EMPLOYMENT AGREEMENT
Exhibit
10.4
This EMPLOYMENT AGREEMENT (the “Agreement”) is entered into as of April 3, 2011
between XxXXXXX, INC., a Delaware corporation (the “Company”) and Xxxxxx X. Xxxxx (the
“Executive”) (each of the foregoing individually a “Party” and collectively the
“Parties”).
WHEREAS, concurrently with the execution of this Agreement, the Company, Xxxxxxxx
Incorporated, a corporation organized and existing under the laws of Delaware (“Parent”),
and DLBMS, Inc., a Delaware corporation and a direct, wholly-owned subsidiary of Parent
(“Merger Subsidiary”) have entered into an Agreement and Plan of Merger (the “Merger
Agreement”), pursuant to which the Company will become a wholly-owned subsidiary of Parent (the
“Merger”);
WHEREAS, the Executive is currently employed as the Vice President, Operations of the Company;
WHEREAS, in order to induce Parent to enter into the Merger Agreement and consummate the
Merger, the Executive is willing to enter into this Agreement;
WHEREAS, Parent would not have entered into the Merger Agreement nor consummated the
transactions contemplated thereby without the Executive’s agreement to enter into this Agreement
with the Company;
NOW, THEREFORE, in consideration of the Merger and the covenants, promises and representations
set forth herein, and for other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree as
follows:
1. Effectiveness. Except as provided in the last sentence of this section, this
Agreement shall constitute a binding agreement between the parties only upon the Effective Time (as
defined in the Merger Agreement). Unless and until the Merger is consummated, this Agreement shall
be of no effect and shall not confer any rights or obligations upon the Executive, the Company or
Parent. Effective upon the Effective Time this Agreement shall replace and supersede that certain
Executive Severance Agreement, dated January 11, 2005, between the Executive and the Company (the
“Severance Agreement”), which Severance Agreement shall, as of the Effective Time, be null and void
and of no further force or effect. Anything herein to the contrary notwithstanding, effective
immediately no Change of Control shall be deemed to exist or to have occurred under the Severance
Agreement as a result of the Company’s Board of Directors approving, adopting or agreeing to
recommend the Merger Agreement or the Company entering into the Merger Agreement.
2. Term; At-Will Employment. Subject to the provisions for earlier termination
hereinafter provided, the Executive’s employment hereunder shall initially be for a term (the
“Term”) commencing on Closing Date (as defined in the Merger Agreement) and ending on the
first anniversary of the Closing Date. To the extent the Executive remains an employee of the
Company or Parent or any of their respective Affiliates following the expiration of the Term, such
employment will be on an at-will basis. As such, following the expiration of the Term, the
Executive’s employment may be terminated at any time, with or without cause, and with or
without notice by the Executive or by the Company. In addition, from and after the expiration
of the Term, the Company and/or Parent may change the terms of the Executive’s employment, with or
without cause, and with or without notice. Such at-will relationship can only be changed by an
agreement in writing signed by the Chief Executive Officer of Parent and approved in writing as to
form by the General Counsel of Parent.
3. Employment. Subject to the terms set forth herein, during the Term and thereafter
while the Executive remains employed by the Company and/or Parent, the Executive will devote the
Executive’s full business time and use the Executive’s best efforts to advance the business and
welfare of the Company and its Affiliates (including, following the Effective Time, Parent and its
subsidiaries), and will not engage in any other employment or business activities or any other
activities for any direct or indirect remuneration that would be harmful or detrimental to the
business and affairs of the Company or Parent, or that would materially interfere with the
Executive’s duties hereunder. During the Term and thereafter while the Executive remains employed
by the Company and/or Parent it shall not be a violation of this Agreement for the Executive to (A)
serve on corporate, civic or charitable boards or committees, (B) deliver lectures, fulfill
speaking engagements or teach at educational institutions and (C) manage personal investments, so
long as such activities do not significantly interfere with the performance of the Executive’s
assigned responsibilities. To the extent that any such activities have been conducted by the
Executive prior to the Effective Time, the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent to the Effective Time shall not
hereafter be deemed to interfere with the performance of the Executive’s responsibilities to the
Company.
