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EXHIBIT 99.10
AGREEMENT AMENDING AND RESTATING
EMPLOYMENT AGREEMENT
THIS AGREEMENT AMENDING AND RESTATING EMPLOYMENT AGREEMENT (this
"Agreement") is executed as of August 31, 1995 (the "Execution Date"), but
effective as of July 1, 1995 (the "Effective Date"), by and between NATIONAL
CONVENIENCE STORES INCORPORATED, a Delaware corporation (the "Company"), and X.
X. XXX XXXX ("Executive").
R E C I T A L S:
A. The Company is in the convenience store business in the State
of Texas.
B. Executive is recognized as having experience in the management
and operation of companies that are in the convenience store business.
C. The Company and Executive entered into that certain Employment
Contract effective as of July 1, 1995 (the "Employment Agreement"), which
superseded all prior agreements and understandings between the Company and
Executive relating to the subject matter of the Employment Agreement and such
prior agreements and understandings.
D. The Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its stockholders
to assure that the Company will have the continued dedication of Executive,
notwithstanding the possibility, threat, or occurrence of a Change in Control
(as defined in Section 4.6 hereof).
E. The Board believes it is imperative (i) to diminish the
inevitable and significant distractions of Executive and dilution of the time
of Executive, by virtue of the personal uncertainties and risks created by a
pending or threatened Change in Control, (ii) to encourage Executive's full
attention and dedication to the Company currently and in the event of any
threatened or pending Change in Control, and (iii) to provide Executive with
compensation arrangements in the event of a Change in Control which provide
Executive with financial security, which are competitive with those of other
corporations, and which ensure that Executive receives the compensation and
benefits intended to be provided to Executive by the Company through this
Agreement and the Company's various employee benefit and compensation plans and
arrangements without regard to any Excise Tax (as defined in Section 4.10(a)
hereof).
F. In order to accomplish the objectives described in the two
immediately preceding recitals, the Board desires to cause the Company to enter
into this Agreement and amend and restate the Employment Agreement as set forth
herein.
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G. Executive desires to enter into this Agreement and amend and
restate the Employment Agreement as set forth herein.
W I T N E S S E T H:
NOW, THEREFORE, in consideration of the premises, the mutual covenants
and agreements contained in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Company and Executive hereby agree as follows:
ARTICLE I
EMPLOYMENT, REPORTING, TERM AND DUTIES
1.1 Employment. On the terms and subject to the conditions of
this Agreement, the Company hereby employs and engages the services of
Executive to serve as, and Executive agrees to diligently and competently serve
as and perform the functions of, President and Chief Executive Officer (the
"Office") of the Company for the term and for the compensation and benefits
stated herein.
1.2 Term. The term of employment under this Agreement shall
commence on the Effective Date and shall end on the first to occur of the
events set forth in Section 4.1(a), (b), and (c) (the "Term").
1.3 Major Responsibilities; Authority. Executive shall have the
position (including status, offices, titles and reporting requirements),
authority, duties and responsibilities usually associated with the Office of
corporations having assets similar in nature and value to the assets of the
Company and business similar to the business of the Company and at least
commensurate in all material respects with the most significant of those held,
exercised and assigned at any time during the 90-day periods immediately
preceding each of the Effective Date and the Execution Date, and such other
duties as the Board shall determine from time to time.
1.4 Extent of Service. During the Term, and excluding any periods
of vacation and sick leave to which Executive is entitled, Executive agrees to
devote reasonable time and energies to the business of the Company consistent
with past practice and shall not, during the Term, be engaged in any business
activity which would interfere or prevent Executive from carrying out his
duties under this Agreement; provided, however, that this Section 1.4 shall not
be construed as preventing Executive from investing his assets in such form or
manner as will not require services on the part of Executive in the operation
of the affairs of any company in which such investments are made.
1.5 Location. Executive shall not be required to move from
Executive's home in Houston, Texas.
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ARTICLE II
COMPENSATION AND RELATED ITEMS
2.1 Compensation. As compensation and consideration for the
services to be rendered by Executive under this Agreement and for the
performance by Executive of the usual obligations of such employment, the
Company agrees to pay Executive, and Executive agrees to accept, the following
compensation and benefits during the Term:
(a) Salary. Executive shall be paid a minimum annual
salary of $420,000. Except as otherwise provided herein, the minimum
salary in effect for any period shall be payable in equal weekly
payments. Any earnings over the minimum salary in effect during any
period shall not be applied to the minimum salary for any subsequent
period. If this Agreement terminates on a date other than the last
day of any week, Executive shall be paid for the week that includes
the date of such termination a pro rata portion of the minimum salary
then in effect for such week in the ratio that the number of days of
employment during such week bears to the total number of business days
in such week.
(b) Bonus.
(i) In addition to the minimum salary provided
for in Section 2.1(a) hereof, and subject to the provisions of
Section 2.1(b)(vi) hereof, Executive shall be awarded, for
each fiscal year of the Company during the Term (or, in the
event of a Change in Control, a portion thereof as hereinafter
provided) commencing with the fiscal year of the Company
ending June 30, 1996, a bonus ("Bonus") calculated in
accordance with this Section 2.1(b).
(ii) For purposes of this Agreement, the following
terms shall have the meanings indicated:
(A) "Bonusable Earnings" shall mean the
consolidated earnings before reorganization expenses,
fresh start adjustments, income taxes, changes in
accounting method, extraordinary gains or losses, and
Takeover Expenses (as defined in the next sentence)
of the Company and its subsidiaries for any fiscal
year, or completed months thereof in the event of a
Change in Control, as the case may be, for which a
Bonus is being calculated, as determined in
conformity with generally accepted accounting
principles applied in a manner consistent with prior
periods. For purposes of the preceding sentence, the
term "Takeover Expenses" shall mean the aggregate
amount of the costs and expenses (including, but not
limited to, any accruals, reserves, or provisions for
such costs and expenses) related to any and all
transactions that arise in connection with a Change
in Control or a potential Change in Control (whether
or not any such transaction (I) is
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consummated, (II) is solicited or unsolicited by the
Company, or (III) is undertaken to resist or
facilitate any such transaction or any other such
transaction), including, but not limited to, the fees
and costs of investment bankers, attorneys,
accountants, and other experts and advisors.
(B) "Threshold Amount" shall mean (I)
for the fiscal year of the Company ended June 30,
1996, an amount equal to $12,000,000, and (II) for
each subsequent fiscal year of the Company during the
Term, an amount equal to a reasonable forecast of the
minimum amount of the Bonusable Earnings for such
fiscal year which the Board shall in good faith
establish by resolution as the Threshold Amount
within thirty (30) days after the first day of such
fiscal year and which, taken together with the
Threshold Percentage for such fiscal year, will
provide Executive with a reasonable opportunity to
receive a Bonus for such fiscal year that is no less
than the Minimum Bonus Opportunity (as defined in
Section 2.1(b)(ii)(O) hereof).
