EMPLOYMENT AGREEMENT
EXECUTION
COPY
THIS
EMPLOYMENT AGREEMENT
(this
“Agreement”),
is
made and entered into as of March 16, 2008 (the “Effective
Date”),
by
and between Griffon Corporation, a Delaware corporation, with its principal
office located at 000 Xxxxxxx Xxxxxxxxxx, Xxxxxxx, Xxx Xxxx 00000-0000 (together
with its successors and assigns permitted under this Agreement, “Griffon”)
and
Xxxxxx X. Xxxxxx (“Xxxxxx”).
WITNESSETH:
WHEREAS,
Griffon
has determined that it is in the best interests of Griffon and its stockholders
to employ Xxxxxx as its Chief Executive Officer; and
WHEREAS,
Griffon
wishes to assure itself of the services of Xxxxxx for the period hereinafter
provided, and Xxxxxx is willing to be employed by Griffon for said period,
upon
the terms and conditions provided in this Agreement;
NOW,
THEREFORE,
in
consideration of the premises and mutual covenants contained herein and for
other good and valuable consideration, the receipt and sufficiency of which
is
mutually acknowledged, Griffon and Xxxxxx (individually a “Party”
and
together the “Parties”
)
agree
as follows:
1.
DEFINITIONS.
(a) “Affiliate”
means
any person or entity controlling, controlled by or under common control with
Griffon.
(b) “Board”
shall
mean the Board of Directors of Griffon.
(c) “Cause”
shall
mean:
(i) Xxxxxx’x
conviction of, or plea of guilty or nolo contendere to, a felony, excluding
DWI
(or any similar offense);
(ii) any
material breach of the Agreement by Xxxxxx which is not promptly cured, if
curable, in accordance with Section
9(d);
or
(iii) Xxxxxx’x
willful misconduct or gross negligence that is materially economically injurious
to Griffon. For purposes of this Section
1(c)(iii),
no act
or failure to act on the part of Xxxxxx shall be considered “willful” unless it
is committed, or omitted to be done, by him in bad faith or without reasonable
belief that his action or omission was in the best interests of
Griffon.
(d) “Change
in Control”
shall
mean the occurrence of any of the following events after the Commencement Date
(as defined in Section 2(b)):
(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 voting securities of Griffon when such acquisition causes
such
Person to beneficially own thirty percent (30%) or more of the combined voting
power of the then outstanding voting securities of Griffon entitled to vote
generally in the election of directors (the “Outstanding
Griffon Voting Securities”);
provided,
however,
that
for purposes of this subsection
(i),
the
following acquisitions shall not be deemed to result in a Change in Control:
(A)
any acquisition directly from Griffon, (B) any acquisition by Griffon, (C)
any
acquisition by (x) any employee benefit plan (or related trust) intended to
be
qualified under Section 401(a) of the Code or (y) any rabbi trust or feeder
trust established in connection with any broad-based employee benefit plan
or
any employee benefit plan in which Xxxxxx is the sole participant, in each
case,
sponsored or maintained by Griffon or any corporation controlled by Griffon,
or
(D) any acquisition pursuant to a transaction that complies with clauses
(A)
or
(B)
of
subsection
(iii)
below;
(ii) during
any period of thirty (30) consecutive months, individuals who at the beginning
of such period and any new director whose election by the Board or nomination
for election by Griffon’s stockholders was approved by a vote of at least a
majority of the directors then still in office who either were directors at
the
beginning of any such period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority of the
Board, but excluding any such new director whose initial assumption of office
occurs as a result of an actual or threatened election contest with respect
to
the election or removal of directors or other actual or threatened solicitation
of proxies or consents by or on behalf of a Person other than the
Board;
(iii) the
consummation of a reorganization, merger, consolidation or similar form of
transaction involving Griffon or any of its subsidiaries (“Business
Combination”);
excluding, however, such a Business Combination (A) pursuant to which all or
substantially all of the individuals and entities who were the beneficial owners
of the Outstanding Griffon Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than seventy percent
(70%) of the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors of the corporation
resulting from such Business Combination in substantially the same proportions
as their ownership, immediately prior to such Business Combination, of the
Outstanding Griffon Voting Securities, or (B) effected to implement a
recapitalization or reorganization of Griffon (or similar transaction) in which
no Person acquires more than 30% of the combined voting power of Griffon’s then
outstanding securities; or
(iv) a
complete liquidation or dissolution of Griffon or sale or other disposition
of
all or substantially all of the assets of Griffon, other than to any Subsidiary
or any Affiliate.
Notwithstanding
the foregoing, a Change in Control shall not include any event, circumstance
or
transaction that results from an action of any Person, entity or group which
includes, is affiliated with or is wholly or partly controlled by one or more
executive officers of Griffon and in which Xxxxxx participates directly or
actively (other than a renegotiation of his employment arrangements or in his
capacity as an employee of Griffon or any successor entity thereto or to the
business of Griffon).
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(e) “Code”
shall
mean the Internal Revenue Code of 1986, as amended from time to
time.
(f) “Committee”
shall
mean the Compensation Committee of the Board.
(g) “Disability”
shall
mean Xxxxxx’x inability to substantially perform his duties due to physical or
mental impairment for six (6) consecutive months and, within thirty (30) days
after a notice of termination is given to Xxxxxx, Xxxxxx has not returned to
work.
(h) “Employment
Term”
shall
mean the period specified in Section
2(b)
below.
(i) “Fiscal
Year”
shall
mean the 12-month period beginning on October 1 and ending on the next
subsequent September 30, or such other 12-month period as may constitute
Griffon’s fiscal year at any time hereafter.
(j) “Good
Reason”
shall
mean the occurrence of any of the following events without Xxxxxx’x prior
written consent:
(i) the
failure of Xxxxxx to be appointed to the positions set forth in Section
2(c)
(other
than the Chairmanship of the Board), if not promptly cured after written notice,
or the hiring of any officer to serve in a capacity equal or senior to
Xxxxxx;
(ii) the
assignment to Xxxxxx of duties materially inconsistent with his status as the
chief executive officer of a publicly-traded company or a materially adverse
alteration in the nature of Xxxxxx’x duties and/or responsibilities, reporting
obligations, titles or authority, as set forth in Section
2(c);
(iii) a
reduction by Griffon of Xxxxxx’x Base Salary or Target Bonus percentage;
(iv) the
relocation of Xxxxxx’x own office location more than twenty five (25) miles from
Griffon’s current headquarters;
(v) Griffon’s
failure to provide any employee benefits due to be provided to
Xxxxxx;
(vi) any
purported termination of Xxxxxx’x employment for Cause which is not
substantially effected pursuant to the procedures described in Section
9(d);
(vii) any
material breach of the Agreement by Griffon; or
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(viii) a
failure
of Griffon to have any successor assume in writing the obligations under the
Agreement.
