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Agreement
This Agreement is made and entered into as of the 2nd day of July,
1997 by and between Xxxxxxxx X. Xxxxxxxx ("Xxxxxxxx") and TCC Industries, Inc.,
a Texas corporation (the "Company"), to become effective on July 11, 1997 (the
"Effective Date").
Background.
At a meeting (the "July Meeting") of the Board of Directors (the
"Board") of the Company held on July 2, 0000, Xxxxxxxx resigned as Chairman of
the Board and Chief Executive Officer of the Company effective at the
conclusion of the July Meeting. In addition, at the July Meeting, Xxxxxxxx
agreed to resign as President and Director of Company and as officer and
director of all of the subsidiaries of the Company, such resignations to become
effective without further action of Xxxxxxxx upon payment of the "Severance
Payment" (defined below), and the Board authorized the Company to make such
Severance Payment, all on the terms and conditions set forth below.
Agreement.
It is agreed by the parties to this Agreement as follows:
1. Severance. On the Effective Date:
(a) The Company will pay to Xxxxxxxx by wire transfer the
cash sum of $288,481.92 (the "Severance Payment") in full
satisfaction and discharge of the Company's payment
obligations under that certain letter agreement between the
Company and Xxxxxxxx dated as of March 24, 1993 as amended by
letter agreements between the parties dated as of April 14,
1993 and January 9, 1997 (collectively, the "Severance
Agreement"), including without limitation the "Special
Severance Payment" and fringe benefits for a period of one
year as provided in the Severance Agreement and as more fully
detailed on Annex A attached hereto.
(b) All outstanding stock options granted to Xxxxxxxx by
the Company for the purchase of Company shares will be
terminated and canceled without having been exercised and
without further action on the part of any of the parties or
further consideration to Xxxxxxxx.
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(c) Upon receipt of the payment described in subparagraph
(a) above, the Severance Agreement and that certain Consulting
and Noncompetition Agreement dated as of May 10, 1994 between
the Company and Xxxxxxxx will be terminated without further
action on the part of any of the parties and all obligations
of the parties thereunder will be deemed to be fully
discharged and satisfied.
(d) Xxxxxxxx will submit his written resignation as
employee of the Company and from all offices with the Company,
including without limitation as President and a director of
the Company, and as an employee, officer and director of all
of the subsidiaries and affiliates of the Company.
2. As promptly as is practicable with respect to the Company's
$500,000 key man term life insurance policy on the life of Xxxxxxxx, the
Company shall take such action as shall be necessary to cause (i) the
beneficiary of such life insurance policy to be changed from the Company to
such beneficiary as shall be designated in writing by Xxxxxxxx, and (ii) the
ownership of such life insurance policy to be transferred to Xxxxxxxx,
including the right to designate the beneficiary, all as provided in the
Severance Agreement.
3. In the event that the Company elects not to renew its existing
Officer's and Director's Liability Insurance policy, or such policy is
terminated or not renewed by the insurer, the Company will exercise, to the
extent that it is entitled to do so, its option to elect the "discovery
clause" thereunder, whereby coverage will be extended for an additional period
of twelve months following such termination or failure to renew, at a cost of
75% of the annual premium on such policy.
4. Consultant Arrangement. Effective as of July 3, 1997
Xxxxxxxx is retained as a consultant with the Company for a period of at least
thirty (30) days. As consultant, Xxxxxxxx will perform such services as shall
reasonably be assigned to him, from time to time by the chief executive officer
of the Company or by the Board. For his services as consultant, Xxxxxxxx will
be paid at the rate of $10,000 per month, payable at the end of each month. The
consulting arrangement shall have a term of not less than thirty (30) days
following the date of this Agreement nor more than ninety (90) days following
the date of this Agreement, except that such arrangement may be (i) terminated
at any time after the expiration of thirty (30) days following the date of this
Agreement, at the option of either party upon ten (10) days' prior written
notice to the other party, and (ii) extended on the terms contained herein by
written agreement of Xxxxxxxx and the Company pursuant to unanimous approval of
the Board. During the term of the consulting arrangement, Xxxxxxxx will be
available to provide such services in the offices of the Company for a period
of at least fifteen hours per week, consisting (insofar as it is reasonably
practicable to do so) of approximately three hours per day (other than
Saturdays, Sundays and holidays) during each week, except that he will be
entitled to (x) be absent for reasonable periods of time from time to time with
the understanding that the aggregate overall time that he will be available
each month will be approximately three hours per day (excluding Saturdays,
Sundays and holidays) during the workweek, and (y) be on vacation for a period
of one week around the
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third week in July 1997. Xxxxxxxx shall be entitled to the same indemnification
in connection with the actions taken by him or his failure to act, as
applicable, in connection with services rendered and to be rendered by him as
consultant hereunder that he would been entitled to had he remained an officer
and director of the Company during the period such services were rendered and
had such actions or failure to act occurred in his capacity as an officer and
director of the Company. Xxxxxxxx shall be entitled to receive prompt
reimbursement for all reasonable out-of-pocket expenses for travel, meals,
lodging and similar business expenses that are authorized by the Company and
actually incurred by him in the performance of consulting services hereunder.