(C) "Threshold Percentage" shall mean
(I) nineteen percent (19%) for the fiscal year of the
Company ended June 30, 1996, and (II) for each
subsequent fiscal year of the Company during the
Term, a percentage of Executive's minimum salary
which will provide Executive with a reasonable
compensation incentive for the Company's obtaining
the Threshold Amount for such fiscal year and which
the Board in good faith shall establish by resolution
as the Threshold Percentage within thirty (30) days
after the first day of such fiscal year and which,
taken together with the Threshold Amount for such
fiscal year, will provide Executive with a reasonable
opportunity to receive a Bonus for such fiscal year
that is no less than the Minimum Bonus Opportunity.
(D) "Threshold Applicable Percentage"
shall mean for any fiscal year of the Company during
the Term, a percentage calculated in accordance with
the following formula:
Threshold Applicable Percentage = Threshold
Percentage + [(Target Percentage -
Bonusable Earnings -
Threshold Amount
Threshold Percentage) x ---------------------].
Target Amount -
Threshold Amount
(E) "Target Amount" shall mean (I) for
the fiscal year of the Company ended June 30, 1996,
an amount equal to $14,500,000, and (II) for each
subsequent fiscal year of the Company during the
Term, an amount equal to a reasonable
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forecast of the expected amount of the Bonusable
Earnings for such fiscal year which the Board shall
in good faith establish by resolution as the Target
Amount within thirty (30) days after the first day of
such fiscal year and which, taken together with the
Target Percentage for such fiscal year, will provide
Executive with a reasonable opportunity to receive a
Bonus for such fiscal year that is no less than the
Minimum Bonus Opportunity.
(F) "Target Percentage" shall mean (I)
seventy-five percent (75%) for the fiscal year of the
Company ended June 30, 1996, and (II) for each
subsequent fiscal year of the Company during the
Term, a percentage of Executive's minimum salary
which will provide Executive with a reasonable
compensation incentive for the Company's obtaining
the Target Amount for such fiscal year and which the
Board in good faith shall establish by resolution as
the Target Percentage within thirty (30) days after
the first day of such fiscal year and which, taken
together with the Target Amount for such fiscal year,
will provide Executive with a reasonable opportunity
to receive a Bonus for such fiscal year that is no
less than the Minimum Bonus Opportunity.
(G) "Target Applicable Percentage" shall
mean for any fiscal year of the Company during the
Term, a percentage calculated in accordance with the
following formula:
Target Applicable Percentage = Target
Percentage + [(Maximum Percentage -
Bonusable Earnings -
Target Amount
Target Percentage) x --------------------].
Maximum Amount -
Target Amount
(H) "Maximum Amount" shall mean (I) for
the fiscal year of the Company ended June 30, 1996,
an amount equal to $17,000,000, and (II) for each
subsequent fiscal year of the Company during the
Term, an amount equal to a reasonable forecast of the
maximum amount of the Bonusable Earnings for such
fiscal year which the Board shall in good faith
establish by resolution as the Maximum Amount within
thirty (30) days after the first day of such fiscal
year and which, taken together with the Maximum
Percentage for such fiscal year, will provide
Executive with a reasonable opportunity to receive a
Bonus for such fiscal year that is no less than the
Minimum Bonus Opportunity.
(I) "Maximum Percentage" shall mean (I)
one hundred fifty percent (150%) for the fiscal year
of the Company ended June 30, 1996, and (II) for each
subsequent fiscal year of the Company during the
Term, a percentage of Executive's minimum salary
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which will provide Executive with a reasonable
compensation incentive for the Company's obtaining
the Maximum Amount for such fiscal year and which the
Board in good faith shall establish by resolution as
the Maximum Percentage within thirty (30) days after
the first day of such fiscal year and which, taken
together with the Maximum Amount for such fiscal
year, will provide Executive with a reasonable
opportunity to receive a Bonus for such fiscal year
that is no less than the Minimum Bonus Opportunity.
(J) "Monthly Target Amount" shall mean
(I) for each month of the fiscal year of the Company
ended June 30, 1996, the following amount set forth
opposite such month:
Monthly Target
Month Year Amount
----- ---- ------------------
July 1995 $ 2,857,903
August 1995 2,605,852
September 1995 1,835,830
October 1995 1,713,422
November 1995 204,494
December 1995 805,051
January 1996 (290,770)
February 1996 (513,025)
March 1996 504,432
April 1996 668,572
May 1996 1,454,238
June 1996 2,249,899
---------
Total $14,095,898
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; and (II) for each month of each subsequent fiscal
year of the Company during the Term, an amount equal
to a reasonable forecast of the monthly expected
amount of the Bonusable Earnings for each month of
such fiscal year which the Board shall in good faith
establish by resolution as the Target Amount within
thirty (30) days after the first day of such fiscal
year and which shall, in the aggregate, equal the
Target Amount for such fiscal year.
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(K) "Projected Bonusable Earnings" shall
mean for the fiscal year of the Company which
includes the date of a Change in Control, an amount
equal to the product obtained by multiplying (I) the
Target Amount for such fiscal year, by (II) the
quotient obtained by dividing the aggregate amount of
the Bonusable Earnings for the completed months of
such fiscal year that precede the date of such
termination or Change in Control, as the case may be,
by the aggregate amount of the Monthly Target Amounts
for such completed months.
(L) "Threshold Projected Applicable
Percentage" shall mean for the fiscal year of the
Company which includes the date of a Change in
Control, a percentage calculated in accordance with
the following formula:
Threshold Projected Applicable Percentage =
Threshold Percentage + [(Target Percentage -
Projected Bonusable
Earnings - Threshold Amount
Threshold Percentage) x ----------------------------].
Target Amount -
Threshold Amount
(M) "Target Projected Applicable
Percentage" shall mean for the fiscal year of the
Company which includes the date of a Change in
Control, a percentage calculated in accordance with
the following formula:
Threshold Projected Applicable Percentage =
Threshold Percentage + [(Target Percentage -
Projected Bonusable
Earnings - Threshold Amount
Threshold Percentage) x ----------------------------].
Maximum Amount -
Target Amount
(N) "Minimum Bonus Opportunity" shall
mean an amount equal to $200,000.
(iii) Except as otherwise provided in Section
2.1(b)(iv) hereof, for the fiscal year of the Company ended
June 30, 1996 and for each fiscal year of the Company
thereafter during the Term, the Bonus shall be an amount
calculated as follows:
(A) If the Bonusable Earnings for such
fiscal year are less than the Threshold Amount for
such fiscal year, the Bonus shall be zero ($-0-).
(B) If the Bonusable Earnings for such
fiscal year are equal to or greater than the
Threshold Amount for such fiscal year, but less than
the Target Amount for such fiscal year, the Bonus
shall be an amount equal to the product of (I)
Executive's minimum salary under Section 2.1(a)
hereof as in effect on the last
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day of such fiscal year, multiplied by (II) the
Threshold Applicable Percentage for such fiscal year.
(C) If the Bonusable Earnings for such
fiscal year are equal to or greater than the Target
Amount for such fiscal year, but less than the
Maximum Amount for such fiscal year, the Bonus shall
be an amount equal to the product of (I) Executive's
minimum salary under Section 2.1(a) hereof as in
effect on the last day of such fiscal year,
multiplied by (II) the Target Applicable Percentage
for such fiscal year.
