Exhibit 10(ff)
EMPLOYMENT AGREEMENT
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THIS AGREEMENT is made and entered into as of this 1st day of June,
1999, by and between XXXXXX, INC., a Delaware corporation (the "Company"), and
Xxxxxxx Xxxx Saito ("Executive").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and Executive desire to enter into an agreement
providing for Executive's employment by the Company and specifying the terms
and conditions of such employment; and
WHEREAS, the Company entered into an Agreement and Plan of Merger and
Recapitalization (the "Recapitalization Agreement") dated April 18, 1999 with
Red Dog Acquisition, Corp. ("Newco"), a wholly owned subsidiary of Xxxxxx
Brothers Merchant Banking Partners II L.P. ("LB MBP II"): and
WHEREAS, pursuant to the Recapitalization Agreement, the Company will be
recapitalized through a merger with and into Newco, following which
substantially all of the outstanding capital stock of the Company will be held
by LB MBP 11; and
WHEREAS, the Company desires to modify any prior employment agreement and
restate such agreement in a single document as hereinafter provided; and
WHEREAS, Executive desires to continue his employment with the Company on
the terms and conditions provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, the parties hereby agree as follows:
1. EMPLOYMENT AND TERM.
(a) Subject to the terms and conditions of this Agreement, the
Company hereby employs Executive, and Executive hereby accepts employment, as
Senior Vice President - Finance & Administration of the OPG of the Company and
shall have such responsibilities, duties and authority as may from time to
time be assigned to Executive by the Group President (or his designee), which
responsibilities. duties and authority may be altered from time to time.
Executive hereby agrees that during the Term of this Agreement he will devote
substantially all his working time, attention and energies to the diligent
performance of his duties for the Company. With the consent of the Group
President (or his designee), the Executive may serve as a director on the
board of directors or trustees of an additional company or educational
organization.
(b) Unless earlier terminated as provided herein, Executive's
employment under this Agreement shall be for a rolling, two-year term (the
"Term") commencing on the Effective Time (as defined in the Recapitalization
Agreement), and shall be deemed to extend automatically, without further
action by either the Company or Executive, each day for an additional day,
such that the remaining term of the Agreement shall continue to be two years;
provided, however, that either party may, by written notice to the other,
cause this Agreement to cease to extend automatically and, upon such notice,
the "Term" of this Agreement shall be the two years following the date of such
notice and this Agreement shall terminate upon the expiration of such Term.
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(c) The purpose of this Agreement is to amend any prior employment
agreement and to provide a single, integrated document which shall provide the
basis for Executive's continued employment by the Company. This Agreement
supersedes any prior employment agreement in its entirety and any rights under
any prior employment agreement are terminated on the Effective Time. This
Agreement shall not be effective until the Effective Time, and this Agreement
shall terminate immediately if the Recapitalization Agreement is terminated in
accordance with its terms prior to the Effective Time.
2. COMPENSATION AND BENEFITS. As compensation for Executive's services
during the initial Term of this Agreement, Executive shall be paid and receive
the compensation and benefits set forth in subsections (a) through (e) below:
(a) An annual base salary ("Base Salary") of One Hundred Eighty-Three
Thousand Seven Hundred Eighty and 00/00 Dollars ($183,780.00), prorated for
any partial year of employment. Executive's Base Salary shall be subject to
annual review at such time as the Company conducts salary reviews for its
executives generally. Executive's Base Salary shall be payable in
substantially equal installments on a semi-monthly basis, or in accordance
with the Company's regular payroll practices in effect from time to time for
executives of the Company.
(b) Executive shall be eligible to participate in the Target
Incentive Plan and such other annual incentive plans as may be established by
the Company from time to time for individuals at Executive's level. The
Company will establish individual and financial performance goals each year
under the incentive plans, and
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Executive's annual Target Bonus shall be 45% of Base Salary; the maximum award
for exceeding the performance goals (which will be determined in accordance
with the current plan design) shall be 90% of Base Salary. The annual
incentive bonus payable under this subsection (b) shall be payable as a lump
sum at the same time bonuses are paid to other executives, unless Executive
elects to defer all or a portion of such bonus pursuant to any deferral plan
established by the Company for such purpose.
(c) The Company will grant Executive 8,750 options to purchase
shares of the Company's Common Stock that will vest over time ("Time Options")
and the Company will grant Executive performance-based options for 8,750 shares
of the Company's Common Stock ("Performance Options") (the Time Options and
the Performance Options are collectively referred to herein as "Options"). The
terms and conditions of the Time Options and the Performance Options shall be
as set forth in the separate Option Agreements with Executive covering the
grant of such Options. Executive will be eligible to participate in such other
stock option programs as may be established from time to time by the Company
for its executives.
The other terms and conditions applicable to the Options and any
equity purchased by Executive in the Company on or after the Effective Time
("Purchased Equity"), including put and call rights, shall be as provided in
the Employee Shareholders Agreement, the terms and conditions of which are
described on Schedule A, and to which Executive agrees to be bound.
(d) Executive shall be entitled to participate in, or receive
benefits under, any "employee benefit plan" (as defined in Section 3(3) of
ERISA) or employee
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benefit arrangement made generally available by the Company to its executives,
including plans providing retirement, 401(k) benefits, health care, life
insurance, disability and similar benefits.
(e) Executive is eligible for vacation in accordance with the
Company's standard vacation policy. Executive will be provided a vehicle in
accordance with the Company's automobile policy. Executive will be provided an
annual physical examination. Executive will be promptly reimbursed by the
Company for all reasonable business expenses Executive incurs and properly
reports in carrying out Executive's duties and responsibilities under this
Agreement.
