Exhibit 99(e)(3)
EXECUTIVE
EMPLOYMENT AGREEMENT
This agreement (the "Agreement") made and entered into this 29th day of
November, 2000 by and between Xxxxxx Worldwide, Inc., a Delaware corporation
("Xxxxxx") and Xxxxxx X. Xxxxxxxx, an individual resident of Xxxxxx County,
Georgia (the "Executive"), residing at 0000 Xxxxxxx Xxxx Xxxx, X.X., Xxxxxxx,
Xxxxxxx 00000.
WITNESSETH THAT:
WHEREAS, the Executive is currently employed by Lanier as Chief Executive
Officer ("CEO") and is party to an employment agreement between the Executive
and Xxxxxx, dated as of November 8, 1999 and an Executive Severance Agreement
between the Executive and Xxxxxx, dated as of October 1, 1999 (together, the
"Executive Agreements"); and
WHEREAS, LW Acquisition Corp., a subsidiary of Ricoh Corporation ("Ricoh"),
will acquire and be merged into Xxxxxx pursuant to the Agreement and Plan of
Merger, dated November 29, 2000 among Xxxxxx, Ricoh Corporation and LW
Acquisition Corp (the "Merger Agreement"), with Xxxxxx continuing thereafter as
a wholly-owned subsidiary of Ricoh; and
WHEREAS, the Executive has been rendering valuable services on behalf of
Xxxxxx, and it is the desire of Lanier to retain the Executive's continued
services and loyalty in the future by entering into this Agreement; and
WHEREAS, Xxxxxx and the Executive desire to enter into this Agreement in
order to reduce the rights and obligations of the parties to writing;
NOW, THEREFORE, Xxxxxx and the Executive in consideration of the premises
and of the mutual and reciprocal covenants and agreements hereinafter contained,
do hereby contract and agree as follows, to-wit:
I. EMPLOYMENT
Xxxxxx hereby agrees to continue to employ the Executive as CEO or co-CEO,
as determined by the Board of Directors (the "Board"), and the Executive hereby
agrees to continue in the employment of Xxxxxx and agrees to perform such duties
as may be determined and assigned to him from time to time by the Board
consistent with the position of CEO. During the Term (as defined in section II
below), the Executive shall not, without the written approval of the Board,
directly or indirectly, accept employment or compensation from, or perform
services of any nature for any business enterprise other than Xxxxxx or separate
entities owned or controlled by Xxxxxx. Notwithstanding the foregoing, the
Executive shall be permitted, subject to the prior written approval of the
Board, to serve as a director on the boards of directors of other corporations
and retain any compensation paid therefor. Upon the Merger (as hereinafter
defined), this Agreement will supersede any and all existing agreements, oral or
written, including,
without limitation, the Executive Agreements, between Xxxxxx and the Executive
with regard to the matters set forth herein, and the Executive hereby waives his
rights to any payments or benefits under the terms of those agreements.
II. TERM
This Agreement is contingent upon and shall become effective upon the
consummation of the merger (the "Merger") of LW Acquisition Corp. with and into
Xxxxxx pursuant to the Merger Agreement. Prior to the consummation of the
Merger, the Executive Agreements shall remain in full force and effect and shall
continue to govern the terms of the Executive's employment with Lanier. In the
event the Merger Agreement is terminated, or the Merger is not consummated prior
to March 31, 2001, this Agreement shall be void and the terms hereof shall be of
no force or effect.
Unless earlier terminated as provided herein, the Executive's employment
under this Agreement shall be for a period commencing on the date of the Merger
(the "Effective Date") and ending on the six-month anniversary of the Effective
Date (the "Term").
III. COMPENSATION
A. SALARY. In consideration of all services to be rendered by the Executive
in any capacity hereunder for Xxxxxx during the term of this Agreement, and in
consideration of the covenants and agreements of the Executive herein contained,
Xxxxxx agrees to pay the Executive during the Term current compensation of
$1,000,000 PAYABLE over the Term in substantially equal biweekly payments. All
compensation paid to the Executive shall be subject to withholding and other
employment taxes imposed by applicable law.
