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Exhibit (c)(10)
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and
entered into as of this __th day of August, 1993, by and between HOLOPHANE
COMPANY, INC., a Delaware corporation and HOLOPHANE HOLDINGS CORPORATION, a
Delaware corporation (collectively referred to as the "Company"), and Xxxx X.
XxxxxXxxxx (the "Employee").
W I T N E S S E T H:
WHEREAS, pursuant to a written employment agreement dated
October 24, 1989 (the "Prior Agreement"), the Employee has been employed as the
President and Chief Executive Officer of the Company since such date and as the
Company's Chairman since February, 1992; and
WHEREAS, the Company and the Employee desire to enter into a
new employment agreement that shall supersede said existing agreement; and
WHEREAS, the Employee desires to continue his employment with
the Company and to serve the Company as its President, Chairman and Chief
Executive Officer; and
WHEREAS, the Company desires to continue to retain the
services of the Employee as its President, Chairman and Chief Executive Officer;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Employee agree as set forth below.
1. Employment and Duties. The Company agrees to and does
hereby employ the Employee, and the Employee does hereby accept employment with
the Company, as the President, Chairman and Chief Executive Officer of Holophane
Company, Inc. and Holophane Holdings Corporation, to operate and manage the
business and operations of the Company with all the authority customarily
afforded to a chief executive officer subject to the normal supervision and
authority of the Board of Directors of the Company, and to perform such other
duties which are consistent with such position as are from time to time
delegated to the Employee by the Board of Directors of the Company. The Employee
will perform all services and acts necessary in such capacities to properly
manage and the Employee shall endeavor in good faith
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to perform his duties in an efficient, faithful and businesslike manner.
2. Term of Agreement. The provisions of this Agreement shall
remain in full force and effect and the employment of the Employee with the
Company shall continue until terminated by a written Notice of Termination [as
described in Section 6(c)] provided by either the Company or the Employee. In
addition, notwithstanding the previous sentence, this Agreement may be
terminated at any time by mutual agreement of the parties hereto or by the
Company at any time following the date on which the Employee attains age
sixty-five (65) (hereinafter termination of this Agreement by the Company after
the Employee has attained age sixty-five (65) shall be referred to as
"Retirement").
3. Compensation. During the term of this Agreement, the
Employee shall be paid a base salary, payable in accordance with the Company's
normal payroll practice. The Employee's initial base salary shall be Two Hundred
Seventy-Three Thousand Dollars ($273,000) per year. The base salary payable to
the Employee shall be reviewed annually for increase effective each July 1st
during the term of this Agreement. In addition, the Employee shall participate
in the Holophane Bonus Plan, as may be amended by the Company from time to time
(the "Bonus Plan"), a copy of which is attached hereto as Exhibit A. Any bonus
payable shall be determined under the provisions of the Bonus Plan, based upon
participation at 70% of the Employee's base salary and shall be payable as soon
as practical after determination of the bonus amount, but not later than
seventy-five (75) days after the end of the Company's fiscal year.
4. Other Employee Fringe Benefits.
a. In General. The Company shall further provide the
Employee with all health and life insurance coverages, sick leave and disability
programs, tax-qualified retirement plan contributions, stock option plans, paid
holidays and vacations, perquisites, and such other fringe benefits of
employment as the Company may provide from time to time to actively employed,
disabled, deceased, retired, or otherwise terminated, as applicable, senior
executives of the Company.
b. Supplemental Benefits. The Company shall also
provide the Employee with the following supplemental benefits:
(i) Vacation. The Employee will be entitled to total
vacation leave during the term of this Agreement of four
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(4) weeks per year at such time as agreed between the Employee and the Company.
(ii) Automobile. The Company shall provide the
Employee during the term of this Agreement a Cadillac DeVille automobile, or an
automobile equivalent thereto.
(iii) Club Memberships. The Company shall, during the
term of this Agreement, pay initiation fees and periodic dues and assessments
for the Employee's membership in country and business clubs, provided the
aggregate initiation fees do not exceed $20,000, and the aggregate annual dues
and assessments do not exceed $6,000.
