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Exhibit (e)(13)
EMPLOYMENT AND NON-COMPETE AGREEMENT
BY AND BETWEEN
XXXXXXX TRUCK LEASING CORP.
AND
XXXXX X. XXXXXX
THIS AGREEMENT, is by and between Xxxxxxx Truck Leasing Corp. (the "Company")
and Xxxxx X. Xxxxxx (the "Executive") and is effective as of this 31st day of
December, 2000 (the "Effective Date").
W I T N E S S E T H:
WHEREAS, the Executive is currently employed by the Company or an
affiliate thereof in a managerial position; and
WHEREAS, the Executive has, in the course of his employment, developed
relationships with employees and customers of the Company, and learned valuable
and sensitive information concerning the Company's policies and procedures; and
WHEREAS, the Executive has, in the course of his employment, been
exposed to valuable and sensitive Company reports, files, memoranda, records,
software, and other property; and
WHEREAS, the Company recognizes that the solicitation of its employees
and customers, and the use or disclosure of the policies, procedures,
information, documents, and property of the Company would be damaging to the
Company's interests; and
WHEREAS, the Company's board of directors has determined that it is in
the best interests of the Company to protect its interests through the use of
Employment and Non-Compete Agreements; and
WHEREAS, the Company's board of directors has determined that it is in
the best interests of the Company and its shareholders for the Company to agree
to provide benefits under the circumstances described below to the Executive and
other executives who agree to such an agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto agree as follows:
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SECTION 1
DEFINITIONS
"Announcement" shall mean a press release issued by the Company
announcing the signing of an agreement whereby the Company will merge with any
other entity or a tender offer for the shares of the Company stock will be
initiated.
"Board" shall mean the Board of Directors of the Company or the
ultimate corporate parent entity which owns the Company if the Company is not
public.
"Cause" shall mean a unanimous determination by the Board that the
Executive has been convicted of a felony, has embezzled from, or committed fraud
against, the Company, which embezzlement or fraud has a material adverse
financial impact on the Company, or has been grossly insubordinate, which gross
insubordination has continued after written notice of such from the Board, in
any such case which determination, if challenged by the Executive within 90 days
in accordance with Section 7, is upheld by a final, non-appealable arbitration
award.
"Change in Control" shall mean the earlier to occur of the effective
day of (a) the closing of a tender offer for the Company's stock following the
Announcement or (b) the closing of a merger or similar transaction
("Transaction") of the Company and any other entity; provided, however, a
Transaction the result of which is the shareholders of the Company's voting
securities immediately prior to the Transaction own, directly or indirectly in
substantially the same proportion, at least 60% of the voting securities of the
survivor of such Transaction immediately following such Transaction shall not be
a Change in Control.
"Change in Control Fee" shall mean $1,000,000.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Company Information" shall mean (i) confidential information
including, without limitation, information received from third parties under
confidential conditions, (ii) information subject to the Company's and its
affiliates' attorney-client or work-product privilege; and (iii) other
technical, business, legal or financial information (including, without
limitation, customer lists), the use or disclosure of which might reasonably be
construed to be contrary to the Company's and its affiliates' interests.
"Date of Termination" shall mean the date on which the Executive's
employment is terminated.
"Employment Period" shall mean the period of time during the Extension
Period the Executive is an employee of the Company.
"Extension Period" shall mean the 30 month period following the Change
in Control, provided that if the Employment Period is less than twenty-four (24)
months and if the Company terminates Executive's employment for Cause or if
Executive terminates his employment without Good Reason, the Extension Period
shall be reduced by the difference between twenty-four (24) months and the
Employment Period.
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"Good Reason" shall mean a (i) reduction in title, responsibilities or
support services, (ii) relocation outside of the city where the Executive
currently has his main office, (iii) travel at a level that exceeds the travel
requirements before the Change in Control, (iv) any breach by the Company of its
obligations hereunder, (v) any breach by the purchaser under a merger or
acquisition agreement pursuant to which the Change in Control takes place
relating to employee benefits or directors' and officers' insurance or
indemnification provisions, or (vi) any reason whatsoever two years after the
Change in Control.
"Monthly Amount" shall mean (a) $55,000 for the shorter of (i) the
first 24 months of the Extension Period or (ii) the Employment Period if less
than 24 months because the Company terminates Executive's employment for Cause
or Executive terminates his employment without Good Reason; and (b) $30,000 for
the remainder of the Extension Period.