(D) If the Bonusable Earnings for such
fiscal year are equal to or greater than the Maximum
Amount for such fiscal year, the Bonus shall be an
amount equal to the product of (I) Executive's
minimum salary under Section 2.1(a) hereof as in
effect on the last day of such fiscal year,
multiplied by (II) the Maximum Percentage for such
fiscal year.
(iv) Notwithstanding anything contained in this
Agreement to the contrary, upon the occurrence of a Change in
Control, the amount of the Bonus for the fiscal year which
includes the date of such Change in Control shall be an amount
calculated as follows:
(A) If the Projected Bonusable Earnings
for such fiscal year are less than the Threshold
Amount for such fiscal year, the Bonus shall be zero
($-0-).
(B) If the Projected Bonusable Earnings
for such fiscal year are equal to or greater than the
Threshold Amount for such fiscal year, but less than
the Target Amount for such fiscal year, the Bonus
shall be an amount equal to the product of (I) a
fraction, the numerator of which is the number of
completed months in such fiscal year that precede the
date of such Change in Control and the denominator of
which is twelve (12), multiplied by (II) Executive's
minimum salary under Section 2.1(a) hereof as in
effect on the date of such Change in Control,
multiplied by (III) the Threshold Projected
Applicable Percentage for such fiscal year.
(C) If the Projected Bonusable Earnings
for such fiscal year are equal to or greater than the
Target Amount for such fiscal year, but less than the
Maximum Amount for such fiscal year, the Bonus shall
be an amount equal to the product of (I) a fraction,
the numerator of which is the number of completed
months in such fiscal year that precede the date of
such Change in Control and the denominator of which
is twelve (12), multiplied by (II) Executive's
minimum salary under Section 2.1(a) hereof as in
effect on the date
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of such Change in Control, multiplied by (III) the
Target Projected Applicable Percentage for such
fiscal year.
(D) If the Projected Bonusable Earnings
for such fiscal year are equal to or greater than the
Maximum Amount for such fiscal year, the Bonus shall
be an amount equal to the product of (I) a fraction,
the numerator of which is the number of completed
months in such fiscal year that precede the date of
such Change in Control and the denominator of which
is twelve (12), multiplied by (II) Executive's
minimum salary under Section 2.1(a) hereof as in
effect on the date of such Change in Control,
multiplied by (III) the Maximum Percentage for such
fiscal year.
(v) Except as otherwise provided herein, any
Bonus payable to Executive under this Agreement shall be paid
by the Company to Executive no later than the sooner of (A)
forty-five (45) days after the last day of the fiscal year of
the Company with respect to which such Bonus is calculated, or
(B) thirty (30) days after a Change in Control.
(vi) Except as otherwise provided in this
Agreement, upon the occurrence of a Change in Control,
Executive shall not be entitled under this Section 2.1(b) to
any Bonus calculated or that would be calculated with respect
to any period beginning after the last day of the month
immediately preceding such date of Change in Control;
provided, however, that the Company shall, with Executive's
prior written consent and within thirty (30) days after such
occurrence, adopt a written bonus or incentive compensation
plan and/or a written amendment to this Agreement which
provide or provides Executive with a reasonable opportunity to
receive with respect to each annual period ending on June 30
during the portion of the Term remaining after such Change in
Control a bonus that is no less than the Minimum Bonus
Opportunity (any such opportunity being referred to herein as
a "Replacement Bonus Opportunity").
(c) Additional Compensation. In addition to the minimum
salary and Bonus provided for in Section 2.1(a) and (b), respectively,
Executive and/or Executive's family, as the case may be, shall be
entitled to:
(i) participate in, and shall receive all
benefits under:
(A) any and all welfare benefit and
similar employee benefit plans, programs,
arrangements, or policies that are generally made
available by the Company and its affiliates (as
defined in Section 4.10(l)) now or at any time in the
future to other key executive officers or retired key
executive officers, including, but not limited to,
any hospitalization, medical, prescription, dental,
disability, salary continuance, individual life
insurance,
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executive life insurance, group life insurance,
accidental death insurance, and travel accident
insurance plans, programs, arrangements, and
policies; and
(B) any and all bonus, incentive,
savings, retirement, profit sharing, pension, and
stock option plans, programs, arrangements, and
policies that are generally made available by the
Company and its affiliates now or at any time in the
future to other key executive officers, including,
but in no way limited to, that certain Amended and
Restated National Convenience Stores Incorporated
Officers' Retirement Plan effective as of August 31,
1995; and
(ii) annual vacations and sick leave in accordance
with the vacation and sick leave policies of the Company and
its affiliates as are now or at any time in the future in
effect with respect to other key executive officers, during
which time of such vacations and sick leave Executive's
compensation shall be paid in full; and
(iii) fringe benefits in accordance with the fringe
benefit policies of the Company and its affiliates as are now
or at any time in the future in effect with respect to other
key executive officers.
2.2 Expenses. The Company agrees that, during the Term, Executive
shall be allowed reasonable and necessary business expenses in connection with
the performance of his duties hereunder within guidelines established by the
Board as in effect at any time with respect to key executives ("Business
Expenses"), including, but not limited to, reasonable and necessary expenses
for food, travel, lodging, entertainment and other items in the promotion of
Company's business within such guidelines. Company will promptly reimburse
Executive for all Business Expenses incurred by Executive upon Executive's
presentation to the Company of an itemized account thereof, together with
receipts, vouchers, or other supporting documentation. After termination or
expiration of this Agreement, however such termination or expiration may come
about, Executive shall have ninety (90) days after the date of such termination
or expiration to submit Business Expenses incurred during the Term hereof to
the Company for reimbursement.
2.3 Working Facilities. Executive shall be furnished with offices
of a size and with other furnishings and appointments, administrative staff,
secretarial and other assistants, stenographic help, and such other facilities
and services as are suitable to Executive's position and adequate for the
performance of Executive's duties.
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ARTICLE III
EXCULPATION
Company agrees that Executive will not be liable for any losses,
expenses, costs or damages caused by or resulting from the recommendations,
suggestions, actions, errors, omissions or mistakes of Executive undertaken or
proposed by Executive if Executive acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company. Executive's rights under this Article III shall not be deemed
exclusive of, but shall be cumulative with, any and all other rights
(including, but not limited to, rights of indemnification and advancement of
expenses) to which Executive may now or at any time in the future be entitled
under applicable law, the Company's Certificate of Incorporation, the Company's
Bylaws, any agreement (including, but not limited to, this Agreement), any vote
of stockholders, any resolution of directors, or otherwise.
ARTICLE IV
TERMINATION
4.1 Termination of Agreement. Except as may otherwise be provided
herein, this Agreement shall terminate upon the first to occur of:
(a) Thirty (30) days after written notice of termination
is given by either party to the other; or
(b) Executive's death or, at the Company's option, upon
Executive's becoming Disabled (as defined in Section 4.8 hereof); or
(c) June 30, 2000 (the "Final Date").
