EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made as of July 29, 2002, by and between
Racing Champions Ertl Corporation, a Delaware corporation and subsidiaries (the
"Company"), and Xxxx X. Xxxxxx (the "Employee"). Certain capitalized terms used
herein are defined in section 10 below.
RECITALS
A. The Company and the Employee desire to terminate any and all prior
agreements, whether oral or written, between the parties and between the
Employee and Parent relating to the Employee's employment.
B. The Company desires to employ the Employee and the Employee is
willing to make her services available to the Company on the terms and
conditions set forth below.
AGREEMENTS
In consideration of the premises and the mutual agreements which follow,
the parties agree as follows:
1. Employment. The Company hereby employs the Employee and the
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Employee hereby accepts employment with the Company on the terms and subject to
the conditions set forth in this Agreement.
2. Term. The term of the Employee's employment hereunder shall
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commence on the date hereof and shall continue until terminated as provided in
section 6 below.
3. Duties. The Employee shall serve as the Senior Vice President of
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Finance and Chief Financial Officer of the Company and will, under the direction
of the Company's Chief Executive Officer, President and Chairman, faithfully and
to the best of her ability, perform the duties of such position. The Employee
shall be one of the principal executive officers and Senior Management of the
Company and shall, subject to the control of the Company's Board of Directors,
have the normal duties, responsibilities and authority associated with such
position. The Employee shall also perform such additional duties and
responsibilities which may from time to time be reasonably assigned or delegated
by the Chief Executive Officer, President, Chairman or Board of Directors of the
Company. The Employee agrees to devote her entire business time, effort, skill
and attention to the proper discharge of such duties while employed by the
Company.
4. Compensation. The Employee shall receive a base salary of $160,000
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per year, payable in regular and equal monthly installments (the "Base Salary").
5. Fringe Benefits.
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(a) Vacation. The Employee shall be entitled to four weeks of
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paid vacation annually. The Employee and the Company shall mutually determine
the time and intervals of such vacation.
(b) Medical, Health, Dental, Disability and Life Coverage. The
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Employee shall be eligible to participate in any medical, health, dental,
disability and life insurance policy in effect for the Senior Management of the
Company.
(c) Incentive Bonus and Stock Ownership Plans. The Employee shall
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be entitled to participate in any incentive bonus plan, incentive stock option
or other stock ownership plan or other incentive compensation plan developed
generally for the Senior Management of the Company, on a basis consistent with
her position and level of compensation with the Company. Without limiting the
foregoing, Employee shall be entitled to participate in (i) the annual
Management Incentive Bonus Plan on a basis consistent with past practice and her
position and level of compensation with the Company, and (ii) the Additional
Senior Management Incentive Bonus Plan described on Exhibit A. In addition,
Employee shall be entitled to participate in the Racing Champions Ertl
Corporation Stock Incentive Plan, as amended as of May 10, 2002 (the "Option
Plan"), with discretionary grants as determined by the Board of Directors or
Compensation Committee. It is anticipated that the Options for 2002 shall be
granted at the October, 2002 Board of Directors meeting and that the Options
for 2003 and 2004 will be granted at the end of each calendar quarter.
(d) Automobile. The Company agrees to reimburse the Employee up
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to $600.00 per month, as such amount may be increased from time to time
consistent with the Company's reimbursement policy for the Senior Management of
the Company to cover Employee's expenses in connection with her leasing of an
automobile. Additionally, the Company will pay for the gas used for business
purposes. All maintenance and insurance expense for the automobile is the
responsibility of the Employee.
(e) Reimbursement for Reasonable Business Expenses. The Company
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shall pay or reimburse the Employee for reasonable expenses incurred by him in
connection with the performance of her duties pursuant to this Agreement
including, but not limited to, travel expenses, expenses in connection with
seminars, professional conventions or similar professional functions and other
reasonable business expenses.
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(f) Key Man Insurance. The parties agree that the Company has the
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option to purchase one or more key man life insurance policies upon the life of
the Employee. The Company shall own and shall have the absolute right to name
the beneficiary or beneficiaries of said policy. The Employee agrees to
cooperate fully with the Company in securing said policy, including, but not
limited to submitting himself to any physical examination which may be required
at such reasonable times and places as Company shall specify.
