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Exhibit 10.29
XXXXX
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT is made to be effective as of
June 5, 2000, between X. X. Xxxxx Corporation, an Ohio corporation (the
"Company"), and Xxxxxx X. Xxxxx ("Executive") under the following circumstances:
A. Executive desires to serve as an employee of the
Company in an executive capacity on the terms and conditions
stated herein; and
B. The Company desires by this Agreement to provide for the
employment of Executive by the Company on the terms and conditions
stated herein.
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND THE MUTUAL
COVENANTS CONTAINED HEREIN, THE COMPANY AND EXECUTIVE AGREE AS FOLLOWS:
Section 1. Employment. The Company hereby agrees to employ Executive,
and Executive hereby agrees to be employed by the Company, on the terms and
conditions set forth herein.
Section 2. Term of Employment. The term of employment of Executive by
the Company under this Agreement shall commence on the effective date of this
Agreement (the "Agreement Date") and end on the date which is the third
anniversary date of the Agreement Date (the "Term of Employment").
Section 3. Position and Duties.
(a) Position. During the Term of Employment, the Company shall employ
Executive as, and Executive shall serve as, Senior Vice President and Chief
Financial Officer of the Company, with his duties, authority and
responsibilities to be as reasonably assigned by the Chief Executive Officer or
the Board of Directors of the Company consistent with such title and position.
(b) Duties. Executive shall devote his full-time efforts to the
business and affairs of the Company and shall perform his duties faithfully,
diligently, and to the best of his ability and in conformity with the policies
of the Company and under and subject to such reasonable directions and
instructions as the Board of Directors and the Chief Executive Officer of the
Company may issue from time to time.
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Section 4. Compensation and Related Matters.
(a) Salary. The Company shall pay Executive a base salary of not less
than $220,000 per year payable in approximately equal installments in accordance
with the Company's normal pay schedule. In the event the Company shall at any
time or times after the Agreement Date increase Executive's base salary, then
Executive's base salary under this Agreement for any period after any such
increase shall be not less than the last amount to which the Company increased
the base salary of Executive (such base salary including increases granted after
the Agreement Date is hereinafter referred to as "Basic Salary"). Compensation
of Executive by Basic Salary payments shall not be deemed exclusive and shall
not prevent Executive from participating in any other compensation or benefit
plan of the Company. The Basic Salary payments hereunder shall not in any way
limit or reduce any other obligation of the Company hereunder, and no other
compensation, benefit or payment hereunder shall in any way limit or reduce the
obligation of the Company to pay Executive's Basic Salary hereunder.
(b) Bonus. The Company shall pay Executive a sign-on bonus in the
amount of $50,000. Such bonus shall be payable as follows: $25,000 of such bonus
shall be paid within two (2) weeks of the Agreement Date and the remaining
$25,000 shall be paid in the first pay period of 2001.
(c) Stock Options. The Company shall grant to Executive stock options
for 75,000 shares of the Company's stock, which grant shall be on terms
consistent with the standard stock option agreement used for employees of the
Company. The stock options shall vest ratably over a period of five (5) years.
(d) Expenses. During the Term of Employment, Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred by
Executive in performing services hereunder, including all reasonable expenses of
travel and living expenses while away from home on business or at the request of
and in the service of the Company, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established by the
Company.
(e) Other Benefits. During the term of Employment:
(1) Executive shall be entitled to receive such perquisites and
fringe benefits historically provided by the
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Company to its senior executives, including, without limitation, the exclusive
use of an automobile;
(2) Executive shall be entitled to participate in the Company's
Executive Supplemental Pension Plan and Executive Variable Life Insurance Plan,
as either of the same may be amended from time to time, or any substitute or
successor plans;
(3) Executive shall be entitled to participate in the Company's
Short-Term Incentive Plan (STIPS), as the same may be amended from time to time,
or any substitute or successor plan, at a maximum annual level equal to 60% of
his Basic Salary (which bonus shall be prorated in 2000 from the Agreement Date
to December 31, 2000); and
(4) Executive shall be entitled to receive all other employee
benefits, including, without limitation, medical, dental, disability, 401(k),
retirement, group life and accidental death insurance benefits as are or in the
future may be provided by the Company to its senior executives.
Section 5. Termination.
(a) Termination of Employment Other Than by Executive. Executive's
employment hereunder may be terminated without any breach of this Agreement only
under the following circumstances:
(1) Death. Executive's employment hereunder shall
terminate upon his death.