Notwithstanding
the foregoing, Good Reason shall not be deemed to exist unless Xxxxxx gives
Griffon prior notice within sixty (60) days after the occurrence of the event
which Xxxxxx believes constitutes the basis for Good Reason, specifying the
particular act or failure to act which Xxxxxx believes constitutes the basis
for
Good Reason. If Griffon fails to cure such act or failure to act, if curable,
within thirty (30) days after receipt of such notice, Xxxxxx may terminate
his
employment for Good Reason. For the avoidance of doubt, if such act is not
curable, Xxxxxx may terminate his employment for Good Reason upon providing
such
notice.
(k) “Salary”
shall
mean the annual salary provided for in Section
3
below,
as adjusted from time to time.
(l) “Subsidiary”
shall
mean any entity of which Griffon owns, directly or indirectly, more than fifty
percent (50%) of its voting stock or voting interests.
2.
EMPLOYMENT
TERM, POSITIONS AND DUTIES.
(a) Employment
of Xxxxxx.
Griffon
hereby employs Xxxxxx,
and
Xxxxxx
hereby
accepts employment with Griffon, in the positions and with the duties and
responsibilities set forth below and upon such other terms and conditions as
are
hereinafter stated. Xxxxxx
shall
render services to Griffon principally at Griffon’s corporate headquarters, but
he shall do such traveling on behalf of Griffon as shall be reasonably required
in the course of the performance of his duties hereunder.
(b) Employment
Term.
Unless
earlier terminated under Section
9
hereof,
the Employment Term shall commence as of April 1, 2008 (the “Commencement
Date”), and shall continue for a three year period, renewing daily, unless
either Party provides notice of non-renewal. Upon such notice of non-renewal,
the Employment Term shall continue for three years from the date such notice
is
received by the non-notifying Party.
(c) Titles
and Duties.
(i) During
the Employment Term, Xxxxxx
shall be
employed as Chief Executive Officer, reporting to the Board. In his capacity
as
Chief Executive Officer, Xxxxxx shall perform such duties as are consistent
with
his title and position as Chief Executive Officer of a publicly-traded
company.
(ii) During
the Employment Term, Xxxxxx shall continue to serve as Vice Chairman of the
Board. If the current Chairman of the Board ceases to hold such position, the
Board will give due consideration to Xxxxxx’x appointment as Chairman of the
Board.
(d) Time
and Effort.
Xxxxxx
shall devote his best efforts and abilities, and substantially all his business
time, to the performance of his duties under the Agreement; provided that he
shall, to the extent same does not substantially interfere with the performance
of his duties hereunder, be permitted to: (i) serve on corporate and civic
boards and committees; (ii) deliver lectures, fulfill speaking engagements
or
teach at educational institutions; (iii) manage personal and family investments
and (iv) engage in investment management business activities that are not
competitive with the businesses of Griffon.
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3.
SALARY.
(a) Initial
Salary.
For the
remainder of the Fiscal Year ending September 30, 2008 and for the Fiscal Year
ending September 30, 2009, Xxxxxx shall receive from Griffon a Salary, payable
in accordance with the regular payroll practices of Griffon, in an amount of
$775,000 per annum.
(b) Cost-of-Living
Increase.
Commencing with the Fiscal Year ending September 30, 2009 and for each Fiscal
Year thereafter during the Employment Term, Xxxxxx’x Salary shall be increased
annually at the end of each Fiscal Year, by an amount not less than increase
in
the cost of living for the immediately preceding year, as reported in the
“Consumer Price Index, New York and Northeastern New Jersey, All Items,”
published by the United States Department of Labor, Bureau of Labor Statistics
(or, if such index is no longer published, a successor or comparable index
that
is published).
(c) Salary
Increase.
In
addition to the Cost of Living Increase described in Section
3(b)
above,
Xxxxxx’x Salary shall be reviewed annually for possible increases (but not
decreases) commencing October 1, 2009. Any amount to which Xxxxxx’x Salary is
increased, as provided in Section
3(b)
above,
Section
3(c)
or
otherwise, shall not thereafter be reduced without his prior written
consent.
4.
BONUSES.
(a) 2008
Guaranteed Bonus. Within 60 business days following the end of the Fiscal
Year ending September 30, 2008, Griffon shall pay to Xxxxxx a guaranteed bonus
equal to $581,250.
(b) Annual
Bonus.
Commencing with the Fiscal Year ending September 30, 2009 and for each Fiscal
Year thereafter during the Employment Term, Xxxxxx shall be eligible to receive
an annual bonus of between 0% and 250% of Salary, with a target bonus of 150%
of
Salary (the “Target Bonus”), in accordance with Griffon’s 2006 Performance Bonus
Plan or another plan or plans providing him annual award opportunities. Any
such
bonus shall be based on the achievement of performance objectives to be
determined by the Board (or the Committee) after consultation with Xxxxxx.
Such
performance criteria shall be communicated to Xxxxxx in writing within ninety
(90) days after the commencement of the applicable performance period. Any
bonus
payable for any Fiscal Year shall be paid within sixty (60) days of the end
of
the Fiscal Year during which it is earned.
(c) Discretionary
Bonus.
Xxxxxx
shall be eligible to receive additional bonuses during the Employment Term.
The
amount and the occasion for payment of such bonus, if any, shall be determined
by the Committee in its sole discretion.
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5.
EQUITY
AWARDS.
(a) Restricted
Stock.
On the
Commencement Date, Xxxxxx shall receive, pursuant to the Griffon Corporation
2006 Equity Incentive Plan (the “Plan”) and an award agreement issued
thereunder, a restricted stock grant (the “Initial Restricted Stock Grant”) of
250,000 shares of common stock of Griffon (the “Common Stock”). Subject to
Xxxxxx’x continued employment with Griffon (except as otherwise provided in
Section
9(g)),
the
Initial Restricted Stock Grant shall vest in full on the third anniversary
of
the Commencement Date. The restricted stock award agreement shall permit Xxxxxx
to satisfy his withholding obligations by having Griffon withhold a sufficient
number of shares to satisfy such obligations. Additionally, on or shortly after
October 1, 2008, Xxxxxx shall receive, pursuant to the Plan and an award
agreement issued thereunder, a restricted stock grant of an additional 75,000
shares of Common Stock on the same terms as the Initial Restricted Stock Grant
which shall also vest, subject to Xxxxxx’x continued employment with Griffon
(except as otherwise provided in Section
9(g)),
on the
third anniversary of the Commencement Date. On or about October 1, 2009, Xxxxxx
shall receive, pursuant to the Plan and an award agreement issued thereunder,
a
restricted stock grant of an additional 25,000 shares of Common Stock on the
same terms as the Initial Restricted Stock Grant which shall also vest, subject
to Xxxxxx’x continued employment with Griffon (except as otherwise provided in
Section
9(g)),
on the
third anniversary of the Commencement Date.