(iv) SERP. The Employee will be entitled to
participate, at a level commensurate with his position and his base salary, in
the Company's Supplemental Executive Retirement Plan, as may be amended from
time to time (the "SERP"), a copy of which is attached hereto as Exhibit B. The
Employee's participation in and benefit under the SERP shall be determined in
accordance with the terms and conditions of the SERP.
(v) Stock Option Plan. The Employee will be entitled
to participate, at a level commensurate with his position and his base salary,
in the Holophane Holdings Corporation Incentive Stock Plan, as may be amended
from time to time (the "Stock Plan"), a copy of which is attached hereto as
Exhibit C. The Employee's participation in the Stock Plan shall be determined in
accordance with the terms and conditions of the Stock Plan.
5. Employee Stock Purchase. Under the terms of the Prior
Agreement, the Company sold to the Employee 4,000 shares (the "Shares") of the
Common Stock, par value $.01 per share, of Holophane Holdings Corporation, for
the purchase price and on the terms set forth in that certain Stock Purchase and
Stockholders Agreement, dated June 30, 1989, by and among Holophane Holdings
Corporation and each of the other stockholders thereto, to which the Employee
was concurrently made a party (the "Stockholders Agreement"). Pursuant to
Section 6 of the Prior Agreement, certain terms of the Shares were to be set
forth in a side letter (the "Side Letter") to be executed by an authorized
officer of Holophane Holdings Corporation, a copy of which is attached hereto as
Exhibit D. During the term of this Agreement, the terms and conditions set forth
in the Side Letter shall remain in full force and effect until they lapse in
accordance with the provisions of the Side Letter; provided, however, to the
extent that the Employee's employment is terminated by the Company
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without Cause [as defined in Section 6(a)(ii)] or by the Employee for Good
Reason [as defined in Section 6(b)], for purposes of Paragraph (1) of the Side
Letter, the Employee will be credited with one (1) additional year of service
following the Date of Termination [as defined in Section 6(d)].
6. Termination of Employment.
a. Termination of Employment By The Company. The Employee's
employment hereunder may be terminated by the Company without any breach of this
Agreement only under the following circumstances:
(i) Death, Disability or Retirement. The Employee's
employment hereunder shall terminate upon his death and may be terminated by the
Company in the event of his Disability or Retirement. For purposes of this
Agreement, the term "Disability" shall mean the inability of the Employee due to
illness (mental or physical), accident, or otherwise, to perform his duties for
any period of ninety (90) consecutive days, as determined by an independent
physician selected by the Company and reasonably acceptable to the Employee (or
his legal representative), provided that the Employee does not return to work on
substantially a full-time basis within thirty (30) days after Notice of
Termination is given by the Company pursuant to the provisions of Sections 6(c)
and 6(d)(ii).
(ii) Cause. The Company may terminate the Employee's
employment hereunder for Cause. For purposes of this Agreement, the Company
shall have "Cause" to terminate the Employee's employment hereunder only upon
(a) his conviction of a felony involving moral turpitude, provided that such
conviction would at the time have a material adverse effect on the Company in
the reasonable opinion of the Board of Directors of the Company, (b) gross and
willful misconduct by the Employee which is deemed, by the Company's Board of
Directors, to be injurious to the Company, (c) a finding of gross dishonesty of
the Employee, (d) willful malfeasance or gross negligence, or failure to act
involving material non-feasance, provided that in the case of such gross
negligence or material non-feasance it would at the time have a material adverse
effect on the Company in the reasonable opinion of the Board of Directors of the
Company, (e) insubordination or refusal to perform assigned duties consistent
with those contained in Section 1, or (f) the Employee's material breach of his
obligations contained in Section 9.