"Non-Compete Monthly Amount" shall mean the portion of the Monthly
Amount in clause (b) of the definition of Monthly Amount which is paid in
consideration of the Executive's agreement to the restrictions and other
provisions of Section 8, with the remainder of the Monthly Amount and other
benefits under this Agreement paid after the Employment Period to be treated as
severance. Executive's Non-Compete Monthly Amount shall be calculated by
multiplying the Monthly Amount in clause (b) of the definition of Monthly Amount
by 50 percent.
"Pro Rated Bonus" shall mean $0 multiplied by a fraction, the numerator
of which is the number of days in the current fiscal year through the Change in
Control, and the denominator of which is 365.
"Retirement Plan" shall mean the Company's qualified defined benefit
retirement plan(s) in which the Executive participates.
"SERP" shall mean any and all supplemental retirement plans in which
the Executive participates (including, but not limited to, any benefit
restoration plan(s) maintained by the Company from time to time).
SECTION 2
TERM OF AGREEMENT
This Agreement shall be effective as of the Effective Date but shall
terminate on the first annual anniversary of the Effective Date if no Change in
Control occurs prior to such date.
SECTION 3
BENEFITS
(a) On the date of a Change in Control, the Company shall pay to the
Executive in cash the Change in Control Fee and the Pro Rated Bonus.
(b) During the Extension Period, the Company shall pay to the Executive
the Monthly Amount, payable on the first day of each month, prorated for partial
months.
(c) If the Executive's employment is terminated during the Extension
Period, then,
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(i) within five business days after the Date of Termination,
the Company shall pay to the Executive (or if the Executive dies after his Date
of Termination, but before receiving all payments to which he has become
entitled hereunder, to the estate of the Executive) in cash all accrued but
unpaid salary, earned but unpaid bonuses, and accrued but unused vacation;
(ii) the Company shall pay to the Executive (or if the
Executive dies after his Date of Termination, but before receiving all payments
to which he has become entitled hereunder, to the estate of the Executive) the
Monthly Amount on the first day of each month during the remainder of the
Extension Period;
(iii) the Company shall pay to the Executive (or if the
Executive dies after his Date of Termination, but before receiving all payments
to which he has become entitled hereunder, to his beneficiary, if any, under the
Retirement Plan) a monthly amount equal to the excess of (1) the monthly benefit
under (x) the Retirement Plan and (y) the SERP, that the Executive or his
beneficiary, if any, under the Retirement Plan would have received if his
employment had continued for the Extension Period (giving credit for all
purposes, including, but not limited to, accrual of benefits, vesting, age and
years of service), assuming that, for purposes of determining benefits under the
Retirement Plan and SERP, the Executive's covered annual compensation ("Covered
Compensation") during the Extension Period would have been equal to the
Executive's annual rate of Covered Compensation at the Date of Termination or,
if greater, at the time of the Change in Control (determined without regard to
compensation or benefit limitations prescribed by federal law or regulation),
over (2) the Executive's actual monthly benefit (paid or payable), if any, under
the Retirement Plan and the SERP, with such excess being paid in the same manner
and at the same time as the benefit under the Retirement Plan or the SERP, the
present value of such payments amount to be placed in a Rabbi trust pro rata
over the Extension Period;
(iv) on the Date of Termination the Company shall transfer
title and ownership to the Executive of his laptop computer, if any, without any
payment by the Executive to the Company.
(d) During the Extension Period (whether or not during the Employment
Period) the Executive shall be entitled to the following additional benefits:
(i) The Executive and, as applicable, the Executive's covered
dependants shall be entitled to all health, welfare, and fringe benefits
provided by the Company to its key employees generally or to the Executive on an
individual or group basis (including, but not limited to, any life, accident,
health, hospitalization or long-term disability insurance, maintained from time
to time by the Company), whether maintained pursuant to a plan, policy or other
arrangement (written or unwritten), as if the Executive were still employed
during such period, at the same level of benefits and at the same dollar cost to
the Executive as is available generally to comparable employees of the Company
(but in no instances shall such benefits be at a level less than as in effect on
the date of the Change in Control). If the Company reasonably determines that
the coverage required under this Section would cause a welfare plan sponsored by
the Company to violate any provision of the Code prohibiting discrimination in
favor of highly compensated employees or key employees, or if any benefits
described in this Section cannot be
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provided (or the Company determines that it does not wish to provide such
benefits) pursuant to the appropriate plan or program maintained for employees
of the Company, the Company shall provide such benefits outside such plan or
program at no additional cost (including, without limitation, tax costs) to the
Executive or, as determined by the Company in its sole discretion, the Company
will pay to the Executive the cash equivalent thereof. The benefits provided in
accordance with this Section shall be secondary to any comparable benefits
provided by another employer if and only if the Executive chooses to be covered
by such other employee plan.