Any notice of termination given by Executive to the Company under Section
4.1(a) above shall specify whether such termination is made with or without
Good Reason (as defined in Section 4.4 hereof) or Good Reason-Change in Control
(as defined in Section 4.5 hereof). Any notice of termination given by the
Company to Executive under Section 4.1(a) above shall specify whether such
termination is with or without Cause (as defined in Section 4.3 hereof).
4.2 Obligations of the Company Upon Termination.
(a) Cause; Other than for Good Reason and Other than for
Good Reason-Change in Control. If the Company terminates this
Agreement with Cause pursuant to Section 4.1(a) hereof, or if
Executive terminates this Agreement without Good Reason or without
Good Reason-Change in Control pursuant to Section 4.1(a) hereof, or if
this Agreement terminates pursuant to Section 4.1(c) hereof, this
Agreement shall terminate without further obligations to Executive,
other than those obligations owing or accrued to, vested in, or
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earned by Executive through the date of termination, including, but
not limited to:
(i) to the extent not theretofore paid,
Executive's minimum salary at the annual rate in effect at the
time of such termination through the date of termination; and
(ii) in the case of compensation previously
deferred by Executive, all amounts previously deferred
(together with any accrued interest thereon) and not yet paid
by the Company and any accrued vacation pay not yet paid by
the Company; and
(iii) all other amounts or benefits owing or
accrued to, vested in, earned by Executive through the date of
termination under the then existing or applicable plans,
programs, arrangements, and policies of the Company and its
affiliates, including, but not limited to, any such plans,
programs, arrangements or policies described in Section 2.1(c)
hereof;
such obligations owing or accrued to, vested in, or earned by
Executive through the date of termination, including, but not limited
to, such amounts and benefits specified in clauses (i), (ii), and
(iii) of this sentence, being hereinafter collectively referred to as
the "Accrued Obligations." The aggregate amount of such obligations
owing or accrued to, vested in, or earned by Executive through the
date of termination, including, but not limited to, the Accrued
Obligations, shall be paid by the Company to Executive in cash in one
lump sum within thirty (30) days after the date of termination.
(b) Good Reason; Other than for Cause Before a Change in
Control. If Executive terminates this Agreement with Good Reason
pursuant to Section 4.1(a) hereof, or if the Company terminates this
Agreement without Cause before the occurrence of a Change in Control
pursuant to Section 4.1(a) hereof:
(i) the Company shall pay to Executive cash in
one lump sum within thirty (30) days after the date of
termination the aggregate of the following amounts:
(A) to the extent not theretofore paid,
Executive's minimum salary at the annual rate in
effect at the time of such termination (but prior to
giving effect to any reduction therein which
precipitated such termination) through the date of
termination; and
(B) in the case of compensation
previously deferred by Executive, all amounts
previously deferred (together with any
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accrued interest thereon) and not yet paid by the
Company, and any accrued vacation pay not yet paid by
the Company; and
(C) all other amounts or benefits owing
or accrued to, vested in, or earned by Executive
through the date of termination under the then
existing or applicable plans, programs, arrangements,
and policies of the Company and its affiliates,
including, but not limited to, any such plans,
programs, arrangements or policies described in
Section 2.1(c) hereof; and
(D) any and all other Accrued
Obligations not otherwise described in clause (A),
(B), or (C) of this Section 4.2(b)(i); and
(ii) the Company shall pay to Executive his
minimum salary at the annual rate in effect at the time of
such termination (but prior to giving effect to any reduction
therein which precipitated such termination) for the period
commencing on the date after the date of termination and
ending on the Final Date (such minimum salary to be paid in
accordance with the second and third sentences of Section
2.1(a)); and
(iii) the Company shall pay to Executive the
Adjusted Average Bonus (as defined in Section 4.14(a) hereof)
on the First Payment Date (as defined in Section 4.14(e)
hereof); and
(iv) on each of the Subsequent Payment Dates (as
defined in Section 4.14(f) hereof), if any, the Company shall
pay to Executive the Average Bonus (as defined in Section
4.14(b) hereof).
(c) Good Reason-Change in Control; Other than for Cause
On or After a Change in Control. If Executive terminates this
Agreement with Good Reason-Change in Control pursuant to Section
4.1(a) hereof, or if the Company terminates this Agreement without
Cause on or after the occurrence of a Change in Control pursuant to
Section 4.1(a) hereof:
(i) the Company shall pay to Executive cash in
one lump sum within thirty (30) days after the date of
termination the aggregate of the following amounts:
(A) to the extent not theretofore paid,
Executive's minimum salary at the annual rate in
effect at the time of such termination (but prior to
giving effect to any reduction therein which
precipitated such termination) through the date of
termination; and
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(B) to the extent not theretofore paid
as required under Section 2.1(b)(v) hereof, any Bonus
through the date of such Change in Control; and
(C) in the case of compensation
previously deferred by Executive, all amounts
previously deferred (together with any accrued
interest thereon) and not yet paid by the Company,
and any accrued vacation pay not yet paid by the
Company; and
(D) all other amounts or benefits owing
or accrued to, vested in, or earned by Executive
through the date of termination under the then
existing or applicable plans, programs, arrangements,
and policies of the Company and its affiliates,
including, but not limited to, any such plans,
programs, arrangements, or policies described in
Section 2.1(c) hereof; and
(E) any and all other Accrued
Obligations not otherwise described in clause (A),
(B), (C) or (D) of this Section 4.2(c)(i); and
(ii) the Company shall pay to Executive his
minimum salary at the annual rate in effect at the time of
such termination (but prior to giving effect to any reduction
therein which precipitated such termination) for the period
commencing on the date after the date of termination and
ending on the Final Date (such minimum salary to be paid in
accordance with the second and third sentences of Section
2.1(a)); and
(iii) the Company shall pay to Executive the
Adjusted Average Bonus on the First Payment Date; and
(iv) on each of the Subsequent Payment Dates, if
any, the Company shall pay to Executive the Average Bonus.
(d) Death. If Executive's employment is terminated under
Section 4.1(b) hereof by reason of Executive's death, the Company
shall pay to Executive's legal representatives cash in one lump sum
within thirty (30) days after the date of Executive's death the full
amount of the obligations owing or accrued to, vested in, or earned by
Executive through the date of Executive's death, including, but not
limited to, the Accrued Obligations. Anything in this Agreement to
the contrary notwithstanding, Executive's family shall be entitled to
receive benefits provided by the Company and any of its affiliates to
surviving families under the then existing or applicable plans,
programs, or arrangements and policies of the Company and its
affiliates.
(e) Disability. If Executive's employment is terminated
under Section 4.1(b) hereof by reason of Executive becoming Disabled:
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(i) the Company shall pay to Executive cash in
one lump sum within thirty (30) days after the date of
termination the full amount of the obligations owing or
accrued to, vested in, or earned by Executive through the date
of termination, including, but not limited to, the Accrued
Obligations; and
(ii) the Company shall pay to Executive
seventy-five percent (75%) of Executive's minimum salary at
the annual rate in effect at the time of such termination for
the period commencing on the date after the date of
termination and ending on the Final Date (such minimum salary
to be paid in accordance with the second and third sentences
of Section 2.1(a)), reduced by the actual amount of benefits
paid to Executive during such period under any disability
insurance policy maintained by the Company for Executive.
