May 21, 2004
Xxxx Xxxxxxxx
Senior Vice President, Corporate Development
Xxxxxx American
Dear Xxxx:
This letter is to confirm the agreement between you and Xxxxxx American
Checks, Inc. ("Xxxxxx American" or "Company") regarding your salary
continuation/separation benefits in connection with your employment as the
Senior Vice President/Corporate Development, commencing May 16, 2004.
All employees of Xxxxxx Xxxxxxxx, including you, are hired and employed
at-will. During your employment, you will be subject to Xxxxxx American's
policies, rules and procedures in the same manner as other employees, except as
expressly set forth in this letter. Nothing contained in this letter will affect
your status as an at-will employee with Xxxxxx Xxxxxxxx.
I. Benefits Upon Termination of Employment "Without Cause"
If your employment with Xxxxxx American is terminated without "Cause" (as
defined below), Xxxxxx American will pay you twelve (12) months of "salary
continuation" (as defined below) after you cease employment. For the purpose of
this letter, "salary continuation" will consist of your annualized base salary
on the date you cease employment. The salary continuation, less required
payroll/withholding taxes and authorized deductions, will be paid to you in
substantially equal bi-weekly payments, beginning thirty (30) days after you
cease employment and the Separation Agreement (as defined below) between you and
the Company becomes effective. You will also receive payment for twelve (12)
months of the company portion of premiums for Xxxxxx American's welfare benefit
plan (excluding further vacation and 401kplan accrual) in effect at the time of
your termination, subject to the terms and provisions of such plans and the
requirements of applicable law. Such continued participation will be concurrent
to, but without limitation of, your rights under COBRA or other applicable laws.
The employee or ex-employee portion of the premium(s) for such coverage shall
continue to be your responsibility. In the event that post-employment
participation in any Xxxxxx American welfare benefit plan is not permitted by
the Company's standard employment policies applicable to Executives generally,
or the terms or the plan or applicable law, then Xxxxxx American would not be
obligated to acquire or provide you with substitute benefits.
Xxxx Xxxxxxxx
May 20, 2004
Page 2
If your employment is terminated without Xxxxx, Xxxxxx American will also
reimburse you for up to $10,000.00 of professional outplacement services
provided by a mutually agreed company within 6 months after your employment
termination date. "Professional outplacement services" shall not include any
costs of relocating you, your family or personal belongings from San Antonio,
Texas to any other location.
The salary continuation and benefits set out in this Section I shall not
be reduced by your earnings from subsequent employment, self-employment and/or
consulting following the termination of your employment without Cause.
The salary continuation and benefits provided under this Section I shall
be in lieu of any other compensation and/or benefits for which you may be
eligible through any policy, plan or program of Xxxxxx American including but
not limited to those under Section II of this letter, with the exception of the
following: 1) any earned and unused vacation plus all accrued vacation, and 2)
eligibility to exercise previously issued grants under the terms and provisions
of the Novar Executive Share Option Scheme.
Xxxxxx American shall have no obligation to provide you the salary
continuation or benefits under this Section I if your employment is terminated
for "Cause." For the purposes of this letter, "Cause" shall mean any of the
following circumstances: (a) your voluntary resignation from employment with
Xxxxxx American; (b) your death and/or "permanent disability or incapacity" (as
defined below); (c) your commission of any act of fraud, personal dishonesty,
disloyalty or defalcation, or usurpation of a Company opportunity in the course
of your employment; (d) your conviction, plea of guilty and/or nolo contendre,
and/or the imposition of any form of deferred adjudication, probation and/or
court-ordered community supervision program, for a felony or any crime involving
dishonesty (felony or misdemeanor); (e) any act that has a material adverse
effect upon the reputation of and/or the public confidence in the Company; (f)
your failure to perform the duties and responsibilities of your position in a
timely and professional manner within twenty (20) days after receipt of a
written warning regarding such non-performance; (g) your failure to comply with
Xxxxxx American's written policies governing employees and/or your job duties
within twenty (20) days after receipt of a written warning regarding such
failure; or (h) your failure or refusal to comply with a reasonable order,
policy or rule of Xxxxxx American that is not inconsistent with this letter in a
manner that constitutes material insubordination.