(ii) The continued use of the Executive's Company car, if any,
consistent with past practices as in effect immediately prior to the Change in
Control (including but not limited to replacement with a new comparable
automobile when the automobile is three years old); provided that the Company
may at any time following the Date of Termination, in its discretion, discharge
its obligation under this Section by transferring title to such car to the
Executive.
(e) (i) If all, or any portion, of the payments and benefits
provided under this Agreement, if any, either alone or together with other
payments and benefits which the Executive receives or is entitled to receive
from the Company, would constitute an excess "parachute payment" within the
meaning of Section 280G of the Code (whether or not under an existing plan,
arrangement, or other agreement) (each such parachute payment, a "Parachute
Payment"), and would result in the imposition on the Executive of an excise tax
under Section 4999 of the Code, then, in addition to any other benefits to which
the Executive is entitled under this Agreement or otherwise, the Executive shall
be paid an amount in cash equal to the sum of the excise taxes payable by the
Executive by reason of receiving Parachute Payments plus the amount necessary to
place the Executive in the same after-tax position (taking into account any and
all applicable federal, state and local excise, income or other taxes at the
highest possible applicable rates on such Parachute Payments (including, without
limitation, any payments under this Section) as if no excise taxes had been
imposed with respect to Parachute Payments (the "Parachute Gross-Up"). Any
Parachute Gross-Up otherwise required by this Section shall not be made later
than the time of the corresponding payment or benefit hereunder giving rise to
the underlying Section 4999 excise tax, even if the payment of the excise tax is
not required under the Code until a later time.
(ii) Subject to the provisions of Section 3(e)(iii) and except
as may otherwise be agreed to by the Company and the Executive, the amount or
amounts (if any) payable under this Section 3 shall be as conclusively
determined by the Ernst & Young, L.L.P., or such other firm as mutually agreed
to by the Company and the Executive ("Independent Tax Counsel"), whose
determination or determinations shall be final and binding on all parties. The
Executive shall agree to utilize such determination or determinations, as
applicable, in filing all of the Executive's tax returns with respect to the
excise tax imposed by Section 4999 of the Code, if any. If such Independent Tax
Counsel fails or refuses to make the required determinations for any reason,
then such determinations shall be made by a comparable firm or group of national
reputation to which the parties reasonably mutually agreed. All fees and
expenses of the Independent Tax Counsel or its replacement shall be paid by the
Company.
(iii) As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial determination by the
Independent Tax Counsel hereunder, it is possible that Parachute Gross-Up
payments, if any, which will not have been made by the
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Company, should have been made, together with any interest, penalties or taxes
of any kind thereon, consistent with the calculations required to be made
hereunder (a "Underpayment"). The Company shall pay all such Underpayment to or
for the benefit of the Executive. The Executive shall notify the Company in
writing of any claim by the Internal Revenue Service that, if successful, would
require the payment by the Company of the Gross-Up Payment within ten (10)
business days after the Executive is informed in writing of such claim. The
Company shall notify the Executive within ten (10) business days of receipt of
the Executive notice that the Company (x) will pay the Underpayment and do so on
or before the date due, or (y) that it desires to contest such claim. The
Executive will cooperate with the Company in any such contest; provided,
however, that the Company shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in connection with such
contest and shall indemnify and hold the Executive harmless, on an after-tax
basis, for any Excise Tax or income tax (including interest and penalties with
respect thereto) imposed as a result of such representation and payment of costs
and expenses. Furthermore, the Company's control of the contest shall be
limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and the Executive shall be entitled, at Executive's expense, to settle
or contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
(iv) References herein to Code sections shall apply to
comparable Code sections in the event of any amendment to the Code.
(f) In the event of the Executive's termination of employment under
this Agreement, the Executive shall be under no obligation to seek other
employment, and there shall be no offset against amounts due the Executive under
this Agreement on account of any remuneration attributable to any subsequent
employment.