3. TERMINATION.
3.1 BY COMPANY. The Company shall have the right to terminate
Executive's employment under this Agreement at any time during the Term by
Notice of Termination (as described in Section 6). If the Company terminates
Executive's employment under this Agreement (i) for Cause, as defined in
Section 5.2, (ii) if Executive becomes Disabled, or (iii) upon Executive's
death, the Company's obligations under this Agreement shall cease as of the
date of termination; provided, however, that Executive will be entitled to
whatever benefits are payable to Executive pursuant to the terms of any
health, life insurance, disability, welfare, retirement or other plan or
program maintained by the Company in which Executive participates. If the
Company terminates Executive during the Term of this Agreement other than
pursuant to clauses (i) through (iii) of this Section 3.1, Executive shall be
entitled to receive the compensation and benefits provided in subsections (a)
through (c) below. Unless
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specified otherwise, the time periods in subsections (a) through (c) below
shall be the 12-month period commencing on the date of Executive's termination
of employment ("Severance Period"). Except as otherwise provided herein, the
Company agrees that if Executive terminates employment and is entitled to
compensation and benefits under this Section 3.1, he shall not be required to
mitigate damages by seeking other employment, nor shall any amount he earns
reduce the amount payable by the Company hereunder. Executive agrees that the
compensation and benefits provided pursuant to Sections 3.1 and 3.2 shall be
the only severance benefits payable to Executive by the Company and its
affiliates as a result of Executive's termination of employment and Executive
hereby waives his rights (if any) to any severance benefits under any other
plan or program of the Company and its affiliates. The compensation and
benefits payable or to be provided under subsections (a) through (c) below
shall cease in the event of Executive's death after termination of employment.
(a) BASE SALARY - Executive will continue to receive his Base Salary
as then in effect (subject to withholding of all applicable taxes) for the
Severance Period in the same manner as it was being paid as of the date of
termination.
(b) BONUSES AND INCENTIVES - Executive shall receive bonus payments
from the Company for each month of the Severance Period in an amount for each
such month equal to one-twelfth of the average of the bonuses earned by him
for the two fiscal years in which bonuses were paid immediately preceding the
year in which such termination occurs. Any bonus amounts that Executive had
previously earned from the Company but which may not yet have been paid as of
the date of termination shall be
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payable on the date such amounts are payable to other executives and
Executive's termination shall not affect the payment of such bonus. Executive
shall also receive a prorated bonus for any uncompleted fiscal year at the
date of termination (assuming the Target Award level has been achieved), based
upon the number of days that he was employed during such fiscal year.
(c) HEALTH AND LIFE INSURANCE COVERAGE - The health care and group
term life insurance benefits coverage provided to Executive at his date of
termination shall be continued for the Severance Period at the same level and
in the same manner as then provided to actively employed executive
participants as if his employment under this Agreement had not terminated. Any
additional coverages Executive had at termination, including dependent
coverage, will also be continued for such period on the same terms, to the
extent permitted by the applicable policies or contracts. Any costs Executive
was paying for such coverages at the time of termination shall be withheld
from the amounts payable under subsection (a) above, or be paid by Executive
by separate check payable to the Company each month in advance. If the terms
of any benefit plan referred to in this Section, or the laws applicable to
such plan, do not permit continued participation by Executive, then the
Company will arrange for other coverage at its expense providing substantially
similar benefits (including the same deductible and co-payment levels provided
under the Company's policy). The benefits provided in this subsection (c)
shall cease if Executive obtains other employment and, as a result of such
other employment, health care and life insurance benefits are available to
Executive.
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(d) LUMP SUM PAYMENT. While the Company intends to pay such amounts
on a monthly basis, the Company may, in its sole discretion, decide that the
salary payments provided for under subsection (a) and/or the bonus payments
provided for under subsection (b) shall be paid in a single lump sum payment,
to be paid not later than 180 days after Executive's termination of
employment; PROVIDED, FURTHER, that the amount of any such lump sum payment
shall be determined by taking the salary or bonus payments to be made and
discounting them to their Present Value (as defined in Section 5.8) on the
date the payment to Executive is made. The lump sum payment under this
subsection (d) shall not alter the amounts Executive is entitled to receive
under the benefit plans described in subsection (c). Benefits under such plans
shall be determined as if Executive had received such payments over the
Severance Period.
(e) STOCK OPTIONS. As of Executive's date of termination, the
vesting and exercisability of all outstanding Time Options and Performance
Options held by Executive, (and any other outstanding stock options granted to
Executive by the Company) shall be determined in accordance with the stock
option agreements for such options.
3.2 BY EXECUTIVE. Executive shall have the right to terminate his
employment hereunder at any time by Notice of Termination (as described in
Section 6). If Executive terminates his employment other than for Good Reason,
the Company's obligations under this Agreement shall cease as of the date of
such termination. If Executive terminates his employment for Good Reason (as
defined in Section 5.6), Executive shall be entitled to receive the
compensation and benefits set forth in
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subsections (a) through (e) of Section 3.1 for the Severance Period, including
the nonmitigation and other provisions of such section.
3.3 RELEASE OF CLAIMS. To be entitled to any of the compensation and
benefits described above in this Section 3, Executive shall sign a release of
claims in the form required by the Company. No payments shall be made under
this Section 3 until such release has been properly executed and delivered to
the Company and until the expiration of the revocation period, if any,
provided under the release. If the release is not properly executed by
Executive and delivered to the Company within the reasonable time periods
specified in the release, the Company's obligations under this Section 3 will
terminate.