(b) Stock
Options.
On or
shortly after October 1, 2008, Xxxxxx shall be granted, pursuant to the Plan
and
an award agreement issued thereunder, a non-qualified stock option (the “Initial
Stock Option Grant”) to purchase 350,000 shares of Common Stock at an exercise
price equal to the greater of $20 per share or the fair market value on the
date
of grant. Subject to Xxxxxx’x continued employment with Griffon (except as
otherwise provided in Section
9(g)),
the
Initial Stock Option Grant shall vest and
become exercisable in
three
equal installments on each anniversary of the Commencement Date. The option
agreement will contain a “cashless” exercise feature for the payment of both the
exercise price and applicable withholding taxes. If Xxxxxx is not permitted
to
exercise the option (or any portion thereof) because of a company-imposed or
regulatory-imposed restriction on trading of Griffon’s common stock (e.g.,
during any “blackout” period), and the option would otherwise expire during such
restriction period, the expiration date of the option shall be extended by
the
Committee so that Xxxxxx may exercise the option (or any portion thereof) for
ninety (90) days following the end of such restriction period but in no event
shall such extension extend beyond the tenth anniversary of the grant date.
(c) Subsequent
Grants.
The
Board (or the Committee) shall consider making additional equity grants to
Xxxxxx at least annually. Subject to the Committee’s approval at the time of
grant, it is the intention of Griffon that such awards, if any, shall (i) be
subject to the same terms and conditions relating to Change in Control and
vesting on termination of employment as the Initial Restricted Stock Grant
or
the Initial Stock Option Grant, as applicable; (ii) with respect to any
time-based vesting conditions on restricted stock or stock units, vest on a
basis that is no less favorable than the third anniversary of such subsequent
grant date; and (iii) with respect to any time-based vesting conditions on
options or stock appreciation rights, vest over a three year period in equal
installments on each anniversary of such subsequent grant date.
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(d) Miscellaneous.
(i) Adjustment.
All
amounts set forth in this Section 5 shall be subject to adjustment as provided
for in the Plan.
(ii) Agreements.
The
terms and conditions of any stock award or option agreement shall be consistent
with the terms and conditions of this Agreement. In the event of any conflict
or
inconsistency between the terms of this Agreement and the Plan (or any stock
award or option agreement), the terms and conditions of this Agreement shall
govern and control.
(iii) Registration.
Griffon
represents that the shares subject to the awards described in Section 5 above
shall be registered on a Form S-8 or other appropriate registration statement
under the Securities Act of 1933, as amended.
6.
BUSINESS
AND TRAVEL EXPENSE REIMBURSEMENT; CERTAIN OTHER COSTS.
(a) Business
Expenses.
Xxxxxx
shall be entitled to prompt reimbursement by Griffon for all reasonable business
expenses incurred by him during the Employment Term in performing services
under
this Agreement, upon his proper submission of such accounts and records as
may
be reasonably required by Griffon.
(b) Travel
Expenses.
Xxxxxx
shall be entitled to prompt reimbursement by Griffon for all reasonable travel
expenses incurred by him during the Employment Term while performing duties
on
behalf of Griffon (including, without limitation, first class air travel),
upon
his proper submission of such accounts and records as may be reasonably required
by Griffon.
(c) Other
Costs.
Griffon
shall reimburse Xxxxxx for reasonable attorneys fees and expenses incurred
in
connection with the preparation and negotiation of this Agreement.
All
reimbursements under this Section
6
shall be
made as soon as practicable following submission of a reimbursement request,
but
no later than the end of the year following the year during which the underlying
expense was incurred.
7.
PERQUISITES.
During
the Employment Term, Griffon shall provide Xxxxxx with the following
perquisites:
(a) an
office
of a size and with furnishings and other appointments, and exclusive personal
secretarial and other assistance, at a level appropriate for a chief executive
officer of a publicly traded corporation; and
(b) use
of an
automobile and payment of all related expenses, including, without limitation,
lease payments, insurance, maintenance and parking, subject to Xxxxxx’x prompt
submission of such accounts and records as may be reasonably required by
Griffon.
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All
reimbursements under this Section
7(b)
shall be
made as soon as practicable following submission of a reimbursement request,
but
no later than the end of the year following the year during which the underlying
expense was incurred.
8.
BENEFITS.
(a) General.
During
the Employment Term, Xxxxxx shall be entitled to participate in all employee
benefit plans and programs made available to Griffon’s senior executives or to
its employees generally, in accordance with the terms and conditions of such
plans and programs and as such plans or programs may be in effect from time
to
time, including without limitation, pension and other retirement plans,
profit-sharing plans, savings and similar plans, group life insurance,
accidental death and dismemberment insurance, travel accident insurance,
hospitalization insurance, surgical insurance, major and excess medical
insurance, dental insurance, short-term and long-term disability insurance,
sick
leave (including salary continuation arrangements), holidays, vacation (not
less
than four weeks in any calendar year) and any other employee benefit plans
or
programs that may be sponsored by Griffon from time to time, including plans
that supplement the above-listed plans, whether funded or unfunded; provided
however, that Xxxxxx shall not be entitled to participate in any supplemental
retirement plan, any non-qualified deferred compensation plan or any retiree
medical plan unless such participation is specifically designated by the Board;
and provided further that approval by the Board of this Agreement shall not
constitute such designation.
(b) Medical
Care Insurance. During the Employment Term, Griffon shall provide Xxxxxx,
his spouse and his dependents with hospitalization insurance, surgical
insurance, major and excess major medical insurance and dental insurance in
accordance with the most favorable plans, policies, programs and practices
of
Griffon and its Subsidiaries made available generally to all other senior
executive officers of Griffon and its Subsidiaries as a group, as in effect
from
time to time.
(c) Life
Insurance Benefit.
In
addition to the group life insurance available to employees generally, Griffon
shall provide Xxxxxx with an individual life insurance policy with a death
benefit of at least $5,000,000.
9.
TERMINATION
OF EMPLOYMENT.
(a) Voluntary
Termination.
Xxxxxx
may terminate his employment voluntarily at any time during the Employment
Term.