4. Position. During the Term, the Executive shall serve as the Vice
President-Operations of Xxxxxxxx XxXxxxx Technologies, Inc. of the Company, and shall report
directly to the Senior Vice President-Operations of Xxxxxxxx XxXxxxx Technologies, Inc. (the
“Direct Reporting Officer”). During the Term, the Executive shall render such other
services for the Company and its Affiliates as the Direct Reporting Officer may from time to time
reasonably request and as shall be consistent with the Executive’s position and responsibilities.
During the Term, the Executive’s principal location of employment shall be the Executive’s
principal location of employment on the date hereof.
5. Compensation.
(a) Base Salary. During the period of the Executive’s employment with the Company
and/or Parent, the Executive shall receive a base salary (the “Base Salary”) at a rate of
$260,000 per annum, which shall be paid in accordance with the customary payroll practices of the
Company, and which shall be subject to review for possible increase (but not decrease) promptly
following the Closing Date and subject to annual or other periodic review thereafter as determined
by the Company and/or Parent. During the Term, the Base Salary of the Executive shall not be
reduced. Any increase in the Base Salary of the Executive shall not limit or reduce any other
compensation owed to the Executive under this Agreement.
(b) Bonus. For each fiscal year during the period of the Executive’s employment with
the Company and/or Parent, in addition to the Base Salary, the Executive shall be eligible to earn
an annual cash performance bonus (the “Bonus”) based upon the achievement
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of performance targets established by Parent. For the period from July 1, 2011 until December
31, 2011, the Bonus will be based on and subject to terms and conditions identical or substantially
similar to the Company’s annual cash incentive compensation program in effect on the date hereof,
except that the performance goals for such period shall be consistent with the Company’s FY 2012
forecast previously provided to Parent and prorated for such 6-month period. Beginning with the
fiscal year of Parent beginning on January 1, 2012, the terms and conditions of the Bonus shall be
established by Parent and Executive shall have a bonus target opportunity substantially similar to
that of similarly situated officers of Parent and its subsidiaries. In all events, the Bonus for
any fiscal year or portion thereof shall be only be payable to the Executive if the Executive
remains continuously employed by the Company and/or Parent through the date that such Bonus is
determined by Parent (and/or its compensation committee) and paid to the Executive.
(c) Bonus Guarantee. Subject to the Executive’s continued employment with the Company
through the end of the Term, the minimum Bonus payable to the Executive for performance during the
period from July 1, 2011 until December 31, 2011 shall be $52,000, which amount shall be paid to
the Executive on the date that is six months following the Closing Date. In addition, subject to
the Executive’s continued employment with the Company through December 31, 2012, the minimum Bonus
payable to the Executive for performance during Parent’s 2012 fiscal year shall be $52,000, reduced
by the amount by which the Executive’s actual Bonus for the period from July 1, 2011 until December
31, 2011 exceeds the guaranteed minimum Bonus for that period. Subject to the Executive’s
continued employment with the Company through the first anniversary of the Closing Date, the
guaranteed minimum Bonus for Parent’s 2012 fiscal year (and described in the preceding sentence)
shall be paid to the Executive on the first anniversary of the Closing Date. For the avoidance of
doubt, the actual Bonus earned by the Executive for performance during Parent’s 2012 fiscal year
shall be reduced (but not below zero) by the amount of the guaranteed minimum Bonus paid to the
Executive on the first anniversary of the Closing Date pursuant to the preceding sentence.
(d) Equity-Based Compensation. The Executive will be eligible to participate in
Parent’s equity-based incentive compensation program on terms and conditions determined by Parent
and its board of directors and consistent the terms and conditions applicable to similarly-situated
officers of Parent and its subsidiaries.
(e) Participation in Welfare Benefit Plans. During the Term, the Executive shall be
entitled to participate in the Company’s 401(k) plan and in the medical, dental, vision, life,
disability and accident insurance programs maintained by the Company that were available to the
Executive on the date of this Agreement, in each case, in accordance with the terms thereof as in
effect on this Agreement. In addition, during the Term, the Executive shall be entitled to receive
perquisites consisting of an automobile allowance or company car, current country club membership
and financial planning assistance, to the extent made available to the Executive by the Company on
the date of this Agreement. Notwithstanding anything herein to the contrary, the Company and/or
Parent may reduce the 401(k) plan and insurance benefit plans and programs made available to the
Executive to the extent such a reduction applies to all salaried employees of the Company who are
exempt from the wage and hour provisions of the Fair Labor Standards Act. Following the Term, the
Executive shall be entitled to participate in
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the Company’s welfare benefit plans and receive perquisites as determined by the Company
and/or Parent.