6. Termination.
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(a) Termination of the Employment Period. The Employment Period
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shall continue until the earlier of: (i) April 30, 2005 unless the parties
mutually agree in writing to extend the term of this Agreement (such date hereof
or such extended date being referred to herein as the "Expected Completion
Date"), (ii) the Employee's death or Disability, (iii) the Employee resigns or
(iv) the Board of Directors determines that termination of Employee's employment
is in the best interests of the Company (the "Employment Period"). The last day
of the Employment Period shall be referred to herein as the "Termination Date."
(b) Definitions.
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(i) For purposes of this Agreement, "Disability" shall mean a
physical or mental sickness or any injury which renders the Employee incapable
of performing the services required of him as an employee of the Company and
which does or may be expected to continue for more than six months during any
12-month period. In the event Employee shall be able to perform her usual and
customary duties on behalf of the Company following a period of disability, and
does so perform such duties or such other duties as are prescribed by the Board
of Directors for a period of three continuous months, any subsequent period of
disability shall be regarded as a new period of disability for purposes of this
Agreement. The Company and the Employee shall determine the existence of a
Disability and the date upon which it occurred. In the event of a dispute
regarding whether or when a Disability occurred, the matter shall be referred to
a medical doctor selected by the Company and the Employee. In the event of
their failure to agree upon such a medical doctor, the Company and the Employee
shall each select a medical doctor who together shall select a third medical
doctor who shall make the determination. Such determination shall be conclusive
and binding upon the parties hereto.
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(ii) For purposes of this Agreement, "Cause" shall be deemed
to exist if the Employee shall have (1) violated the terms of section 7 or
section 8 of this Agreement; (2) failed to substantially perform her duties to
the reasonable satisfaction of the Board of Directors; provided that so long as
Xxxxxx Xxxx, Xxxx Xxxxx or Xxxxx Xxxxx serves a director of the Company, any
determination pursuant to this clause (2) must be approved by the Requisite
Founder Directors; (3) committed a felony or a crime involving moral turpitude;
(4) engaged in serious misconduct which is demonstrably injurious to the Company
or any of its Subsidiaries; (5) engaged in fraud or dishonesty with respect to
the Company or any of its Subsidiaries or made a material misrepresentation to
the stockholders or directors of the Company; or (6) committed acts of
negligence in the performance of her duties which are substantially injurious to
the Company.
(iii) For purposes of this Agreement, "Good Reason" shall
mean (1) the material diminution of the Employee's duties set forth in section 3
above or (2) the relocation of the offices at which the Employee is principally
employed to a location which is more than 50 miles from the offices at which the
Employee is principally employed as of the date hereof; provided, that travel
necessary for the performance of the Employee's duties set forth in section 3
above shall not determine the location where the Employee is "principally
employed."
(c) Termination for Disability or Death. In the event of
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termination for Disability or death, payments of the Employee's Base Salary
shall be made to the Employee, her designated beneficiary or her estate for a
period of six months after the Termination Date in accordance with the normal
payroll practices of the Company. During this period, the Company shall also
reimburse the Employee for amounts paid, if any, to continue medical, dental and
health coverage pursuant to the provisions of the Consolidated Omnibus Budget
Reconciliation Act. During this period, the Company will also continue
Employee's life insurance and disability coverage, to the extent permitted under
applicable policies, and will pay to the Employee the fringe benefits pursuant
to section 5 which have accrued prior to the Termination Date.
(d) Termination by the Company without Cause or by the Employee
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for Good Reason. If (i) the Employment Period is terminated by the Company for
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any reason other than for Cause, Disability or death, (ii) the Employment Period
is terminated by the Company for what the Company believes is Cause or
Disability, and it is ultimately determined that the Employment Period was
terminated without Cause or Disability or (iii) the Employee resigns for Good
Reason, the Employee shall be entitled to receive, as damages for such a
termination, her Base Salary from the Termination Date to the first anniversary
of the Termination Date, provided, however, that if such termination or
resignation occurs at any time after the occurrence of or in contemplation of a
Change of Control, then Employee shall be entitled to receive her Base Salary
from the Termination Date to the second anniversary of the Termination Date.