B. PARTICIPATION IN EMPLOYEE BENEFIT PLANS. The Executive shall be
permitted during the Term, to the extent eligible, to participate in any group
life, medical, disability insurance plan, health program, dental program,
vacation benefit or other fringe benefit plan of Xxxxxx, which participation
shall be on a basis that is at least equivalent to that which is then made
available to other senior executives of Xxxxxx.
C. CLUB MEMBERSHIP. Xxxxxx shall pay or reimburse the Executive for annual
membership fees incurred or paid by the Executive for one social or dining club
membership selected by the Executive and approved by the Board.
D. FINANCIAL PLANNING. Xxxxxx shall pay or reimburse the Executive for
expenses not to exceed $5,000.00 incurred or paid by the Executive for financial
planning and/or tax preparation services.
E. ANNUAL PHYSICAL EXAMINATION. Xxxxxx shall pay or reimburse the Executive
for expenses incurred or paid by the Executive for an annual physical
examination.
F. CONTRIBUTION TO SERP PLANS. Within thirty days following the
consummation of the Tender Offer (within the meaning of Section 2.01 of the
Merger Agreement), Ricoh shall fully fund the trust agreement created pursuant
to the Xxxxxx Supplemental
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Executive Retirement Plan between Xxxxxx and SunTrust Bank, dated September 1,
2000 and the trust agreement created pursuant to the Xxxxxx Supplemental
Executive Retirement Savings Plan between Xxxxxx and X. Xxxx Price Trust
Company, dated November 20, 2000 (collectively, the "Xxxxxx SERP Plans").
IV. TERMINATION OF EMPLOYMENT
A. TERMINATION FOR "CAUSE". If the Executive's employment with Xxxxxx is
terminated by Lanier for "Cause," said termination shall become effective upon
the date Xxxxxx gives the Executive written notice thereof and any and all
amounts of compensation which may be due thereafter pursuant to Section III of
this Agreement shall be immediately forfeited. "Cause" means as determined by
the Board in good faith that Executive has committed a crime involving
embezzlement, fraud and/or gross misconduct. Cause shall not exist unless and
until Xxxxxx has delivered to the Executive a copy of a resolution duly adopted
by three-quarters (3/4) of the entire Board, at a meeting of the Board called
and held for such purpose, fording that in the good faith opinion of the Board
that one or more of the foregoing events has occurred and specifying the
particulars thereof in detail. Xxxxxx must notify the Executive of any event
constituting Cause within 90 days following Xxxxxx'x knowledge of its existence
or such event shall not constitute Cause under this Agreement.
In the event of a termination pursuant to this Section IV-A (including for
this purpose, a termination by the Executive without "Good Reason"), Xxxxxx
shall pay to the Executive on the date of termination, a lump-sum cash amount
equal to the sum of (1) the Executive's base salary through the date of
termination, to the extent not theretofore paid, (2) any benefits or awards
which have been earned or become payable pursuant to the terms of any
compensation plan but which have not yet been paid to the Executive, and (3) any
compensation previously deferred by the Executive other than pursuant to a
tax-qualified plan (together with any interest and earnings thereon) and any
accrued vacation pay, in each case to the extent not theretofore paid.