b. Termination of Employment by Employee. The Employee may
terminate his employment at any time. However, he
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shall be deemed to have terminated his employment for "Good Reason" only if he
terminated his employment by giving Notice of Termination pursuant to Sections
6(c) and 6(d)(iii) within ninety (90) days after the occurrence of any of the
following events (provided the Company does not cure such event within thirty
(30) days following its receipt of the Employee's Notice of Termination):
i. Without the Employee's prior written consent, the
Company assigns the Employee to duties materially inconsistent in any respect
with his position, authority, duties or responsibilities as set forth in Section
1, or takes any other action that results in a material diminution in such
position, authority, duties, or responsibilities, including, but not limited to,
failing to reappoint or reelect the Employee to any such position (other than
upon Retirement).
ii. The Employee's base salary, or his annual or
long-term Bonus Award under the Bonus Plan, is reduced for any reason other than
in connection with the termination of his employment. For this purpose, the
Employee's Bonus Award shall include (A) the Employee's share of the annual or
long term bonus pool in the Bonus Plan and/or (B) the terms and conditions of
the Bonus Plan.
iii. After a Change in Control (as defined in Section
8), within each twelve- (12-) month period (as described in Section 3), the
Company increases the base salary for senior executive officers of the Company
generally without similarly increasing the base salary of the Employee.
iv. For any reason other than in connection with the
termination of the Employee's employment, the Company materially reduces fringe
benefits provided to the Employee under Section 4, unless the Company agrees, as
evidenced by the Employee's written consent, to fully compensate the Employee
for any such material reduction.
v. The assignment of the Employee, without his prior
written consent, to a Company office located outside of the Central Ohio area.
vi. The Company's failure to obtain an agreement from
any successor or assign of the Company to assume and to agree to perform this
Agreement.
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vii. The Company otherwise materially breaches its
obligations to make payments to the Employee under this Agreement.
c. Notice of Termination. Any termination of the Employee's
employment by the Company hereunder, or by the Employee other than termination
upon the Employee's death, shall be communicated by written Notice of
Termination to the other party. For purposes of this Agreement, a "Notice of
Termination" means a notice that 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 Employee's employment under the provision so indicated.
d. Date of Termination. For purposes of this Agreement, an
applicable "Date of Termination" means:
i. If the Employee's employment is terminated by his
death, the date of his death.
ii. If the Employee's employment is terminated by the
Company as a result of Disability or Retirement pursuant to Section 6(a)(i) or
for Cause pursuant to Section 6(a)(ii), the date that is thirty (30) days after
Notice of Termination is given (provided that in the case of termination for
Disability, the Employee shall not have returned to the performance of his
duties on a full-time basis during such thirty- (30-) day period).
iii. If the Employee terminates his employment for
Good Reason pursuant to Section 6(b), the date that is thirty (30) days after
Notice of Termination is given (provided that the Company does not cure such
event during that thirty- (30-) day period).
iv. If the Employee terminates his employment other
than for Good Reason, the date that is one (1) month after Notice of Termination
is given.
v. If the Employee's employment is terminated by the
Company other than for Cause, the date that is one (1) month after Notice of
Termination is given.
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7. Amounts Payable Upon Termination of Employment or During
Disability.
a. Death or Retirement. If the Employee's employment is
terminated by his death or at Retirement, the Employee's beneficiary (in the
case of death) (as designated by the Employee in writing with the Company prior
to his death) or the Employee (in the case of Retirement) shall be entitled to
the following payments and benefits: (i) any portion of the Employee's base
salary that is accrued but unpaid, any vacation that is accrued but unused, and
any business expenses that are unreimbursed -- all, determined as of the Date of
Termination and payable within thirty (30) days of such date; (ii) a single lump
sum payment equal to a pro rata award under the Bonus Plan (both annual and
long-term bonus), with proration based on the Employee's service completed
during the period for which the award is determined and the results as of the
Date of Termination, and payable within thirty (30) days of the Date of
Termination and (iii) any benefits resulting from the fringe benefits described
in Section 4 upon the Employee's death or Retirement (whichever is applicable)
in accordance with the provisions of the plan or program that provides each
applicable fringe benefit. In the absence of a beneficiary designation by the
Employee, or, if the Employee's designated beneficiary does not survive the
Employee, benefits described in this Section 7(a) shall be paid to the
Employee's estate.
