EXHIBIT 10.41
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT is made to be effective as
of January 5, 2004, between X. X. Xxxxx Corporation, an Ohio corporation (the
"Company"), and Xxxxx Xxxxxx ("Executive") under the following circumstances:
A. Executive is presently employed by the
Company in an executive capacity;
B. The Company desires by this Agreement to
provide for the continued employment of Executive by
the Company on the terms and conditions stated
herein; and
C. Executive desires to continue his employment
with the Company on the terms and conditions stated
herein.
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND THE
MUTUAL COVENANTS CONTAINED HEREIN, THE COMPANY AND EXECUTIVE AGREE AS FOLLOWS:
Section 1. Employment. The Company hereby agrees to continue
to employ Executive, and Executive hereby agrees to continue in the employ of
the Company, on the terms and conditions set forth herein.
Section 2. Term of Employment. The term of employment of
Executive by the Company under this Agreement shall commence on the date of this
Agreement (the "Agreement Date") and end on the date which is the third
anniversary date of the Agreement Date (the "Term of Employment").
Section 3. Position and Duties.
(a) Position. During the Term of Employment, the Company
shall employ Executive and Executive shall serve as Vice President - Human
Resources of the Company, with his duties, authority and responsibilities to be
as reasonably assigned by the Chief Executive Officer of the Company consistent
with such title and position. Executive may serve in such other capacity or
capacities of at least equal standing and dignity connected with the business of
the Company as the Company shall from time to time determine.
(b) Duties. Executive shall devote his full-time efforts
to the business and affairs of the Company and shall perform his duties
faithfully, diligently, and to the best of his ability and in conformity with
the policies of the Company and under and subject to such reasonable directions
and instructions as the Board of Directors and the Chief Executive Officer of
the Company may issue from time to time.
Section 4. Compensation and Related Matters.
(a) Salary. The Company shall pay Executive a base salary
of not less than $150,000 per year payable in approximately equal installments
in accordance with the Company's normal pay schedule. In the event the Company
shall at any time or times after the Agreement Date increase Executive's base
salary, then Executive's base salary under this Agreement for any period after
any such increase shall be not less than the last amount to which the Company
increased the base salary of Executive (such base salary including increases
granted after the Agreement Date is hereinafter referred to as "Basic Salary").
Compensation of Executive by Basic Salary payments shall not be deemed exclusive
and shall not prevent Executive from participating in any other compensation or
benefit plan of the Company.
(b) Expenses. During the Term of Employment, Executive
shall be entitled to receive prompt reimbursement for all reasonable expenses
incurred by Executive in performing services hereunder, including all reasonable
expenses of travel and living expenses while away from home on business, or at
the request of and in the service of the Company, provided that such expenses
are incurred and accounted for in accordance with the policies and procedures
established by the Company from time to time.
(c) Other Benefits. During the Term of Employment:
(1) Executive shall be entitled to receive such
perquisites and fringe benefits historically provided by the Company to its
senior executives, including, without limitation, the exclusive use of an
automobile;
(2) Executive shall be entitled to participate
in the Company's Salaried Employees' Pension Plan, the Company's Supplemental
Retirement Plan and the Company's Executive Variable Life Insurance Plan, as any
of the same may be amended from time to time, or any substitute or successor
plans;
(3) Executive shall be entitled to participate
in the Company's Short-Term Incentive Plan (STIPS), as the same may be amended
from time to time, or any substitute or successor plan, at a maximum annual
level equal to 60% of his Basic Salary; and
(4) Executive shall be entitled to receive all
other employee benefits, including, without limitation, medical, dental,
disability, 401(k), retirement, group life and accidental death insurance
benefits as are or in the future may be provided by the Company to its senior
executives.
Section 5. Termination.
(a) Termination of Employment Other Than by Executive.
Executive's employment hereunder may be terminated prior to the end of the Term
of Employment only under the following circumstances:
(1) Death. Executive's employment hereunder
shall terminate upon his death.
(2) Disability. If, as a result of Executive's
incapacity due to physical or mental illness, Executive shall
have been absent from his duties hereunder on a full-time
basis for the entire period of four (4) consecutive months,
and within ten (10) days after written notice of termination
is given (which may
occur before or after the end of such four (4) month period)
shall not have returned to the performance of his duties
hereunder on a full-time basis, the Company may terminate
Executive's employment hereunder for Disability.