3.4 SALE BUSINESS. If all or substantially all of the assets of the
business unit for which Executive works are sold by the Company and Executive
receives a bona fide offer of employment from the purchaser of such assets for
a position and with compensation and benefits comparable to those Executive
then has with the Company, Executive shall not, as a result of such
transaction, be entitled to compensation and benefits under this Section 3
arising from his termination of employment with the Company, nor shall
Executive be entitled to terminate his employment for Good Reason. If
Executive does not receive such a bona fide offer of employment from the
purchaser, then the other provisions of this Section 3 shall apply.
4. CONFIDENTIALITY AND NONCOMPETITION.
(a) Executive acknowledges that, prior to and during the Term of
this Agreement, the Company has furnished and will furnish to Executive
Confidential
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Information which could be used by Executive on behalf of a competitor of the
Company to the Company's substantial detriment. Moreover, the parties
recognize that Executive during the course of his employment with the Company
may develop important relationships with customers and others having valuable
business relationships with the Company. In view of the foregoing, Executive
acknowledges and agrees that the restrictive covenants contained in this
Section are reasonably necessary to protect the Company's legitimate business
interests and good will.
(b) Executive agrees that he shall protect the Company's
Confidential Information and shall not disclose to any Person, or otherwise
use, except in connection with his duties performed in accordance with this
Agreement, any Confidential Information at any time, including following the
termination of his employment with the Company for any reason; provided,
however, that Executive may make disclosures required by a valid order or
subpoena issued by a court or administrative agency of competent jurisdiction,
in which event Executive will promptly notify the Company of such order or
subpoena to provide the Company an opportunity to protect its interests.
Executive's obligations under this Section 4(b) shall survive any expiration
or termination of this Agreement for any reason, provided that Executive may
after such expiration or termination disclose Confidential Information with
the prior written consent of the Board.
(c) Upon the termination or expiration of his employment hereunder,
Executive agrees to deliver promptly to the Company all Company files,
customer lists, management reports, memoranda, research, Company forms,
financial data and
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reports and other documents supplied to or created by him in connection with
his employment hereunder (including all copies of the foregoing) in his
possession or control, and all of the Company's equipment and other materials
in his possession or control. Executive's obligations under this Section 4(c)
shall survive any expiration or termination of this Agreement.
(d) Upon the termination or expiration of his employment under this
Agreement, Executive agrees that for a period of one (1) year from his date of
termination or until the end of the period for which he is entitled to receive
compensation under Section 3.1 or 3.2 above, whichever is longer, he shall not
(i) enter into or engage in the design, manufacture, marketing or sale of any
products similar to those produced or offered by the Company or its affiliates
in the area of North America, either as an individual, partner or joint
venturer, or as an employee, agent or salesman, or as an officer, director, or
shareholder of a corporation, (ii) divert or attempt to divert any person,
concern or entity which is furnished products or services by the Company from
doing business with the Company or otherwise change its relationship with the
Company, or (iii) solicit, lure or attempt to hire away any of the employees
of the Company with whom the Executive interacted directly or indirectly while
employed with the Company.
(e) Executive acknowledges that if he breaches or threatens to
breach this Section 4, his actions may cause irreparable harm and damage to
the Company which could not be compensated in damages. Accordingly, if
Executive breaches or threatens to breach this Section 4, the Company shall be
entitled to seek injunctive
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relief, in addition to any other rights or remedies of the Company. The
existence of any claim or cause of action by Executive against the Company,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of Executive's agreement under this
Section 4(e).
5. DEFINITIONS. For purposes of this Agreement the following terms shall
have the meanings specified below:
5.1 "BOARD" or "BOARD OF DIRECTORS". The Board of Directors of the
Company.
5.2 "CAUSE". The involuntary termination of Executive by the Company for
the following reasons shall constitute a termination for Cause:
(a) If the termination shall have been the result of an act or acts
by Executive which have been found in an applicable court of law to constitute
a felony;
(b) If the termination shall have been the result of an act or acts
by Executive which are in the good faith judgment of the Chief Executive
Officer (or his designee) to be in violation of law or of policies of the
Company and which result in material damage to the Company;
(c) If the termination shall have been the result of an act or acts
of proven dishonesty by Executive resulting or intended to result directly or
indirectly in significant gain or personal enrichment to the Executive at the
expense of the Company; or
(d) Upon the willful and continued failure by the Executive
substantially to perform his duties with the Company (other than any such
failure resulting from incapacity due to mental or physical illness not
constituting a Disability, as defined
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herein), after a demand in writing for substantial performance is delivered by
the Chief Executive Officer (or his designee), which demand specifically
identifies the manner in which the Chief Executive Officer (or his designee)
believes that Executive has not substantially performed his duties.
With respect to clauses (b), (c) or (d) above of this Section, Executive
shall not be deemed to have been involuntarily terminated for Cause unless and
until a notice is delivered to Executive by the Chief Executive Officer (or
his designee) setting forth (i) the conduct deemed to qualify as Cause, (ii)
reasonable action that would remedy such objectionable conduct, and (iii) a
reasonable time (not less than thirty days) within which Executive may take
such remedial action, and Executive shall not have taken such specified
remedial action within such specified reasonable time. For purposes of this
Agreement, no act or failure to act by Executive shall be deemed to be
"willful" unless done or omitted to be done by Executive not in good faith and
without reasonable belief that Executive's action or omission was in the best
interests of the Company.
5.3 "CODE". The Internal Revenue Code of 1986, as it may be amended from
time to time.