SECTION 4
EMPLOYMENT
Following a Change in Control, the Executive will, except as provided
below, continue as an employee during the Extension Period. During the
Employment Period:
(i) The Executive shall perform services consistent with his
past practices,
(ii) The Executive shall not be required to relocate outside
of the city where the Executive currently has his main office or travel in
excess of past practices,
(iii) The Executive shall enjoy the same or comparable office
and support services as he enjoyed prior to the Change in Control, including,
without limitation, the office and support services set forth on Attachment I
hereto.
(iv) The Executive shall not be required to devote more time
to Company business than he did prior to the Change in Control and may continue
director or officer positions with other private or public entities that do not
violate Section 8.
(v) The Executive's expenses shall be reimbursed consistent
with past practices,
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(vi) The Executive shall receive not less than four weeks paid
vacation, and
(vii) The Executive shall receive continued payment of
professional and organizational dues and fees as in effect prior the Change in
Control.
No breach or alleged breach of this Section 4 shall constitute grounds
for, or otherwise entitle, the Company to offset payments otherwise owing to the
Executive under this Agreement.
SECTION 5
SOURCE OF PAYMENTS
All payments provided for in Sections 3 and 8 of this agreement shall
be paid in cash from the general funds of the Company; provided, however, that
such payments shall be reduced by the amount of any payments made to the
Executive or his dependents, beneficiaries or estate from any trust or special
or separate fund established by the Company to assure such payments. Except for
Rabbi trusts for SERP, which shall be fully funded consistent with past
practices, and for the payments referred to in Section 3(c)(iii), the Company
shall not be required to establish a special or separate fund or other
segregation of assets to assure such payments. If the Company shall make any
investments to aid it in meeting its obligations hereunder, the Executive shall
have no right, title or interest in or to any such investments except as may
otherwise be expressly provided in a separate written instrument relating to
such investments. Except as provided above, nothing contained in this
Agreement, and no action taken pursuant to its provisions, shall create or be
construed to create a trust of any kind or a fiduciary relationship between the
Company and the Executive or any other person. To the extent that any person
acquires a right to receive payments from the Company such right shall be no
greater than the right of an unsecured creditor of the Company.
SECTION 6
LITIGATION EXPENSES
In addition to the Company's obligations under Section 3(c) hereof, the
Company shall pay all legal fees and expenses incurred in a legal proceeding
(including arbitration) by the Executive in seeking to obtain or enforce any
right or benefit provided by this Agreement (including, without limitation, any
rights to a Parachute Gross-Up). Such payments are to be made within five days
after the Executive's request for payment accompanied with such evidence of fees
and expenses incurred as the Company reasonably may require; provided, however,
that if the Executive institutes a proceeding and the judge or other
decision-maker presiding over the proceeding affirmatively finds that the
Executive has failed to prevail substantially, he shall pay his own costs and
expenses (and, if applicable, return any amounts theretofore paid on his behalf
under this Section 6.
SECTION 7
ARBITRATION
All disputes with respect to the subject matter of this Agreement and
the enforcement of rights hereunder shall be submitted to binding arbitration in
accordance with the rules of the American Arbitration Association (the "AAA").
Each party hereto shall designate one arbitrator (who need not be impartial)
within fifteen (15) days after notice of the dispute. The two
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arbitrators so designated shall endeavor to designate promptly a third, neutral
arbitrator. If the two arbitrators have not designated the third arbitrator by
the fifteenth (15th) day following the designation of the second arbitrator, or
if a second arbitrator has not been designated by the (15th) day following the
designation of the first, either Party may request the AAA to designate the
remaining arbitrator(s). The third arbitrator shall take an oath of neutrality.
The arbitrators shall not be bound by judicial formalities and may abstain from
following the strict rules of evidence and shall interpret this Agreement as an
honorable engagement and not merely as a legal obligation. The arbitrators
shall have the power to render equitable relief as may be available in
accordance with applicable law. Unless otherwise agreed by the parties, any
such arbitration shall take place in [insert applicable city where Executive's
office is currently located], and shall be conducted in accordance with the
Rules of the AAA. The determination reached in such arbitration shall be final
and binding on both parties without any right of appeal or further dispute. The
arbitrators' award may be confirmed in, and judgment upon the award entered by,
any federal or state court having jurisdiction over the parties.
