EXHIBIT 10.25
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated March 1, 2000 by and between
Xxxxx Refining & Marketing, Inc. (the "Company") and Xxxxxx X. Xxxxx (the
"Executive").
WHEREAS, the Company considers it essential to its best interests and the
best interests of its stockholders to xxxxxx the employment of Executive by the
Company during the term of this Agreement and Executive is willing to accept
Executive's employment on the terms hereinafter set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein and for other good and valuable consideration, the parties agree as
follows:
1. Term of Employment; Executive Representation.
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a. Employment Term. Subject to the provisions of Section 8 of this
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Agreement, Executive shall be employed by the Company for the three-year
period commencing on March 1, 2000 and ending on February 28, 2003 (the
"Employment Term") on the terms and subject to the conditions set forth in
this Agreement. Notwithstanding the preceding sentence, commencing March
1, 2003, and on each anniversary thereof thereafter (each anniversary, an
"Extension Date"), the Employment Term shall be automatically extended for
an additional one-year period, unless either party provides the other party
hereto with 60 days' written notice prior to the next Extension Date that
the Employment Term shall not be so extended. For the avoidance of doubt,
the term "Employment Term" shall include any extension that becomes
applicable pursuant to the preceding sentence.
b. Executive Representation. Executive hereby represents to the Company
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that the execution and delivery of this Agreement by Executive and the
Company and the performance by Executive of the Executive's duties
hereunder shall not constitute a breach of, or otherwise contravene, the
terms of any employment agreement or other agreement or policy to which
Executive is a party or otherwise bound.
2. Position.
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a. While employed hereunder, Executive shall serve as the Company's
Executive Vice-President-Legal, Human Resources, and Public Affairs and as
an Executive Vice-President of Xxxxx Refining Holdings, Inc. and Xxxxx USA,
Inc. Executive shall also serve as the Company's General Counsel, or such
other title as shall denote his status as the chief legal officer of the
Company. However, nothing contained herein shall in any way restrict the
ability of the Company to assign Executive, with his consent, to other
positions of equivalent status within the Company. In such positions,
Executive shall have such duties and authority as shall be determined from
time to time by the Board of Directors of the Company (the "Board"), and
the Executive shall report directly to the Chief Executive Officer of the
Company. If requested, the Executive shall also serve as a member of the
Board or the boards of any affiliates of the Company without additional
compensation.
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b. While employed hereunder, Executive will devote Executive's full
business time and best efforts to the performance of Executive's duties
hereunder and will not engage in any other business, profession or
occupation for compensation or otherwise which would conflict with the
rendition of such services either directly or indirectly; provided that
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nothing herein shall preclude Executive, subject to the prior approval of
the Chief Executive Officer, from accepting appointment to the board of
directors or trustees of any business corporation or any charitable
organization, provided in each case, and in the aggregate, that such
activities do not interfere with the performance of Executive's duties
hereunder or conflict with Section 9. Any compensation earned by Executive
for serving in such director or trustee capacity shall be the sole and
exclusive property of Executive.
3. Base Salary. While employed hereunder, the Company shall pay Executive a
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base salary (the "Base Salary") at the annual rate of $282,500, payable in
regular installments in accordance with the Company's usual payment practices.
Executive shall be entitled to such increases in Executive's Base Salary, if
any, as may be determined from time to time in the sole discretion of the Board,
and any such increased Base Salary shall be deemed to be Executive's "Base
Salary" for purposes of this Agreement.
4. Bonuses.
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a. Signing Bonus. As consideration for Executive's entering into this
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Agreement, the Company shall pay Executive a one-time signing bonus of
$125,000, payable as soon as practicable after the date hereof.
b. Annual Bonus. With respect to each calendar year while employed
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hereunder, Executive shall be eligible to earn an annual bonus award
pursuant to the Company's annual incentive plan (the "Annual Incentive
Plan") in an amount to be determined at the sole discretion of the Board in
consultation with the Chief Executive Officer. Executive's Annual Bonus
Opportunity (as defined in the Annual Incentive Plan) shall be 150% of Base
Salary and his Annual Target Bonus (as defined in the Annual Incentive
Plan) shall be 100% of Base Salary. However, Executive's Annual Bonus
Opportunity and Annual Target Bonus shall be subject to change based upon
modifications made from time to time to the Annual Incentive Plan by the
Company's management team, which team shall include the Executive,
provided, however, that in any such modification of the Annual Incentive
Plan Executive's Annual Bonus Opportunity and Annual Target Bonus shall be
no less than that of other similarly situated officers of the Company,
including any Executive Vice President thereof. Notwithstanding the
foregoing, Executive shall be entitled to an annual bonus of at least
$100,000 in respect of calendar year 2000.