If he does so, except for Good Reason, he shall be entitled to receive only
the
compensation and benefits specified in Section 9(b).
(b) General.
Notwithstanding anything to the contrary herein, in the event of any termination
of Xxxxxx’x employment during the Employment Term (including by reason of his
death), he shall be entitled to receive as soon as administratively feasible
following such termination, but in any event, except as provided below, within
fifteen (15) days thereafter (in addition to the applicable payments and
benefits he may also be entitled to receive under subsections
(c)
through
(g)
below,
as applicable):
(i) accrued
but unpaid Salary through the date of termination;
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(ii) any
accrued but unused vacation;
(iii) any
annual bonus earned for the Fiscal Year completed prior to the year of
termination but not yet paid to him; and
(iv) reimbursement
in accordance with Section
6
above of
any expenses incurred by him through the date of termination but not yet paid
to
him.
Additionally,
Xxxxxx shall receive any other compensation or benefits, including, without
limitation, benefits under equity grants and awards described in Section
5
above
and employee benefits under plans described in Section
8
above,
that have vested through the date of termination or to which he may then be
entitled in accordance with the applicable terms and conditions of each grant,
award or plan.
For
purposes of Section 9(b)(iii) above, “earned” shall mean that all performance
goals for the applicable performance period have been met and certified to
by
the Committee whether or not Xxxxxx is still actually employed on the date
the
Committee certifies such results; provided however, that no annual bonus shall
be deemed earned if Xxxxxx is terminated for Cause or such payment would result
in non-deductibility under Code Section 162(m) to the extent such bonus would
have otherwise been deductible if Xxxxxx were still employed by Griffon. The
Committee shall, with respect to Xxxxxx, conduct its certification process
in a
manner substantially consistent with past practices and any such bonus shall
be
paid at the time such bonus would have been paid had Xxxxxx been still employed
by Griffon.
(c) Termination
Due to Disability.
If,
during the Employment Term, Xxxxxx’x employment is terminated by Griffon due to
Disability, he shall be entitled, in addition to the compensation and benefits
specified in Section
9(b),
to
receive:
(i) a
pro-rata bonus for the year of termination equal to the Target Bonus multiplied
by a fraction, the numerator of which is the number of completed days in the
Fiscal Year of Xxxxxx’x termination of employment during which Xxxxxx was
employed by Griffon and the denominator of which is 365 (the “Pro-Rata
Bonus Payment”),
as
soon as administratively feasible following such termination, but in any event
within fifteen (15) days;
(ii) severance
for twelve (12) months payable in twelve (12) equal monthly installments and
commencing on the first payroll period following such termination in the amount
of one-twelfth the sum of (A) the Salary plus (B) the highest bonus paid to
Xxxxxx in the 3-year period prior to such termination (but in no event less
than
the Target Bonus for the year of termination), provided however, that if a
termination due to Disability occurs within two years after an event described
in Section 409A(a)(2)(A)(v) of the Code (a “409A CIC”), Xxxxxx shall receive a
lump sum payment of the amount described above in lieu of such monthly
installments, as soon as administratively feasible following such termination,
but in any event, within fifteen (15) days thereafter; and
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(iii) if
Xxxxxx
(or his beneficiaries) elects continued medical coverage under COBRA, Griffon
shall pay for coverage under COBRA for 18 months following such termination.
(d) Termination
by Griffon for Cause.
Griffon
may terminate Xxxxxx’x employment hereunder for Cause, provided however, that no
termination for Cause shall be effective unless (i) the decision is made by
a
majority of the Board at a Board meeting, held for such purpose, where Xxxxxx
and his counsel had an opportunity to be heard on at least ten (10) days prior
notice; (ii) Griffon gives Xxxxxx notice of the Board’s decision to terminate
Xxxxxx’x employment for Cause specifying the particular act or failure to act
which is the basis for such decision; and (iii) Xxxxxx fails to cure such act
or
failure to act to the satisfaction of the Board within thirty (30) days after
such notice. In the event that Xxxxxx’x employment is terminated for Cause, he
shall be entitled to receive only the compensation and benefits specified in
Section
9(b).
(e) Termination
by Griffon Without Cause or by Xxxxxx for Good Reason.
If,
during the Employment Term, Griffon terminates Xxxxxx’x employment without Cause
or Xxxxxx terminates his employment for Good Reason, in either such case, other
than within two years after a Change in Control which qualifies as a 409A CIC,
he shall be entitled to receive, upon the execution and non-revocation of a
release substantially in the form attached hereto as Exhibit
A,
but in
no event later than forty-five (45) days after such termination, in addition
to
the compensation and benefits specified in Section
9(b):
(i) severance
for twelve (12) months payable in twelve (12) equal monthly installments and
commencing on the first payroll period following such termination in the amount
of:
(A) in
the
case of a termination under Section
9(e)
on or
prior to the third anniversary of the Commencement Date or any such termination
that occurs after such third anniversary, but within two years after a Change
in
Control which does not qualify as a 409A CIC, one-twelfth of three times the
sum
of (x) the Salary plus (y) the highest bonus paid to Xxxxxx in the 3-year period
immediately prior to such termination (but in no event less than the Target
Bonus for the year of termination); or
(B) except
as
provided in subsection (A), in the case of a termination under Section
9(e)
after
the third anniversary of the Commencement Date, one-twelfth of two times the
sum
of (x) the Salary plus (y) the highest bonus paid to Xxxxxx in the 3-year period
immediately prior to such termination (but in no event less than the Target
Bonus for the year of termination);
(ii) a
payment
in the amount of either:
(A) with
respect to a termination occurring under this Section
9(e)
on or
before September 30, 2009, a Pro-Rata Bonus Payment to be paid as soon as
administratively feasible following such termination, but in any event within
fifteen (15) days thereafter, or
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(B) with
respect to a termination under this Section
9(e)
occurring after September 30, 2009, a pro-rated portion of the bonus which
would
have otherwise been paid for the year of termination had Xxxxxx’x employment not
been terminated, to be paid at such time as such bonus would otherwise have
been
paid; and
(iii) if
Xxxxxx
elects to continue his medical coverage under COBRA, Griffon will pay for
coverage under COBRA for 18 months following such termination.
(f) Termination
by Griffon Without Cause or by Xxxxxx for Good Reason Within Two Years After
a
Change in Control.