Such payment of Base Salary shall be made in accordance with the normal payroll
practices of the Company. During this period, the Company shall also reimburse
the Employee for amounts paid, if any, to continue medical, dental and health
coverage pursuant to the provisions of the Consolidated Omnibus Budget
Reconciliation Act. During this period, the Company will also continue
Employee's life insurance and disability coverage and will pay to the Employee
the fringe benefits pursuant to section 5 which have accrued prior to the date
of termination.
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(e) Termination by the Company for Cause or by the Employee
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Without Good Reason. If the Employment Period is terminated by the Company with
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Cause or as a result of the Employee's resignation without Good Reason, the
Employee shall not be entitled to receive her Base Salary or any fringe benefits
or bonuses for periods after the Termination Date.
(f) Effect of Termination. The termination of the Employment
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Period pursuant to section 6(a) shall not affect the Employee's obligations as
described in sections 7 and 8.
7. Noncompetition and Nonsolicitation. The Employee acknowledges and
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agrees that the contacts and relationships of the Company and its Affiliates
with its customers, suppliers, licensors and other business relations are, and
have been, established and maintained at great expense and provide the Company
and its Affiliates with a substantial competitive advantage in conducting their
business. The Employee acknowledges and agrees that by virtue of the Employee's
employment with the Company, the Employee will have unique and extensive
exposure to and personal contact with the Company's customers and licensors, and
that she will be able to establish a unique relationship with those Persons that
will enable him, both during and after employment, to unfairly compete with the
Company and its Affiliates. Furthermore, the parties agree that the terms and
conditions of the following restrictive covenants are reasonable and necessary
for the protection of the business, trade secrets and Confidential Information
(as defined in section 8 below) of the Company and its Affiliates and to prevent
great damage or loss to the Company and its Affiliates as a result of action
taken by the Employee. The Employee acknowledges and agrees that the noncompete
restrictions and nondisclosure of Confidential Information restrictions
contained in this Agreement are reasonable and the consideration provided for
herein is sufficient to fully and adequately compensate the Employee for
agreeing to such restrictions. The Employee acknowledges that she could
continue to actively pursue her career and earn sufficient compensation in the
same or similar business without breaching any of the restrictions contained in
this Agreement.
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(a) Noncompetition. The Employee hereby covenants and agrees that
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during the Employment Period and for two years thereafter (the "Noncompete
Period"), she shall not, directly or indirectly, either individually or as an
employee, principal, agent, partner, shareholder, owner, trustee, beneficiary,
co-venturer, distributor, consultant, representative or in any other capacity,
participate in, become associated with, provide assistance to, engage in or have
a financial or other interest in any business, activity or enterprise which is
competitive with the Company or any of its Affiliates or any successor or assign
of the Company or any of its Affiliates. The ownership of less than a one
percent interest in a corporation whose shares are traded in a recognized stock
exchange or traded in the over-the-counter market, even though that corporation
may be a competitor of the Company, shall not be deemed financial participation
in a competitor. If the final judgment of a court of competent jurisdiction
declares that any term or provision of this section is invalid or unenforceable,
the parties agree that the court making the determination of invalidity or
unenforceability shall have the power to reduce the scope, duration, or area of
the term or provision, to delete specific words or phrases, or to replace any
invalid or unenforceable term or provision with a term or provision that is
valid and enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision, and this Agreement shall be
enforceable as so modified. The term "indirectly" as used in this section and
section 8 below is intended to include any acts authorized or directed by or on
behalf of the Employee or any Affiliate of the Employee.
(b) Nonsolicitation. The Employee hereby covenants and agrees
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that during the Noncompete Period, she shall not, directly or indirectly, either
individually or as an employee, agent, partner, shareholder, owner, trustee,
beneficiary, co-venturer, distributor, consultant or in any other capacity:
(i) canvass, solicit or accept from any Person who is a
customer or licensor of the Company or any of its Affiliates (any such Person is
hereinafter referred to individually as a "Customer," and collectively as the
"Customers") any business which in competition with the business of the Company
or any of its Affiliates or the successors or assigns of the Company or any of
its Affiliates, including, without limitation, the canvassing, soliciting or
accepting of business from any Person which is or was a Customer of the Company
or any of its Affiliates within two years preceding the date of this Agreement,
during the Employment Period or during the Noncompete Period;
(ii) advise, request, induce or attempt to induce any of the
Customers, suppliers, or other business contacts of the Company or any of its
Affiliates who currently have or have had business relationships with the
Company or any of its Affiliates within two years preceding the date of this
Agreement, during the Employment Period or during the Noncompete Period, to
withdraw, curtail or cancel any of its business or relations with the Company or
any of its Affiliates;
(iii) induce or attempt to induce any employee, sales
representative, consultant or other agent of the Company or any of its
Affiliates to terminate her relationship or breach any agreement with the
Company or any of its Affiliates; or
(iv) hire any person who was an employee, sales
representative, consultant or other agent of the Company or any of its
Affiliates at any time during the Noncompete Period.