5. Equity Arrangements. Executive shall be granted an option to purchase
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120,000 shares of the common stock of Xxxxx Refining Holdings Inc. (the "Common
Stock") pursuant to the terms of the Xxxxx Refining Holdings Inc. 1999 Stock
Incentive Plan (the "Stock Incentive Plan"). The option shall have a per share
exercise price of $9.90.
The options for 60,000 shares shall vest ratably over the four years
following the date hereof (1/4 per year), and the options for the remaining
60,000 shares shall vest on the seventh
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anniversary of the grant date, or upon the achievement of the share prices set
forth below for the Common Stock: (i) following an initial public offering, as
an average closing price for any 180 day consecutive period, or (ii) in a Change
in Control:
Per Share Price % Vested
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below $12.00 0%
$12.00 - $14.99 10%
$15.00 - $17.99 20%
$18.00 - $19.99 30%
$20.00 - $24.99 50%
$25.00 - $29.99 75%
above $29.99 100%
The specific terms of such grant shall be set forth in a separate option
agreement, and shall be subject to the terms of the Stock Incentive Plan.
6. Employee Benefits.
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a. Welfare and Pension Benefits. The Company shall provide Executive
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during the term of his employment hereunder with coverage under all
employee pension and welfare benefit programs, plans and practices in
accordance with the terms thereof, which the Company generally makes
available to its senior executives; provided, however, that the Company
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shall reimburse Executive for the cost of COBRA continuation coverage
(elected by Executive under his prior employer's group health plan) during
the first 30 days of the Employment Term (after which time Executive will
be eligible for coverage under the Company's medical plan pursuant to this
Section 6(a)).
b. Vacation and Other Perquisites. Executive shall also be entitled to
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such number of paid vacation and sick leave days in each calendar year as
established under the Company's policies as in effect from time to time,
which shall be taken at such times as are consistent with Executive's
responsibilities hereunder. In addition, the Company shall reimburse
Executive for the reasonable cost of financial, estate and tax preparation
and planning services listed on Exhibit A incurred by Executive during the
calendar year 2000, upon presentation by Executive from time to time of
appropriately itemized accounts of such expenditures. Such accounts shall
be subject to approval by the Chief Executive Officer.
7. Business Expenses. Executive is authorized to incur reasonable expenses
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in carrying out his duties and responsibilities under this Agreement, including,
without limitation, expenses for travel and similar items related to such duties
and responsibilities. The Company will reimburse Executive for all such
expenses upon presentation by Executive from time to time of appropriately
itemized and approved (consistent with the Company's policy) accounts of such
expenditures.
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8. Termination. The Executive's employment hereunder may be terminated by
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either party at any time and for any reason; provided that Executive will be
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required to give the Company at least 60 days advance written notice of any
resignation of Executive's employment. Notwithstanding any other provision of
this Agreement, the provisions of this Section 8 shall exclusively govern
Executive's rights upon termination of employment with the Company and its
affiliates. Upon termination of Executive's employment for any reason,
Executive agrees to resign, as of the date of such termination, from the Board
and the board of directors of any of the Company's affiliates.
a. By the Company For Cause or by Executive Resignation Without Good
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Reason.
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(i) Executive's employment hereunder may be terminated by the Company
for Cause (as defined below) at any time or, upon 60 days prior
written notice, by Executive without Good Reason (as defined below).
(ii) For purposes of this Agreement, "Cause" shall mean (A)
Executive's continued failure to substantially perform Executive's
duties hereunder (other than as a result of total or partial
incapacity due to physical or mental illness) for a period of 10 days
following written notice by the Company to Executive of such failure,
(B) dishonesty in the performance of Executive's duties hereunder, (C)
an act or acts on Executive's part constituting (x) a felony under the
laws of Missouri or (y) a misdemeanor involving moral turpitude, (D)
Executive's willful malfeasance or willful misconduct in connection
with Executive's duties hereunder or any act or omission which is
materially injurious to the financial condition or business reputation
of the Company or any of its subsidiaries or affiliates, (E)
Executive's breach of the restrictive covenants set forth in Section 9
hereof or (F) Executive's failure to substantially perform Executive's
duties hereunder (other than as a result of total or partial
incapacity due to physical or mental illness) at the Company's
location in the St. Louis, Missouri metropolitan area, except as
otherwise required by the Company.