B. TERMINATION WITHOUT "CAUSE". Xxxxxx may terminate the Executive's
employment hereunder at any time without "Cause" by giving at least 30 days'
written notice to the Executive of its intention to do so. In the event such
notice of termination is given, said 30 day period shall be counted as a period
of regular employment for all purposes under this Agreement unless expressly
provided otherwise, including without limitation the payment of compensation
pursuant to Section III-A above. In the event of a termination pursuant to this
Section IV-B (including for this purpose, a termination due to the expiration of
the Term), Lanier shall pay to the Executive on the date of termination, a
lump-sum cash amount equal to the sum of
1) The Executive's base salary through the date of termination,
to the extent not theretofore paid and from the date of
termination through the remainder of the Term;
2) Any compensation previously deferred by the Executive other
than pursuant to a tax-qualified plan (together with any
interest and earnings
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thereon) and any accrued vacation pay, in each case to the
extent not theretofore paid;
3) A severance payment in the amount of $2,800,000 (the
"Severance Payment");
If Executive is terminated without Cause, Lanier shall continue to provide,
for a period of two years following the date of termination but in no event
after the Executive's attainment of age 65, the Executive (and his dependents,
if applicable) with the same level of medical, dental, life insurance and any
other similar benefits in place as of the date of termination upon substantially
the same terms and conditions (including contributions required by the Executive
for such benefits) as existed immediately prior to the Executive's date of
termination; PROVIDED, THAT, if the Executive cannot continue to participate in
Xxxxxx'x plans providing such benefits, Xxxxxx shall otherwise provide such
benefits on the same after-tax basis as if continued participation had been
permitted or shall pay the Executive a lump sum in cash equal to the then
present value of such benefits. Notwithstanding the foregoing, in the event the
Executive becomes employed with another employer and becomes eligible to receive
welfare benefits from such employer, the welfare benefits described herein shall
be secondary to the benefits provided by the other employer during the period of
the Executive's eligibility, but only to the extent that Xxxxxx reimburses the
Executive for any increased cost and provides any additional benefits necessary
to give the Executive the benefits provided hereunder.
The amounts paid pursuant to this Section IV-A shall be in lieu of any
other amount of severance relating to salary or bonus continuation to be
received by the Executive upon termination of employment of the Executive under
any severance plan or policy of Xxxxxx, other than amounts to which Executive is
entitled pursuant to the Xxxxxx SERP Plans and any tax-qualified plans with
respect to which Executive shall be entitled to be paid.
C. TERMINATION BY THE EXECUTIVE FOR "GOOD REASON". "Good Reason" means,
without the Executive's express written consent, the occurrence of any of the
following events:
1) the assignment to the Executive of any additional duties or
responsibilities inconsistent in any material adverse respect
with the Executive's position as CEO or co-CEO, as the case may
be, or a material adverse change in the Executive's reporting
responsibilities or titles (other than a change which occurs
solely as a result of Xxxxxx'x becoming a wholly-owned
subsidiary of another business entity);
2) a reduction in the Executive's compensation as provided in
Section III hereof;
3) any requirement that the Executive be based anywhere more
than 50 miles from the facility where the Executive is located
as of the Effective Date or travel on Xxxxxx business to an
extent substantially greater than
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immediately prior to the Effective Date; provided that
Executive acknowledges that he may be required to make an
occasional trip to Japan during the Term;
4) the failure to (i) continue in effect any employee benefit
plan or compensation plan in which the Executive is
participating, unless the Executive is permitted to participate
in the most favorable employee benefit plans, practices,
programs and policies in effect for all other senior
executives, or the taking of any action by Xxxxxx which would
adversely affect the Executive's participation in or reduce the
Executive's benefits under any such plan except such action or
reduction as is uniformly applied to all other senior
executives, (ii) provide the Executive and the Executive's
dependents with welfare benefits in accordance with the most
favorable plans, practices, programs and policies or to provide
substantially comparable benefits at a substantially comparable
cost to the Executive, unless the Executive and the Executive's
dependents are provided with the most favorable welfare benefit
plans, practices, programs and policies in effect for all other
senior executives, (iii) provide fringe benefits in accordance
with the most favorable plans, practices, programs and, unless
the Executive is provided with the most favorable fringe
benefit plans, practices, programs and policies in effect for
all other senior executives, or (iv) provide the Executive with
paid vacation in accordance with the most favorable plans,
policies, programs and practices;
5) the failure of Xxxxxx to obtain the assumption of this
Agreement from any successor; or
6) any purported termination of the Executive's employment
otherwise than as expressly permitted hereby.
An isolated, insubstantial and inadvertent action taken in good faith and
which is remedied by Lanier within fifteen days after receipt of notice thereof
given by the Executive shall not constitute Good Reason. The Executive must
provide notice of termination of employment within 90 days of the Executive's
knowledge of an event constituting Good Reason or such event shall not
constitute Good Reason under this Agreement.
A termination for Good Reason pursuant to this Section IV-C shall be
treated for all purposes as a termination without Cause pursuant to Section IV-B
and the provisions of Section IV-B shall apply to such termination.