5.4 "CONFIDENTIAL INFORMATION". All technical, business, and other
information relating to the business of the Company or its subsidiaries or
affiliates, including, without limitation, technical or nontechnical data,
formulae, compilations, programs, devices, methods, techniques, processes,
financial data, financial plans, product plans, and lists of actual or
potential customers or suppliers, which (i) derives economic value, actual or
potential, from not being generally known to, and not being readily
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ascertainable by proper means by, other Persons, and (ii) is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy or
confidentiality. Such information and compilations of information shall be
contractually subject to protection under this Agreement whether or not such
information constitutes a trade secret and is separately protectable at law or
in equity as a trade secret. Confidential Information does not include
confidential business information which does not constitute a trade secret
under applicable law two years after any expiration or termination of this
Agreement.
5.5 "DISABILITY" or "DISABLED". Executive's inability as a result of
physical or mental incapacity to substantially perform Executive's duties for
the Company on a full-time basis for a period of six (6) consecutive months.
5.6 "GOOD REASON". A "Good Reason" for termination by Executive of
Executive's employment shall mean the occurrence during the Term (without the
Executive's express written consent) of any one of the following acts by the
Company, or failures by the Company to act, and such act or failure to act has
not been corrected within thirty (30) days after written notice of such act or
failure to act is given by Executive to the Company:
(i) a material adverse change in the nature or status of Executive's
job responsibilities from those set forth in Section 1(a), except in
connection with (A) a job change or relocation of Executive that is
necessitated by changes in the operation of the business; or (B) a
performance-related job change or relocation of Executive that the Company
deems necessary to the operation of the business.
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(ii) a reduction by the Company in Executive's Base Salary as in effect
on the date hereof or as the same may be increased from time to time, except
in connection with (A) an across-the-board pay reduction for executives of
similar status, or (B) a change described in (i)(A) or (i)(B) above;
(iii) the failure by the Company to continue to provide Executive with
compensation and benefits substantially similar in the aggregate to those
enjoyed by Executive on the date hereof under the Company's retirement,
401(k), incentive compensation, fife insurance, health and accident or
disability plans, or the taking of any action by the Company which would
directly or indirectly materially reduce any of such compensation or benefits,
except in connection with (A) an across-the-board reduction that impacts
executives at Executive's level generally, or (B) a change described in (i)(A)
or (i)(B) above;
(iv) any purported termination of Executive's employment which is not
effected pursuant to a Notice of Termination satisfying the requirements of
Section 6 (for purposes of this Agreement, no such purported termination shall
be effective).
The Executive's right to terminate the Executive's employment for
Good Reason shall not be affected by the Executive's incapacity due to
physical or mental illness. Unless otherwise agreed to by Executive, the
Executive's continued employment shall not constitute consent to, or a waiver
of rights with respect to, any act or failure to act constituting Good Reason
hereunder.
5.7 "PERSON". Any individual, corporation, bank, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or other entity.
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5.8 "PRESENT VALUE". The term "Present Value" on any particular date
shall have the same meaning as provided in Section 280G(d)(4) of the Code.
6. TERMINATION PROCEDURES. During the Term of this Agreement, any
purported termination of Executive's employment (other than by reason of
death) shall be communicated by written Notice of Termination from one party
hereto to the other party hereto in accordance with Section 10. A Notice of
Termination for Cause is required to include the information set forth in
Section 5.2. "Date of Termination," with respect to any purported termination
of Executive's employment during the Term of this Agreement, shall mean (i) if
Executive's employment is terminated by his death, the date of his death, (ii)
if Executive's employment is terminated for Disability, thirty (30) days after
Notice of Termination is given (provided that Executive shall not have
returned to the full-time performance of Executive's duties during such thirty
(30) day period), and (iii) if Executive's employment is terminated for any
other reason, the date specified in the Notice of Termination (which, in the
case of a termination by the Company, shall not be less than thirty (30) days,
except in the case of a termination for Cause; and in the case of a
termination by the Executive, shall not be less than thirty (30) days nor more
than sixty (60) days, respectively, from the date such Notice of Termination
is given).
7. CONTRACT NON-ASSIGNABLE. The parties acknowledge that this Agreement
has been entered into due to, among other things, the special skills of
Executive, and agree that this Agreement may not be assigned or transferred by
Executive, in whole or in part, without the prior written consent of the
Company.
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8. SUCCESSORS; BINDING AGREEMENT.
8.1 In addition to any obligations imposed by law upon any successor to,
or transferor of, the Company, the Company will require any successor to, or
transferor of, all or substantially all of the business and/or assets of the
Company (whether direct or indirect, by purchase, merger, reorganization,
liquidation, consolidation or otherwise) to expressly assume and agree to
perform this Agreement, in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
Failure of the Company to obtain such assumption and agreement prior to the
effectiveness of any such succession shall constitute the basis for Executive
to terminate the Executive's employment for Good Reason during the 90-day
period after such succession and to receive the compensation and benefits
provided in Section 3.1 above. The provisions of this Section 8.1 shall not
apply to transactions covered by Section 3.4.
8.2 This Agreement shall inure to the benefit of and be enforceable by
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees and by the Company's
successors and assigns. If Executive shall die while any amount would still be
payable to Executive hereunder (other than amounts which, by their terms,
terminate upon the death of Executive) if Executive had continued to live, all
such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to the executors, personal representatives or
administrators of Executive's estate.
9. OTHER AGENTS. Nothing in this Agreement is to be interpreted as
limiting
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the Company from employing other personnel on such terms and conditions as may
be satisfactory to the Company.