(f) Expenses. During the Term, the Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Executive in accordance with the policies
and procedures of the Company in effect from time to time.
(g) Vacation. During the Term, the Executive shall be entitled to four (4) weeks paid
vacation.
(h) LTIP. The Company acknowledges and agrees that, except as set forth in Section 6
below, to the extent the Executive remains continuously employed by the Company and/or Parent
through the first anniversary of the Closing Date, the Company shall pay to the Executive on the
first anniversary of the Closing Date a lump sum cash payment equal to $504,000, reduced by any
amount paid on or prior to the Closing Date under or in respect of performance units outstanding as
of the date hereof (the “LTIP Payment”) under the Company’s 2004 Long Term Incentive Plan
(the “LTIP”), payment of which shall be deemed to satisfy all obligations of the Company
and/or Parent to the Executive under the LTIP and any award agreement entered into there under.
6. Termination of Employment. The Executive’s employment with the Company during the
Term may only be terminated either (i) by the Company for Cause or as a result of the Executive’s
death or Disability or (ii) by the Executive for Good Reason. Following the expiration of the
Term, the Executive’s employment with the Company may be terminated by either Party at any time and
for any or no reason. Notwithstanding any other provision of this Agreement, the provisions of
this Section 6 shall exclusively govern the Executive’s rights to compensation and benefits upon
termination of employment with the Company and its Affiliates.
(a) Notice of Termination. Any termination of the Executive’s employment by the
Company or by the Executive under this Section 6 (other than as a result of the Executive’s death)
shall be communicated by a written notice (a “Notice of Termination”) to the other Party
specifying a date of termination (the “Date of Termination”) which, shall be no more than
ninety (90) days following the date of such notice; provided, however, that during the period
beginning on the date of the Notice of Termination and ending on the Date of Termination, the
Company may, in its sole discretion, place the Executive on paid leave of absence during which the
Executive shall continue to be deemed to be an employee of the Company for all purposes under this
Agreement, but only be involved in Company matters to the extent requested by the Company.
(b) Accrued Rights. Upon a termination of the Executive’s employment for any reason,
the Executive (or the Executive’s estate) shall be entitled to receive the sum of the Executive’s
Base Salary through the Date of Termination not theretofore paid; any expenses owed to the
Executive under the Company’s expense reimbursement policy; and any amount arising from the
Executive’s participation in, or benefits under, any employee benefit plans, programs or
arrangements (including without limitation, any disability or life insurance benefit plans,
programs or arrangements), which amounts shall be payable in accordance with the terms
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and conditions of such employee benefit plans, programs or arrangements (collectively, the
“Accrued Rights”).
(c) Termination by the Company without Cause or by the Executive for Good Reason.
(i) If the Executive’s employment is terminated during the Term by the Executive for Good
Reason or by the Company without Cause (and not by reason of a termination by the Company for
Cause or by reason of the Executive’s death or Disability), then, in addition to the Accrued
Rights, the Company shall pay to the Executive a lump sum cash severance payment equal to the Base
Salary, to the extent not previously paid, that would have been payable to the Executive had the
Executive remained employed by the Company through the end of the Term, plus, to the extent not
previously paid, the minimum guaranteed bonuses set forth in Section 5(c). If the Executive’s
employment is terminated during the first six (6) months following the Term by the Executive for
Good Reason or by the Company without Cause (and not by reason of a termination by the Company for
Cause or by reason of the Executive’s death or Disability), then, in addition to the Accrued
Rights, the Company shall pay to the Executive a lump sum cash severance payment equal to the
minimum guaranteed bonus set forth in the second sentence in Section 5(c), to the extent not
previously paid. The lump sum payment described in the preceding sentences shall be paid to the
Executive within thirty (30) days following the Date of Termination; provided that the Executive
has executed (within twenty-one (21) days following the Date of Termination) the waiver and general
release of claims agreement in a form attached to this Agreement as Exhibit A.