SECTION 8
RESTRICTIVE COVENANTS
(a) Within a reasonable period of time following his termination of
employment, the Executive shall return to the Company all Company Information,
reports, files, memoranda, records, credit cards, cardkey passes, door and file
keys, computer access codes, software and other property which the Executive has
received, prepared, or helped to prepare in connection with his employment with
the Company, except as provided in Section 3. The Executive acknowledges that
in the course of employment with the Company, he has acquired Company
Information and that such Company Information has been disclosed to him in
confidence and for the Company's use only. The Executive agrees that, during
the Extension Period, he (i) will keep such Company Information confidential at
all times, (ii) will not disclose or communicate Company Information to any
third party, and (iii) will not make use of Company Information on his own
behalf or on behalf of any third party. The Executive further acknowledges and
agrees that the Company's remedy in the form of monetary damages for any breach
by him of any of the provisions of this Section 8 may be inadequate and that, in
addition to any monetary damages for such breach, the Company shall be entitled
to institute and maintain any appropriate proceeding or proceedings, including
an action for specific performance and/or injunction.
(b) Executive agrees not to, during the Extension Period, directly or
indirectly, individually or on behalf of persons not now parties to this
Agreement, or as a director, officer, principal, agent, executive, or in any
other capacity or relationship, engage in any truck rental and leasing business
(except as a passive investor holding not more than 3% of the equity of such
business), or aid or endeavor to assist any business or legal entity, that is in
the truck rental and leasing business and that competes with the Company
anywhere in continental United States. The Company and Executive acknowledge
the reasonableness of this covenant not to compete and the reasonableness of the
geographic area and duration of time which are a part of said covenant.
(c) Unless waived in writing by the Company, Executive further agrees
that he will not, directly or indirectly, during the Extension Period, solicit
the trade or patronage of any of the
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customers of the Company, regardless of the location of such customers of the
Company with respect to any services, products, or other matters in which the
Company is active.
(d) Unless waived in writing by the Company, Executive further agrees
that he will not, directly or indirectly, during the Extension Period, solicit
or attempt to entice away from the Company any director, agent or employee of
the Company.
(e) Executive acknowledges that the Company has no adequate remedy at
law and would be irreparably harmed if Executive breaches or threatens to breach
any of the provisions of this Section 8 and, therefore, agrees that the Company
shall be entitled to injunctive relief to prevent any such breach or threatened
breach thereof and to specific performance of the terms of this Section 8 (in
addition to any other legal or equitable remedy the Company may have, including
if so determined by arbitration pursuant to Section 7 that the Company is not
obligated to pay to the Executive (or the Executive is required to repay to the
Company) a portion or all of the Non-Compete Monthly Amount; provided, however,
in all instances the Company shall continue to pay to the Executive the
Non-Compete Monthly Amount unless and until there shall have been a final,
non-appealable arbitration award determining the respective rights of the
parties. Executive further agrees that Executive shall not, in any equity
proceeding relating to the enforcement of this Section 8, raise the defense that
the Company has an adequate remedy at law. Nothing in this Agreement shall be
construed as prohibiting the Company from pursuing any other remedies at law or
in equity that it may have under and in respect of this Agreement or any other
agreement.
(f) The Executive agrees to pay to the Company any outstanding amounts
owed to the Company; provided, however, that no breach or alleged breach of this
subsection (f) or any other provision of this Section 8 shall constitute grounds
for, or otherwise entitle, the Company to offset payments otherwise owed to the
Executive under this Agreement.
SECTION 9
SEVERABILITY
If, for any reason, any one or more of the provisions or part of a
provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision or part of a provision of this Agreement
not held so invalid, illegal or unenforceable, and each other provision or part
of a provision shall to the fullest extent consistent with law continue in full
force and effect.
SECTION 10
AMENDMENT, TERMINATION, OR MODIFICATION
Except as provided below, this Agreement may not be terminated,
modified or amended (other than with respect to amendments or modifications made
by the Company solely for purposes of clarifying an ambiguous or unclear
provision) other than by an instrument in writing signed by the parties hereto.
No term or condition of this Agreement shall be deemed to have been waived, nor
shall there be any estoppel against the enforcement of any provision of this
Agreement, except by written instrument signed by the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated
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therein, and each such waiver shall operate only as to the specific term or
condition waived and shall not constitute a waiver of such term or condition for
the future or as to any act other than that specifically waived.
SECTION 11
CONSOLIDATION, MERGER, OR SALE OF ASSETS; ASSIGNABILITY
The Company shall require (a) any successor (whether direct or
indirect, by purchase, merger, consolidation, or otherwise) to all or
substantially all of the business or assets of the Company and (b) the parent
entity owning or controlling such successor expressly to assume and agree to
perform under the terms of this Agreement in the same manner and to the same
extent that the Company and its affiliates would be required to perform it if no
such succession had taken place (provided that such a requirement to perform
which arises by operation of law shall be deemed to satisfy the requirements for
such an express assumption and agreement). Except as provided herein, the
Executive's rights hereunder shall not be assignable.