10. NOTICES. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to
have been duly given if delivered or seven days after mailing if mailed, first
class, certified mail, postage prepaid:
To the Company: Xxxxxx International, Inc.
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
ATTN:
----------------------------
With a copy to: Xxxxxxx X. Xxxxxx, III
Xxxxxx International, Inc.
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
To the Executive: Xxxxxxx Xxxx Saito
Xxxxxx, Inc.
Oregon Cutting Systems Division
0000 X.X. Xxxxxxxxxxxxx Xxx
Xxxxxxxx, Xxxxxx 00000-0000
Any party may change the address to which notices, requests, demands and other
communications shall be delivered or mailed by giving notice thereof to the
other party in the same manner provided herein.
11. PROVISIONS SEVERABLE. If any provision or covenant, or any part
thereof, of this Agreement should be held by any court to be invalid, illegal
or unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of
the remaining provisions or covenants, or any part thereof, of this Agreement,
all of which shall remain in full force and effect.
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12. WAIVER. Failure of either party to insist, in one or more instances,
on performance by the other in strict accordance with the terms and conditions
of this Agreement shall not be deemed a waiver or relinquishment of any right
granted in this Agreement or the future performance of any such term or
condition or of any other term or condition of this Agreement, unless such
waiver is contained in a writing signed by the party making the waiver.
13. INDEMNIFICATION. During the term of this Agreement and after
Executive's termination for a period of time equal to the Severance Period,
the Company shall indemnify Executive and hold Executive harmless from and
against any claim, loss or cause of action arising from or out of Executive's
performance as an officer, director or employee of the Company or any of its
subsidiaries or other affiliates or in any other capacity, including any
fiduciary capacity, in which Executive serves at the Company's request, in
each case to the maximum extent permitted by law and under the Company's
Articles of Incorporation and By-Laws (the "Governing Documents"), provided
that in no event shall the protection afforded to Executive hereunder be less
than that afforded under the Governing Documents as in effect on the date of
this Agreement except for changes mandated by law. During the Term and for a
period of time equal to the Severance Period, Executive shall be covered in
accordance with the terms of any policy of directors and officers liability
insurance maintained by the Company for the benefit of its officers and
directors.
14. AMENDMENTS AND MODIFICATIONS. This Agreement may be amended or
modified only by a writing signed by both parties hereto.
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15. GOVERNING LAW. The validity and effect of this Agreement shall be
governed by and construed and enforced in accordance with the laws of the
State of Delaware.
16. ARBITRATION OF DISPUTES; EXPENSES. All claims by Executive for
compensation and benefits under this Agreement shall be directed to and
determined by the Board and shall be in writing. Any denial by the Board of a
claim for benefits under this Agreement shall be delivered to Executive in
writing and shall set forth the specific reasons for the denial and the
specific provisions of this Agreement relied upon. The Board shall afford a
reasonable opportunity to Executive for a review of a decision denying a claim
and shall further allow Executive to appeal to the Board a decision of the
Board within sixty (60) days after notification by the Board that Executive's
claim has been denied. Unless prohibited by applicable law, any further
dispute or controversy arising under or in connection with this Agreement
shall be settled exclusively by arbitration in a location selected at the
discretion of the Company (which shall not be unreasonable, taking into
account the business location at which Executive is employed), and shall
proceed in accordance with the rules of the American Arbitration Association
then in effect. Judgment may be entered on the arbitrator's award in any court
having jurisdiction. In the event the Executive incurs legal fees and other
expenses in seeking to obtain or to enforce any rights or benefits provided by
this Agreement and is successful, in whole or in part, in obtaining or
enforcing any material rights or benefits through settlement, arbitration or
otherwise, the Company shall promptly pay Executive's reasonable legal fees
and expenses incurred in enforcing this
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Agreement and the fees of the arbitrator. Except to the extent
provided in the preceding sentence, each party shall pay its own legal fees
and other expenses associated with any dispute.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
EXECUTIVE:
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COMPANY:
XXXXXX, INC.
By:
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SCHEDULE B
AGREEMENT
FOR
PURCHASED EQUITY
The undersigned agrees that promptly upon commencement of the Term of his
Employment Agreement with Xxxxxx, Inc. (the "Company"}, the undersigned shall
make a minimum investment in the equity ("Purchased Equity") of the Company of
80% of the aggregate amount of the net proceeds remaining, after all
applicable taxes have been paid, resulting from cancellation of his
outstanding Company stock options in accordance with Section 2.2 of the
Recapitalization Agreement. The Company and the undersigned shall endeavor to
structure such investment in the most tax and accounting efficient manner
reasonably possible under the relevant circumstances.
Dated as of this 7th day of June, 1999.
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SUMMARY OF TERMS
EMPLOYEE SHAREHOLDERS AGREEMENT
Set forth below is a summary of certain terms of an agreement ancillary
to the Employment Agreement (the "Employment Agreement") to which this Summary
of Terms is attached and of which it forms a part, including the Employee
Shareholders Agreement and the related Option Agreements. Capitalized terms
used and not otherwise defined herein shall have the meanings set forth in the
Employment Agreement.
EQUITY OWNERSHIP FOLLOWING RECAPITALIZATION
PURCHASED SHARES - After the closing contemplated by the Recapitalization
Agreement, a portion of the fully diluted equity of the Company will be
purchased by executives and key employees (the "Managers") at a purchase price
equal to the price per share of Company common stock paid in connection with
the recapitalization, which is $30.00 per share (the "Purchased Shares").