(2) Disability. If, as a result of Executive's
incapacity due to physical or mental illness, Executive
shall have been absent from his duties hereunder on a
full-time basis for the entire period of four (4)
consecutive months, and within ten (10) days after written
notice of termination is given (which may occur before or
after the end of such four (4) month period) shall not have
returned to the performance of his duties hereunder on a
full-time basis, the Company may terminate Executive's
employment hereunder for Disability.
(3) Cause. The Company may terminate Executive's employment
hereunder for Cause. For purposes of this Agreement, the Company
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shall have "Cause" to terminate Executive's employment
hereunder only upon:
(i) The willful and continued refusal by the Executive
to perform his duties with the Company (other than any such
refusal resulting from his incapacity due to physical or
mental illness), after a demand for substantial performance
is delivered to Executive by the Company which specifically
identifies the manner in which it is believed that Executive
has refused substantially to perform his duties;
(ii) Conviction of Executive of any felony; or
(iii) Willful and gross misconduct materially and
demonstrably injurious to the Company.
(b) Termination of Employment by Executive. Executive may terminate
his employment hereunder for Good Reason. As used herein, "Good Reason" means
any of the following:
(1) The assignment to Executive, without his consent,
of any duties materially inconsistent with his position, duties,
responsibilities and status with the Company on the
Agreement Date, or a change in Executive's responsibilities,
as in effect on the Agreement Date, which materially
diminishes Executive's responsibilities with the Company
when considered as a whole; provided, however, that the
foregoing shall not constitute Good Reason if done in
connection with the termination of Executive's employment
because of Disability or for Cause.
(2) A reduction by the Company in Executive's Basic Salary.
(3) Failure by the Company to comply with the provisions
of Section 4(e).
(4) The Company's requiring Executive, without his consent,
to be based anywhere other than the location where Executive
is
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based on the Agreement Date, if the same requires
Executive to relocate his principal residence; or, in the
event Executive consents to being based anywhere other than
such location, the failure by the Company to pay (or
reimburse Executive for) all reasonable moving expenses
incurred by Executive relating to a change of Executive's
principal residence in connection with such relocation.
(5) The failure of the Company to obtain the assumption of
this Agreement by any successor as provided in Section 9.
(c) Notice of Termination. Any termination of Executive's employment
by the Company or by Executive other than termination pursuant to Section
5(a)(1) shall be communicated by written Notice of Termination to the other
party. For purposes of this Agreement, a Notice of Termination shall mean a
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Executive's employment under the
provision so indicated.
(d) Date of Termination. "Date of Termination" shall mean (i) if
Executive's employment is terminated by his death, the date of his death, (ii)
if Executive's employment is terminated pursuant to Section 5(a)(2), ten (10)
days after Notice of Termination is given (provided that the Executive shall not
have returned to the performance of his duties on a full-time basis during such
ten (10) day period), or (iii) if Executive's employment is terminated for any
other reason, the date on which the Notice of Termination is given.
Section 6. Compensation Upon Termination or During Disability.
(a) Disability. During any period that Executive fails to perform his
duties hereunder as a result of incapacity due to physical or mental illness
("Disability Period"), Executive shall continue to receive his Basic Salary at
the rate then in effect for such period until his employment is terminated
pursuant to Section 5(a)(2), provided that payments of Basic Salary so made to
Executive shall be reduced by the sum of the amounts, if any, payable to
Executive at or prior to the time of any such salary payment under disability
benefit plans of the
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Company and which were not previously applied to reduce any payment of Basic
Salary.
(b) Death. If Executive's employment is terminated by his death, the
Company shall pay to Executive's estate his full Basic Salary through the Date
of Termination at the rate in effect on the date of death and shall thereafter
have no further obligations to Executive under this Agreement.
(c) Termination for Cause. If Executive's employment shall be
terminated for Cause, the Company shall pay Executive his full Basic Salary
through the Date of Termination at the rate in effect at the time Notice of
Termination is given and the Company shall have no further obligations to
Executive under this Agreement.
(d) Termination for Good Reason or Without Cause. In the event
Executive terminates his employment with the Company for Good Reason or the
Company terminates Executive's Employment for any reason other than for Cause or
Disability, in either case at any time prior to the expiration of the Term of
Employment, Executive shall be entitled to the following payments and benefits:
(1) The Company shall pay to Executive, not later than thirty
(30) days following the Date of Termination, Executive's accrued but unpaid
Basic Salary through the Date of Termination plus compensation for current and
carried-over unused vacation and compensation days in accordance with the
applicable personnel policy.