(iii) If Executive's employment is terminated by the Company for
Cause or by Executive without Good Reason, Executive shall be entitled
to receive:
(A) the Base Salary through the date of termination;
(B) any annual bonus earned but unpaid as of the date of
termination for any previously completed calendar year;
(C) reimbursement for any unreimbursed business expenses properly
incurred by Executive in accordance with Company policy prior to
the date of Executive's termination; and
(D) such employee benefits, if any, as to which Executive may be
entitled under the employee benefit plans of the Company (the
amounts
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described in clauses (A) through (D) hereof being referred to as
the "Accrued Rights").
Following such termination of Executive's employment by the Company
for Cause or by Executive without Good Reason, except as set forth in this
Section 8(a), Executive shall have no further rights to any compensation
or any other benefits under this Agreement.
b. Disability or Death.
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(i) Executive's employment hereunder shall terminate upon Executive's
death or if Executive becomes physically or mentally incapacitated, as
determined pursuant to the Company's long-term disability program as
may be in effect from time to time (the "LTD Program"), and is
therefore unable, for a period of time as determined under the LTD
Program, to perform Executive's duties (such incapacity is hereinafter
referred to as "Disability"). Any question as to the existence of the
Disability of Executive as to which Executive and the Company cannot
agree shall be determined in writing by a qualified independent
physician mutually acceptable to Executive and the Company. If
Executive and the Company cannot agree as to a qualified independent
physician, each shall appoint such a physician and those two
physicians shall select a third who shall make such determination in
writing. The determination of Disability made in writing to the
Company and Executive shall be final and conclusive for all purposes
of the Agreement.
(ii) Upon termination of Executive's employment hereunder for either
Disability or death, Executive or Executive's estate (as the case may
be) shall be entitled to receive:
(A) the Accrued Rights; and
(B) a pro rata portion of Executive's annual target bonus based
upon the percentage of the calendar year that shall have elapsed
through the date of termination of the Executive's employment,
payable when such bonus would have otherwise been payable had
Executive's employment not terminated.
Following Executive's termination of employment due to death or
Disability, except as set forth in this Section 8(b), Executive shall have
no further rights to any compensation or any other benefits under this
Agreement.
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c. By the Company Without Cause, Expiration of Employment Term, or
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Resignation by Executive for Good Reason.
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(i) The Executive's employment hereunder may be terminated by the
Company without Cause, by the Company's election not to extend the
Employment Term, or, upon 60 days prior written notice, by Executive's
resignation for Good Reason.
(ii) In the event that the Company elects not to extend the Employment
Term pursuant to Section 1, unless Executive's employment is earlier
terminated pursuant to paragraphs (a), (b) or (c) of this Section 8,
Executive's termination of employment hereunder (whether or not
Executive continues as an employee of the Company thereafter) shall be
deemed to occur on the close of business on the day immediately
preceding the next scheduled Extension Date.
(iii) For purposes of this Agreement, "Good Reason" shall mean: (A) a
reduction in Executive's Base Salary or annual bonus opportunity or
target bonus (other than any general salary reduction affecting at
least the majority of salaried employees or annual incentive plan
changes affecting all similarly situated officers of the Company,
including any Executive Vice President, and provided that the
establishment of reasonable performance targets by the Board will not
constitute a reduction of annual bonus opportunity or target bonus),
(B) a substantial diminution of Executive's duties and
responsibilities, or (C) a transfer of Executive's primary workplace
by more than thirty-five (35) miles from the Executive's workplace
immediately prior to such transfer.
Notwithstanding the foregoing, none of the events described in
clauses (A), (B) or (C) of this Section 8(c)(ii) shall constitute
Good Reason unless Executive shall have notified the Company in
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writing describing the events which constitute Good Reason and then
only if the Company shall have failed to cure such event within thirty
(30) days after the Company's receipt of such written notice.