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8. Confidential Information. The Employee acknowledges and agrees that
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the customers, business connections, customer lists, procedures, operations,
techniques, and other aspects of and information about the business of the
Company and its Affiliates (the "Confidential Information") are established at
great expense and protected as confidential information and provide the Company
and its Affiliates with a substantial competitive advantage in conducting their
business. The Employee further acknowledges and agrees that by virtue of her
past employment with the Company, and by virtue of her employment with the
Company, she has had access to and will have access to, and has been entrusted
with and will be entrusted with, Confidential Information, and that the Company
would suffer great loss and injury if the Employee would disclose this
information or use in a manner not specifically authorized by the Company.
Therefore, the Employee agrees that during the Employment Period and for five
years thereafter, she will not, directly or indirectly, either individually or
as an employee, agent, partner, shareholder, owner trustee, beneficiary,
co-venturer distributor, consultant or in any other capacity, use or disclose or
cause to be used or disclosed any Confidential Information, unless and to the
extent that any such information become generally known to and available for use
by the public other than as a result of the Employee's acts or omissions. The
Employee shall deliver to the Company at the termination of the Employment
Period, or at any other time the Company may request, all memoranda, notes,
plans, records, reports, computer tapes, printouts and software and other
documents and data (and copies thereof) relating to the Confidential
Information, Work Product (as defined below) or the business of the Company or
any of its Affiliates which she may then possess or have under her control. The
Employee acknowledges and agrees that all inventions, innovations, improvements,
developments, methods, designs, analyses, drawings, reports and all similar or
related information (whether or not patentable) which relate to the Company's or
any of its Affiliate' actual or anticipated business research and development or
existing or future products or services and which are conceived, developed or
made by the Employee while employed by the Company and its Affiliates ("Work
Product") belong to the Company or such Affiliate, as the case may be.
9. Common Law of Torts and Trade Secrets. The parties agree that
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nothing in this Agreement shall be construed to limit or negate the common law
of torts or trade secrets where it provides the Company and its Affiliates with
broader protection than that provided herein.
10. Definitions.
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"Affiliate" means, with respect to any Person, any other Person
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controlling, controlled by or under common control with such Person and any
partner of a Person which is a partnership.
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"Change of Control" means:
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(a) 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 20% or more of
either (i) the then outstanding shares of common stock of Parent (the
"Outstanding Common Stock") or (ii) the combined voting power of the then
outstanding voting securities of Parent entitled to vote generally in the
election of directors (the "Outstanding Voting Securities"); provided, however,
that the following acquisitions shall not constitute a Change of Control: (i)
any acquisition directly from Parent, (ii) any acquisition by Parent, (iii) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by Parent or any corporation controlled by Parent or (iv) any
acquisition by any corporation pursuant to a transaction which complies with
clauses (i), (ii) and (iii) of subsection (c) of this definition; or
(b) Individuals who, as of the date hereof, constitute the Board
of Directors of Parent (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board of Directors of Parent; provided,
however, that any individual becoming a director subsequent to the date hereof
whose election, or nomination for election by Parent's stockholders, was
approved by a vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were a member of
the Incumbent Board, but excluding, for this purpose, any such individual 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 of Directors of Parent; or
(c) Approval by the stockholders of Parent of a reorganization,
merger or consolidation (a "Business Combination"), in each case, unless,
following such Business Combination, (i) all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Common Stock and Outstanding Voting Securities immediately prior to
such Business Combination beneficially own, directly or indirectly, more than
60% of, respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns Parent through one or
more subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding Common Stock
and Outstanding Voting Securities, as the case may be, (ii) no Person (excluding
any employee benefit plan (or related trust) of Parent or such corporation
resulting from such Business Combination) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then outstanding shares of common
stock of the corporation resulting from such Business Combination or the
combined voting power of the then outstanding voting securities of such
corporation except to the extent that such ownership existed prior to the
