival Date."
2. COMPENSATION
(i) Salary. The Executive will be paid an annual salary of
$210,000, subject to adjustment as provided below (the "Salary"), which will
be payable in equal periodic installments according to the Company's customary
payroll practices, but no less frequently than monthly. The Salary will be
reviewed by the Board not less frequently than annually. The first review of
the Salary by the Board will occur not later than April 30, 1999.
(ii) Benefits. The Executive will, during his employment with the
Company, be permitted to participate in the life insurance, hospitalization,
major medical, and other employee benefit plans of the Company with respect to
executive officers (such benefits as of the Effective Date being reflected on
Exhibit A to this Agreement) as the same may be in effect, and with such
changes and amendments as may be made, from time to time (collectively, the
"Benefits"). The Executive agrees that the foregoing provision will not prevent
the Company from amending or terminating any Benefits, provided that such
amendment or termination does not discriminate against the Executive in
relation to the other executive officers of the Company.
(iii) Relocation Benefits.
(A) Temporary Residence and Meals. During the period beginning
on the Arrival Date and ending on the sooner to occur of (i) the date which is
the 120th day following the Arrival Date or (ii) the Executive's moving into a
permanent residence in the Florence, Alabama area, the Company will pay the
reasonable cost of the Executive's temporary residence in the Florence, Alabama
area and the reasonable cost of the Executive's meals.
(B) Moving Expenses. The Company will pay the reasonable cost
of a professional moving contractor to pack and move the personal belongings of
the Executive and his family from the Executive's current residence in Sioux
Falls, South Dakota to Florence, Alabama. The Company will also pay the
reasonable
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cost of temporary storage for the Executive's personal belongings in a proper
temporary storage facility in Florence, Alabama for a period of up to one year
from the Arrival Date.
(C) PURCHASE OF NEW RESIDENCE. The Company will pay up to $7,000 in
closing costs incurred by the Executive to purchase a new residence in the
Florence, Alabama area; provided, however, that the Company will not pay any
mortgage fees, amounts paid to decrease the interest rate payable on the
mortgage, or other amounts commonly referred to as "points."
(D) SALE OF CURRENT RESIDENCE. The Executive will list his current
residence in Sioux Falls, South Dakota with a licensed real estate broker on or
before November 2, 1998. The Executive agrees to list the residence at or below
its current appraised value and to use his best efforts to sell the residence;
provided, however, that this agreement will not require the Executive to sell
the residence for an amount that is substantially less than the original listing
price. If the Executive is unable to sell the residence on or before January 31,
1999, then the Company will purchase the residence for an amount equal to
$274,000 (the agreed upon cost of the Executive's residence). If the Executive
sells the residence within the allotted time period, the Company will pay up to
$7,000 in closing costs incurred in such sale.
(iv) BONUS. In addition to the Salary provided for in Section 2.1 and the
other benefits provided in this Agreement, the Executive will, beginning in
fiscal year 1999 and continuing during the remainder of his employment with the
Company, participate in any executive bonus program offered by the Company to
its executive officers. Under the current executive bonus program, the Executive
shall be eligible, upon the achievement of certain goals established by the
Compensation Committee of the Board, to receive an annual bonus equal to a
percentage of the Executive's Salary as established by the Compensation
Committee of the Board. For so long as the Company maintains its current
executive bonus program, the Executive's bonus target amount may be modified by
the Compensation Committee of the Board; however, the Executive's bonus target
amount shall not be less than 50% of his base salary under such program.
(v) SIGNING BONUS. The Executive shall be entitled to a cash signing bonus
of $25,000, which shall be paid within ten (10) days after the Arrival Date.
(vi) STOCK OPTIONS. (A) The Company hereby grants to the Executive an option
to purchase 50,000 shares of the Company's common stock at an exercise price
of $4.00 per share, which option shall be exercisable in whole or in part at
any time during the period from one year after the Effective Date through the
10th anniversary of the Effective Date, in accordance with and pursuant to the
terms contained in the Stock Option Agreement between the Company and the
Executive attached hereto as Exhibit B-1.
(B) The Company hereby grants to the Executive an option to purchase
50,000 shares of the Company's common stock at an exercise price of $5.00 per
share, which option shall be exercisable in whole or in part at any time during
the period from two years after the Effective Date through the 10th anniversary
of the Effective Date, in accordance with and pursuant to the terms contained in
the Stock Option Agreement between the Company and the Executive attached hereto
as Exhibit B-2.
(C) The stock option grants made in subsections (a) and (b) above
shall take effect if, and only if, the Executive commences employment with the
Company on or before November 2, 1998.
(D) The stock options granted under subsections (a) and (b) above
shall be granted under the Company's 1994 Nonqualified Stock Option Plan.