If,
during the Employment Term, Griffon terminates Xxxxxx’x employment without Cause
or Xxxxxx terminates his employment for Good Reason, in either such case, within
two years after a Change in Control which qualifies as a 409A CIC, he shall
be
entitled to receive, upon the execution and non-revocation of a release
substantially in the form attached hereto as Exhibit
A,
but in
no event later than forty-five (45) days after such termination, in addition
to
the compensation and benefits specified in Section
9(b):
(i) a
lump
sum payment, as soon as administratively feasible following such termination,
but in any event within ten (10) days thereafter, equal to three times the
sum
of (A) the Salary plus (B) the highest bonus paid to Xxxxxx in the 3-year period
immediately prior to such termination (but in no event less than the Target
Bonus for the year of termination);
(ii) a
payment
in the amount of either:
(A) with
respect to a termination occurring under this Section
9(f)
on or
before September 30, 2009, a Pro-Rata Bonus Payment to be paid as soon as
administratively feasible following such termination, but in any event within
ten (10) days thereafter, or
(B) with
respect to a termination under this Section
9(f)
occurring after September 30, 2009, a pro-rated portion of the bonus which
would
have otherwise been paid for the year of termination had Xxxxxx’x employment not
been terminated, to be paid at such time as such bonus would otherwise have
been
paid; and
(iii) if
Xxxxxx
elects to continue his medical coverage under COBRA, Griffon will pay for
coverage under COBRA for 18 months following such termination.
(g) Vesting
of Equity Upon Certain Events.
(i) Termination
by Griffon Without Cause or by Xxxxxx for Good Reason.
If,
during the Employment Term, Griffon terminates Xxxxxx’x employment without Cause
or Xxxxxx terminates his employment for Good Reason, in either such case (A)
all
restricted stock referred to above in Section
5
not yet
issued shall be issued as soon as such issuance is permissible under the terms
of the Plan and shall be fully vested upon such issuance; and (B) all of his
then outstanding equity compensation awards shall immediately vest and, in
the
case of options, shall remain exercisable for one year after such termination
of
employment.
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11
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(ii) Change
in Control, Termination Due to Death or Disability.
Upon a
Change in Control or a termination of Xxxxxx’x employment due to death or
Disability, all Xxxxxx’x then outstanding equity compensation awards shall
immediately vest and become exercisable.
(h) Specified
Employee.
Notwithstanding any other provision of this Agreement, if (i) Xxxxxx is to
receive payments or benefits under Section
9
by
reason of his separation from service (as such term is defined in Section 409A
of the Code) other than as a result of his death, (ii) Xxxxxx is a “specified
employee” within the meaning of Code Section 409A for the period in which the
payment or benefits would otherwise commence, and (iii) such payment or benefit
would otherwise subject Xxxxxx to any tax, interest or penalty imposed under
Section 409A of the Code (or any regulation promulgated thereunder) if the
payment or benefit would commence within six months of a termination of Xxxxxx’x
employment, then such payment or benefit required under Section
9
shall
not commence until the first day which is at least six months after the
termination of Xxxxxx’x employment. Each severance installment contemplated
under this Section 9 shall be treated as a separate payment in a series of
separate payments under Treasury Regulation Section 1.409A-2(b)(2)(iii). Such
payments or benefits, together with simple interest calculated at LIBOR as
of
the date of such separation from service, which would have otherwise been
required to be made over such six month period, shall be paid to Xxxxxx in
one
lump sum payment or otherwise provided to Xxxxxx as soon as administratively
feasible after the first day which is at least six months after the termination
of Xxxxxx’x employment. Thereafter, the payments and benefits shall continue, if
applicable, for the relevant period set forth above. For purposes of this
Agreement, all references to “termination of employment” and other similar
language shall be deemed to refer to Xxxxxx’x “separation from service” as
defined in Treasury Regulation Section 1.409A-1(h), including, without
limitation, the default presumptions thereof.
(i) Miscellaneous.
For the
avoidance of doubt, if applicable, Xxxxxx shall only be entitled to receive
the
payments and benefits provided under Section 9(e) or 9(f), which ever is
applicable, but not under both such sections.
10.
NO
DUTY TO MITIGATE.
Xxxxxx
shall not be required to mitigate damages or the amount of any payment provided
for under this Agreement by seeking other employment or otherwise, nor will
any
payment hereunder be subject to offset in the event Xxxxxx does receive
compensation for any reason from any other source.
11.
PARACHUTES.
(a) Application.
(i) Change
in Control On or Prior to Fourth Anniversary of the Commencement
Date.
Upon the
occurrence of a change in control or ownership (or other similar event) on
or
prior to the fourth anniversary of the Commencement Date, if all or any portion
of the payments provided under this Agreement, and/or any other payments and
benefits that Xxxxxx receives or is entitled to receive from Griffon, a
Subsidiary or any other person, whether or not under an existing plan,
arrangement or other agreement, constitutes an excess “parachute payment” within
the meaning of Section 280G(b) of the Code (each such parachute payment, a
“Parachute
Payment”)
and
will result in the imposition on Xxxxxx of an excise tax under Section 4999
of
the Code, then, in addition to any other benefits to which Xxxxxx is entitled
under this Agreement, Griffon shall pay him an amount in cash equal to the
sum
of the excise taxes payable by him by reason of receiving Parachute Payments,
plus the amount necessary to put him in the same after-tax position (taking
into
account any and all applicable federal, state and local excise, income or other
taxes at the highest possible applicable rates on such Parachute Payments
(including without limitation any payments under this Section
12)
as if
no excise taxes had been imposed with respect to Parachute Payments (the
“Parachute
Gross-up”)).
Notwithstanding the foregoing, in the event that the aggregate amount of
Parachute Payments is no more than 10% greater than the aggregate amount of
Payments that may be made to Xxxxxx without incurring an excise tax (the
“Safe-Harbor
Amount”),
Xxxxxx shall not be entitled to a Gross-Up Payment and the Parachute Payments
shall instead be reduced in an amount sufficient to reduce the aggregate amount
of Parachute Payments below the Safe-Harbor Amount.
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12
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(ii) Other
Change in Control.
Upon a
Change in Control following the fourth anniversary of the Commencement Date,
in
the event that it would be economically advantageous for Xxxxxx, the Parachute
Payments shall be reduced by an amount that results in the receipt by Xxxxxx
on
an after-tax basis (including the applicable federal, state and local income
taxes, and the excise tax imposed by Section 4999 of the Code) of the greatest
total Parachute Payments.
(b) Computation.
The
amount of any payment under this Section
11
shall be
computed by a certified public accounting firm of national reputation selected
by Griffon and acceptable to Xxxxxx. If Griffon or Xxxxxx disputes the
computation rendered by such accounting firm, Griffon shall select an
alternative certified public accounting firm of national reputation to perform
the applicable computation. If the two accounting firms cannot agree upon the
computations, Xxxxxx and Griffon shall jointly appoint a third certified public
accounting firm of national reputation within ten (10) calendar days after
the
two conflicting computations have been rendered. Such third accounting firm
shall be asked to determine within thirty (30) calendar days the computation
of
the Parachute Gross-up to be paid to Xxxxxx, and payments shall be made
accordingly. The cost and expenses of all the accounting firms retained to
perform the computations described above shall be borne by Griffon.