D. DEATH OR TOTAL DISABILITY OF THE EXECUTIVE. Upon the death or total
disability of the Executive during the Term, this Agreement shall terminate, and
the Executive, or his legal or personal representative or his designated
beneficiary, or his estate in the absence of an effective beneficiary
designation, as the case may be, shall receive the then current monthly portion
of his annual current compensation provided for in Section III-A
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above prorated through the date of the Executive's death or total disability. In
addition, in the event this Agreement is terminated under this Section IV-D,
Xxxxxx shall, within 30 days of the date of termination, pay the Severance
Payment to the Executive or the Executive's designated beneficiary (as
applicable), or his estate in the absence of an effective beneficiary
designation.
E. CERTAIN ADDITIONAL PAYMENTS BY XXXXXX.
1) If Xxxxxx or Xxxxxx'x accountants determine that the
payments called for under this Agreement or any other payments
or benefits made available to the Executive by Lanier or an
affiliate of Xxxxxx (collectively or individually, the
"Payments") will result in the Executive being subject to an
excise tax ("Excise Tax") under Section 4999 of the Internal
Revenue Code of 1986, as amended (the "Code"), or if an Excise
Tax is assessed against the Executive as a result of such
payments or other benefits, Xxxxxx shall make a Gross-Up
Payment to or on behalf of the Executive as and when such
determinations) and assessment(s), as appropriate, are made,
subject to the conditions of this Section IV-E(1). A "Gross-Up
Payment" shall mean a payment to or on behalf of the Executive
that shall be sufficient to pay (1) any Excise Tax in full, (2)
any federal, state and local income tax and Social Security or
other employment tax on the payment made to pay such Excise Tax
as well as any additional Excise Tax on the Gross-Up Payment,
and (3) any interest and penalties assessed by the Internal
Revenue Service on the Executive. Any determination under this
Section IV-E(1) by Xxxxxx or Xxxxxx' s accountants shall be
made in accordance with Section 2806 of the Code and any
applicable related regulations (whether proposed, temporary or
final) and any related Internal Revenue Service rulings and any
related case law. The Executive shall take such action (other
than waiving the Executive' s right to any payments or
benefits) as Xxxxxx reasonably requests under the circumstances
to mitigate or challenge such tax. If Xxxxxx reasonably
requests that the Executive take action to mitigate or
challenge, or to mitigate and challenge, any such tax or
assessment and the Executive complies with such request, Xxxxxx
shall provide the Executive with such information and such
expert advice and assistance from Xxxxxx' s accountants,
lawyers and other advisors as the Executive may reasonably
request, and Xxxxxx shall pay for all expenses incurred in
effecting such compliance and any related fines, penalties,
interest and other assessments.
2) Subject to the provisions of Section IV-E(1), all
determinations required to be made under this Section IV-E,
including whether and when a Gross-Up Payment is required and
the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by a
public accounting firm that is agreed upon by Xxxxxx and the
Executive (the "Accounting Firm") which shall provide detailed
supporting calculations both to Xxxxxx and the Executive within
30 business days of the receipt of notice from Lanier or the
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Executive that there has been a payment that could trigger a
Gross-Up Payment or such earlier time as is requested by Lanier
(collectively, the "Determination"). All fees and expenses of
the Accounting Firm shall be born solely by Lanier and Lanier
shall enter into any agreement requested by the Accounting Firm
in connection with the performance of the services hereunder.
The Gross-Up Payment under this Section IV-E with respect to
any Payments shall be made no later than 60 days following such
payments. If the Accounting Firm determines that no Excise Tax
is payable by the Executive, it shall furnish the Executive
with a written opinion to such effect, and to the effect that
failure to report the Excise Tax, if any, on the Executive's
applicable federal income tax return will not result in the
imposition of a negligence or similar penalty. The
Determination by the Accounting Firm shall be binding upon
Xxxxxx and the Executive. 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 Gross-Up Payments which will
not have been made by Lanier should have been made
("Underpayment") or Gross-Up Payments are made by Xxxxxx which
should not have been made ("Overpayment"), consistent with the
calculations required to be made hereunder. In the event that
the Executive thereafter is required to make payment of any
additional Excise Tax, the Accounting Firm 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
Lanier to or for the benefit of the Executive. In the event the
amount of the Gross-Up Payment exceeds the amount necessary to
reimburse the Executive for his Excise Tax, the 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) of the Code) shall be
promptly paid by the Executive to or for the benefit of Xxxxxx.