OPTION AGREEMENT
STOCK OPTIONS - As soon as practicable after the closing of the
recapitalization, the Company shall grant the Managers nonqualified options
(the "Options") to purchase the Company's common stock. One-half of such
Options will be granted as "Time Options" and one-half of such Options shall
be granted as "Performance Options", which will be earned upon achievement of
the "Management Case" performance as described below.
Except as otherwise provided herein, the terms of the option plans and
agreements, governing the Options shall be substantially similar to the
Company's 1998 Option Plan.
OPTION TERM - The option term of the Options shall be 10 years from the
Effective Time (as defined in the Recapitalization Agreement) and 10 years
after grant with respect to options subsequently granted.
Unexercisable Options will terminate upon termination of employment,
unless acceleration in connection with such termination is explicitly provided
for.
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Upon a Change-in-Control, the Compensation Committee may terminate the
Options, so long as the Executives are cashed out of, or are permitted to
exercise, their exercisable Options prior to the Change-in-Control.
OPTION EXERCISE PRICE - Options shall be granted at an exercise price
equal to the price per share of Company common stock paid in connection with
the recapitalization, which is $30.00 per share.
DILUTION OF OPTIONS - Option holders shall be subject to the same
dilution as the common stockholders.
REALLOCATION - Shares subject to Options that are forfeited may be
reallocated to other employees as determined by the Compensation Committee in
its sole discretion.
VESTING OF EQUITY RIGHTS
NORMAL VESTING OF TIME OPTIONS - Time Options shall become exercisable
with respect to 20% of the shares subject to such Options on each of the first
five anniversaries of the Effective Time as and when the Executive's
employment continues through and including the date of each such anniversary.
Time Options shall expire and no longer be exercisable as provided under the
"Option Term" section herein, but all Time Options shall accelerate and become
fully exercisable as provided under the "Accelerated Vesting of Options"
section herein.
NORMAL VESTING OF PERFORMANCE OPTIONS - Performance Options shall become
exercisable at the end of six years, whether or not the EBITDA (as defined
below) targets are achieved, but become exercisable earlier with respect to up
to 20% of the shares subject to the Performance Options, on each of the first
five anniversaries of the Effective Time, to the extent the EBITDA for the
fiscal year most recently completed (the "Fiscal Year") equals or exceeds the
EBITDA targets (each, a "Target"), as set forth herein.
If the Company's EBITDA for a Fiscal Year is less than 100% of the Target
for such Fiscal Year (a "Missed Year"), such Performance Options shall become
exercisable with respect to a portion of the shares subject to Performance
Options in an amount equal to the product of (a) 20% of the total number of
shares subject to Executive's Performance Options multiplied by (b) the
Applicable Percentage (as set forth in Exhibit B attached hereto).
If either all or a portion of the Executive's Performance Options do not
become exercisable in any year pursuant to the above, the Executive may
"catch-up" if the Cumulative EBITDA Targets (as set forth herein) are
satisfied. The amount that would
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vest is equal to 40% if in year 2, 60% if in year 3, 80% if in year 4 and 100%
if in year 5, less the number of Executive's Performance Options which had
previously vested.
ACCELERATED VESTING OF OPTIONS
TIME OPTIONS - Unvested Time Options shall become fully exercisable upon
(i) death, (ii) disability, (iii) Change-in-Control, or (iv) Retirement (as
defined below), provided the Executive had been employed by the Company for at
least three years from the date of the Effective Time.
PERFORMANCE OPTIONS - Performance Options shall become fully exercisable
upon a Change-in-Control if, and only if, (a) 100% or more of the EBITDA
Target has been achieved in each Fiscal Year prior to such Change-in-Control,
or (b) 100% of the Cumulative EBITDA Target has been achieved in the Fiscal
Year immediately preceding such Change-in-Control. Except for the above and
any other acceleration occurring by reason of the attainment of the EBITDA
Targets, vesting of Performance Options shall not accelerate for any reason.
ADJUSTMENTS - In the event of any change in the outstanding Common Stock
by reason of a stock split, spin-off, stock dividend, stock combination or
reclassification, recapitalization, consolidation or merger, or similar event,
the Company shall adjust appropriately the number of shares subject to Options
and make other revisions as it deems are equitably required.
EMPLOYEE SHAREHOLDERS AGREEMENT
TRANSFER RESTRICTIONS - Except as provided below, transfers of Purchased
Shares or shares purchased upon exercise of Options ("Option Shares") will not
be permitted prior to the fifth anniversary of the Effective Time. Option
Shares and Purchased Shares may be transferred prior to the fifth anniversary
of the Effective Time (i) to a Permitted Transferee so long as such Permitted
Transferee agrees to be bound by the terms of all applicable agreements, (ii)
pursuant to an exercise of "Tag-Along" or "Drag-Along" Rights described below,
(iii) pursuant to an exercise of call or put rights described below, (iv)
pursuant to an exercise of the registration rights described below, or (v) in
connection with a Change-in-Control so long as such transfers are on a pro
rata basis with transfers made by Xxxxxx Brothers Merchant Banking Partners II
L.P. ("LB MBP II") in connection with such Change-in-Control. Except as
provided hereinabove or as agreed to by the Compensation Committee, Options
will be nontransferable, but may be exercised after an Optionholder's death
by his or her designated beneficiary or estate.
In addition to the transfer restrictions of the Employee Shareholders
Agreement, any sale of Purchased Shares or Option Shares shall in all cases be
completed in
3
compliance with applicable securities laws. The Company will register all
Option Shares on Form S-8 under the Securities Act of 1933.