b. Disability.
i. During any period that the Employee fails to
perform his duties hereunder as a result of incapacity due to physical or mental
illness ("Disability Period"), the Employee shall continue to receive his base
salary and bonus (both annual and long-term) at the rate then in effect for such
period until his employment is terminated pursuant to Section 6(a)(i); provided,
however, that payments of base salary and bonus so made to the Employee shall be
reduced by the sum of the amounts, if any, that were payable to the Employee at
or before the time of any such salary or bonus payment under any disability
benefit plan or plans of the Company and that were not previously applied to
reduce any payment of base salary or bonus.
ii. Upon his termination of employment because of
Disability [as defined in Section 6(a)(i)], the Employee shall be entitled to
the following payments and benefits:
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A. Those described in Section 7(a);
B. For a period of thirty-six (36)
months following his Date of
Termination, severance pay, paid
monthly, equal to his base salary
in effect at the Date of
Termination;
C. For a period of thirty-six (36)
months following his Date of
Termination, monthly payments equal
to one-twelfth (1/12th) of the
Employee's annual target bonus,
determined under the provisions of
the Bonus Plan, based upon his base
salary at the Date of Termination;
D. For a period of thirty-six (36)
months following his Date of
Termination, continuation of all
fringe benefits described in
Section 4, except for group medical
insurance, in effect at the Date of
Termination; and
E. For a period of forty-eight (48)
months following his Date of
Termination, continuation of the
Company's group medical insurance
for the Employee and his
dependents, as in effect at the
Date of Termination.
Notwithstanding any provision of this Section 7(b)(ii),
severance payments made to the Employee pursuant to Sections 7(b)(ii)(B) or (C)
shall be reduced by the sum of the amounts, if any, that were payable to the
Employee at or before the time of any such severance payment under any
disability benefit plan or plans of the Company and that were not previously
applied to reduce either any such severance payment or any payment of base
salary or bonus under Section 7(b)(i).
c. Termination by Company Without Cause, or Termination by
Employee for Good Reason. In the event that the Company terminates the
Employee's employment without Cause or the Employee terminates his employment
for Good Reason, the Employee shall be entitled to the following payments and
benefits:
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i. Those described in Section 7(b)(ii);
ii. As of his Date of Termination, the Employee
shall become fully vested in all employee
benefit programs (other than any tax
qualified retirement or savings plan, the
Employee's interest in which shall vest in
accordance with such plan's terms),
including, without limitation, all stock
options and awards under the Stock Plan and
all benefits under the SERP, in which he was
a participant at the time of the termination
of his employment;
iii. Reimbursement of all expenses incurred by
the Employee through the use of any
executive out-placement services to assist
him to seek other employment, which shall
include, but not be limited to (A)
secretarial services, use of an office,
phone, office supplies and office services
comparable to the level of such services and
supplies available to the Employee prior to
the Date of Termination and (B) all
unreimbursed travel expenses incurred by the
Employee to seek other employment up to a
maximum amount of Five Thousand Dollars
($5,000); and
iv. A single lump sum payment, payable within
thirty (30) days of the Date of Termination,
equal to the Employee's non-vested interest
under any tax qualified retirement or
savings plan maintained by the Company which
is forfeited by the Employee under such
plan's terms upon his termination of
employment.
d. Termination by Employee Other Than for Good Reason or
Termination by Company for Cause. In the event that the Employee terminates his
employment other than for Good Reason or the Company terminates his employment
for Cause, the Employee shall not be entitled to any compensation except as set
forth below:
i. Any base salary that is accrued but unpaid,
any vacation that is accrued but unused, and
any business expenses that are unreimbursed
-- all, as of the Date of Termination;
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ii. In the case of termination by the Employee
other than for Good Reason, a pro rata award
under the Bonus Plan [as described in
Section 7(a)(ii)]; and
iii. Any other rights and benefits (if any)
provided under plans and programs of the
Company, determined in accordance with the
applicable terms and provisions of such
plans and programs.