(3) Cause. The Company may terminate Executive's
employment hereunder for Cause. For purposes of this
Agreement, the Company shall have "Cause" to terminate
Executive's employment hereunder only upon:
(i) The willful and continued refusal by Executive to
perform his duties with the Company (other than any such
refusal resulting from his incapacity due to physical or
mental illness), after a demand for substantial performance is
delivered to Executive by the Company which specifically
identifies the manner in which it is believed that Executive
has refused substantially to perform his duties;
(ii) Conviction of Executive of any felony; or
(iii) Willful and gross misconduct materially and
demonstrably injurious to the Company.
(4) Without Cause. The Company may terminate
Executive's employment hereunder without Cause so long as it
pays to Executive the severance compensation provided for in
Section 6(d).
(b) Termination of Employment by Executive. Executive may
terminate his employment hereunder for Good Reason. As used herein, "Good
Reason" means any of the following:
(1) The assignment to Executive, without his
consent, of any duties materially inconsistent with his
position, duties, responsibilities and status with the Company
on the Agreement Date, or a change in Executive's
responsibilities, as in effect on the Agreement Date, which
materially diminishes Executive's responsibilities with the
Company when considered as a whole; provided, however, that
the foregoing shall not constitute Good Reason if done in
connection with the termination of Executive's employment
because of Disability or for Cause.
(2) A reduction by the Company in Executive's
Basic Salary.
(3) Failure by the Company to comply with the
provisions of Section 4(c).
(4) The Company's requiring Executive, without
his consent, to be based anywhere other than the San Antonio,
Texas or Columbus, Ohio metropolitan areas; or, in the event
Executive
consents to being based anywhere other than such location, the
failure by the Company to pay (or reimburse Executive for) all
reasonable moving expenses incurred by Executive relating to a
change of Executive's principal residence in connection with
such relocation.
(5) The failure of the Company to obtain the
assumption of this Agreement by any successor as provided in
Section 9.
(c) Notice of Termination. Any termination of Executive's
employment by the Company or by Executive other than termination pursuant to
Section 5(a)(1) shall be communicated by written Notice of Termination to the
other party. For purposes of this Agreement, a Notice of Termination shall mean
a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated.
(d) Date of Termination. "Date of Termination" shall mean
(i) if Executive's employment is terminated by his death, the date of his death,
(ii) if Executive's employment is terminated pursuant to Section 5(a)(2), ten
(10) days after Notice of Termination is given (provided that the Executive
shall not have returned to the performance of his duties on a full-time basis
during such ten (10) day period), or (iii) if Executive's employment is
terminated for any other reason, the date on which the Notice of Termination is
given.
Section 6. Compensation Upon Termination or During
Disability.
(a) Disability. During any period that Executive fails to
perform his duties hereunder as a result of incapacity due to physical or mental
illness ("Disability Period"), Executive shall continue to receive his Basic
Salary at the rate then in effect for such period until his employment is
terminated pursuant to Section 5(a)(2), provided that payments of Basic Salary
so made to Executive shall be reduced by the sum of the amounts, if any, payable
to Executive at or prior to the time of any such salary payment under disability
benefit plans of the Company and which were not previously applied to reduce any
payment of Basic Salary.
(b) Death. If Executive's employment is terminated by his
death, the Company shall pay to Executive's estate his full Basic Salary through
the Date of Termination at the rate in effect on the date of death and shall
thereafter have no further obligations to Executive under this Agreement.
(c) Termination for Cause. If Executive's employment
shall be terminated for Cause, the Company shall pay Executive his full Basic
Salary through the Date of Termination at the rate in effect at the time Notice
of Termination is given and the Company shall have no further obligations to
Executive under this Agreement.
(d) Termination for Good Reason or Without Cause. In the
event Executive terminates his employment with the Company for Good Reason or
the Company terminates Executive's Employment for any reason other than for
Cause or Disability, in either case at any time prior to the expiration of the
Term of Employment, Executive shall be entitled to the following payments and
benefits:
(1) The Company shall pay to Executive, not
later than thirty (30) days following the Date of Termination, Executive's
accrued but unpaid Basic Salary through the Date of Termination plus
compensation for current and carried-over unused vacation and compensation days
in accordance with applicable personnel policy.
(2) In lieu of any further payments of salary or
bonus to Executive after the Date of Termination, the Company shall pay to
Executive, not later than ten (10) days following the Date of Termination, a
lump sum cash severance payment (the "Severance Payment") equal to the total
compensation (including bonus) paid to or accrued for the benefit of Executive
by the Company for services rendered during the twelve-month period immediately
preceding the Date of Termination.