RIGHT OF FIRST REFUSAL - The Company shall have a right of first refusal
on all management equity rights (which rights the Company may assign to LB MBP
II) until the transfer restrictions expire. Such right shall not apply to any
transfer to a Permitted Transferee so long as such Permitted Transferee agrees
to be bound by the terms of all applicable agreements.
REGISTRATION RIGHTS - Each Executive will have "piggy back" registration
rights if (i) the Company is registering shares of its common stock under the
Securities Act of 1933 for its own account (subject to customary exceptions
for registrations related to exchange offers or benefit plans), PROVIDED that
such rights shall only be available if LB MBP II is selling shares of common
stock for its own account in connection with such registration, in each case
on a pro rata basis with LB MBP II or (ii) in any Public Offering in which
shares owned by LB MBP II are offered, on a pro rata basis.
TAGALONG/DRAGALONG - In the event that LB MBP II or one of its affiliates
is transferring any shares of common stock of the Company to a third party, it
will give each Executive notice of such proposed transfer, including the
relevant terms thereof. Within 30 days of receipt of such notice, each
Executive may elect to sell his Option Shares or Purchased Shares to such
third party on a pro rata basis with LB MBP II. Notwithstanding the foregoing,
the "tag-along" rights shall not apply to any sale of LB MBP II or its
affiliates pursuant to a syndication of its equity interest in the Company
during the six month period after the Effective Time, PROVIDED that the
aggregate amount of such sale does not exceed $100 million.
In the event that LB MBP II or one of its affiliates is transferring
shares of common stock of the Company to any third party that has made an
offer to purchase such shares, LB MBP II will have the right to cause each
Executive to sell his Option Shares or Purchased Shares to such third party on
a pro rata basis.
PUT AND CALL RIGHTS
TERMINATION BY THE COMPANY FOR CAUSE; VOLUNTARY TERMINATION WITHOUT GOOD
REASON - If, during the Term, the Executive's employment is either (x)
involuntarily terminated by the Company for Cause, or (y) terminated by the
Executive without Good Reason:
(a) All shares of Company common stock ("Common Stock") purchased by
the Executive pursuant to the exercise of stock options ("Options")
granted to the Executive ("Option Shares") may be called by the Company
at the lesser of (x) the purchase price paid by the Executive therefor
(the "Exercise Price") and (y) Fair Market Value (as defined below).
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(b) All Options then held by the Executive shall be forfeited,
without any consideration being paid therefor by the Company, as of the
Executive's date of termination of employment with the Company
("Termination Date").
(c) All shares of Common Stock owned by the Executive, other than
Option Shares ("Purchased Shares"), may be called by the Company at Fair
Market Value.
(d) The Executive shall have no right to put his Option Shares or
Purchased Shares to the Company as a result of such termination of
employment.
TERMINATION BY THE COMPANY WITHOUT CAUSE; TERMINATION BY THE EXECUTIVE
WITH GOOD REASON; RETIREMENT - If, during the Term, the Executive's employment
with the Company is either (x) involuntarily terminated by the Company without
Cause, (y) terminated by the Executive for Good Reason, or (z) terminated as a
result of the Executive's Retirement (as defined herein) from employment with
the Company at or after age 65 (or such earlier retirement age as permitted
under any agreement entered into after the Effective Time between the Company
and the Executive or if the Board shall consent thereto in writing):
(a) All Option Shares held for at least six months by the Executive
may be called by the Company at Fair Market Value.
(b) All Purchased Shares held for at least six months by the
Executive may be called at Fair Market Value.
(c) The Executive shall have no right to put his Option Shares or
Purchased Shares to the Company as a result of such termination of
employment.
(d) Except as provided under clauses (a) and (b) above, the Company
shall have no right to call Options, Option Shares or Purchased Shares
upon a termination of employment covered by this section.
Notwithstanding the foregoing, if the Executive elects, he may override the
calls made pursuant to paragraphs (a) or (b) above and retain all or any
portion of his Option Shares and Purchased Shares by giving the Company
written notice of such override within 30 days of his receipt of the call
notice.
TERMINATION DUE TO DEATH OR DISABILITY - If, during the Term, the
Executive's employment is terminated due to his death or Disability, the
Executive (or his legal representative or the legal representative of his
estate, if applicable) may put all Options, Option Shares and Purchased Shares
to the Company or the Company may call such Options, Option Shares and
Purchased Shares, in each case at Fair Market Value (in the case of Options,
net of the Exercise Price); PROVIDED, HOWEVER, that if the
5
Executive elects, he may override such call and retain all or any portion of
his Options, Option Shares and Purchased Shares by providing the Company with
a written notice of such override within 30 days of his receipt of the
Company's call notice.
SALE OF A COMPANY DIVISION - If the Company shall sell the business
division in which the Executive is principally employed (a "Sale"), the
Company may call the Executive's Options, Option Shares and Purchased Shares
at Fair Market Value; provided, however, that if the Executive elects, he may
override such call by the Company and retain all or any portion of his
Options, Option Shares and Purchased Shares by providing the Company with a
written notice of such override within 30 days of his receipt of the Company's
call notice. The Executive shall have no right to put his Options, Option
Shares or Purchased Shares to the Company as a result of such Sale.
NOTICE OF PUTS AND CALLS; EXERCISE RIGHTS - If the Company intends to
call any or all of the Executive's Options, Option Shares or Purchased Shares
as provided herein, it will provide prior written notice to the Executive (or
the Executive's legal representative or the legal representative of the
Executive's estate, as applicable), such notice to include the Fair Market
Value of the Options, Option Shares or Purchased Shares, as the case may be,
and to be given no later than 75 days after the Executive's Termination Date
or Sale, (as applicable). If the Executive (or the Executive's legal
representative or the legal representative of his estate, as applicable) is
entitled to put any or all of his Options, Option Shares or Purchased Shares,
notice of such intent must be given by the Executive no later than 90 days
after the Company gives notice that it will not exercise its call.