e. Mitigation of Damages. Following any Date of Termination,
the Employee shall have no obligation to seek other employment. However, except
in cases of termination of employment after a Change in Control, as described in
Section 8, to the extent that the Employee becomes employed following his
termination of employment with the Company without Cause or for Good Reason, the
payments and benefits described in Section 7(c) shall be reduced as follows:
x. Xxxxxxxxx payments [as described in Sections
7(b)(ii)(B) and (C)] shall be reduced by
fifty cents (50(cent)) for every one dollar
($1) in compensation (either base salary or
bonus) that the Employee receives through
his new employment; provided, however,
during the first twelve (12) months
following the Employee's Date of
Termination, such severance payments shall
not be reduced pursuant to this provision by
more than fifty percent (50%); and
ii. The fringe benefits provided by the Company
to the Employee at the Date of Termination
[as described in Sections 7(b)(ii)(D) and
(E)] shall terminate upon the earlier of (A)
the Employee's re-employment and (B) the
applicable date specified under either
Section 7(b)(ii)(D) or (E); provided,
however, that the Employee's coverage and/or
the coverage of his dependents under the
Company's group medical insurance shall
continue in effect following the Employee's
reemployment with respect to claims excluded
by reason of any pre-existing condition
clause in the group medical plan maintained
by the Employee's new employer until the
earlier of (1) the applicable date specified
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in Section 7(b)(ii)(E) or (2) the date on
which such pre-existing condition exclusion
is no longer applicable to the Employee or,
to the extent that coverage is continued
pursuant to this provision for a dependent
of the Employee, such dependent.
8. Change In Control.
(a) Occurrence of Change in Control. Immediately upon the
occurrence of a "Change in Control," the Employee shall become fully vested in
all employee benefit programs (other than any tax qualified retirement or
savings plan, the Employee's interest in which shall vest in accordance with
such plan's terms), including without limitation, all stock options and all
benefits under the SERP, in which he was a participant at the time of the Change
in Control. For purposes of this Agreement, the term "change in Control" shall
mean the occurrence of any of the following events after the date of this
Agreement (i) the acquisition by any individual, entity or group [(within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")] (a "Person") of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty percent
(20%) or more of the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors ("Voting Securities"); provided, however, that the following
acquisitions shall not constitute a change in control (A) any acquisition by the
Company, (B) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by the
Company, or (C) any acquisition by the Employee (or a group including the
Employee) or (D) any acquisition by any Person who on the date of this Agreement
was the beneficial owner of twenty percent (2)%) or more of the combined voting
power of the Voting Securities of the Company outstanding on such date; or (ii)
a change in the composition of a majority of the Board of Directors of the
Company within a three (3) year period, which change shall not have been
approved by a majority of the persons then surviving as Directors who also
comprised the Board of Directors of the Company immediately prior to the
commencement of such period; or (iii) the consummation of any reorganization,
merger or consolidation other than a reorganization, merger or consolidation
which would result in the Voting Securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into Voting Securities of the surviving
entity) at least sixty percent (60%) of the combined voting power of the Voting
Securities of the Company or
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such surviving entity outstanding immediately after such reorganization, merger
or consolidation; or (iv) the consummation of a plan of complete liquidation of
the Company or of an agreement for the sale or disposition by the Company (in
one transaction or a series of transactions) of all or substantially all of the
Company's assets.