(e) After payment of the sums described in subparagraphs
(d)(1) and (d)(2) above, the Company shall have no further obligations to
Executive under this Agreement; provided that Executive's right to receive
payments under this Agreement shall not decrease the amount of, or otherwise
adversely affect, any other benefits payable to Executive under any other plan,
agreement or arrangement relating to employee benefits provided by the Company.
(f) Voluntary Termination by Executive Without Good
Reason. In the event Executive terminates his employment with the Company
without Good Reason, the Company shall pay to Executive his full Basic Salary
through the Date of Termination at the rate then in effect and the Company shall
have no further obligations to Executive under this Agreement.
(g) Mitigation. Executive shall not be required to
mitigate the amount of any payment provided for in this Section 6 by seeking
other employment or otherwise, nor shall the amount of any payment or benefit
provided for him in this Section 6 be reduced by any compensation earned by
Executive as the result of employment by another employer or by reason of
Executive's receipt of or right to receive any retirement or other benefits
after the date of termination of employment or otherwise. As a condition to
receiving the severance compensation provided for in Section 6(d), Executive
shall execute and deliver to the Company a release of claims (other than claims
arising under this Agreement) against the Company so long as the Company
executes and delivers to Executive a comparable release of claims against
Executive.
Section 7. Non-Competition; Confidentiality
(a) Period. During Executive's employment with the
Company and for a period of one (1) year following any termination of
Executive's employment with the Company (other than following a Hostile Change
of Control (as defined below)), Executive shall not, as a shareholder, owner,
member, employee, officer, director, partner, consultant, agent or otherwise,
engage directly or indirectly in any business or enterprise which is in
Competition with the Company (as defined below).
(b) Competition with the Company. For purposes of this
Agreement, (i) the words "Competition with the Company" shall be deemed to
include competition with the Company or any entity controlling, controlled by or
under common control with the Company (an "Affiliate"), or their respective
successors or assigns, or the business of any of them, and (ii) a business or
enterprise shall be deemed to be in Competition with the Company if it is
engaged in any business activity which is the same or comparable to any business
activity of the Company or any Affiliate from time to time during the Term of
Employment in any geographic area (whether within or outside the United States)
in which the Company or any Affiliate has conducted such business.
Notwithstanding the foregoing, nothing herein contained shall prevent Executive
from
purchasing and holding for investment less than 3% of the shares of any
corporation the shares of which are regularly traded either on a national
securities exchange or in the over-the-counter market.
(c) Interpretation of Covenant. The parties hereto agree
that the duration and area for which the covenant not to compete set forth in
this Section 7 is to be effective are reasonable. In the event that any court
determines that the time period or the area, or both of them, are unreasonable
and that such covenant is to that extent unenforceable, the parties hereto agree
that the covenant shall remain in full force and effect for the greatest time
period and in the greatest area that would not render it unenforceable. The
parties intend that this covenant shall be deemed to be a series of separate
covenants, one for each and every county of each and every state of the United
States of America where the covenant not to compete is intended to be effective.
(d) Prohibition on Disclosure or Use. Executive shall at
all times keep and maintain Confidential Information (as defined below)
confidential, and Executive shall not, at any time, either during or subsequent
to the Term of Employment, either directly or indirectly, use any Confidential
Information for Executive's own benefit or divulge, disclose, or communicate any
Confidential Information to any person or entity in any manner whatsoever other
than employees or agents of the Company having a need to know such Confidential
Information, and then only to the extent necessary to perform their
responsibilities on behalf of the Company, and other than in the performance of
Executive's duties hereunder.
(e) Definition of Confidential Information. "Confidential
Information" shall mean any and all information (excluding information in the
public domain) related to the business of the Company or any Affiliate,
including without limitation all processes; inventions; trade secrets; computer
programs; engineering or technical data, drawings, or designs; manufacturing
techniques; information concerning pricing and pricing policies; marketing
techniques; plans and forecasts; new product information; information concerning
suppliers; methods and manner of operations; and information relating to the
identity and location of all past, present, and prospective customers and
suppliers.
(f) Equitable Relief. Executive's obligations contained
in this Section 7 are of special and unique character which gives them a
peculiar value to the Company, and the Company cannot be reasonably or
adequately compensated in damages in an action at law in the event Executive
breaches such obligations. Executive therefore expressly agrees that, in
addition to any other rights or remedies which the Company may possess, the
Company shall be entitled to injunctive and other equitable relief in the form
of preliminary and permanent injunctions without bond or other security in the
event of any actual or threatened breach of said obligations by Executive.