The Executive shall cooperate, to the extent the Executive's
expenses are reimbursed by Xxxxxx, with any reasonable requests
by Xxxxxx in connection with any contests or disputes with the
Internal Revenue Service in connection with the Excise Tax.
F. RELEASE. Notwithstanding any other provision of this Agreement to the
contrary, the Executive acknowledges and agrees that any and all payments to
which the Executive is entitled under this Section IV are conditioned upon and
subject to the Executive's execution of a general waiver and release, in such
reasonable and customary form as shall be prepared by Xxxxxx, of all claims the
Executive may have against Lanier, except as to matters covered by provisions of
this Agreement which expressly survive the termination of this Agreement.
V. RESTRICTIVE COVENANTS
For and in consideration of Xxxxxx'x employment of the Executive pursuant
to Section I, and of Xxxxxx'x entering into this Agreement and the payment of
compensation
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and other benefits set forth herein, the Executive hereby enters into the
following restrictive covenants:
A. NONCOMPETE/NONSOLICITATION. In consideration of the continued employment
of the Executive by Lanier, of the premises and the mutual promises and
covenants contained in the Agreement, and of other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Executive agrees that during the Term of his employment with Xxxxxx and for a
period of two years after termination, whether such termination is at the
instance of Lanier or the Executive, the Executive will not, directly or
indirectly, on the Executive's own behalf or for others, (i) manage, operate,
join, control, or participate in, as an officer, director, employee, owner,
partner, consultant, or otherwise, any business entity that is engaged in a
business that is competitive with the business of Xxxxxx, or (ii) recruit or
hire, or induce, influence, or seek to induce or influence, any person engaged
as an employee, representative, agent, independent contractor or otherwise by
Lanier, to terminate his or her relationship with Xxxxxx. Xxxxxx does business
throughout the world and this provision shall have worldwide application.
Nothing herein contained shall prohibit the Executive from engaging in any
activity or business that is not competitive with the business conducted by
Xxxxxx during the Executive's employment with Lanier or from investing his funds
in securities of an issuer if the securities of such issuer are listed for
trading on a national securities exchange or are traded in the over-the-counter
market and the Executive's holdings therein represent less than one percent (1%)
of the total number of shares or principal amount of the securities of such
issuer outstanding.
B. CONFIDENTIALITY. The Executive holds in a fiduciary capacity for the
benefit of Xxxxxx all information, knowledge and data relating to or concerned
with Xxxxxx'x operations, sales, marketing, customers, sources of supply,
sources of labor, business and financial information and employees. The
Executive will not at any time, directly or indirectly, use or disclose any such
trade secrets or confidential information belonging to Xxxxxx, of which the
Executive acquired knowledge during and on account of the Executive's employment
by Lanier other than to Xxxxxx or its designees and employees or except as may
otherwise be required in connection with the business and affairs of Xxxxxx. The
Executive recognizes and acknowledges that Xxxxxx'x trade secrets and
confidential information constitute valuable, special, and unique assets of
Xxxxxx and any disclosure thereof contrary to the terms of this Agreement would
cause substantial loss of competitive advantage and other serious injury to
Xxxxxx, and that the knowledge of trade secrets and confidential information may
be inevitably disclosed by the Executive if he obtains a position with a
competitor company. The Executive further acknowledges that under such
circumstances, it would be extremely difficult for him not to disclose, rely on
or use Xxxxxx'x trade secrets and confidential information, and he could not be
depended upon to voluntarily avoid this, thereby causing a threat of substantial
and irreparable harm to Xxxxxx. The Executive further acknowledges that the
experience and the close relationships with customers of Xxxxxx acquired by the
Executive while employed by Xxxxxx would also enable the Executive to cause
substantial harm to Lanier should the Executive compete with Xxxxxx in its
business before the expiration of a reasonable time after termination of the
Executive's employment with Lanier.