However, any termination of Executive's employment by the Company
after delivery by the Executive to the Company of such notice shall be
deemed to be a termination without Cause if Good Reason did exist at
the time such notice was given by Executive.
(iv) If Executive's employment is terminated by the Company without
Cause (other than by reason of death or Disability), as a result of
the Company's nonrenewal of the Employment Term pursuant to Section 1
hereof, or by Executive's resignation for Good Reason, Executive shall
be entitled to receive:
(A) the Accrued Rights; and
(B) subject to Executive's continued compliance with the
provisions of Section 9, an amount equal to two (the "Severance
Multiplier") times the sum of the (1) then Base Salary and (2)
then annual target bonus, payable
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in accordance with normal payroll practices of the Company in
substantially equal installments over the 24 month period
following termination of employment; provided that the aggregate
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amount described in this clause (B) shall be reduced by the
present value of any other cash severance or termination benefits
payable to Executive under any other plans, programs or
arrangements of the Company or its affiliates.
Notwithstanding the foregoing, in the event Executive's
employment is terminated under this Section 8(c) at any time
following a Change of Control (defined below), the Severance
Multiplier shall be increased from two to three, and any
severance amounts payable pursuant to Section 8(c)(iv)(B) shall
be payable in the form of a single, lump sum cash payment within
10 days following termination of employment.
(C) The Company, at its expense, shall provide the Executive with
the reasonable job relocation counseling services of a firm
chosen from time to time by the Executive, for a period not to
exceed 18 months after the Date of Termination.
(D) The Company shall maintain in full force and effect, for the
Executive's continued benefit, until the earlier of (1) one year
after the date of the termination of Executive's employment or
(2) the Executive's commencement of full time employment with a
new employer, all life insurance, medical, dental, health and
accident and disability plans, programs or arrangements in which
the Executive was entitled to participate immediately prior to
the termination of Executive's employment at a cost to the
Executive no greater than the Executive paid while employed by
the Company, provided that the Executive's continued
participation is possible under the general terms and provisions
of such plans and programs. In the event that the Executive's
participation is barred, the Company shall arrange to provide the
Executive, at the Company's expense, with benefits substantially
similar to those which the Executive is entitled to receive under
such plans, programs or arrangements, or pay cash in an amount
after tax sufficient to enable the Executive to purchase
substantially similar coverage for a one year period on an
individual basis, at a cost to the Executive no greater than the
Executive paid while employed. In the case of the Executive's
commencement of full time employment with a new employer within
the one year period, the Company agrees to make up any
differential in benefits between what the Executive would have
received from the Company in the one year period and what the
Executive receives from his new employer, so that the Executive
is ensured of receiving the same benefits which he would have
been entitled to receive from the Company had his employment with
the Company continued for the one year period
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at a cost to the Executive no greater than the Executive paid
while employed.
Following Executive's termination of employment by the Company without
Cause (other than by reason of Executive's death or Disability), as a
result of the Company's nonrenewal of the Employment Term pursuant to
Section 1 hereof, or by Executive's resignation for Good Reason, except as
set forth in this Section 8(c), Executive shall have no further rights to
any compensation or any other benefits under this Agreement.
d. Notice of Termination. Any purported termination of employment by the
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Company or by Executive (other than due to Executive's death) shall be
communicated by written Notice of Termination to the other party hereto in
accordance with Section 11(h) hereof. 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 employment under the provision so indicated.
e. Definition of Change of Control. For purposes hereof, "Change of
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Control" shall mean any transaction, the result of which is that any Person
(an "Acquiring Person") other than (i) Blackstone (defined below) or (ii)
any Person, a majority of whose voting equity is owned by Blackstone,
becomes the beneficial owner, directly or indirectly, of shares of stock of
the Company or Xxxxx US, Inc. entitling such Acquiring Person to exercise
50% or more of the total voting power of all classes of stock of the
Company or Xxxxx USA, Inc., as the case may be, entitled to vote in
elections of directors. For purposes hereof, "Blackstone" shall mean,
collectively, The Blackstone Group, Blackstone Capital Partners III
Merchant Banking Fund L.P., and their affiliates (other than the Company
and its subsidiaries) and "Person" shall mean a "person" as such term is
used for purposes of Section 13(d) or 14(d) of the Securities Exchange Act
of 1934, as amended.