b. Termination of Employment. If, at any time within two (2)
years following a Change in Control, the Company terminates the Employee's
employment without Cause or the Employee terminates his employment for Good
Reason, the provisions of this Section 8(b) shall be applicable, instead of the
provisions of Section 7(c). To the extent that the provisions of this Section
8(b) are applicable, the Employee shall be entitled to the following payments
and benefits without any mitigation under Section 7(e) hereof:
i. Those described in Section 7(a), provided
all cash payments required under such
section shall be made within five (5) days
of the Date of Termination;
ii. Continuation of fringe benefits, as
described in Sections 7(b)(ii)(D) and (E);
iii. A single lump sum payment, payable within
five (5) days of the Date of Termination,
equal to the sum of (A) twice the Employee's
base salary in effect upon the Date of
Termination, plus (B) twice the Employee's
target annual bonus, determined under the
Bonus Plan, based upon the Employee's base
salary at the Date of Termination, plus (C)
the maximum three-year bonus payment
possible under the terms of the Bonus Plan
minus amounts already paid to the Employee
with respect to such three-year period.
iv. Those described in Sections 7(c)(iii) and
(iv); and
v. Reimbursement for any excise tax incurred by
the Employee under Section 4999 of the
Internal Revenue Code due to any payment
under this section, plus reimbursement for
any additional income taxes incurred by the
Employee resulting from the reimbursement by
the Company of such excise tax.
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9. Confidential Information and Covenant Not to Compete.
(a) The Employee hereby agrees that, during the term
of the Agreement and thereafter, he will not disclose to any person or otherwise
use or exploit any of the proprietary or confidential information, including,
without limitation, trade secrets, processes, records of research, proposals,
programming, budgets or customer lists, regarding the Company, its business,
properties, or affairs obtained by him at any time prior to or subsequent to the
execution of this Agreement, except to the extent required by his performance of
assigned duties for the Company.
(b) Notwithstanding any provision of the Stockholders
Agreement, the Employee hereby agrees that during the term hereof and, unless
his employment is terminated by the Company without Cause or is terminated by
the Employee for Good Reason, for a period of two (2) years after his
termination of employment (including upon Retirement), he will not:
(i) authorize his name to be used by any
person, partnership, corporation or other business entity; or
(ii) engage in or carry on, directly or
indirectly, whether as advisor, principal, agent, partner,
officer, director, employee, stockholder, associate or
consultant of any person, partnership, corporation or other
business entity which is in material competition with any
business carried on, directly or indirectly (through one or
more subsidiaries or otherwise), by the Company prior to the
date hereof or hereafter conducted by the Company during the
term of this Agreement, directly or indirectly (through one or
more subsidiaries or otherwise) in any county of the State of
Ohio or any other county of any state in the United States or
municipality of a foreign country where business is then
carried on or conducted by the Company.
The Employee shall be deemed to be engaged or concerned with a
duty or pursuit which is contrary to any provision of this Agreement only if he
receives written notice to such effect, setting forth with reasonable
specificity the basis of such claim, from the Company. If, within thirty (30)
days from the date of his receipt of any such written notice, the Employee
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shall take such steps as shall eliminate his engagement in or concern with
such duties or pursuits as are specified in such notice as being contrary to
this Agreement, the Employee shall not be deemed to have breached any of the
provisions of this Agreement in connection therewith or with respect thereto.
(c) The Employee agrees that the remedy at law for
any breach by him or any of the covenants and agreements set forth in this
Section 9 will be inadequate and that in the event of any such breach, the
Company may, in addition to the other remedies which may be available to it at
law, obtain injunctive relief prohibiting him (together with all those persons
associated with him) from the breach of such covenants and agreements.
(d) The parties hereto agree that the duration and
area for which the covenant not to compete is set forth in subparagraph (b)
above is to be effective are reasonable. In the event that any court determines
that the time period and/or the area covered thereby are unreasonable and that
such covenant is to that extent unenforceable, the parties hereto agree that the
covenant shall remain in full force and effect would not render it
unenforceable. The parties intend that this covenant shall be deemed to be a
series of separate covenants, one for each and every county of each and every
state within the United States of America and one for each municipality of any
foreign country where this covenant is intended to be effective.
(e) The employee will sign separate agreements,
policies or certifications regarding Intellectual Property, Ethical Business
Practices and Conflicts of Interest, on such forms as are adopted by the Company
from time to time for its executives.