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C. REASONABLENESS. The Executive acknowledges and agrees that the
covenants contained in Sections V-A herein are reasonable in time, geographic
area, scope and in all other respects; that such covenants shall be construed as
agreements independent of each other and of any provision of this or any other
contract between the parties hereto; that should any part or provision of any
covenant be held invalid, void or unenforceable in any court of competent
jurisdiction, such invalidity, voidness or unenforceability shall not render
invalid, void or unenforceable any other part or provision of this Agreement. If
any portion of the foregoing provisions is found to be invalid or unenforceable
by a court of competent jurisdiction because its duration, the territory, the
definition of activities or the definition of information covered is considered
to be invalid or unreasonable in scope, the invalid or unreasonable term shall
be modified or redefined, or a new enforceable term provided, such that the
intent of Xxxxxx and the Executive in agreeing to the provisions of this
Agreement will not be impaired and the provision in question shall be
enforceable to the fullest extent of the applicable laws; and that the existence
of any claim or cause of action by the Executive against Xxxxxx, whether
predicated upon this or any other contract, shall not constitute a defense to
the enforcement by Xxxxxx of said covenants.
D. PROPRIETARY MATERIALS. All discoveries made, inventions created, and
all ideas, concepts, designs, formulas, proposals, projects, progress, products,
processes, systems, techniques, and improvements of whatever kind conceived or
developed by the Executive directly or indirectly, alone or jointly with others,
in the course of employment, whether during normal business hours or otherwise
(hereinafter "Proprietary Materials"), shall be and remain the sole and
exclusive property of Xxxxxx. The Executive shall fully and promptly disclose to
Xxxxxx all such Proprietary Materials, together with all information and data
necessary to impart a full understanding of the same. Upon request and without
further compensation from Xxxxxx, but at Xxxxxx'x expense, the Executive will
(i) execute, acknowledge, and deliver all such papers and instruments as Xxxxxx
may xxxx necessary in order for it to perfect, secure, and maintain all rights,
title, and interest in and to any Proprietary Materials, including, without
limitation, any and all patent, copyright, trademark, and trade secrets, rights
and protections in the same, and (ii) aid and assist Lanier in any litigation
involving the maintenance or establishment of such rights and protections,
including, if necessary, testifying on behalf of Xxxxxx.
E. RETURN OF MATERIALS. Upon the request of Xxxxxx and, in any event,
upon the termination of the Executive's employment with Xxxxxx or any of its
subsidiaries or affiliated companies, the Executive shall deliver to Xxxxxx all
memoranda, notes, records, manuals or other documents (including, but not
limited to, written instruments, voice or data recordings, or computer tapes,
disks or files of any nature), including all copies of such materials and all
documentation prepared or produced in connection therewith, pertaining to the
performance of the Executive's services for Xxxxxx or any of its subsidiaries or
affiliated companies, the business of Xxxxxx or any of its subsidiaries or
affiliated companies, or containing trade secrets or confidential information
regarding the business of Xxxxxx or of any of its subsidiaries or affiliated
companies' businesses, whether made or compiled by the Executive or furnished to
the Executive by virtue of his employment with Lanier or any of its subsidiaries
or affiliated companies.
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F. REMEDIES. If the Executive commits a breach, or threatens to commit a
breach, of any of the provisions of this Section V, Lanier shall have the
following rights and remedies:
1) The right and remedy to have the provision of this Section V
enforced by any court having equity jurisdiction, it being
acknowledged and agreed that any such breach or threatened
breach will cause irreparable injury to Xxxxxx and that money
damages will not provide an adequate remedy to Xxxxxx; and
2) The right and remedy to require the Executive to account for
and pay over to Xxxxxx all compensation, profits, movies,
accruals, increments, or other benefits (hereinafter
collectively referred to as the "Benefits") derived or received
by the Executive as the result of any transactions constituting
a breach of any of the provisions of this Section V, the
Executive hereby agreeing to account for and pay over the
Benefits to Xxxxxx.