f. (i) In the event it shall be determined that any payment, benefit or
distribution (or combination thereof) by the Company, or by any other
member of the same affiliated group with the Company (as determined
under Code Section 280G(d)(5)) for the benefit of the Executive
(whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement, or otherwise) (a "Payment") would be
subject to the excise tax imposed by Section 4999 of the Internal
Revenue Code of 1986, as amended from time to time (the "Code"), or any
interest or penalties are incurred by the Executive with respect to
such excise tax (other than interest or penalties incurred as a result
of the failure of the Executive to file any tax return, or pay any tax
(except any such failure to pay tax in accordance with the terms
hereof), required by applicable law or to be filed or paid by the
Executive) (such tax together with any such interest and penalties,
hereinafter collectively referred to as the "Excise Tax"), the
Executive shall be entitled to receive an additional payment (a "Gross-
Up Payment") in an amount such that after payment by the Executive of
taxes (including payroll taxes and any interest or penalties imposed
with respect to such taxes, other than interest or penalties imposed as
a result of the failure of the Executive to file any tax return
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or pay any tax (except any such failure to pay tax in accordance with
the terms hereof), required by applicable law to be filed or paid by
the Executive), including, without limitation, any income taxes (and
any interest and penalties imposed with respect thereto, other than
interest or penalties imposed as a result of the failure of the
Executive to file any tax return or pay any tax (except any such
failure to pay tax in accordance with the terms hereof), required by
applicable law to be filed or paid by the Executive) and the Excise
Tax imposed upon the Gross-Up Payment, the Executive retains an amount
of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments.
(ii) Subject to the provisions of subsection 8(g)(iii), all
determinations required to be made under this subsection 8(g),
including whether and when a Gross-Up Payment is required and the
amount of such Gross-Up Payment and the assumptions to be utilized in
arriving at such determination, shall be made by Deloitte & Touche LLP
or, if Deloitte & Touche LLP is unable or unwilling to serve, then
such nationally recognized accounting firm as the Company shall select
(Deloitte & Touche LLP or such other accounting firm being the
"Accounting Firm" ), which shall provide detailed supporting
calculations both to the Company and the Executive within fifteen (15)
business days of the receipt of notice from the Executive that there
has been a Payment, or such earlier time as is requested by the
Company. All fees and expenses of the Accounting Firm shall be borne
solely by the Company. Any Gross-Up Payment, as determined pursuant to
this Section 8(g), shall be paid by the Company to the Executive
within five (5) days after the receipt of the Accounting Firm's
determination. If the Accounting Firm determines that no Excise Tax is
payable by the Executive, it shall so indicate to the Executive in
writing. Any determination by the Accounting Firm shall be binding
upon the Company and the Executive. As a result of the uncertainty in
the application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Company should
have been made ("Underpayment"), consistent with the calculations
required to be made hereunder. In the event that the Corporation
exhausts its remedies pursuant to subsection 8(g)(iii) and the
Executive thereafter is required to make a payment of any Excise Tax,
the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by
the Corporation to or for the benefit of the Executive.
(iii) The Executive shall notify the Company in writing of any claim
by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification
shall be given as soon as practicable but no later than ten (10)
business days after the Executive is informed in writing of such claim
and shall apprize the Company of the nature of such claim and the date
on which such claim is requested to be paid. The Executive shall not
pay such claim prior to the expiration of the thirty (30) day period
following the date on which it gives such notice to the Company (or
such shorter period ending on the date that any payment of taxes with
respect to such claim is
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due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the
Executive shall:
(A) give the Company any information requested by the Company
relating to such claim;
(B) take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to
time, including, without limitation, accepting legal
representation with respect to such claim by an attorney
reasonably selected by the Company;
(C) cooperate with the Company in good faith in order to
effectively contest such claim; and
(D) permit the Company to participate in any proceedings relating
to such claim; provided, however, that the Company shall bear and
pay directly all costs and expenses (including additional
interest and penalties) incurred in connection with such contest
and shall indemnify and hold the Executive harmless, on an after-
tax basis, for any Excise Tax or income tax (including interest
and penalties with respect thereto, other than interest or
penalties imposed as a result of the failure of the Executive to
file any tax return or pay any tax (except any such failure to
pay tax in accordance with the terms hereof), required by
applicable law to be filed or paid by the Executive) imposed as a
result of such representation and payment of costs and expenses,
Without limitation on the foregoing provisions of this subsection
8(g)(iii), the Company shall control all proceedings taken in