Furthermore, after termination of this consulting arrangement, and without
further consideration, Xxxxxxxx agrees to reasonably cooperate with the Company
and its officers with respect to Company business which occurred prior to the
Effective Date so as to allow an orderly transition of the business and affairs
of the Company, provided no significant amount of time is required to be spent
by Xxxxxxxx to so cooperate. Neither Xxxxxxxx, Xxxxxxxx'x spouse nor any of
Xxxxxxxx'x dependents shall be entitled to participate in or receive benefits
under, and Xxxxxxxx, on behalf of himself, his spouse and his dependents hereby
releases and waives any claims under or with respect to, any other retirement,
welfare benefit plans, programs, agreements or arrangements of the Company that
currently exist or may from time to time exist in the future, except for COBRA
and other similar benefits conferred upon him under law. Upon termination of
this consulting arrangement, Xxxxxxxx will return all property of the Company
in his possession, including without limitation Company credit cards and keys.
5. Nondisclosure of Confidential Information; Nonsolicitation.
Xxxxxxxx agrees to hold in a fiduciary capacity for the benefit of the Company
all proprietary or confidential information, knowledge or data relating to the
Company or any of its subsidiaries (each a "Subsidiary") which shall have been
obtained by him during his employment by the Company or the term of the
consulting arrangement set forth in Paragraph 4, as well as all proprietary or
confidential information, knowledge or data of a third party to which Xxxxxxxx
has access during his employment by the Company or during such consulting
arrangement, provided the Company or such Subsidiary is under an obligation of
confidence to said third party regarding such information, knowledge or data.
During and after the end of the term of this consulting arrangement, except as
may be required by the lawful order of a court or government agency of
competent jurisdiction, Xxxxxxxx shall not, without the prior written consent
of the Company (and, where applicable, said third party), communicate or
divulge any such information, knowledge or data to anyone not bound by an
obligation of confidence to the Company or such Subsidiary, or utilize such
information, knowledge or data for any purpose other than for the Company's or
such Subsidiary's benefit. Furthermore, for a period of 18 months from the
Effective Date, Xxxxxxxx covenants and agrees that he will not, directly or
indirectly, on his own behalf or on behalf of any other person or entity,
solicit the employment of or employ any person who is as of the date hereof, an
employee of the Company or any Subsidiary, except that this covenant and
agreement shall not be applicable with respect the solicitation or employment
of any person who, at the earliest time of any such solicitation or employment,
has not been an employee of the Company or any Subsidiary for a period of at
least three (3) months. Xxxxxxxx'x obligations under this Paragraph 5 shall
apply during the term of this consulting arrangement and shall continue for 18
months thereafter. For purposes of this Agreement,
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proprietary or confidential information does not include information which is
or becomes public knowledge through no fault of Xxxxxxxx, or information that
is or becomes known to others as a result of disclosure by a person or entity
other than Xxxxxxxx who is not in breach of a confidentiality obligation to the
Company or such Subsidiary or, where appropriate, to a third party, in making
such disclosure. Xxxxxxxx acknowledges that damages are an inadequate remedy
for any breach of this Paragraph 5 because of the difficulty of ascertaining
the amount of damages that would be suffered by the Company of such Subsidiary
in the event this Paragraph 5 is breached, and Xxxxxxxx therefore agrees that
the Company or such Subsidiary may seek injunctive or other equitable relief
against any breach of this Agreement without bond or any other security being
required.