VI. INDEMNIFICATION
To the fullest extent permitted by law, Xxxxxx shall indemnify the
Executive (including the advancement of expenses) for any judgments, fines,
amounts paid in settlement and reasonable expenses, including attorneys' fees,
incurred by the Executive in connection with the defense of any lawsuit or other
claim to which he is made a party by reason of being an officer, director or
employee of Xxxxxx or any of its affiliates during the Employment period and for
at least three (3) years thereafter, Lanier shall make every reasonable effort
to maintain customary director and officer liability insurance covering the
Executive for acts and omissions during the Term. Any termination of the
Executive's employment or this Agreement shall have no effect on the continuing
operation of this Section VI.
VII. MISCELLANEOUS
A. REPRESENTATION OF EXECUTIVE. Executive represents and warrants that he
has full power and authority to enter into this Agreement and that this
Agreement is the valid and binding obligation of Executive enforceable against
Executive in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, or other equitable principles. The execution,
delivery and performance of this Agreement by Executive will not conflict with,
or result in a breach of, any other agreement or understanding to which
Executive is a party.
B. REPRESENTATION OF XXXXXX. Xxxxxx has full corporate power and
authority to execute and deliver this Agreement and this Agreement is the valid
and binding obligation of Xxxxxx enforceable against Xxxxxx in accordance with
its terms, except as enforceability may be limited by bankruptcy, insolvency,
and other equitable principles. The execution, delivery and performance of this
Agreement by Xxxxxx will not conflict with any agreement or understanding to
which Xxxxxx is a party.
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C. WAIVER, MODIFICATION. No provision of this Agreement may be modified or
waived unless such modification or waiver is agreed to in writing and signed by
Executive and by a duly authorized officer of Xxxxxx. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. Failure by Executive or Lanier
to insist upon strict compliance with any provision of this Agreement or to
assert any right Executive or Lanier may have hereunder, including without
limitation, the right of Executive to terminate employment for Good Reason,
shall not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement. Except as otherwise specifically provided
herein, the rights of, and benefits payable to, Executive, Executive's estate or
Executive's beneficiaries pursuant to this Agreement are in addition to any
rights of, or benefits payable to, Executive, Executive's estate or Executive's
beneficiaries under any other employee benefit plan or compensation program of
Xxxxxx.
D. NOTICES. Any notice required, permitted or desired to be given pursuant
to any of the provisions of this Agreement shall be deemed to have been
sufficiently given or served for all purposes if delivered in person or by
responsible overnight delivery service or sent by certified mail, return receipt
requested, postage and fees prepaid as follows:
If to Xxxxxx, at the address set forth below:
J. Xxxxxxx Xxxxx
Vice-President and General Counsel
Xxxxxx Worldwide, Inc.
0000 XxxxXxxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
If to Executive, at his address set forth above.
Either of the parties hereto may at any time and from time to time change the
address to which notice shall be sent hereunder by notice to the other party as
provided in this Section. The date of the giving of any notice hand delivered or
delivered by responsible overnight carrier shall be the date of its delivery and
of any notice sent by mail shall be the date five days after the date of the
posting of the mail.
E. AUTHORITY. The provisions of this Agreement required to be approved by
the Board of Lanier have been so approved and authorized.
F. GOVERNING LAW, VALIDITY. THE INTERPRETATION, CONSTRUCTION AND
PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF GEORGIA WITHOUT REGARD TO THE
PRINCIPLE OF CONFLICTS OF LAWS. THE INVALIDITY OR UNENFORCEABILITY OF ANY
PROVISION OF THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF
ANY OTHER PROVISION
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OF THIS AGREEMENT, WHICH OTHER PROVISIONS SHALL REMAIN IN FULL FORCE AND EFFECT.