connection with such content and, at its sole option, may pursue
or forego any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in respect of
such claim and may, at its sole option, either direct the
Executive to pay the tax claimed and xxx for a refund or contest
the claim in any permissible manner, and the Executive agrees to
prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and
in one or more appellate courts, as the Company shall determine;
provided, however, that of the Company directs the Executive to
pay such claim and xxx for a refund, the Company shall advance
the amount of such payment to the Executive, on an interest-free
basis, and shall indemnify and hold the Executive harmless, on an
after-tax basis, from any excise Tax or income tax (including
interest or penalties with respect thereto, other than interest
or penalties imposed as a result of the failure of the Executive
to file any tax return or pay any tax (except any such failure to
pay tax in accordance with the terms hereof), required by
applicable law to be filed or paid by the Executive) imposed with
respect to such advance or with respect to any imputed income
with respect to such advance; and provided, further, that if the
Executive is required to extend the statute of limitations to
enable the Company to contest such
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claim, the Executive may limit this extension solely to such
contested amount. The Company's control of the contest shall be
limited to issues with respect to which a Gross-Up Payment would
be payable hereunder and the Executive shall be entitled to
settle or contest, as the case may be, any other issue raised by
the Internal Revenue Service or any other taxing authority.
(iv) If, after the receipt by the Executive of an amount advanced by
the Company pursuant to subsection 8(g)(iii), the Executive becomes
entitled to receive any refund with respect to such claim, the
Executive shall (subject to the Company's complying with the
requirements of subsection 8(g)(iii)) promptly pay to the Company the
amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by the Company pursuant to subsection
8(g)(iii), a determination is made that the Executive shall not be
entitled to any refund with respect to such claim and the Company does
not notify the Executive in writing of its intent to contest such
denial of refund prior to the expiration of thirty (30) days after
such determination, then such advance shall be forgiven and shall not
be required to be repaid and the amount of such advance shall offset,
to the extent thereof, the amount of Gross-Up Payment required to be
paid.
9. Nondisclosure of Confidential Information; Non-Solicitation.
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a. At any time during or for a period of three years after Executive's
employment with the Company, Executive shall not, without the prior written
consent of the Company, use, divulge, disclose or make accessible to any
other person, firm, partnership, corporation or other entity any
Confidential Information (as hereinafter defined) pertaining to the
business of the Company or any of its subsidiaries, except (i) while
employed by the Company, in the business of and for the benefit of the
Company, or (ii) when required to do so by a court of competent
jurisdiction, by any governmental agency having supervisory authority over
the business of the Company, or by any administrative body or legislative
body (including a committee thereof) with jurisdiction to order Executive
to divulge, disclose or make accessible such information. For purposes of
this Section 8(a), "Confidential Information" shall mean non-public
information concerning the financial data, strategic business plans, and
other non-public, proprietary and confidential information of the Company,
its subsidiaries, Blackstone (defined above), and their respective
affiliates as in existence as of the date of Executive's termination of
employment that, in any case, is not otherwise available to the public
(other than by Executive's breach of the terms hereof).
b. In the course of Executive's employment Executive will acquire knowledge
of Confidential Information and trade secrets. Executive acknowledges that
the Confidential Information and trade secrets which the Company has
provided and will provide to him could play a significant role were he to
directly or indirectly be engaged in any business that competes with the
Company or its subsidiaries. Executive agrees that, without the prior
written consent of the Company, (i) during his employment with the Company
and
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for a period of two years thereafter he shall not, on his own behalf or
on behalf of any person, firm or company, directly or indirectly, solicit
the business of any person or entity that has been a client or customer of
the Company or its subsidiaries at any time during the 12 months
immediately preceding such solicitation, and (ii) during his employment
with the Company or for a period of one year thereafter he shall not, on
his own behalf or on behalf of any person, firm or company, directly or
indirectly, solicit or offer employment to any person who has been employed
by the Company, its subsidiaries, or Blackstone in an executive or
management capacity at any time during the 12 months immediately preceding
such solicitation.
c. Executive and the Company agree that the foregoing covenants not to
solicit are a reasonable covenant under the circumstances, and further
agree that if in the opinion of any court of competent jurisdiction such
restraints are not reasonable in any respect, such court shall have the
right, power and authority to excise or modify such provision or provisions
of these covenants as, to the court, shall appear not reasonable and to
enforce the remainder of the covenant as so amended.