4.3 Cause. As used in this Agreement, the term "Cause" means the
gross or willful neglect by Executive of his duties as an employee, officer or
director of the Company which continues for more than thirty (30) days after
written notice from the Company to Executive specifically identifying the gross
or willful negligence of Executive and directing Executive to discontinue same.
4.4 Good Reason. As used in this Agreement, the term "Good
Reason" means the occurrence of any of the following:
(a) a breach of any material provision of this Agreement
by the Company (other than any breach described in clause (b) or (c)
of this sentence), which is not cured within thirty (30) days after
written notice from Executive to the Company specifically identifying
such breach; or
(b) any removal of Executive, without Cause, from the
position of the Office during the Term; or
(c) Executive is in any manner (other than the manner
described in clause (b) of this sentence) relieved of his
responsibilities under this Agreement, without Cause, during the Term.
Notwithstanding anything contained in the immediately preceding sentence to the
contrary, the term "Good Reason" shall not include any breach of any provision
of this Agreement (including, but not limited to, any breach described in
clause (b) or (c) of the immediately preceding sentence) that occurs after the
occurrence of a Change in Control.
4.5 Good Reason-Change in Control. As used in this Agreement, the
term "Good Reason-Change in Control" means after the occurrence of a Change in
Control, a determination by Executive that any one or more of the following
events has occurred:
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(a) the assignment by the Company to Executive of duties
that are inconsistent with the Office at the time of such assignment,
or the removal by the Company from Executive of those duties usually
appertaining to the Office at the time of such removal; or
(b) a change by the Company, without Executive's prior
written consent, in Executive's responsibilities to the Company as
such responsibilities existed at the time of the occurrence of such
Change in Control (or as such responsibilities may thereafter exist
from time to time as a result of changes in such responsibilities made
with Executive's prior written consent); or
(c) any removal of Executive from, or any failure to
elect or reelect Executive to, the Office, except in connection with
Executive's promotion, with his prior written consent, to a higher
office (if any) with the Company; or
(d) the Company's direction that Executive discontinue
service (or not seek reelection or reappointment) as a director,
officer or member of any corporation or other entity of which
Executive is a director, officer or member at the time of the
occurrence of such Change in Control; or
(e) the failure of the Company to continue to provide
Executive with office space, related facilities and support personnel
(including, but not limited to, administrative and secretarial
assistance) that are both commensurate with the Office and Executive's
responsibilities to and position with the Company at the time of the
occurrence of such Change in Control and not materially dissimilar to
the office space, related facilities and support personnel provided to
other key executive officers of the Company; or
(f) a reduction by the Company in the amount of
Executive's minimum salary specified in Section 2.1(a) (or as
subsequently increased) and as in effect at the time of the occurrence
of such Change in Control, or a failure of the Company to pay such
minimum annual salary to the Employee at the time and in the manner
specified in Section 2.1(a) of this Employment Agreement; or
(g) in the event of any increase, at any time after the
occurrence of such Change in Control, in the minimum annual salary or
salaries of one or more members of the Executive Group (as defined in
Section 4.7 hereof) (the members or members of the Executive Group
whose minimum annual salary or salaries are increased at such time
being hereinafter called the "Increased Executives"), the failure of
the Company simultaneously to increase Executive's minimum annual
salary, as Executive's minimum annual salary is in effect immediately
prior to giving effect to such first-mentioned increase (the "Prior
Base Salary"), by an amount which equals or exceeds the product
obtained by multiplying the Prior Base Salary by a fraction, the
numerator of which is the sum of the amounts by which the respective
minimum annual salaries of the Increased Executives (other than
Executive) were increased at such time and the
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denominator of which is the sum of the respective minimum annual
salaries of the Increased Executives (other than Executive)
immediately prior to giving effect to such first-mentioned increase;
or
(h) the discontinuation or reduction by the Company of
Executive's participation in any bonus or other employee benefit plan,
program, arrangement, or policy (including, but not limited to, any
such plan, program, arrangement, or policy described in Section 2.1(c)
hereof) in which Executive is a participant at the time of the
occurrence of such Change in Control; or
(i) Executive's principal office space or the related
facilities or support space or the related facilities or support
personnel referred to in paragraph (e) of this Section 4.5 cease to be
located within the Company's principal executive offices, or for a
period of more than 45 consecutive days Executive is required by the
Company to perform a majority of his duties outside the Company's
principal executive offices; or
(j) the relocation, without Executive's prior written
consent, of the Company's principal executive offices to a location
outside the county in which such offices are located at the time of
the occurrence of such Change in Control; or
(k) the failure of the Company to provide Executive
annually with a number of paid vacation days and sick leave days at
least equal to the number of paid vacation days to which Executive is
entitled annually at the time of the occurrence of such Change in
Control; or
(l) the failure of the Company to obtain the assumption
by any successor to the Company of the obligations imposed upon the
Company under this Agreement, as required by Section 5.2 of this
Agreement; or
(m) the failure by the Company to promptly reimburse
Executive for any Business Expenses; or
(n) that because of the policies, decisions or actions of
the Board or the stockholders of the Company, Executive can no longer
perform his duties to the Company in a manner which is consistent with
the manner in which such duties were performed by Executive prior to
the occurrence of such Change in Control; or
(o) the employment of Executive under this Agreement is
terminated by the Company without Cause; or
(p) the Company notifies Executive of the Company's
intention not to observe or perform one or more of the obligations of
the Company under this Agreement; or
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(q) the Company breaches any provision of this Agreement.
4.6 Change in Control. As used herein, the term "Change in
Control" shall mean the occurrence with respect to the Company of any of the
following events:
(a) a report on Schedule 13D is filed with the Securities
and Exchange Commission (the "SEC") pursuant to Section 13(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
disclosing that any person, entity or group (within the meaning of
Section 13(d) or 14(d) of the Exchange Act), other than the Company
(or one of its subsidiaries) or any employee benefit plan sponsored by
the Company (or one of its subsidiaries), is the beneficial owner (as
such term is defined in Rule 13d-3 promulgated under the Exchange
Act), directly or indirectly, of 20 percent or more of the outstanding
shares of common stock of the Company or the combined voting power of
the then-outstanding securities of the Company;
(b) a report is filed by the Company disclosing a
response to either Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Exchange Act, or to Item 1 of Form 8-K
promulgated under the Exchange Act, or to any similar reporting
requirement hereafter promulgated by the SEC;
(c) any person, entity or group (within the meaning of
Section 13(d) or 14(d) of the Exchange Act), other than the Company
(or one of its subsidiaries) or any employee benefit plan sponsored by
the Company (or one of its subsidiaries), shall purchase securities
pursuant to a tender offer or exchange offer to acquire any common
stock of the Company (or securities convertible into common stock) for
cash, securities or any other consideration, provided that after
consummation of the offer, the person, entity or group in question is
the beneficial owner (as such term is defined in Rule 13d-3
promulgated under the Exchange Act), directly or indirectly, of 20
percent or more of the combined voting power of the then-outstanding
securities of the Company (as determined under paragraph (d) of Rule
13d-3 promulgated under the Exchange Act, in the case of rights to
acquire common stock);
(d) the stockholders of the Company shall approve:
(i) any merger, consolidation, or reorganization
of the Company:
(A) in which the Company is not the
continuing or surviving corporation,
(B) pursuant to which shares of common
stock of the Company would be converted into cash,
securities or other property,
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(C) with a corporation which prior to
such merger, consolidation, or reorganization owned
20 percent or more of the combined voting power of
the then- outstanding securities of the Company, or
(D) in which the Company will not
survive as an independent, publicly-owned
corporation;
(ii) any sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of
all or substantially all the assets of the Company, or
(iii) any liquidation or dissolution of the Company;
(e) the stockholders of the Company shall approve a
merger, consolidation, reorganization, recapitalization, exchange
offer, purchase of assets or other transaction after the consummation
of which any person, entity or group (as defined in accordance with
Section 13(d) or 14(d) of the Exchange Act) would own beneficially in
excess of 50% of the outstanding shares of common stock of the Company
or in excess of 50% of the combined voting power of the
then-outstanding securities of the Company;
(f) the Company's common stock ceases to be listed on the
New York Stock Exchange;
(g) the existence of a Distribution Date as defined in
the Rights Agreement of the Company dated August 31, 1995; or
(h) during any period of two consecutive years, the
individuals who at the beginning of such period constituted the Board
cease for any reason to constitute a majority of the Board, unless the
election or nomination for election by the Company's stockholders of
each new director during any such two-year period was approved by the
vote of two-thirds of the directors then still in office who were
directors at the beginning of such two-year period.