G. RESOLUTION OF DISPUTES.
1) If a legally cognizable dispute arises out of or relates to
this Agreement or the breach, termination, or validity thereof,
or the compensation, promotion, demotion, discipline, discharge
or terms and conditions of employment of the Executive, and if
said dispute cannot be settled through direct discussions, the
parties agree to resolve the dispute by binding arbitration
before the American Arbitration Association ("AAA"), Center for
Public Resources, Judicial Arbitration and Mediation Services,
or the President of the State Bar Association of the state (or
the President's designee) where the arbitration shall be held
Arbitration proceedings shall be held in Atlanta, Georgia, or
at such other place as may be selected by the mutual agreement
of the parties. The arbitration shall proceed in accordance
with the Employment Dispute Resolution Rules of the AAA in
effect on the date of this Agreement, and judgment upon the
award rendered by the arbitrator shall be final and may be
entered in any court having jurisdiction thereof; provided,
however, that claims or disputes involving the breach or
alleged breach by Executive of any of the covenants or
obligations set forth in Section V of this Agreement may, at
Xxxxxx'x discretion, be settled by any court having
jurisdiction thereof or decided by arbitration pursuant to this
section.
2) Disputes subject to binding arbitration pursuant to this
section include all tort and contract claims, as well as claims
brought under all applicable federal, state or local statutes,
laws, regulations or ordinances, including but not limited to,
Title VII of the Civil Rights Act of 1964, as amended, the
Family and Medical Leave Act; the Americans with Disabilities
Act the Rehabilitation Act of 1973, as amended; the Fair Labor
Standards Act of 1938, as amended; the Age Discrimination in
Employment Act, as amended; the Equal Pay Act; the Civil Rights
of 1866, as amended; and the Employee Retirement Income
Security Act of 1974. Disputes subject to binding arbitration
pursuant to this section also include claims against Xxxxxx'x
parent and subsidiaries, and affiliated and successor
companies, and claims against Xxxxxx that include claims
against Xxxxxx'x agents and employees, in their capacity as
such and otherwise.
3) The arbitration award shall be in writing and shall specify
the factual and legal bases for the award. In rendering the
award, the arbitrator shall determine the respective rights and
obligations of the parties according to the laws of the State
of Georgia or, if applicable, federal law. The arbitrator shall
have the authority to award any remedy or relief that a federal
or state court within the State of Georgia could order or
grant, including without limitation, specific performance of
any obligation created under this Agreement; an award of
punitive, exemplary, statutory, or compensatory damages; the
issuance of an injunction or other provisional relief; or the
imposition of sanctions for abuse or frustration of the
arbitration process.
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4) Each party shall pay for its own fees and expenses of
arbitration including the expense of its own counsel, experts,
witnesses and preparation and presentation of evidence, except
that the cost of the arbitrator and any filing fee exceeding
the applicable filing fee in federal court shall be paid by
Xxxxxx; provided, however, that all reasonable costs and fees
necessarily incurred by any party are subject to reimbursement
from the other party at the discretion of the arbitrator.
H. PARAGRAPH HEADINGS. The Paragraph and subparagraph headings contained in
this Agreement are for convenience only and shall in no manner be construed as
part of this Agreement.
I. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original and together shall constitute one and the same
Agreement.
J. INVALIDITY OF PROVISIONS. Should any part of this Agreement for any
reason be declared by a court of competent jurisdiction to be invalid, such
decision shall not affect the validity of any remaining parts, which remaining
parts shall continue in full force and effect as if this Agreement had been
executed with the invalid part or parts thereof eliminated, it being the
intention of the Parties hereto that they would have executed the remaining
parts of this Agreement without including any such part or parts which may for
any reason be hereafter declared invalid.
K. CONSTRUCTION. When used herein, the masculine gender shall be deemed to
include the feminine gender, and the singular shall be deemed to include the
plural, unless the context clearly indicates to the contrary.
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L. EMPLOYMENT WITH SUBSIDIARIES. Employment with Xxxxxx for purposes of
this Agreement shall include employment with any Subsidiary.
IN WITNESS WHEREOF, Xxxxxx has hereunto caused its corporate name to be
signed and its corporate seal to be affixed by its duly authorized officer, and
the Executive has hereunto set his hand and seal, all as of the day and year
first written above.
XXXXXX WORLDWIDE, INC. EXECUTIVE
Signature: /s/ Xxxxx X. XxxXxxxxx Signature: /s/ Xxxxxx X. Xxxxxxxx
----------------------- ------------------------
Title: Executive Vice President Xxxxxx X. Xxxxxxxx
and Chief Financial Officer
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