(c) Payment.
As a
result of the uncertainty in the application of Section 4999 of the Code at
the
time of the determination, it is possible that the Parachute Gross-Up which
will
not have been made by Griffon should have been made (“Underpayment”) or a
Parachute Gross-Up is made by Griffon which should not have been made
(“Overpayment”), consistent with the calculations required to be made hereunder.
If Xxxxxx thereafter is required to may payment of any additional excise tax,
the accounting firm initially selected by Griffon and acceptable to Xxxxxx
under
Section 11(b) shall determine the amount of the Underpayment that has occurred
and any such Underpayment (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code) shall be promptly paid by Griffon to or
for
the benefit of Xxxxxx. In the event the amount of the Parachute Gross-Up exceeds
the amount necessary to reimburse Xxxxxx for the applicable excise tax, such
accounting firm shall determine the amount of the Overpayment that has been
made
and any such Overpayment (together with interest at the rate provided in Section
1274(b)(2)(B) of the Code) shall be promptly paid by Xxxxxx (to the extent
he
has received a refund if the applicable excise tax has been paid to the Internal
Revenue Service) to or for the benefit of Griffon. Xxxxxx shall cooperate,
to
the extent his expenses are reimbursed by Griffon, with (i) any reasonable
requests by Griffon to apply for a refund and (ii) any contest or disputes
with
the Internal Revenue Service in connection with the excise tax.
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13
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(d) Any
payment due to Xxxxxx under this Section
11
shall be
made to Xxxxxx, or on behalf of Xxxxxx, as soon as practicable after the
determination of the amount of such payment, but no sooner than the date on
which Griffon is required to withhold such amount or Xxxxxx is required to
pay
such amount to the Internal Revenue Service. Notwithstanding the foregoing,
all
payments under this Section
11
shall be
made to Xxxxxx, or on Xxxxxx’x behalf, no later than the end of the year
following the year in which Xxxxxx or Griffon paid the related taxes, interest
or penalties.
12. CONFIDENTIAL
INFORMATION.
(a) Xxxxxx
shall not, during the Employment Term and at any time thereafter, without the
prior express written consent of Griffon, directly or indirectly divulge,
disclose or make available or accessible any Confidential Information (as
defined below) to any person, firm, partnership, corporation, trust or any
other
entity or third party (other than when required to do so in good faith to
perform his duties and responsibilities under this Agreement or when (i)
required to do so by a lawful order of a court of competent jurisdiction, any
governmental authority or agency, or any recognized subpoena power, or (ii)
necessary to prosecute his rights against Griffon or its Affiliates or to defend
himself against any allegations). Xxxxxx shall also proffer to the Board’s
designee, no later than the effective date of any termination of his employment
with Griffon for any reason, and without retaining any copies, notes or excerpts
thereof, all memoranda, computer disks or other media, computer programs,
diaries, notes, records, data, customer or client lists, marketing plans and
strategies, and any other documents consisting of or containing Confidential
Information that are in Xxxxxx’x actual or constructive possession or which are
subject to his control at such time. For purposes of this Agreement,
“Confidential Information” shall mean all information respecting the business
and activities of Griffon, or any Affiliate of Griffon, including, without
limitation, the clients, customers, suppliers, employees, consultants, computer
or other files, projects, products, computer disks or other media, computer
hardware or computer software programs, inventions, trade secrets, marketing
plans, financial information, methodologies, know-how, processes, practices,
approaches, projections, forecasts, formats, systems, data gathering methods
and/or strategies of Griffon or any Affiliate. Notwithstanding the immediately
preceding sentence, Confidential Information shall not include any information
that is, or becomes, generally available to the public (unless such availability
occurs as a result of Xxxxxx’x breach of any portion of this Section
12.
(b) Xxxxxx
understands and agrees that the rights and obligations set forth in this
Section
12
shall
extend beyond the Employment Term.
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14
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13.
OTHER
RESTRICTIVE COVENANTS.
(a) Non-Solicitation.
During
the Employment Term and for twelve (12) months following any termination of
Xxxxxx’x employment with Griffon, Xxxxxx shall not (except on Griffon’s behalf),
directly or indirectly, on his own behalf or on behalf of any other person,
firm, partnership, corporation or other entity, solicit, induce, or attempt
to
cause any employee or consultant of Griffon or its Affiliates to leave Griffon
or the Affiliate; provided however, that any general solicitations for
employment not specifically directed at Griffon shall not be deemed to be in
breach of this provision.
(b) Non-Competition.
During
the Employment Term and for twelve (12) months following any termination of
Xxxxxx’x employment with Griffon, Xxxxxx shall not, directly or indirectly,
engage, without the consent of Griffon, in any business or activity, whether
as
an employee, consultant, partner, principal, agent, representative, stockholder
or in any other capacity, or render any services or provide any advice to any
business, activity, person or entity which competes with any of the businesses
of Griffon; provided,
however,
that
Xxxxxx’x ownership of not more than five percent (5%) of the stock of any
publicly-traded corporation shall not be a violation of this Section
13.
Xxxxxx
acknowledges that his skills are such that he can be gainfully employed in
noncompetitive employment and that the agreement not to compete will in no
way
prevent him from earning a living.
(c) Inventions.
Each
Invention (as defined below) made, conceived or first actually reduced to
practice by Xxxxxx, whether alone or jointly with others, during the Employment
Term, shall be promptly disclosed in writing to the Board. Such report shall
be
sufficiently complete in technical detail and appropriately illustrated by
sketch or diagram to convey to one skilled in the art of which the invention
pertains, a clear understanding of the nature, purpose, operations, and, to
the
extent known, the physical, chemical, biological or other characteristics of
the
Invention. As used in this Agreement, “Invention” means any invention, discovery
or innovation with regard to any facet of Griffon’s business whether or not
patentable, made, conceived, or first actually reduced to practice by Xxxxxx,
alone or jointly with others, in the course of, in connection with, or as a
result of service as an employee of Griffon, including any art, method, process,
machine, manufacture, design or composition of matter, or any improvement
thereof. Each Invention, as herein defined, shall be the sole and exclusive
property of Griffon. Xxxxxx agrees to execute an assignment to Griffon or its
nominee of Xxxxxx’x entire right, title and interest in and to any Invention,
without compensation beyond that provided in this Agreement. Xxxxxx further
agrees, upon the request of Griffon and at its expense, that Xxxxxx will execute
any other instrument and document necessary or desirable in applying for and
obtaining patents in the United States and in any foreign country with respect
to any Invention. Xxxxxx further agrees, to the extent it does not substantially
interfere with any subsequent employment or business activities, whether or
not
Xxxxxx is then an employee of Griffon, to reasonably cooperate to the extent
and
in the manner reasonably requested by Griffon in the prosecution or defense
of
any claim involving a patent covering any Invention or any litigation or other
claim or proceeding involving any Invention covered by this Agreement, but all
expenses thereof shall be paid by Griffon.