Business Combination and (iii) at least a majority of the members of the board
of directors of the corporation resulting from such Business Combination were
members of the Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board of Directors of Parent, providing for
such Business Combination; or
8
(d) Approval by the stockholders of Parent of (i) a complete
liquidation or dissolution of Parent or (ii) the sale or other disposition of
all or substantially all of the assets of Parent, other than to a corporation,
with respect to which following such sale or other disposition, [a] more than
60% of, respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Common Stock and Outstanding Voting
Securities immediately prior to such sale or other disposition in substantially
the same proportion as their ownership, immediately prior to such sale or other
disposition, of the Outstanding Common Stock and Outstanding Voting Securities,
as the case may be, [b] less than 20% of, respectively, the then outstanding
shares of common stock of such corporation and the combined voting power of the
then outstanding voting securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned, directly or
indirectly, by any Person (excluding any employee benefit plan (or related
trust) of Parent or such corporation), except to the extent that such Person
owned 20% or more of the Outstanding Common Stock or Outstanding Voting
Securities prior to the sale or disposition, and [c] at least a majority of the
members of the board of directors of such corporation were members of the
Incumbent Board at the time of the execution of the initial agreement, or of the
action of the Board of Directors of Parent, providing for such sale or other
disposition of assets of Parent or were elected, appointed or nominated by the
Board of Directors of Parent.
"Founder Director" at any time means Xxxxxx Xxxx, Xxxx Xxxxx or Xxxxx
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Xxxxx if at such time such individual is a member of the Company's Board of
Directors.
"Person" means any individual, partnership, corporation, limited
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liability company, association, joint stock company, trust, joint venture,
unincorporated organization and any governmental entity or any department,
agency or political subdivision thereof.
"Requisite Founder Directors" at any time means (i) if there are three
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Founder Directors at such time, any two Founder Directors; (ii) if there are two
Founder Directors at such time, any Founder Director; or (iii) if there is one
Founder Director at such time, such Founder Director.
"Senior Management" at any time means the senior executive officers of
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the Company which will include, without limitation, the Chief Executive Officer,
President, Chief Operating Officer, Executive Vice President, Chief Financial
Officer and such other officers of the Company as the Board of Directors shall
determine from time to time.
9
"Subsidiary" means, with respect to any Person, any corporation,
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partnership, association or other business entity of which (i) if a corporation,
a majority of the total voting power of shares of stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof, or (ii) if a partnership, association or other
business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a partnership, association or other business entity if
such Person or Persons shall be allocated a majority of partnership, association
or other business entity gains or losses or shall be or control any managing
director or general partner of such partnership, association or other business
entity.
11. Specific Performance. The Employee acknowledges and agrees that
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irreparable injury to the Company may result in the event the Employee breaches
any covenant or agreement contained in sections 7 and 8 and that the remedy at
law for the breach of any such covenant will be inadequate. Therefore, if the
Employee engages in any act in violation of the provisions of sections 7 and 8,
the Employee agrees that the Company shall be entitled, in addition to such
other remedies and damages as may be available to it by law or under this
Agreement, to injunctive relief to enforce the provisions of sections 7 and 8.
12. Waiver. The failure of either party to insist in any one or more
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instances, upon performance of the terms or conditions of this Agreement shall
not be construed as a waiver or a relinquishment of any right granted hereunder
or of the future performance of any such term, covenant or condition.
13. Notices. Any notice to be given hereunder shall be deemed
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sufficient if addressed in writing and delivered by registered or certified mail
or delivered personally, in the case of the Company, to its principal business
office, and in the case of the Employee, to her address appearing on the records
of the Company, or to such other address as she may designate in writing to the
Company.
14. Severability. In the event that any provision shall be held to be
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invalid or unenforceable for any reason whatsoever, it is agreed such invalidity
or unenforceability shall not affect any other provision of this Agreement and
the remaining covenants, restrictions and provisions hereof shall remain in full
force and effect and any court of competent jurisdiction may so modify the
objectionable provision as to make it valid, reasonable and enforceable.