(ii) Upon a termination of employment described in Section 6(c)(i), the Executive shall
also
be entitled to receive, to the extent not previously paid, the LTIP Payment, payable to the
Executive within thirty (30) days following the Date of Termination, payment of which shall be
deemed to satisfy all obligations of the Company and/or Parent to the Executive under the LTIP and
any award agreement entered into there under.
(iii) Upon a termination of employment described in Section 6(c)(i), the Executive shall
also
be entitled to receive the benefits described in Section 5(e), that would have been received by the
Executive had the Executive remained employed by the Company through the end of the Term.
(iv) For the avoidance of doubt, following the Executive’s termination of employment by
the
Executive for Good Reason or by the Company without Cause (and not by reason of the Executive’s
death, Disability or a termination by the Company for Cause), the Executive shall have no further
rights to any compensation or any other benefits from the Company or Parent, except as set forth in
this Section 6(c).
(d) Termination by the Company for Cause; Resignation without Good Reason; death;
Disability. If the Executive’s employment is terminated during the Term or thereafter by the
Company for Cause or upon Executive’s resignation without Good Reason, the Executive shall only be
entitled to receive the Accrued Rights. If the Executive’s employment is terminated upon the
Executive’s death or Disability, the Executive shall only be entitled to receive the Accrued Rights
and the LTIP Payment, to the extent not previously paid (payment of
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which shall be deemed to satisfy all obligations of the Company and/or Parent to the Executive
under the LTIP and any award agreement entered into there under). Following the Executive’s
termination of employment by the Company for Cause or upon the Executive’s death, Disability or
resignation without Good Reason, the Executive shall have no further rights to any compensation or
any other benefits from the Company or Parent, except as set forth in this Section 6(d).
(e) Expiration of the Term. If the Executive’s employment terminates on or after the
expiration of the Term for any reason, the Executive shall not be entitled to any additional
compensation other than the Accrued Rights.
(f) No Mitigation. The Company’s obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action which the Company may have
against the Executive. In no event shall the Executive be obligated to seek other employment or
take any other action by way of mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement and such amounts shall not be reduced whether or not the Executive
obtains other employment.
(g) Return of Property. Upon termination of the Executive’s employment with the
Company and its Affiliates, whether voluntary or involuntary, the Executive shall immediately
deliver to the Company (i) all physical, computerized, electronic or other types of records,
documents, proposals, notes, lists, files and any and all other materials, including computerized
and electronic information, that refers, relates or otherwise pertains to the Company or any
Affiliate (or business dealings thereof) that are in the Executive’s possession, subject to the
Executive’s control or held by the Executive for others; and (ii) all property or equipment that
the Executive has been issued by the Company or any Affiliate during the course of the Executive’s
employment or property or equipment thereof that the Executive otherwise possesses, including any
computers, cellular phones, pagers and other devices. The Executive acknowledges that the
Executive is not authorized to retain any physical, computerized, electronic or other types of
copies of any such physical, computerized, electronic or other types of records, documents,
proposals, notes, lists, files or materials, and is not authorized to retain any other property or
equipment of the Company or any Affiliate. The Executive further agrees that the Executive will
immediately forward to the Company (and thereafter destroy any electronic copies thereof) any
business information relating to the Company or any Affiliate that has been or is inadvertently
directed to the Executive following the Executive’s last day of the Executive’s employment. The
provisions of this Section 6(g) are in addition to any other written obligations on the subjects
covered herein that the Executive may have with the Company and its Affiliates, and are not meant
to and do not excuse such obligations. Upon the termination of the Executive’s service with the
Company, the Executive shall, upon the Company’s request, promptly execute and deliver to the
Company a certificate (in form and substance satisfactory to the Company) to the effect that the
Executive has complied with the provisions of this Section 6(g).
(h) Resignation of Offices. Promptly following the termination of the Executive’s
employment with the Company for any reason other than the Executive’s death, the Executive shall
promptly deliver to the Company reasonably satisfactory written evidence of the
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Executive’s resignation from all positions that the Executive may then hold as an employee,
officer or director of the Company or any Affiliate. The Company shall be entitled to withhold
payment of any amounts otherwise due pursuant to this Section 6 until the Executive has complied
with the provisions of this Section 6(h).