Neither the Executive nor the Company shall have any put or call rights
following a Public Offering (as such term is defined herein).
Any exercise of put or call rights may be for all or a portion of the
Options, Option Shares and Purchased Shares subject thereto, as determined in
the sole discretion of the holder of such rights.
LIMITATION ON PUT AND CALL RIGHTS - Notwithstanding anything herein to
the contrary, the Company shall not be required to purchase any Options,
Option Shares or Purchased Shares (whether through the exercise of a put or a
call) if such purchase would be, or would result in, a violation of the terms
of its then existing debt agreements or any applicable law or regulation. In
addition, no such put or call will occur if, in the reasonable discretion of
the Board, such purchase would be reasonably likely to (i) impair the
Company's available cash, (ii) require unsuitable additional debt to be
incurred by the Company or (iii) result in any other adverse economic or
financial condition, in each case only to the extent that any such event
described in clauses (i), (ii) or (iii), individually or in the aggregate,
would have or would reasonably be expected to have a material adverse effect
on the financial condition of the Company.
FAIR MARKET VALUE - For purposes hereof, the term "Fair Market Value"
shall mean, in respect to each share of Common Stock:
6
(a) To the extent the call or put, as the case may be, occurs
concurrently with or within 30 days of a Public Offering, the offering
price to the public per share of common stock of such Public Offering;
(b) To the extent the call or put, as the case may be, occurs
concurrently with or within 30 days of a Change in Control, the value of
the Company's total equity, as determined based upon the price per share
paid in connection with such Change in Control, divided by the total
number of shares of Common Stock then outstanding;
(c) To the extent clauses (a) and (b) do not apply and a regular
trading market for the Company's common stock exists following a Public
Offering, the average closing price of such common stock for 10
consecutive trading days ending on the trading day immediately prior to
such call or put; and
(d) At all other times, the fair market value of the Company's total
equity, as determined by the Board in good faith divided by the total
number of shares of Common Stock then outstanding; PROVIDED, HOWEVER,
that if the Executive disputes the Board's determination, within 10 days
of the Executive's receipt of notice of the Board's determination, the
Executive and the Board shall jointly select a qualified independent
financial advisor to make such determination, which determination shall
be final and binding upon the parties, PROVIDED, HOWEVER, that the fees
and costs of such financial advisor in connection with its determination
shall be borne equally by the Company and the Executive unless such
financial advisor's fair market value determination is 10%, or more,
greater than the Board's determination, in which case such fees and costs
shall be borne entirely by the Company.
DEFINITIONS
EBITDA - "EBITDA" shall be defined in a manner consistent with the
Company's debt instruments entered into in connection with the
recapitalization contemplated by the Recapitalization Agreement.
PERMITTED TRANSFEREES - "Permitted Transferees" shall mean (i) each
Executive's heirs, executors, administrators, testamentary trustees, legatees,
beneficiaries or charitable remaindermen, (ii) a trust, the beneficiaries of
which include only such Executive, such Executive' spouse, lineal descendants
or any other member of the family of such Executive; or (iii) any person if LB
MBP II has given its prior written consent to the applicable transfer.
PUBLIC OFFERING - "Public Offering" shall mean the sale of shares of any
class of the Company's stock to the public pursuant to an effective
registration statement (other than a registration statement on Form S-4 or S-8
or any similar or successor form) filed
7
under the Securities Act of 1933 which results in an active trading market of
25% or more of the outstanding shares of the Company's common stock. There
shall be deemed to be an "active trading market" if the Company's common stock
is listed or quoted on a national exchange or the NASDAQ National Market.
RETIREMENT - "Retirement" shall mean normal retirement under the terms of
any tax-qualified retirement plan of the Company which retirement occurs no
earlier than three years after the Effective Term. Except as provided in the
preceding sentence, any purported retirement prior to the third anniversary of
the Effective Time, shall be treated the same as a voluntary termination.
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EXHIBIT A
EBITDA TARGETS
($ IN MILLIONS)
"Management Case" Cumulative
EBITDA Target EBITDA Target
----------------- -------------
1999 $166.2 $ 166.2
2000 $223.7 $ 389.9
2001 $246.3 $ 636.2
2002 $270.7 $ 906.9
2003 $295.9 $1,202.8
Upon disposition or acquisition of any business or substantial
portion of the assets of the Company or another company, the EBITDA Targets
for the year of such disposition or such acquisition and each subsequent year
shall be adjusted to eliminate or include, as the case may be, the income and
expense to the business or assets that were subject to disposition or
acquisition, but only to the extent not already done so in connection with the
calculation of EBITDA. Such adjustments must be consented to by a majority of
the non-management directors of the Board of the Company. If such directors
cannot so consent, the adjustment proposal shall be submitted to the Company's
independent auditors, who can consult with the necessary consultants for
binding resolution.
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EXHIBIT B
APPLICABLE PERCENTAGE
Percentage of EBITDA Target Achieved Applicable
(annual or cumulative)(Pct.) Percentage
------------------------------------ ----------
Less than 85 0.00
85 25.00
86 30.00
87 35.00
88 40.00
89 45.00
90 50.00
91 55.00
92 60.00
93 65.00
94 70.00
95 75.00
96 80.00
97 85.00
98 90.00
99 95.00
100 100.00
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