4.7 Executive Group. As used herein, "Executive Group" shall mean
the officers of the Company; and each of such officers shall be deemed members
of the Executive Group.
4.8 Disabled. As used herein, "Disabled" shall mean a mental or
physical impairment which in the reasonable opinion of a qualified doctor
selected by the Company renders Executive unable to perform with reasonable
diligence the ordinary functions and duties of Executive on a full-time basis
in accordance with the terms of this Agreement, which inability will continue
in the reasonable opinion of such doctor for a period of not less than 180
days.
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4.9 Return of Materials; Confidential Information. In the event
of any termination of this Agreement, Executive shall promptly deliver to the
Company all lists, books, records, literature, products and any other materials
owned or provided by the Company in connection with Executive's employment
hereunder. Executive shall not at any time during or after the Term hereof use
for himself or others, or divulge to others, any secret or confidential
information, knowledge or data of the Company obtained by Executive as a result
of his employment unless authorized by a majority of the Board.
4.10 Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment or
distribution by the Company or any of its affiliates to or for the benefit of
Executive, whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise (any such payments or distributions
being individually referred to herein as a "Payment," and any two or more of
such payments or distributions being referred to herein as "Payments"), would
be subject to the excise tax imposed by Section 4999 of the Internal Revenue
Code of 1986, as amended (the "Code") (such excise tax, together with any
interest thereon, any penalties, additions to tax, or additional amounts with
respect to such excise tax, and any interest in respect of such penalties,
additions to tax or additional amounts, being collectively referred herein to
as the "Excise Tax"), then Executive shall be entitled to receive an additional
payment or payments (individually referred to herein as a "Gross-Up Payment"
and any two or more of such additional payments being referred to herein as
"Gross-Up Payments") in an amount such that after payment by Executive of all
taxes (as defined in Section 4.10(k)) imposed upon the Gross-Up Payment,
Executive retains an amount of such Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(b) Subject to the provisions of Section 4.10(c) through
(i), any determination (individually, a "Determination") required to be made
under this Section 4.10(b), including whether a Gross-Up Payment is required
and the amount of such Gross-Up Payment, shall initially be made, at the
Company's expense, by nationally recognized tax counsel mutually acceptable to
the Company and Executive ("Tax Counsel"). Tax Counsel shall provide detailed
supporting legal authorities, calculations, and documentation both to the
Company and Executive within 15 business days of the termination of Executive's
employment, if applicable, or such other time or times as is reasonably
requested by the Company or Executive. If Tax Counsel makes the initial
Determination that no Excise Tax is payable by Executive with respect to a
Payment or Payments, it shall furnish Executive with an opinion reasonably
acceptable to Executive that no Excise Tax will be imposed with respect to any
such Payment or Payments. Executive shall have the right to dispute any
Determination (a "Dispute") within 15 business days after delivery of Tax
Counsel's opinion with respect to such Determination. The Gross-Up Payment, if
any, as determined pursuant to such Determination shall, at the Company's
expense, be paid by the Company to Executive within five business days of
Executive's receipt of such Determination. The existence
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of a Dispute shall not in any way affect Executive's right to receive the
Gross-Up Payment in accordance with such Determination. If there is no
Dispute, such Determination shall be binding, final and conclusive upon the
Company and Executive, subject in all respects, however, to the provisions of
Section 4.10(c) through (i) below. As a result of the uncertainty in the
application of Sections 4999 and 280G of the Code, it is possible that Gross-Up
Payments (or portions thereof) which will not have been made by the Company
should have been made ("Underpayment"), and if upon any reasonable written
request from Executive or the Company to Tax Counsel, or upon Tax Counsel's own
initiative, Tax Counsel, at the Company's expense, thereafter determines that
Executive is required to make a payment of any Excise Tax or any additional
Excise Tax, as the case may be, Tax Counsel shall, at the Company's expense,
determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to Executive.
(c) The Company shall defend, hold harmless, and
indemnify Executive on a fully grossed-up after tax basis from and against any
and all claims, losses, liabilities, obligations, damages, impositions,
assessments, demands, judgements, settlements, costs and expenses (including
reasonable attorneys', accountants', and experts' fees and expenses) with
respect to any tax liability of Executive resulting from any Final
Determination (as defined in Section 4.10(j)) that any Payment is subject to
the Excise Tax.
(d) If a party hereto receives any written or oral
communication with respect to any question, adjustment, assessment or pending
or threatened audit, examination, investigation or administrative, court or
other proceeding which, if pursued successfully, could result in or give rise
to a claim by Executive against the Company under this Section 4.10(d)
("Claim"), including, but not limited to, a claim for indemnification of
Executive by the Company under Section 4.10(c), then such party shall promptly
notify the other party hereto in writing of such Claim ("Tax Claim Notice").