3. FACILITIES AND EXPENSES
(i) GENERAL. The Company will furnish the Executive office space,
equipment, supplies, and such other facilities and personnel as the Company
deems necessary or appropriate for the performance of the Executive's duties
under this Agreement. The Company will pay the Executive's dues in such
professional societies and organizations as the Board deems appropriate, and
will pay on behalf of the Executive (or reimburse the Executive for) reasonable
expenses incurred by the Executive at the request of, or on behalf of, the
Company in the performance of the Executive's duties pursuant to this Agreement,
and in accordance with the Company's employment policies, including reasonable
expenses incurred by the Executive in attending conventions, seminars,
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and other business meetings, in appropriate business entertainment activities,
and for promotional expenses. The Executive must file expense reports with
respect to such expenses in accordance with the Company's policies.
(ii) Social Club Dues. The Company will pay the cost of the initiation
fee for a corporate membership for the Executive at Turtle Point Yacht and
Country Club. Thereafter, during the term of the Executive's employment with the
Company, the Company will reimburse the Executive for a portion of the monthly
dues with respect to his membership at Turtle Point Yacht and Country Club in
the amount of $75 per month.
(iii) Automobile. During the period of the Executive's employment with the
Company, the Company will provide the Executive with an automobile at the
Company's expense in accordance with the Company's automobile policy for its
executive officers. The automobile provided to the Executive by the Company will
be replaced with a new automobile every two (2) years.
4. VACATIONS AND HOLIDAYS
The Executive will be entitled to four weeks' paid vacation each year in
accordance with the vacation policies of the Company in effect for its executive
officers from time to time. The Executive will also be entitled to the paid
holidays and other paid leave set forth in the Company's policies. In the event
this Agreement remains in effect after November 2, 2013, the Executive will be
entitled to the number of weeks of paid vacation as is provided by the Company's
policy for its Chief Executive Officer from time to time thereafter.
5. TERMINATION
This Agreement may be terminated by either the Company or the Executive at
any time, with or without cause, and for any reason, or no reason. In the event
this Agreement is terminated on or prior to December 31, 2000, the Company will
continue to pay to the Executive the Executive's Salary in accordance with, and
subject to the limitations contained in, the Letter Agreement between the
Company and the Executive dated September 19, 1998, a copy of which is attached
as Exhibit C hereto (the "Severance Agreement"). Upon termination of this
Agreement, the Company's only obligation to the Executive will be to pay the
Executive the amount of any Salary earned but not yet paid at the time of
termination and the payments required under the Severance Agreement, if any.
6. GENERAL PROVISIONS
(i) Representations and Warranties by the Executive. The Executive
represents and warrants to the Company that the execution and delivery by the
Executive of this Agreement does not, and the performance by the Executive of
the Executive's obligations hereunder will not, with or without the giving of
notice or the passage of time, or both: (a) violate any judgment, writ,
injunction, or order of any court, arbitrator, or governmental agency applicable
to the Executive; or (b) conflict with, result in the breach of any provisions
of or the termination of, or constitute a default under, any agreement to which
the Executive is a party or by which the Executive is or may be bound.
(ii) Obligations Contingent on Performance. The obligations of the Company
hereunder, including its obligation to pay the compensation provided for herein,
are contingent upon the Executive's performance of the Executive's obligations
hereunder.
(iii) Notices. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by facsimile (with written confirmation of receipt), provided that a copy
is mailed by registered mail, return receipt requested, or (c) when received by
the addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile numbers as a
party may designate by notice to the other parties):
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If to Company: Xxxxxx Industries, Inc.
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxx, III
Facsimile No.: (000) 000-0000
If to the Executive: Xxxxxx X. Xxxxxxx
000 Xxxxxx Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Facsimile NO.: (000) 000-0000
(iv) Entire Agreement; Amendments. This Agreement, the Severance
Agreement and the Stock Option Agreements entered into pursuant to Section 2.6
contain the entire agreement between the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings, oral or
written, between the parties hereto with respect to the subject matter hereof.
This Agreement may not be amended orally, but only by an agreement in writing
signed by the parties hereto.
(v) Governing Law. This Agreement will be governed by the laws
of the State of Alabama without regard to conflicts of laws principles.
(vi) Severability. If any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect. Any provision
of this Agreement held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or unenforceable.
IN WITNESS WHEREOF, the parties have executed an delivered this Agreement
as of the date above first written above.
XXXXXX INDUSTRIES, INC.
By /s/ Xxxxxxxx X. Xxxxxxxxx
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Its Vice President and Corporate Secretary
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/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
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EXHIBIT A
EMPLOYEE BENEFITS
Insurance Benefits: Employer pays 100% other than Group Medical.
Group Medical/Dental Coverage (employee pays $186 per month for family coverage).
Medical/Dental Supplement Coverage ($2,500 maximum per year).
Group Term Life Insurance ($100,000 death benefit; $10,000 AD&D benefit).
Group AD&D Insurance ($200,00 death benefit).
Group Long-Term Disability Insurance and Salary Continuation Plan.
Liberty Universal Life Insurance ($100,000 death benefit).
Xxxxxx Term Life Insurance ($100,000 death benefit).
Xxxx Xxxxxx LTD Insurance Supplement.
Benefit Plan: ESOP (Eligible upon completion of one year of service).
PST/401k (Eligible upon the January 1 or July 1 next following completion of one year of
service; 401k contributions can begin effective on one-year anniversary date)
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