6. Notices. All notices and other communications under
this Agreement shall be in writing and shall be effective when hand delivered
to the other party or when sent by facsimile or when mailed by registered or
certified mail, return receipt requested, postage prepaid, addressed to the
parties at the addresses set forth below or such other address as either party
shall have furnished to the other in writing in accordance herewith:
In the case of the Company:
TCC Industries, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
FAX: (000) 000-0000
In the case of Xxxxxxxx:
Xx. Xxxxxxxx X. Xxxxxxxx
0000 Xxxx Xxxxx Xxxx
Xxxxxx, Xxxxx 00000
7. Non-assignability. The rights and obligations extended by the
Company to Xxxxxxxx under this Agreement are personal to Xxxxxxxx and shall not
be assignable by him without the prior written consent of the Company.
8. Consulting Relationship; Tax Withholding. It is understood
and agreed that Xxxxxxxx'x relationship with the Company as provided in
Paragraph 4 is that of consultant and not employee of the Company. In the event
that the compensation payable to Xxxxxxxx under this Agreement is deemed to be
subject to withholding taxes and other employment taxes, then the amount of
compensation payable under this Agreement shall be reduced appropriately to
reflect the amount of any required withholding. The Company shall have no
obligation to make any payments to Xxxxxxxx or to make Xxxxxxxx whole for the
amount of any required taxes.
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9. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCLUSIVE OF
PRINCIPLES OF CONFLICTS OF LAWS. THE PARTIES HEREBY SUBMIT TO THE JURISDICTION
OF ALL STATE AND FEDERAL COURTS IN XXXXXX COUNTY, TEXAS AND HEREBY AGREE THAT
ANY SUCH COURT SHALL BE A PROPER FORUM FOR THE DETERMINATION OF ANY DISPUTE
ARISING HEREUNDER.
10. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement, or the
application thereof to any person or entity or under any circumstances, shall
be invalid or unenforceable to any extent under applicable law, and the extent
of such invalidity or unenforceability does not destroy the basis for the
bargain between the parties as expressed herein, then such provision shall be
deemed severed from this Agreement with respect to such person or entity or
such circumstance, without invalidating the remainder of this Agreement or the
application of such provision to other persons or entities or circumstances,
and a new provision shall be deemed substituted in lieu of the provision so
severed which new provision shall, to the extent possible, accomplish the
intent of the parties hereto as evidenced by the provision so severed.
11. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
together constitute a single instrument.
12. Construction. This Agreement has been negotiated by the
parties and their respective counsel and shall be interpreted fairly in
accordance with its terms and without any strict construction in favor of or
against either party.
13. Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the subject matter of this
Agreement and supersedes all prior oral or written agreements or understandings
with respect to the subject matter contained herein.
14. Informed Execution. All parties to this Agreement expressly
warrant and represent that before executing this Agreement, they have fully
informed themselves of its terms, contents, conditions and effects; and that no
promise or representation of any kind has been made to them except as expressly
stated in this Agreement. All parties are advised to consult with an attorney
of their choice prior to executing this Agreement, and represent that they have
had sufficient time to consult with an attorney. All parties warrant and
represent that they have relied solely and completely upon their own judgment
and the advice of their counsel in making this Agreement.
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IN WITNESS WHEREOF, the Company and Xxxxxxxx have caused this
Agreement to be executed as of the date first above mentioned.
COMPANY:
TCC Industries, Inc.
By: /s/ XXXXXX X. XXXXXXX
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Chairman of the Board and Interim Chief
Executive Officer
XXXXXXXX:
/s/ XXXXXXXX X. XXXXXXXX
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Xxxxxxxx X. Xxxxxxxx
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ANNEX A
DESCRIPTION TOTAL
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Lump sum payment equal to:
The highest one month salary during
last 3 years $15,000
Multiplied by the number of full
years employed by the Company:
Date employed 12/15/79
Agreement date 07/2/97 17 $255,000.00
Any Bonus 0
Any other compensation owed as of
the effective date of termination 0
Fringe benefits for a period of one
year:
Health insurance:
Monthly premiums for family coverage $533.75
Multiplied by twelve months 12 6,405.00
Auto allowance (monthly) $500.00
Multiplied by twelve months 12 6,000.00
Premium coming due on term life
insurance at USAA 1,000.00
Unpaid vacation:
Days accrued:
Carryover from prior year 9
Accrued for 1997 20
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Total days accrued vacation 29
Conversion to weeks (days per week) 5
Number of weeks accrued vacation 5.8
Multiplied by weekly rate of pay $3,461.54
Total unpaid vacation 20,076.92
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TOTAL $288,481.92
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