Furthermore, the parties specifically acknowledge the above covenant not to
compete and covenant not to disclose confidential information are separate and
independent agreements.
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15. Complete Agreement. Except as otherwise expressly set forth
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herein, this document embodies the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way. Without limiting the generality of the foregoing, this Agreement
supersedes the Employment Agreement, dated as of April 30, 2001, between the
Company and the Employee (together with all amendments thereto, the "Prior
Agreement"). The Prior Agreement is hereby terminated and shall cease to be of
any further force or effect.
16. Amendment. This Agreement may only be amended by an agreement in
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writing signed by each of the parties hereto.
17. Governing Law. This Agreement shall be governed by and construed
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exclusively in accordance with the laws of the State of Illinois, regardless of
choice of law requirements.
18. Benefit. This Agreement shall be binding upon and inure to the
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benefit of and shall be enforceable by and against the Company, its successors
and assigns and the Employee, her heirs, beneficiaries and legal
representatives. It is agreed that the rights and obligations of the Employee
may not be delegated or assigned.
IN WITNESS WHEREOF, the parties have executed or caused this Employment
Agreement to be executed as of the date first above written.
RACING CHAMPIONS ERTL CORPORATION
- COMPENSATION COMMITTEE
/s/ Xxxx X. Xxxxxxx
---------------------------------
Xxxx X. Xxxxxxx, Director and
Compensation Committee Chairman
/s/ Xxxx X. Xxxxxxx
---------------------------------
Xxxx X. Xxxxxxx, Director and
Compensation Committee Member
/s/ Xxxxxx X. Xxxx
---------------------------------
Xxxxxx X. Xxxx, Chairman of
the Board and Compensation
Committee Member
/s/ Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx
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EXHIBIT A
ADDITIONAL SENIOR MANAGEMENT INCENTIVE BONUS PLAN
Employee shall be entitled to participate in the Additional Senior
Management Incentive Bonus Plan on the following basis.
Senior Management shall be entitled to receive annually a cash payout equal
to 5% of the first 5% of the excess of EBITDA over the targets set forth below.
This bonus shall be paid in cash within 30 days after determination of EBITDA to
the reasonable satisfaction of the Board of Directors and Employee for the
applicable fiscal year. Any disagreements regarding the calculation of EBITDA
shall be referred to and resolved by the Company's then independent public
accounting firm. In addition, Senior Management shall also be entitled to
receive shares of restricted stock with a fair market value equal to 10% of the
amount by which EBITDA exceeds the following targets by more than 5% but equal
to or less than 10%. If EBITDA exceeds the following targets by more than 10%,
then Senior Management shall also be entitled to receive 10% of the amount by
which EBITDA exceeds the following targets by more than 10%, paid 40% in cash
and 60% in restricted stock. (See Pay-Out Summary, below). The restricted stock
shall be valued at the average trading price for a share on the date of grant,
less a 10% discount based on lack of marketability and the restrictions on
vesting described below. The restricted stock shall vest in an amount equal to
one third of the annual grant on the first anniversary of the applicable fiscal
year, the second third on the second anniversary of the applicable fiscal year
and the final third on the third anniversary of the applicable fiscal year.
Employee shall forfeit any shares which have not vested as of the Termination
Date. All non-vested shares shall be immediately fully vested upon the
occurrence of or in contemplation of a Change in Control or due to Termination
under section 6 (d) of the Agreement.
Pay-Out Summary
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Amount EBITDA Level
Level Exceeds Target Pay-Out % Payment Method
-------------------------------------------------------------------------
1 up to 5% 5% Cash
2 5% to 10% 10% Restricted Stock
3 10%+ 10% 40% in Cash/60%
in Restricted Stock
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EBITDA Targets
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Year Amount
---- ------
2002 $53,800,000
2003 59,180,000
2004 65,098,000
The foregoing targets will be adjusted for any acquisitions, divestitures
and accounting changes on a basis to be agreed to by the Company and the
Employee.
Allocation of Additional Incentive Bonus Among Senior Management
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Xxxxxxxx 35%
Xxxxxxxxx 35%
Xxxxxx 15%
TBD 15%
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