SECTION 12
TAX WITHHOLDING
The Company may withhold from any payments made under this Agreement
all federal, state or other taxes as shall be required pursuant to any law or
governmental regulation or ruling.
SECTION 13
ENTIRE UNDERSTANDING
This Agreement contains the entire understanding between the Company
and the Executive with respect to the subject matter hereof and supersedes any
prior agreement between the Company and the Executive regarding non-compete
provisions, except that this Agreement shall not affect or operate to reduce any
benefit or compensation inuring to the Executive of any kind elsewhere provided
and not expressly dealt with in this Agreement.
SECTION 14
BINDING AGREEMENT
This Agreement shall be binding upon, and shall inure to the benefit
of, the Executive and the Company and their respective permitted successors and
assigns.
SECTION 15
EMPLOYMENT STATUS
Nothing herein contained shall be deemed to create an employment
agreement between the Company and the Executive providing for the employment of
the Executive by the Company for any fixed period of time prior to a Change in
Control. Subject to the terms of any other agreement between the Company and
the Executive, if any, the Executive's employment with the Company is terminable
at will by the Company or Executive and each shall have the right to terminate
Executive's employment with the Company at any time, with or without Cause,
subject to the Company's obligation to provide any benefits required hereunder.
In the event that the Company terminates the Executive's employment for Cause
and the Executive submits such
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dispute to arbitration in accordance with Section 7, the Company shall continue
to pay to the Executive the Monthly Amount and any and all other benefits
hereunder unless and until there shall have been a final, non-appealable
arbitration award determining that such termination was for Cause.
SECTION 16
NO ATTACHMENT
Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge or hypothecation or to execution,
attachment, levy or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall be null, void
and of no effect.
SECTION 17
NOTICES
All notices, requests, demands and other communications required or
permitted hereunder shall be given in writing and shall be deemed to have been
duly given if delivered or mailed, postage prepaid, first class as follows:
(a) to the Company:
Xxxxxxx Truck Leasing Corp.
Legal Department
One Xxxxxxx Plaza
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
(b) to the Executive:
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or to such address as either party shall have previously specified in
writing to the other.
SECTION 18
REVOCATION AND EXECUTIVE ACKNOWLEDGMENTS
The Executive acknowledges that he has read and understands the
provisions of this Agreement. The Executive further acknowledges that he has
been given an opportunity for his legal counsel to review this Agreement (or is
given the opportunity to do so prior to the end of the revocation period
hereunder) and that the provisions of this Agreement are reasonable and that he
has received a copy of this Agreement.
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SECTION 19
NOT COMPENSATION FOR OTHER PLANS
It is understood by all parties hereto that, except as expressly
provided herein, amounts paid and benefits provided hereunder are not to be
considered compensation, earnings or wages for purpose of any employee benefit
plan of the Company or its affiliates, including, but not limited to, the SERP
and the qualified retirement plans.
SECTION 20
HEADINGS OF NO EFFECT
The section headings contained in this Agreement are included solely
for convenience of reference and shall not in any way affect the meaning or
interpretation of any of the provisions of this Agreement.
SECTION 21
APPLICABLE LAW
This Agreement and its validity, interpretation, performance, and
enforcement shall be governed by the laws of the State of Delaware.
SECTION 22
COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall be an original and all of which shall be deemed to constitute one
and the same instrument.
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IN WITNESS WHEREOF, the Company through its officers duly authorized,
and the Executive both intending to be legally bound have duly executed and
delivered this Agreement, to be effective as of the Effective Date.
XXXXXXX TRUCK LEASING CORP.
Date: By: /s/ Xxxx X. Xxxxxxx, Xx.
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Xxxx X. Xxxxxxx, Xx.
President and Chief Executive Officer
EXECUTIVE
Date: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Chairman of the Executive Committee and
Chairman of the Board
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Attachment I
The Executive shall be entitled to the exclusive use of the Chairman's
Office in Austin, Texas, rent free from the date hereof until January 31, 2004.
The Executive shall also be entitled to an administrative assistant and all
utilities, furniture, fixtures, office equipment and phones as per current
arrangements from the date hereof until January 31, 2004, provided, that all
actual expenses incurred with respect thereto shall not exceed $80,000 per year.
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