10. Specific Performance. Executive acknowledges and agrees that the Company's
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remedies at law for a breach or threatened breach of any of the provisions of
Section 9 would be inadequate and, in recognition of this fact, Executive agrees
that, in the event of such a breach or threatened breach, in addition to any
remedies at law, the Company, without posting any bond, shall be entitled to
cease making any payments or providing any benefit otherwise required by this
Agreement and obtain equitable relief in the form of specific performance,
temporary restraining order, temporary or permanent injunction or any other
equitable remedy which may then be available.
11. Miscellaneous.
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a. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Missouri, without regard to
conflicts of laws principles thereof.
b. Entire Agreement/Amendments. This Agreement contains the entire
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understanding of the parties with respect to the employment of Executive by
the Company. There are no restrictions, agreements, promises, warranties,
covenants or undertakings between the parties with respect to the subject
matter herein other than those expressly set forth herein. This Agreement
may not be altered, modified, or amended except by written instrument
signed by the parties hereto. This Agreement supercedes all prior
agreements and understandings (including verbal agreements) between
Executive and the Company and/or its affiliates regarding the terms and
conditions of Executive's employment with the Company and/or its affiliates
c. No Waiver. The failure of a party to insist upon strict adherence to
---------
any term of this Agreement on any occasion shall not be considered a waiver
of such party's rights or deprive such party of the right thereafter to
insist upon strict adherence to that term or any other term of this
Agreement.
13
d. Severability. In the event that any one or more of the provisions of
------------
this Agreement shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions of this Agreement shall not be affected thereby.
e. Assignment. This Agreement shall not be assignable by Executive. This
----------
Agreement may be assigned by the Company to a company which is a successor
in interest to substantially all of the business operations of the Company.
Such assignment shall become effective when the Company notifies Executive
of such assignment or at such later date as may be specified in such
notice. Upon such assignment, the rights and obligations of the Company
hereunder shall become the rights and obligations of such successor
company, provided that any assignee expressly assumes the obligations,
--------
rights and privileges of this Agreement.
Mitigation. If the Executive's employment hereunder is terminated for any
----------
reason, the Executive shall not be subject to any duty or obligation to
seek alternate employment or other sources of income or benefits, or to
mitigate his damages, or to any similar duty or obligation, and, except as
specifically provided with respect to the continuation of benefits, all
payment and other obligations of the Company under this Agreement shall not
be subject to any rights of set-off, duty to mitigate or other reduction,
and shall be paid and performed in full notwithstanding any alternate
employment or other sources of income or benefits obtained or received or
receivable by the Executive.
g. Successors; Binding Agreement. This Agreement shall inure to the
-----------------------------
benefit of and be binding upon personal or legal representatives,
executors, administrators, successors, heirs, distributes, devises and
legatees.
h. Notice. For the purpose of this Agreement, notices and all other
------
communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to
the respective addresses set forth below Agreement, or to such other
address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be
effective only upon receipt.
If to the Company:
Xxxxx Refining & Marketing, Inc.
c/x Xxxxx USA, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Secretary
If to Executive:
To the most recent address of Executive set forth in the personnel records
of the Company.
14
i. Withholding Taxes. The Company may withhold from any amounts payable
-----------------
under this Agreement such Federal, state and local taxes as may be required
to be withheld pursuant to any applicable law or regulation.
j. Counterparts. This Agreement may be signed in counterparts, each of
------------
which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
k. Legal and Professional Fees. The Corporation shall pay to the Executive
---------------------------
all reasonable legal and professional fees and expenses incurred by the
Executive in seeking to obtain or enforce any right or benefit provided by
this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
XXXXX REFINING & MARKETING, INC.:
By:________________________
Name:
Title:
XXXXXX X. XXXXX:
___________________________
000 Xxxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxx 00000
15
EXHIBIT A
(Financial, Estate and Tax Preparation and Planning Services)
. Financial consulting services from AYCO, Inc.
. Estate planning work rendered by Xxxxxx Xxxx, Attorney-At-Law.
. Tax preparation and planning services for 2000 performed by AYCO,
Inc.