(2) In lieu of any further payments of salary or bonus to
Executive after the Date of Termination, the Company shall pay to Executive, not
later than ten (10) days following the Date of Termination, a lump sum cash
severance payment (the "Severance Payment") equal to the total compensation
(including bonus) paid to or accrued for the benefit of Executive by the Company
for services rendered during the twelve-month period immediately preceding the
Date of Termination.
(e) After payment of the sums described in subparagraphs (d)(1) and
(d)(2) above, the Company shall have no further obligations to Executive under
this Agreement; provided that Executive's right to receive payments under this
Agreement shall not decrease the amount of, or otherwise adversely affect, any
other benefits payable to Executive under any other plan, agreement or
arrangement relating to employee benefits provided by the Company.
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(f) Voluntary Termination by Executive Without Good Reason. In the
event Executive terminates his employment with the Company without Good Reason,
the Company shall pay to Executive his full Basic Salary through the Date of
Termination at the rate then in effect and the Company shall have no further
obligations to Executive under this Agreement.
(g) Executive shall not be required to mitigate the amount of any
payment provided for in this Section 6 by seeking other employment or otherwise,
nor shall the amount of any payment or benefit provided for him in this Section
6 be reduced by any compensation earned by Executive as the result of employment
by another employer or by reason of Executive's receipt of or right to receive
any retirement or other benefits after the date of termination of employment or
otherwise.
Section 7. Non-Competition; Confidentiality
(a) Period. During Executive's employment with the Company and for a
period of one (1) year following any termination of Executive's employment with
the Company (other than following a Hostile Change of Control (as defined
below)), Executive shall not, as a shareholder, employee, officer, director,
partner, consultant or otherwise, engage directly or indirectly in any business
or enterprise which is in Competition with the Company (as defined below).
(b) Competition with the Company. For purposes of this Agreement, (i)
the words "Competition with the Company" shall be deemed to include competition
with the Company or any entity controlling, controlled by or under common
control with the Company (an "Affiliate"), or their respective successors or
assigns, or the business of any of them, and (ii) a business or enterprise shall
be deemed to be in Competition with the Company if it is engaged in any business
activity which is the same or comparable to any business activity of the Company
or any Affiliate from time to time during the Term of Employment in any
geographic area (whether within or outside the United States) in which the
Company or any Affiliate conducted such business. Notwithstanding the foregoing,
nothing herein contained shall prevent Executive from purchasing and holding for
investment less than 3% of the shares of any corporation the shares of which are
regularly traded either on a national securities exchange or in the
over-the-counter market.
(c) Interpretation of Covenant. The parties hereto agree that the
duration and area for which the covenant not to
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compete set forth in this Section 7 is to be effective are reasonable. In the
event that any court determines that the time period or the area, or both of
them, are unreasonable and that such covenant is to that extent unenforceable,
the parties hereto agree that the covenant shall remain in full force and effect
for the greatest time period and in the greatest area that would not render it
unenforceable. The parties intend that this covenant shall be deemed to be a
series of separate covenants, one for each and every county of each and every
state of the United States of America where the covenant not to compete is
intended to be effective. The provisions of this Section 7 shall survive any
termination of this Agreement.
(d) Prohibition on Disclosure or Use. Executive shall at all times
keep and maintain Confidential Information (as defined below) confidential, and
Executive shall not, at any time, either during or subsequent to the Term of
Employment, either directly or indirectly, use any Confidential Information for
Executive's own benefit or divulge, disclose, or communicate any Confidential
Information to any person or entity in any manner whatsoever other than
employees or agents of the Company having a need to know such Confidential
Information, and only to the extent necessary to perform their responsibilities
on behalf of the Company and other than in the performance of Executive's duties
hereunder.
(e) Definition of Confidential Information. "Confidential Information"
shall mean any and all information (excluding information in the public domain)
related to the business of the Company or any Affiliate, including without
limitation all processes; inventions; trade secrets; computer programs;
engineering or technical data, drawings, or designs; manufacturing techniques;
information concerning pricing and pricing policies; marketing techniques; plans
and forecasts; new product information; information concerning suppliers;
methods and manner of operations; and information relating to the identity and
location of all past, present, and prospective customers.
(f) Equitable Relief. Executive's obligations contained in this Section
7 are of special and unique character which gives them a peculiar value to the
Company, and the Company cannot be reasonably or adequately compensated in
damages in an action at law in the event Executive breaches such obligations.
Executive therefore expressly agrees that, in addition to any other rights or
remedies which the Company may possess, the Company shall be entitled to
injunctive and other equitable relief in the form of preliminary and permanent
injunctions
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without bond or other security in the event of any actual or
threatened breach of said obligations by Executive.