(e) If a Claim is asserted against Executive ("Executive
Claim"), Executive shall take or cause to be taken such action in connection
with contesting such Executive Claim as the Company shall reasonably request in
writing from time to time, including the retention of counsel and experts as
are reasonably designated by the Company (it being understood and agreed by the
parties hereto that the terms of any such retention shall expressly provide
that the Company shall be solely responsible for the payment of any and all
fees and disbursements of such counsel and any experts) and the execution of
powers of attorney, provided that:
(i) within 30 calendar days after the Company
receives or delivers, as the case may be, the Tax Claim Notice
relating to such Executive Claim (or such earlier date that any
payment of the taxes claimed is due from Executive, but in no event
sooner than five calendar days after the Company receives or delivers
such Tax Claim Notice), the Company shall have notified Executive in
writing ("Election Notice") that the Company does not dispute its
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obligations (including, but not limited to, its indemnity obligations)
under this Agreement and that the Company elects to contest, and to
control the defense or prosecution of, such Executive Claim at the
Company's sole risk and sole cost and expense; and
(ii) the Company shall have advanced to Executive
on an interest-free basis, the total amount of the tax claimed in
order for Executive, at the Company's request, to pay or cause to be
paid the tax claimed, file a claim for refund of such tax and, subject
to the provisions of the last sentence of Section 4.10(g), xxx for a
refund of such tax if such claim for refund is disallowed by the
appropriate taxing authority (it being understood and agreed by the
parties hereto that the Company shall only be entitled to xxx for a
refund and the Company shall not be entitled to initiate any
proceeding in, for example, United States Tax Court) and shall
indemnify and hold Executive harmless, on a fully grossed-up after tax
basis, from any tax imposed with respect to such advance or with
respect to any imputed income with respect to such advance; and
(iii) the Company shall reimburse Executive for any
and all costs and expenses resulting from any such request by the
Company and shall indemnify and hold Executive harmless, on fully
grossed-up after-tax basis, from any tax imposed as a result of such
reimbursement.
(f) Subject to the provisions of Section 4.10(e) hereof,
the Company shall have the right to defend or prosecute, at the sole cost,
expense and risk of the Company, such Executive Claim by all appropriate
proceedings, which proceedings shall be defended or prosecuted diligently by
the Company to a Final Determination; provided, however, that (i) the Company
shall not, without Executive's prior written consent, enter into any compromise
or settlement of such Executive Claim that would adversely affect Executive,
(ii) any request from the Company to Executive regarding any extension of the
statute of limitations relating to assessment, payment, or collection of taxes
for the taxable year of Executive with respect to which the contested issues
involved in, and amount of, the Executive Claim relate is limited solely to
such contested issues and amount, and (iii) the Company's control of any
contest or proceeding shall be limited to issues with respect to the Executive
Claim and Executive shall be entitled to settle or contest, in his sole and
absolute discretion, any other issue raised by the Internal Revenue Service or
any other taxing authority. So long as the Company is diligently defending or
prosecuting such Executive Claim, Executive shall provide or cause to be
provided to the Company any information reasonably requested by the Company
that relates to such Executive Claim, and shall otherwise cooperate with the
Company and its representatives in good faith in order to contest effectively
such Executive Claim. The Company shall keep Executive informed of all
developments and events relating to any such Executive Claim (including,
without limitation, providing to Executive copies of all written materials
pertaining to any such Executive Claim), and Executive or his authorized
representatives shall be entitled, at Executive's
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expense, to participate in all conferences, meetings and proceedings relating
to any such Executive Claim.
(g) If, after actual receipt by Executive of an amount of
a tax claimed (pursuant to an Executive Claim) that has been advanced by the
Company pursuant to Section 4.10(e)(ii) hereof, the extent of the liability of
the Company hereunder with respect to such tax claimed has been established by
a Final Determination, Executive shall promptly pay or cause to be paid to the
Company any refund actually received by, or actually credited to, Executive
with respect to such tax (together with any interest paid or credited thereon
by the taxing authority and any recovery of legal fees from such taxing
authority related thereto), except to the extent that any amounts are then due
and payable by the Company to Executive, whether under the provisions of this
Agreement or otherwise. If, after the receipt by Executive of an amount
advanced by the Company pursuant to Section 4.10(e)(ii), a determination is
made by the Internal Revenue Service or other appropriate taxing authority that
Executive shall not be entitled to any refund with respect to such tax claimed
and the Company does not notify Executive in writing of its intent to contest
such denial of refund prior to the expiration of thirty days after such
determination, then such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of any Gross-Up Payments and other payments required to be paid
hereunder.
(h) With respect to any Executive Claim, if the Company
fails to deliver an Election Notice to Executive within the period provided in
Section 4.10(e)(i) hereof or, after delivery of such Election Notice, the
Company fails to comply with the provisions of Section 4.10(e)(ii) and (iii)
and (f) hereof, then Executive shall at any time thereafter have the right (but
not the obligation), at his election and in his sole and absolute discretion,
to defend or prosecute, at the sole cost, expense and risk of the Company, such
Executive Claim. Executive shall have full control of such defense or
prosecution and such proceedings, including any settlement or compromise
thereof. If requested by Executive, the Company shall cooperate, and shall
cause its affiliates to cooperate, in good faith with Executive and his
authorized representatives in order to contest effectively such Executive
Claim. The Company may attend, but not participate in or control, any defense,
prosecution, settlement or compromise of any Executive Claim controlled by
Executive pursuant to this Section 4.10(h) and shall bear its own costs and
expenses with respect thereto. In the case of any Executive Claim that is
defended or prosecuted by Executive, Executive shall, from time to time, be
entitled to current payment, on a fully grossed-up after tax basis, from the
Company with respect to costs and expenses incurred by Executive in connection
with such defense or prosecution.
(i) In the case of any Executive Claim that is defended
or prosecuted to a Final Determination pursuant to the terms of this Section
4.10(i), the Company shall pay, on a fully grossed-up after tax basis, to
Executive in immediately available funds the full amount of any taxes arising
or resulting from or incurred in connection with such Executive Claim that have
not theretofore been paid by the Company to
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Executive, together with the costs and expenses, on a fully grossed-up after
tax basis, incurred in connection therewith that have not theretofore been paid
by the Company to Executive, within ten calendar days after such Final
Determination. In the case of any Executive Claim not covered by the preceding
sentence, the Company shall pay, on a fully grossed-up after tax basis, to
Executive in immediately available funds the full amount of any taxes arising
or resulting from or incurred in connection with such Executive Claim at least
ten calendar days before the date payment of such taxes is due from Executive,
except where payment of such taxes is sooner required under the provisions of
this Section 4.10(i), in which case payment of such taxes (and payment, on a
fully grossed-up after tax basis, of any costs and expenses required to be paid
under this Section 4.10(i) shall be made within the time and in the manner
otherwise provided in this Section 4.10(i).
(j) For purposes of this Agreement, the term "Final
Determination" shall mean (A) a decision, judgment, decree or other order by a
court or other tribunal with appropriate jurisdiction, which has become final
and non-appealable; (B) a final and binding settlement or compromise with an
administrative agency with appropriate jurisdiction, including, but not limited
to, a closing agreement under Section 7121 of the Code; (C) any disallowance of
a claim for refund or credit in respect to an overpayment of tax unless a suit
is filed on a timely basis; or (D) any final disposition by reason of the
expiration of all applicable statutes of limitations.
(k) For purposes of this Agreement, the terms "tax" and
"taxes" mean any and all taxes of any kind whatsoever (including, but not
limited to, any and all Excise Taxes, income taxes, and employment taxes),
together with any interest thereon, any penalties, additions to tax, or
additional amounts with respect to such taxes and any interest in respect of
such penalties, additions to tax, or additional amounts.