(d) Xxxxxx
understands and agrees that the rights and obligations set forth in this
Section
13
shall
extend beyond the Employment Term.
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15
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14.
REMEDIES/SANCTIONS.
Xxxxxx
acknowledges that the services he is to render under this Agreement are of
a
unique and special nature, the loss of which cannot reasonably or adequately
be
compensated for in monetary damages, and that irreparable injury and damage
may
result to Griffon in the event of any breach of this Agreement or default by
Xxxxxx. Because of the unique nature of the Confidential Information and the
importance of the prohibitions against competition and solicitation, Xxxxxx
further acknowledges and agrees that Griffon will suffer irreparable harm if
he
fails to comply with his obligations under Section
12
above
and/or Section
13
above
and that monetary damages would be inadequate to compensate Griffon for any
such
breach. Accordingly, Xxxxxx agrees that, in addition to any other remedies
available to either Party at law, in equity or otherwise, Griffon will be
entitled to seek injunctive relief or specific performance to enforce the terms,
or prevent or remedy the violation, of any provisions of this
Agreement.
15.
WITHHOLDING
TAXES.
All
payments to Xxxxxx or under this Agreement shall be subject to withholding
on
account of federal, state and local taxes as required by law.
16.
INDEMNIFICATION
AND LIABILITY INSURANCE.
During
the Employment Term, Griffon shall provide Xxxxxx with a standard
indemnification agreement which shall provide that Xxxxxx shall be indemnified
to the fullest extent permitted by applicable law and shall provide for the
advancement of expenses if Xxxxxx shall have delivered in writing to Griffon
(a)
an undertaking to reimburse Griffon for expenses with respect to which Xxxxxx
is
not entitled to indemnification; and (b) an affirmation of his good faith belief
that the standard of conduct necessary for indemnification by Griffon has been
met. Griffon shall cause Xxxxxx to be covered at all times during the Employment
Term by directors’ and officers’ liability insurance as Griffon shall from time
to time obtain, but in no event shall Xxxxxx’x coverage be less than that
provided to any other director or officer of Griffon. Griffon shall continue
to
indemnify Xxxxxx as provided above and maintain such liability insurance
coverage for him after the Employment Term for any claims that may be made
against him with respect to his service as a director or officer of Griffon.
In
the event Griffon does not utilize a standard indemnification agreement, Griffon
shall indemnify Xxxxxx to the fullest extent permitted by applicable
law.
17.
ASSIGNABILITY;
BINDING NATURE.
This
Agreement shall be binding upon and inure to the benefit of the Parties and
their respective successors, heirs (in the case of Xxxxxx) and assigns. No
rights or obligations of the Parties under this Agreement may be assigned
without the consent of both Parties, except by will or the laws of descent
and
distribution.
18.
REPRESENTATIONS.
The
Parties respectively represent and warrant that each is fully authorized and
empowered to enter into this Agreement and that the performance of its or his
obligations, as the case may be, under this Agreement will not violate any
agreement between such Party and any other person, firm or organization. Griffon
represents and warrants that this Agreement has been duly authorized by all
necessary corporate action and is valid, binding and enforceable in accordance
with its terms.
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16
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19.
ENTIRE
AGREEMENT.
Except
to
the extent otherwise provided herein, this Agreement contains the entire
understanding and agreement between the Parties concerning the subject matter
hereof and supersedes any prior agreements, whether written or oral, between
the
Parties concerning the subject matter hereof. Unless otherwise expressly
determined by the Board or the Committee in its sole discretion after the
Commencement Date, payments and benefits provided under this Agreement are
in
lieu of any payments or other benefits under any severance program or policy
of
Griffon to which Xxxxxx would otherwise be entitled.
20.
AMENDMENT
OR WAIVER.
No
provision in this Agreement may be amended unless such amendment is agreed
to in
writing and signed by both Xxxxxx and an authorized officer of Griffon. No
waiver by either Party of any breach by the other Party of any condition or
provision contained in this Agreement to be performed by such other Party shall
be deemed a waiver of a similar or dissimilar condition or provision at the
same
or any prior or subsequent time. Any waiver must be in writing and signed by
the
Party to be charged with the waiver. No delay by either Party in exercising
any
right, power or privilege hereunder shall operate as a waiver
thereof.
21.
SEVERABILITY.
In
the
event that any provision or portion of this Agreement shall be determined to
be
invalid or unenforceable for any reason, in whole or in part, the remaining
provisions of this Agreement shall be unaffected thereby and shall remain in
full force and effect to the fullest extent permitted by law.
22.
SURVIVAL.
The
respective rights and obligations of the Parties hereunder shall survive the
termination of this Agreement, the termination of the Employment Term and the
termination of Xxxxxx’x employment with Griffon for any reason, to the extent
necessary to the intended provision of such rights and the intended performance
of such obligations.
23.
GOVERNING
LAW/JURISDICTION.
This
Agreement shall be governed by and construed and interpreted in accordance
with
the laws of New York, without reference to principles of conflict of
laws.
24.
NO
CONFLICTS.
Xxxxxx
represents that (a) his employment hereunder and performance of his duties
hereunder will not conflict with or result in the breach by him of any agreement
to which he is a party or by which he may be bound; (b) his employment with
Griffon will not violate any non-solicitation or other similar covenant or
agreement by which he is bound; and (c) in connection with his employment with
Griffon, he will not use any confidential or proprietary information he may
have
obtained in connection with his employment with any prior employer.
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17
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25.
ARBITRATION;
COSTS OF DISPUTES.
If
any
contest or dispute arising with respect to the terms of employment under this
Agreement, such contest or dispute shall be submitted to binding arbitration
for
resolution in New York, New York, in accordance with the Employment Dispute
Resolution Rules of the American Arbitration Association then in effect. In
the
event of such dispute, Griffon shall pay all of the legal fees and expenses
incurred by Xxxxxx in such dispute, if Xxxxxx substantially prevails in such
contest or dispute.