(g) Definition of Change of Control. A "Hostile Change of Control"
shall be deemed to have occurred if (i) any "person" (as that term is used in
ss.13(d) and ss.14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") on the Agreement Date), including any "group" as such term is
used in Section 13(d)(3) of the Exchange Act on the Agreement Date (an
"Acquiring Person"), shall hereafter acquire (or disclose the previous
acquisition of) beneficial ownership (as that term is defined in Section 13(d)
of the Exchange Act and the rules thereunder on the Agreement Date) of shares of
the outstanding stock of any class or classes of the Company which results in
such person or group possessing more than 50.1% of the total voting power of the
Company's outstanding voting securities ordinarily having the right to vote for
the election of directors of the Company (a "Control Acquisition"); or (ii) as
the result of, or in connection with, any tender or exchange offer, merger or
other business combination, sale of assets or contested election, or any
combination of the foregoing transactions ("Transaction"), the persons who were
directors of the Company immediately before the completion of the Transaction
shall cease to constitute a majority of the Board of Directors of the Company or
any successor to the Company. Anything contained in this paragraph (g) to the
contrary notwithstanding, a "Hostile Change of Control" shall not be deemed to
have occurred if the Control Acquisition or the Transaction is approved by a
majority of the directors of the Company who were directors of the Company
before the completion of the Control Acquisition or the Transaction.
Section 8. Waiver. The failure of either party to this Agreement to
insist, in any one or more instances, upon the performance of any of the terms,
covenants or conditions of this Agreement by the other party hereto, shall not
be construed as a waiver or as a relinquishment of any right granted hereunder
to the party failing to insist on such performance, or as a waiver of the future
performance of any such term, covenant or condition, but the obligations
hereunder of both parties hereto shall remain unimpaired and shall continue in
full force and effect.
Section 9. Successors; Binding Agreement.
(a) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company and its
subsidiaries to expressly assume
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and agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no succession had taken
place. Failure of the Company to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle Executive to compensation in the same amount and on the same terms
as he would be entitled hereunder if he terminated his employment for Good
Reason, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "Company" shall mean the Company as
defined above and any successor to its business and/or assets as aforesaid which
executes and delivers the agreement provided for in this Section 9 or which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law.
(b) This Agreement shall inure to the benefit of and be enforceable by
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Executive should die
while any amounts would still be payable to him hereunder if he had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to his devisee, legatee or other
designee or, if there be no such designee, to his estate.
Section 10. Arbitration. Any dispute or controversy arising out of or
relating to this Agreement, or any breach thereof, shall be settled by
arbitration in accordance with the rules of the American Arbitration
Association. The award of the arbitrator shall be final, conclusive, and
nonappealable and judgment upon such award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. The arbitrator shall be an
arbitrator qualified to serve in accordance with the rules of the American
Arbitration Association and one who is approved by both the Company and
Executive. In the absence of such approval, each party shall designate a person
qualified to serve as an arbitrator in accordance with the rules of the American
Arbitration Association and the two persons so designated shall select the
arbitrator from among those persons qualified to serve in accordance with the
rules of the American Arbitration Association. The arbitration shall be held in
Columbus, Ohio or such other place as may be agreed upon at the time by the
parties to the arbitration.
Section 11. Notices. Notices and all other communications provided for
in this Agreement shall be in writing and shall be deemed to have been duly
given when delivered or
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mailed by United States registered mail, return receipt requested, postage
prepaid, addressed in the case of Executive, to
Xxxxxx X. Xxxxx
0000 Xxx Xxxxx Xxxxx
Xxxxxx, Xxxx 00000
and in the case of the Company, to the principal executive offices of the
Company, provided that all notices to the Company shall be directed to the
attention of the Company's Chief Executive Officer with copies to the Secretary
of the Corporation and to its Board of Directors, or to such other address as
either party may have furnished to the other in writing in accordance herewith,
except that notices of change of address shall be effective only upon receipt.
Section 12. Miscellaneous. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in a writing signed by Executive and a duly authorized officer of the
Company. No waiver by either party hereto at any time of any breach by the other
party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws (but not the law of conflicts of laws) of the State of Ohio.
Section 13. Validity. The invalidity or unenforceability of any
provisions of this Agreement shall not affect the validity or enforceability of
any other provisions of this Agreement, which shall remain in full force and
effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year above written.
X. X. XXXXX CORPORATION
By /s/ Xxxxxx Xxxxx
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Title CEO
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/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