(i) Ongoing Assistance. Following the termination of the Executive’s employment with
the Company and its Affiliates, the Executive agrees to make himself/herself reasonably available,
subject to the Executive’s other personal and professional commitments and obligations, to provide
information and other assistance as reasonably requested by the Company (and, at the reasonable
expense of the Company), with respect to pending, threatened or potential claims and other matters
related to the business of the Company about which the Executive has personal knowledge as a result
of the Executive’s supervision or other involvement within such claims or matters performed in
connection with the Executive’s employment. In all events, the Company shall reimburse the
Executive or pay on the Executive’s behalf, all direct expenses incurred (including any travel) in
connection with the Executive’s fulfillment of the obligations set forth in this Section 6(i).
7. Amendment of LTIP. The Executive hereby agrees and consents to the Second
Amendment to the LTIP previously adopted by the Company. In addition, the Executive hereby
agrees that for all purposes under the LTIP, the term “Good Reason” shall not have the
meaning set forth in Section 10.1 of the LTIP, but instead shall mean the occurrence of any
one or more of the following:
(i) the requirement that the Executive be based at a location which is at least
seventy-five (75) miles further from the Executive’s primary residence at the time such
requirement is imposed than is such residence from the Company’s office as of Effective
Time, except for required travel related to the business of the Company to the extent
substantially consistent with the Executive’s business obligations;
(ii) a reduction in the Base Salary;
(iii) the Executive’s involuntary termination of employment with the Company for a
reason other than Cause; and
(iv) a change in Executive’s Direct Reporting Officer as set forth in Section 4 of
this Agreement.
8. Severability. If any portion or provision of this Agreement shall to any extent be
declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this
Agreement, or the application of such portion or provision in circumstances other than those as to
which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion
and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by
law.
9. Governing Law and Jurisdiction. This Agreement shall be construed and enforced
under and be governed in all respects by the laws of Missouri, without regard to the conflict of
laws principles thereof. The Company and the Executive hereby consent and submit to the personal
jurisdiction and venue of any state or federal court located in the State of
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Missouri for resolution of any and all claims, causes of action or disputes arising out of or
related to this Agreement.
10. Assignment. Neither the Company nor the Executive may make any assignment of this
Agreement or any interest herein, by operation of law or otherwise, without the prior written
consent of the other; provided, however, that the Company may assign its rights and obligations
under this Agreement without the consent of the Executive to Parent or any of its Affiliates. This
Agreement shall inure to the benefit of and be binding upon the Company and the Executive, their
respective successors, executors, administrators, heirs and permitted assigns.
11. Waiver. No waiver of any provision hereof shall be effective unless made in
writing and signed by the waiving party. The failure of either party to require the performance of
any term or obligation of this Agreement, or the waiver by either party of any breach of this
Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a
waiver of any subsequent breach.
12. Notices. Any and all notices, requests, demands and other communications provided
for by this Agreement shall be in writing and shall be effective when delivered in person,
consigned to a reputable national courier service or deposited in the United States mail, postage
prepaid, registered or certified, and addressed to the Executive at the Executive’s last known
address on the books of the Company or, in the case of the Company, to Parent at its principal
place of business, attention of the Chief Executive Officer of Parent or to such other address as
any Party may specify by notice to the other actually received.
13. Entire Agreement. This Agreement, together with any confidentiality, assignment
of inventions, non-competition or other similar agreement between the Company and the Executive,
constitutes the entire agreement among the Parties hereto pertaining to the subject matter hereof
and supersede all prior and contemporaneous agreements, understandings, negotiations and
discussions, whether oral or written, of the Parties with respect to such subject matter,
including, without limitation, the Severance Agreement. For the avoidance of doubt, any
confidentiality, assignment of inventions, non-competition or other similar agreement between the
Company and the Executive shall remain in full force and effect following the executive of this
Agreement and the consummation of the Merger.
14. Amendment. This Agreement may be amended or modified only by a written instrument
signed by the Executive and by an expressly authorized representative of the Company.