10. General Provisions.
(a) Notices. Any notice to be given pursuant to this
Agreement shall be in writing and shall be deemed duly given three (3) days
after deposit in the mail, certified mail, return receipt requested, to the
party to receive such notice at the address specified below:
If to the Company, to: Holophane Company, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
If to the Employee, to: Xxxx X. XxxxxXxxxx
000 X. Xxxxx Xx.
Xxxxxxxx, Xxxx 00000
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Either party may change its name and/or address for purposes of this
Section by giving the other written notice of the new name and/or address in the
manner set forth above.
(b) Assignment. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
executors, administrators, heirs, personal representatives, successors and
assigns, but neither this Agreement nor any right hereunder may be assigned or
transferred by either party hereto, any beneficiary or any other person, nor be
subject to alienation, anticipation, sale, pledge, encumbrance, execution, levy
or other legal process of any kind against the Employee, his beneficiary, or any
other person. Notwithstanding the foregoing, the Company will assign this
Agreement to any corporation or other business entity succeeding to
substantially all of the business and assets of the Company by merger,
consolidation, sale of assets, or otherwise and shall obtain the assumption of
this Agreement by such successor.
(c) Waiver of Breach. The waiver by the Company or
the Employee of a breach of any provision of this Agreement by the other shall
not operate or be construed as a waiver of any subsequent breach by the other.
(d) Nonexclusivity of Rights. Nothing in this
Agreement shall prevent or limit the Employee's continuing or future
participation in any incentive, fringe benefit, deferred compensation, or other
plan or program provided by the Company and for which the Employee may qualify,
nor shall anything herein limit or reduce such rights as the Employee may have
under any other agreements with the Company. Amounts that are vested benefits or
that the Employee is otherwise entitled to receive under any plan or program of
the Company at or after the Date of Termination, shall be payable in accordance
with such plan or program.
(e) Entire Agreement/Modification. This Agreement,
shall supersede any and all other agreements, either oral or written, between
the parties hereto with respect to the employment of the Employee by the
Company. Each party to this Agreement acknowledges that no other
representations, inducements, promises or agreements, orally or otherwise, have
been made by any party or anyone acting on behalf of any party, and that no
other agreement, statement or promise with respect to the employment of the
Employee by the Company not contained in this Agreement shall be valid or
binding. Any modification of this
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Agreement will be effective only if it is in writing, signed by the party to be
charged.
(f) Partial Invalidity. If any provision of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions shall nevertheless continue in full
force without being impaired or invalidated in any way.
(g) Governing Law. The validity of this Agreement and
the interpretation and performance of all of its terms shall be governed by the
laws of the State of Ohio.
(h) Arbitration. Any controversy, claim or dispute
between the parties directly or indirectly concerning this Agreement or the
breach hereof, or the subject matter hereof (except in instances where only
injunctive relief is sought by the Company), shall be finally settled by
arbitration held in Columbus, Ohio. Any legal expenses incurred by the Company
in connection with any such claim or dispute shall be paid by the Company. To
the extent that the Employee prevails in any claim or dispute to enforce or
defend his rights under this Agreement, any legal expenses incurred by the
Employee in such claim or dispute shall be paid by the Company; provided that,
in addition, if the Employee does not prevail in any claim or dispute to enforce
or defend his rights under this Agreement following a Change in Control, the
Company shall nevertheless pay fifty percent (50%) of any legal expenses
incurred by the Employee in such claim or dispute.
(i) Captions. The captions in this Agreement are for
convenience and for identification purposes only, are not an integral part of
this Agreement and are not to be considered in the interpretation of any part
hereof.
(j) Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but
together which shall constitute one and the same document.
-16-
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IN WITNESS WHEREOF, Holophane Company, Inc. and Holophane
Holdings Corporation, have each caused this Agreement to be executed by the
members of its Compensation Committee and the Employee has executed the same as
of the day and year first above written.