For the purposes of this letter, "permanent disability or incapacity"
shall mean a substantial physical or mental impairment which prevents you from
performing one or more of your job duties for a cumulative period of twenty-six
(26) work weeks within a "rolling" twelve (12) month period (counted backwards
from the most recent date of absence). The determination regarding a "permanent
disability or incapacity" shall be made by a qualified and licensed physician
selected by Xxxxxx Xxxxxxxx and reasonably acceptable to you. In no event,
however, shall an inability to perform your job duties
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Xxxx Xxxxxxxx
May 20, 2004
Page 3
attributable to the use and/or abuse of alcohol or drugs be deemed a "permanent
disability or incapacity."
II. Benefits Upon "Change in Control" of Xxxxxx American Within Three (3)
Years From Commencement of This Agreement
In the event that at any time prior to May 16, 2007, there is a "change in
control" of Xxxxxx Xxxxxxxx (as defined below) and either: (i) your employment
with Xxxxxx American and/or a successor organization terminates due to a
requested resignation and/or termination without "Cause" or (ii) you resign
after the position of Senior Vice President/Corporate Development is
"substantially reclassified" by Xxxxxx American and/or a successor organization,
then Xxxxxx American and/or the successor organization will pay and/or provide
you the same salary continuation and benefits as provided under Section I of
this letter (excluding the professional outplacement services benefit described
in the second full paragraph of Section I). Your position shall be deemed
"substantially reclassified" if Xxxxxx American and/or a successor organization
either eliminates your position or substantially diminishes your duties and
responsibilities without your consent. The salary continuation, less required
payroll/withholding taxes and authorized deductions, will be paid to you in
substantially equal bi-weekly payments, beginning thirty (30) days after you
cease employment and the Separation Agreement between you and the Company
becomes effective. The salary continuation and benefits provided under this
Section II shall be in lieu of any other compensation and/or benefits for which
you may be eligible through any policy, plan or program of Xxxxxx American
including but not limited to those under Section I of this letter, with the
exception of the following: 1) any earned and unused vacation plus all accrued
vacation, and 2) eligibility to exercise previously issued grants under the
terms and provisions of the Novar Executive Share Option Scheme. The salary
continuation shall not be offset by your subsequent earnings from employment,
self employment or consulting.
For the purposes of this letter, the term "change in control" of Xxxxxx American
shall mean (i) the sale of all or substantially all of the assets of Xxxxxx
American; or (ii) the merger or consolidation of Xxxxxx American into another
company not related and/or affiliated with Novar where Xxxxxx American is not
the surviving and/or controlling entity; or (iii) the discontinuance of the
on-going operations of Xxxxxx American. The term "change in control" shall not
include any reorganization, recapitalization, corporate name change or
structural change of Xxxxxx American, Novar, or any related, affiliated and/or
subsidiary entities.
III. Obligation for Employment Separation Agreement
To receive the salary continuation and/or benefits set out in Sections I
or II of this letter, you must cease employment under the qualifying
circumstances of each section and sign a Separation Agreement in a form
reasonably acceptable to you and Xxxxxx
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Xxxx Xxxxxxxx
May 20, 2004
Page 4
American. The Separation Agreement shall include (i) a full and complete release
of Xxxxxx American, all related, affiliated and successor organizations, and all
of their officers, directors, agents and representatives; (ii) a mutual
obligation to maintain the Separation Agreement in confidence, subject to
disclosure by the Company as reasonably necessary to implement the terms of the
Separation Agreement, disclosure by you to your spouse, legal counsel, and
accountant; and disclosure by either party in response to a subpoena, order or
as otherwise required by law; (iii) a mutual obligation for non-disparagement;
(iv) an obligation for your future cooperation with the Company in response to
investigations, administrative claims, or judicial proceedings (provided that
the Company will pay your reasonable expenses and will pay you a reasonable
hourly rate for your time after the time period encompassed by your salary
continuation (maximum of two years and minimum of one year) has expired); (v) a
certification that to the best of your knowledge, after reasonable
investigation, you have returned to the Company on or before termination of
employment all Company property and/or documents, materials and/or things
generated during your employment with the Company; (vi) an obligation to
promptly notify the Company in the event you are requested and/or subpoenaed to
testify in any administrative and/or judicial proceeding concerning the Company
and/or your employment with the Company; (vii) an obligation to reasonably
cooperate with the Company and its legal counsel with respect to testimony in
civil matters, and testimony in administrative and/or criminal matters in which
your penal interests are not potentially affected; (viii) an obligation not to
solicit or encourage any current and/or former employee of the Company to become
adverse to and/or commence legal proceedings against the Company; and (ix) such
other matters as Xxxxxx American's counsel and your counsel reasonably agree are
reasonable to be incorporated into an employee separation agreement with
Executive employees.