(g) Definition of Change of Control. A "Hostile Change of
Control" shall be deemed to have occurred if (i) any "person" (as that term is
used in Section 13(d) and Section 14(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act") on the Agreement Date), including any "group" as
such term is used in Section 13(d)(3) of the Exchange Act on the Agreement Date
(an "Acquiring Person"), shall hereafter acquire (or disclose the previous
acquisition of) beneficial ownership (as that term is defined in Section 13(d)
of the Exchange Act and the rules thereunder on the Agreement Date) of shares of
the outstanding stock of any class or classes of the Company which results in
such person or group possessing more than 50.1% of the total voting power of the
Company's outstanding voting securities ordinarily having the right to vote for
the election of directors of the Company (a "Control Acquisition"); or (ii) as
the result of,
or in connection with, any tender or exchange offer, merger or other business
combination, sale of assets or contested election, or any combination of the
foregoing transactions ("Transaction"), the persons who were directors of the
Company immediately before the completion of the Transaction shall cease to
constitute a majority of the Board of Directors of the Company or any successor
to the Company. Anything contained in this paragraph (g) to the contrary
notwithstanding, a "Hostile Change of Control" shall not be deemed to have
occurred if the Control Acquisition or the Transaction is approved by a majority
of the directors of the Company who were directors of the Company before the
completion of the Control Acquisition or the Transaction.
(h) Survival. The provisions of this Section 7 shall
survive any termination of this Agreement.
Section 8. Waiver. The failure of either party to this
Agreement to insist, in any one or more instances, upon the performance of any
of the terms, covenants or conditions of this Agreement by the other party
hereto, shall not be construed as a waiver or as a relinquishment of any right
granted hereunder to the party failing to insist on such performance, or as a
waiver of the future performance of any such term, covenant or condition, but
the obligations hereunder of both parties hereto shall remain unimpaired and
shall continue in full force and effect.
Section 9. Successors; Binding Agreement.
(a) The Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company and its
subsidiaries to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no succession had taken place. Failure of the Company to obtain such
agreement prior to the effectiveness of any such succession shall be a breach of
this Agreement and shall entitle Executive to compensation in the same amount
and on the same terms as he would be entitled hereunder if he terminated his
employment for Good Reason, except that for purposes of implementing the
foregoing, the date on which any such succession becomes effective shall be
deemed the Date of Termination. As used in this Agreement, "Company" shall mean
the Company as defined above and any successor to its business and/or assets as
aforesaid which executes and delivers the agreement provided for in this Section
9 or which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
(b) This Agreement shall inure to the benefit of and be
enforceable by Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
Executive should die while any amounts would still be payable to him hereunder
if he had continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to his devisee,
legatee or other designee or, if there be no such designee, to his estate.
Section 10. Arbitration. Any dispute or controversy arising
out of or relating to this Agreement, or any breach thereof, shall be settled by
arbitration in accordance with the rules of the American Arbitration
Association. The award of the arbitrator shall be final, conclusive, and
nonappealable and judgment upon such award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. The arbitrator shall be an
arbitrator qualified to serve in accordance with the rules of the American
Arbitration Association and one who is approved by both the Company and
Executive. In the absence of such approval, each party shall designate a person
qualified to serve as an arbitrator in accordance with the rules of the American
Arbitration
Association and the two persons so designated shall select the arbitrator from
among those persons qualified to serve in accordance with the rules of the
American Arbitration Association. The arbitration shall be held in Columbus,
Ohio or such other place as may be agreed upon at the time by the parties to the
arbitration.
Section 11. Notices. Notices and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by United States registered mail,
return receipt requested, postage prepaid, addressed in the case of Executive,
to
Xxxxx Xxxxxx
and in the case of the Company, to the principal executive offices of the
Company, provided that all notices to the Company shall be directed to the
attention of the Company's Chief Executive Officer with copies to the Secretary
of the Corporation and to its Board of Directors, or to such other address as
either party may have furnished to the other in writing in accordance herewith,
except that notices of change of address shall be effective only upon receipt.
Section 12. Miscellaneous. No provisions of this Agreement may
be modified, waived or discharged unless such waiver, modification or discharge
is agreed to in a writing signed by Executive and a duly authorized officer of
the Company. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws (but not the law of conflicts of laws) of the State of Ohio. This
Agreement supercedes and replaces the Agreement dated January 4, 2001, between
the Company and Executive.
Section 13. Validity. The invalidity or unenforceability of
any provisions of this Agreement shall not affect the validity or enforceability
of any other provisions of this Agreement, which shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year above written.
X. X. XXXXX CORPORATION
By /s/ Xxxxxx Xxxxx
-------------------------
Title CEO
/s/ Xxxxx Xxxxxx
-------------------------
Xxxxx Xxxxxx