HOLOPHANE COMPANY, INC.
a Delaware corporation
HOLOPHANE HOLDINGS CORPORATION
a Delaware corporation
By:
---------------------------
By:
---------------------------
------------------------------
Xxxx X. XxxxxXxxxx
-17-
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EXHIBIT A
---------
[Holophane Bonus Plan]
-18-
19
EXHIBIT B
---------
[Holophane SERP]
-19-
20
EXHIBIT C
---------
[Incentive Stock Plan]
-20-
21
EXHIBIT D
---------
[Side Letter]
-21-
22
AMENDMENT
TO
EMPLOYMENT AGREEMENT
BETWEEN
HOLOPHANE COMPANY, INC
(PREDECESSOR TO HOLOPHANE CORPORATION)
AND
XXXX X. XXXXXXXXXX
WHEREAS, Holophane Company, Inc., predecessor to Holophane Corporation,
("Company") and Xxxx X. XxxxxXxxxx ("Employee") entered into an employment
agreement dated August 30, 1993 ("Agreement");
WHEREAS, Company and Employee want to modify the Agreement as provided in this
amendment;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the receipt and sufficiency of which are hereby acknowledged,
Company and Employee agree to the following amendments this 1st day of June,
1999.
Effective immediately, Section 8 of the Agreement is amended by the
addition of new subsection 8(c) to read, in its entirety, as follows:
(c) Regardless of any other provision of this section
or Agreement, Employee may elect to defer the date that any or
all of the cash benefits described in Section 8(b)(i) and
(iii) are paid. This election must be made in writing and
delivered to the Company at the address given in Section 10(a)
before the occurrence of a "Change in Control" (as defined in
Section 8(a)). If this election is filed, the Company will
transfer to the Holophane Corporation Second Amended and
Restated Supplemental Executive Retirement Plan ("SERP"), the
cash amount that otherwise would be distributed to Employee
under Section 8(b)(i) and (iii). These amounts will be
credited to the Employee's Deferred Compensation Account under
the SERP and distributed under the terms of that program.
However, any other benefits provided under Section 8(b) will
be unaffected by this election and will be provided or paid as
provided in Section 8(b) without regard to this paragraph.
23
IN WITNESS WHEREOF, Holophane Corporation, as successor to Holophane Company,
Inc. and Holophane Holdings Corporation has caused this Agreement to be executed
by the members of its Compensation Committee and the Employee has executed the
same as of the day and year first above written.
HOLOPHANE CORPORATION
By:
--------------------------
By:
--------------------------
Accepted:
-----------------------------
Xxxx X. XxxxxXxxxx
24
SAMPLE NOTICE TO BE FILED BY AN AFFECTED OFFICER ELECTING TO DEFER SERP BENEFITS
PAYABLE UPON A CHANGE IN CONTROL. THIS LETTER SHOULD BE REPRODUCED ON EACH
OFFICER'S STATIONERY.
BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED
[Date]
Holophane Corporation
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Re: Election to Defer Change in Control Benefits
Dear Sir:
Previously, I entered into an employment agreement with Holophane Company, Inc.
and Holophane Holding Company (the "Agreement"), predecessors to Holophane
Corporation. Under the terms of the Agreement, I am permitted to continue my
participation in the Holophane Corporation Second Amended and Restated
Supplemental Executive Retirement Plan (the "SERP") for a specified time after
my termination of employment following a change in control. Effective June 1,
1999, the SERP was amended to allow eligible participants to defer payment of
cash amounts payable under the Agreement in the event of a change in control. If
deferred, these amounts will be credited to my Deferred Compensation Account
under the SERP and distributed under the terms of that program.
By signing below, I hereby elect:
o To defer ____% of any cash benefits that may become payable to me
under the Agreement on account of a change in control occurring after
the date of this letter; and
o To receive those amounts under the terms of the SERP.
Please let me know that you have received this election by returning to me a
signed copy of this letter.
Cordially,
25
Received and accepted on behalf of the Holophane Corporation.
By:
-------------------------------------
Date accepted:
--------------------------