(l) For purposes of this Agreement, the terms "affiliate"
and "affiliates" mean, when used with respect to any entity, individual, or
other person, any other entity, individual, or other person which, directly or
indirectly, through one or more intermediaries controls, or is controlled by,
or is under common control with such entity, individual or person. The term
"control" and derivations thereof when used in the immediately preceding
sentence means the ownership, directly or indirectly, of 50% or more of the
voting securities of an entity or other person or possessing the power to
direct or cause the direction of the management and policies of such entity or
other person, whether through the ownership of voting securities, by contract
or otherwise.
4.11 Legal Fees and Expenses. The Company shall defend, hold
harmless, and indemnify Executive on a fully grossed-up after tax basis from
and against any and all costs and expenses (including reasonable attorneys',
accountants' and experts' fees and expenses) incurred by Executive from time to
time as a result of any contest (regardless of the outcome) by the Company or
others contesting the validity or enforcement of, or liability under, any term
or provision of this Agreement, plus in each case interest at the applicable
federal rate provided for in Section 7872(f)(2)(B) of the Code.
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4.12 Non-exclusivity of Rights. Nothing in this Agreement shall
prevent or limit Executive's continuing or future participation in any benefit,
bonus, incentive or other plan, program, arrangement or policy provided by the
Company or any of its affiliates (including, but not limited to, any plan,
program, arrangement or policy described in Section 2.1(c) hereof) and for
which Executive and/or Executive's family may qualify, nor shall anything
herein limit or otherwise affect such rights as Executive and/or Executive's
family may have under any other agreements with the Company or any of its
affiliates. Amounts which are vested benefits or which Executive and/or
Executive's family is otherwise entitled to receive under any plan, program,
arrangement, or policy of the Company or any of its affiliates (including, but
not limited to, any plan, program, arrangement or policy described in Section
2.1(c) hereof) at or subsequent to the date of termination of this Agreement
shall be payable in accordance with such plan, program, arrangement or policy.
4.13 Full Settlement. 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 Executive or others. In no event shall Executive be obligated to seek
other employment or take any other action by way of mitigation of the amounts
payable to Executive under any of the provisions of this Agreement.
4.14 Certain Definitions. As used in this Agreement, the following
terms shall have the meanings indicated:
(a) "Adjusted Average Bonus" shall mean an amount equal
to (i) the Average Bonus, reduced (but not below zero) by (ii) the
Bonus under Section 2.1(b) hereof, if any, actually received by
Executive with respect to the fiscal year of the Company in which the
Cut-off Date (as defined in Section 4.14(d) hereof) occurs.
(b) "Average Bonus" shall mean an amount equal to the
greater of the following amounts:
(i) an amount equal to the quotient obtained by
dividing the Prior Averageable Bonuses (as defined in Section
4.14(c) hereof) by two (2); and
(ii) an amount equal to the quotient obtained by
dividing (A) the aggregate amount of bonuses or other
incentive compensation received or earned by, or awarded to,
Executive in respect of the two (2) annual periods ending on
June 30 immediately preceding the Cut-off Date, including, but
not limited to, any Bonus in respect of such annual periods
and any bonus or other incentive compensation received or
earned by, or awarded to, in respect of such annual periods
under any Replacement
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Bonus Opportunity (as hereinbefore defined in Section
2.1(b)(vi) hereof), by (B) two (2).
(c) "Prior Averageable Bonuses" shall mean an amount
equal to the sum of the Bonuses received or earned by, or awarded to,
Executive in respect of the two (2) fiscal years of the Company
immediately preceding the first fiscal year of the Company in which a
Change in Control or a Cut-off Date occurs; provided, however, that
notwithstanding anything contained in this Agreement to the contrary
(i) if one of such two (2) fiscal years of the Company immediately
preceding the first fiscal year of the Company in which a Change in
Control or a Cut-off Date occurs is the fiscal year of the Company
ended June 30, 1994, an amount equal to $133,000 shall be used as the
Bonus in respect of the fiscal year of the Company ended June 30,
1994, and (ii) if one of such two (2) fiscal years of the Company
immediately preceding the first fiscal year of the Company in which a
Change in Control or a Cut-off Date occurs is the fiscal year of the
Company ended June 30, 1995, an amount equal to $504,000 shall be used
as the Bonus in respect of the fiscal year of the Company ended June
30, 1995.
(d) "Cut-off Date" shall mean the date of the first to
occur of the following:
(i) termination of this Agreement by the Company
without Cause pursuant to Section 4.1(a) hereof; and
(ii) termination of this Agreement by Executive
with Good Reason or with Good Reason-Change in Control
pursuant to Section 4.1(a) hereof.
(e) "First Payment Date" shall mean the first June 30 to
occur after the Cut-off Date.
(f) "Subsequent Payment Date" shall mean, if any, the
first June 30 to occur after the First Payment Date and each June 30
thereafter until and including the Final Date.
ARTICLE V
GENERAL PROVISIONS
5.1 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas.
5.2 Assignability. This Agreement is personal to Executive and
without the prior written consent of the Company shall not be assignable by
Executive other than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by Executive's legal
representatives and heirs. This Agreement shall inure to the benefit of and be
binding upon the Company and its
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successors and assigns. The Company shall require any corporation, entity,
individual or other person who is the successor (whether direct or indirect, by
purchase, merger, consolidation, reorganization, or otherwise) to all or
substantially all of the business or assets of the Company to expressly assume
and agree to perform, by a written agreement in form and substance satisfactory
to Executive, all of the obligations of the Company under this Agreement. As
used in this Agreement, the term "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, written agreement, or otherwise.
5.3 Withholding. The Company may withhold from any amounts
payable under this Agreement such federal, state or local taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
5.4 Entire Agreement. This Agreement constitutes the entire
agreement and understanding between Executive and the Company and supersedes
any prior agreements or understandings, whether written or oral, with respect
to the subject matter hereof. Except as may be otherwise provided herein, this
Agreement may not be amended or modified except by subsequent written agreement
executed by both parties hereto.
5.5 Multiple Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall constitute an original, but all of
which together shall constitute one Agreement.
5.6 Notices. Any notice provided for in this Agreement shall be
deemed delivered upon deposit in the United States mails, registered or
certified mail, addressed to the party to whom directed at the addresses set
forth below or at such other addresses as may be substituted therefor by notice
given hereunder. Notice given by any other means must be in writing and shall
be deemed delivered only upon actual receipt.
If to the Company:
National Convenience Stores Incorporated
000 Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
If to Executive:
X. X. Xxx Xxxx
0000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
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5.7 Waiver. The waiver of any breach of any term or condition of
this Agreement shall not be deemed to constitute the waiver of any breach of
the same or any other term or condition of this Agreement.
5.8 Severability. In the event any provision of this Agreement is
found to be unenforceable or invalid, such provision shall be severable from
this Agreement and shall not effect the enforceability or validity of any other
provision of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Execution Date, but effective as of the Effective Date.
NATIONAL CONVENIENCE STORES
INCORPORATED
By: /s/ X. X. XXXXXXXXX
-----------------------------------
X. X. Xxxxxxxxx
Senior Vice President -
General Counsel and Secretary
"COMPANY"
/S/ X. X. XXX XXXX
-----------------------------------
X. X. Xxx Xxxx
"EXECUTIVE"
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