26.
NOTICES.
Any
notice given to either Party shall be in writing and shall be deemed to have
been given when delivered either personally, by fax, by overnight delivery
service (such as Federal Express) or sent by certified or registered mail
postage prepaid, return receipt requested, duly addressed to the Party concerned
at the address indicated below or to such changed address as the Party may
subsequently give notice of.
If
to
Griffon or the Board:
Griffon
Corporation
000
Xxxxxxx Xxxxxxxxxx
Xxxxxxx,
XX 00000-0000
Attention:
Xxxxxxx Xxxxxx
FAX:
(000) 000-0000
With
a
copy to:
Xxxxxxx
X. Xxxxxxxxxx, Esq.
Dechert
LLP
00
Xxxxxxxxxxx Xxxxx
Xxx
Xxxx,
XX 00000
If
to
Xxxxxx:
Xxxxxx
X. Xxxxxx
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
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18
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With
a
copy to:
Xxxxx
X. Xxxxxxxxx, Esq.
Akin
Gump Xxxxxxx Xxxxx & Xxxx
LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000-0000
27.
HEADINGS.
The
headings of the sections contained in this Agreement are for convenience only
and shall not be deemed to control or affect the meaning or construction of
any
provision of this Agreement.
28.
COUNTERPARTS.
This
Agreement may be executed in counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts together shall
constitute one and the same instrument.
[Remainder
of Page Intentionally Left Blank]
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19
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EXECUTION
COPY
IN
WITNESS WHEREOF,
the
undersigned have executed this Agreement as of the date set forth
above.
| GRIFFON CORPORATION | ||
|
By:
|
/s/
Xxxxxxx X. Xxxxxx
|
|
|
Xxxxxxx X. Xxxxxx , Vice-President
Chief Financial Officer
|
||
| EXECUTIVE | ||
|
By:
|
/s/
Xxxxxx X. Xxxxxx
|
|
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EXHIBIT
A
General
Release
IN
CONSIDERATION OF good and valuable consideration, the receipt of which is hereby
acknowledged, and in consideration of the terms and conditions contained in
the
Employment Agreement, dated as of March __, 2008, (the “Agreement”) by and
between Xxxxxx X. Xxxxxx (the “Executive”) and Griffon Corporation (the
“Company”), the Executive on behalf of himself and his heirs, executors,
administrators, and assigns, releases and discharges the Company and its past
present and future subsidiaries, divisions, affiliates and parents, and their
respective current and former officers, directors, employees, agents, and/or
owners, and their respective successors, and assigns and any other person or
entity claimed to be jointly or severally liable with the Company or any of
the
aforementioned persons or entities (the “Released Parties”) from any and all
manner of actions and causes of action, suits, debts, dues, accounts, bonds,
covenants, contracts, agreements, judgments, charges, claims, and demands
whatsoever (“Losses”) which the Executive and his heirs, executors,
administrators, and assigns have, had, or may hereafter have, against the
Released Parties or any of them arising out of or by reason of any cause,
matter, or thing whatsoever from the beginning of the world to the date hereof,
relating to the Executive’s employment by the Company and the cessation thereof,
and any and all matters arising under any federal, state, or local statute,
rule, or regulation, or principle of contract law or common law relating to
the
Executive’s employment by the Company and the cessation thereof, including but
not limited to, the Family and Medical Leave Act of 1993, as amended,
29
U.S.C. §§ 2601 et seq.,
Title
VII of the Civil Rights Act of 1964, as amended,
42
U.S.C. §§ 2000 et seq.,
the
Age Discrimination in Employment Act of 1967, as amended,
29
U.S.C. §§ 621 et seq.
(the
“ADEA”), the Americans with Disabilities Act of 1990, as amended,
42
U.S.C. §§ 12101 et seq.,
the
Worker Adjustment and Retraining Notification Act of 1988, as amended,
29
U.S.C. §§2101 et seq.,
the
Employee Retirement Income Security Act of 1974, as amended,
29
U.S.C. §§ 1001 et seq.,
the
New
York State and New York City Human Rights Laws, the New York Labor
Laws,
and any
other equivalent or similar federal, state, or local statute; provided, however,
that the Executive does not release or discharge the Released Parties from
(i)
any rights to any payments, benefits or reimbursements due to the Executive
under the Agreement; (ii) any rights of the Executive to indemnification under
the Agreement (or the standard form of agreement, if any, entered into with
the
Executive pursuant to the Agreement) or under any applicable directors’ and
officers’ liability insurance policies maintained by the Company; (iii) any
rights to any vested benefits due to the Executive under any employee benefit
plans sponsored or maintained by the Company; or (iv) any rights of the
Executive as a shareholder of the Company. It is understood that nothing in
this
general release is to be construed as an admission on behalf of the Released
Parties of any wrongdoing with respect to the Executive, any such wrongdoing
being expressly denied.
The
Executive represents and warrants that he fully understands the terms of this
General Release, that he has been encouraged to seek, and has sought, the
benefit of advice of legal counsel, and that he knowingly and voluntarily,
of
his own free will, without any duress, being fully informed, and after due
deliberation, accepts its terms and signs below as his own free act. Except
as
otherwise provided herein, the Executive understands that as a result of
executing this General Release, he will not have the right to assert that the
Company or any other of the Released Parties unlawfully terminated his
employment or violated any of his rights in connection with his employment
or
otherwise.
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21
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The
Executive further represents and warrants that he has not filed, and will not
initiate, or cause to be initiated on his behalf any complaint, charge, claim,
or proceeding against any of the Released Parties before any federal, state,
or
local agency, court, or other body relating to any claims barred or released
in
this General Release thereof, and will not voluntarily participate in such
a
proceeding. However, nothing in this General Release shall preclude or prevent
the Executive from filing a claim, which challenges the validity of this General
Release solely with respect to the Executive’s waiver of any Losses arising
under the ADEA. The Executive shall not accept any relief obtained on his behalf
by any government agency, private party, class, or otherwise with respect to
any
claims covered by this General Release.
The
Executive may take twenty-one (21) days to consider whether to execute this
General Release. Upon the Executive’s execution of this general release, the
Executive will have seven (7) days after such execution in which he may revoke
such execution. In the event of revocation, the Executive must present written
notice of such revocation to the office of the Company. If seven (7) days pass
without receipt of such notice of revocation, this General Release shall become
binding and effective on the eighth (8th) day after the execution hereof (the
“Effective Date”).
INTENDING
TO BE LEGALLY BOUND, I hereby set my hand below:
|
|
|||
|
Xxxxxx X. Xxxxxx
|
|||
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