15. Headings. The headings and captions in this Agreement are for convenience only,
and in no way define or describe the scope or content of any provision of this Agreement.
16. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be an original and all of which together shall constitute one and the same instrument.
17. Third Party Beneficiary. Parent shall be a third party beneficiary of this
Agreement.
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18. Definitions. Words or phrases that are initially capitalized or are within
quotation marks shall have the meanings provided in this Section 18 and as provided elsewhere
herein. Solely for purposes of this Agreement, the following definitions apply:
(a) “Affiliates” means, (i) with respect to the Company or Parent, all persons and
entities directly or indirectly controlling, controlled by or under common control with the Company
or Parent, as applicable, where control may be by management authority, contract or equity
interest, and (ii) with respect to Executive, all entities directly or indirectly controlled by or
under common control with Executive, where control may be by management authority, contract or
equity interest.
(b) “Cause” means:
(i) The willful and continued failure of the Executive to perform substantially the
Executive’s duties with the Company or one of its affiliates (other than any such failure resulting
from incapacity due to physical or mental illness), after a written demand for such performance is
delivered to the Executive by the Board which specifically identifies the manner in which the Board
believes that the Executive has not substantially performed the Executive’s duties and the
Executive has been provided a reasonable period of time, but no less than fifteen (15) days, to
cure said deficiency identified by the Board, or
(ii) The willful engaging by the Executive in (A) illegal conduct (other than minor
traffic
offences) , or (B) conduct which is in breach of the Executive’s fiduciary duty to the Company and
which is demonstrably injurious to the Company, its reputation or its business prospects.
For purposes of this provision, no act or failure to act on the part of the Executive shall be
considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or
without reasonable belief that the Executive’s action or omission was in the best interests of the
Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or upon the instructions of the Chief Executive Officer of the Company or
based upon the advice of counsel for the Company shall be conclusively presumed to be done, or
omitted to be done, by the Executive in good faith and in the best interests of the Company. The
cessation of employment of the Executive shall not be deemed to be for Cause unless and until there
shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative
vote of not less than three-quarters of the entire membership of the Board at a meeting of the
Board called and held for such purpose (after reasonable notice is provided to the Executive and
the Executive is given an opportunity to be heard before the Board), finding that, in the
good-faith opinion of the Board, the Executive is guilty of the conduct described in subparagraph
(i) or (ii) above, and specifying the particulars thereof in detail.
(c) “Disability” means the absence of the Executive from the Executive’s duties with
the Company on a full-time basis for one hundred eighty (180) consecutive business days as a result
of incapacity due to mental or physical illness which is determined to be total, and permanent by a
physician selected by the Company or its insurers and acceptable to the Executive or the
Executive’s legal representative (such agreement as to acceptability not to be withheld
unreasonably).
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(d) “Good Reason” means:
(i) any failure by the Company to comply with any of the provisions of this Agreement,
other than an isolated failure not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the Executive and other than a
failure to comply with Section 5(e) solely by reason of a reduction in benefits that
applies to all salaried employees who are exempt from the wage and hour provisions of the
Fair Labor Standards Act; or
(ii) the Company’s requiring the Executive to be based at any office or location other
than the Executive’s principal business location as of immediately prior to the Effective
Time; or
(iii) any purported termination by the Company of the Executive’s employment otherwise
than as expressly permitted by this Agreement; or
(iv) a change in the Executives direct Report Officer as set forth in Section 4 of
this Agreement..
19. In the event of a dispute regarding the terms of this Agreement or each party’s
obligations herein, the prevailing party in any such dispute shall be entitled to recover all costs
incurred to enforce the terms of this Agreement, including all reasonable attorney’s fees.
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IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound hereby, have hereunto
set their hands under seal, as of the date first above written.
| EXECUTIVE: |
||||||
| /s/ Xxxxxx X. Xxxxx | ||||||
| Xxxxxx X. Xxxxx | ||||||
| XxXXXXX, INC., a Delaware corporation: | ||||||
| By: | /s/ Xxxxx X. XxXxxxx | |||||
| Name: | Xxxxx X. XxXxxxx | |||||
| Title: | Chief Executive Officer and President | |||||