IV. Arbitration of Disputes Regarding this Agreement
Any dispute relating to the interpretation, performance and/or enforcement
of this letter which cannot be resolved between you and Xxxxxx American shall be
submitted to binding and confidential arbitration in Bexar County, Texas. The
arbitration shall be conducted pursuant to the Federal Arbitration Act ("Act")
under the national rules for the resolution of employment disputes of the
American Arbitration Association ("AAA"). The results of the arbitration shall
be enforceable as set forth in the Act. The arbitration shall be conducted
before a single arbitrator who is licensed to practice law in the State of Texas
and who has represented both employers and executive employees in employment
matters ("qualified arbitrator"). The arbitrator shall be selected by agreement
of the parties within ten (10) days after a demand for arbitration. In the event
the parties are unable to agree upon an arbitrator within such ten (10) day time
period, either party pay request that AAA submit a proposed list of seven (7)
qualified arbitrators. The parties shall alternatively strike proposed qualified
arbitrators from the AAA list (the party striking first to be determined by
lot). The sole remaining qualified arbitrator shall conduct the arbitration as
provided herein. The arbitration hearing shall be completed
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Xxxx Xxxxxxxx
May 20, 2004
Page 5
within one hundred twenty (120) days after a written request for arbitration is
made by either party. The qualified arbitrator shall submit a written ruling and
award on the dispute within thirty (30) days after completion of the arbitration
hearing. Xxxxxx American shall bear seventy (70) percent and your shall bear
thirty (30) percent of the arbitrator's fees and expenses and any administrative
costs of the arbitration. Each party to the arbitration shall be solely
responsible for his or its own costs and attorney's fees, if any, relating to
the arbitration. The arbitrator may award costs and attorney's fees to the
prevailing party in accordance with applicable law. The decision of the
arbitrator on the dispute submitted to arbitration shall be final and binding
upon the parties. Should either party wrongfully institute any administrative
and/or court action against the other with respect to an arbitrable dispute by
any method other than arbitration as provided in this letter, then the other
party shall be entitled to recover from the initiating party all damages, costs,
expense, and attorney's fees incurred as a result of such action.
V. General Provisions
Should any provision of this letter be found to be in violation of any
federal, state or local statute or regulation or by other operation of law or
judicial interpretation be deemed invalid, all other terms and conditions of
this letter shall remain in full force and effect. Should any provision of this
letter be found or deemed to be unlawful or invalid by the arbitrator or a court
of competence jurisdiction, judicial reformation of this letter, or any
provisions hereof, to the fullest extent allowed by applicable law, is
acknowledged by the parties to be preferred and desired to preserve the intent
and purposes of such provision of this letter.
This letter is personal to you and may not be assigned by you. This letter
shall inure to the benefit of, be enforceable by, and be binding upon you,
Xxxxxx American, and its successors and assigns.
As used in this letter "Xxxxxx American" and "Company" shall mean both
Xxxxxx American, as defined above and any successor that assumes and agrees to
perform this letter.
Your or Xxxxxx American's failure to insist upon strict compliance with
any provision of this letter, or to assert any right hereunder, shall not be
deemed to be a waiver of such provision or right, or of any other provision
and/or right under this letter.
This letter sets our complete understanding and agreement relating to the
terms outlined above. This letter supersedes all prior and contemporaneous
discussions, agreements and representations, whether oral or written, between
you and Xxxxxx American relating to such agreements. This letter can only be
amended by a written document signed by you and Xxxxxx Xxxxxxxx.
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Xxxx Xxxxxxxx
May 20, 2004
Page 6
In order to confirm the understandings set forth in this letter, please
sign the second copy of this letter where indicated below and return it to me.
Sincerely,
XXXXXX AMERICAN CHECKS, INC.
/s/ Xxxxxxx X. Xxxxxxx, Xx.
--------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
President and Chief Executive Officer
Acknowledged and Agreed to
on this 11th day of June, 2004:
/s/ Xxxx Xxxxxxxx
--------------------------------
Xxxx Xxxxxxxx
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