Exhibit 10.1
SEVERANCE AGREEMENT
This Severance Agreement (this "Agreement") is made and entered into as of
August 1, 2008 (the "Effective Date"), by and between BOOTS & XXXXX SERVICES,
LLC (the "Company") and XXXX XXXXX ("Employee").
In consideration of Employee's agreement to become an employee of Company
through Employee's acceptance of the Company's offer letter to Employee dated
July 22, 2008, Company agrees as follows:
1. Termination and Compensation.
(a) Termination by the Company and Compensation In the event that
that the Company elects to terminate Employee's employment for any reason other
than termination for Cause as defined in Paragraph 2(a) below, then, and in that
event, the Company shall pay to Employee, on the termination date, the following
compensation: (i) a lump sum payment equal to 6 months salary, (ii) a pro-rata
percentage of any bonus to which Employee would have been eligible to receive
for the year in which termination occurs, and (iii) Company shall continue the
payment of premiums for hospitalization and major medical insurance for the
lesser period of either six months or the date on which Employee secures full
time employment that affords equivalent medical coverage. In the event of a
termination for Cause (as defined in Paragraph 2(a) below), Employee shall not
be entitled to any of the above compensation or any other benefits provided for
herein, and shall not be entitled to severance pay.
(b) Termination by Employee and Compensation In the event that
Employee elects to terminate his employment pursuant to Paragraph 2.(b) or 2(c)
below, then, and in that event, the Company shall pay to Employee, on the
termination date, the following compensation: (i) a lump sum payment equal to 12
months salary, (ii) a pro-rata percentage of any bonus to which Employee would
have been eligible to receive for the year in which termination occurs, and
(iii) Company shall continue the payment of premiums for hospitalization and
major medical insurance for the lesser period of either 6 months or the date on
which Employee secures full time employment that affords equivalent medical
coverage. In the event that Employee elects to terminate his employment for any
other reason, Employee shall not be entitled to any of the above compensation or
any other benefits provided for herein, and shall not be entitled to severance
pay.
2. Grounds for Termination.
(a) Employer may terminate and pay none of the compensation set
forth above if termination is for "Cause", which for purposes of this Agreement
shall mean Employee (i) has engaged in gross negligence or willful misconduct in
the performance of the duties required of him hereunder, (ii) has willfully
refused without proper legal reason to perform the duties and responsibilities
required of him hereunder (provided, however, that no act or failure to act
pursuant to subsections (i) and (ii) above shall be deemed "willful" if due
primarily to an error in judgment or negligence or if made in good faith with
reasonable belief that such act is in the best interest of the Company), (iii)
has materially breached any material provision of this Agreement (and such
breach remains uncorrected 30 days following Employee's receipt of written
notice of the breach from the Company), or (iv) the Employee commits, is
arrested or officially charged with any felony, or any crime involving moral
turpitude, which, in the good faith opinion of the Company, would impair
Employee's ability to perform his duties hereunder or would impair the business
reputation of the Company or Employee misappropriates any funds or property of
the Company;
(b) Employee may terminate, and receive compensation as set forth
above, in connection with or based upon (i) a material breach by the Company of
any material provision of this Agreement, (ii) a substantial and material
reduction in the nature or scope of Employee's duties or responsibilities, or
(iii) the assignment to Employee of duties and responsibilities that are
materially inconsistent with his position; provided, however, that prior to
Employee's termination of employment under this paragraph 2(b), Employee must
give written notice to the Company of any such breach, reduction or assignment
and such breach, reduction or assignment must remain uncorrected for 30 days
following such written notice;
(c) Employee may terminate, and receive compensation set forth
above, upon a Change in Control, or within twelve (12) months thereafter, where
a "Change in Control" is defined to mean (i) any merger, consolidation or
reorganization in which the Company is not the surviving entity (or survives
only as a subsidiary of an entity), (ii) any sale, lease, exchange, or other
transfer of (or agreement to sell, lease, exchange, or otherwise transfer) all
or substantially all of the assets of the Company to any other person or entity
(in one transaction or a series of related transactions), (iii) dissolution or
liquidation of the Company, (iv) when any person or entity, including a "group"
as contemplated by Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended, acquires or gains ownership or control (including, without limitation,
power to vote) of more than [30%] of the outstanding shares of the Company's
voting stock (based upon voting power), (v) as a result of or in connection with
a contested election of directors, the persons who were directors of the Company
before such election shall cease to constitute a majority of the Board of
Directors, or (vi) any event that is reported by the Parent Company under Item 1
of a Form 8-K filed with the Securities and Exchange Commission; provided,
however, that the term "Change in Control" shall not include any reorganization,
merger, consolidation, sale, lease, exchange, or similar transaction involving
solely the Company and one or more previously wholly-owned subsidiaries of the
Company unless such matter is described in clause (vi) above.
3. No Duty to Mitigate Losses. Employee shall have no duty to find
new employment following the termination of his employment under circumstances
which require the Company to pay any amount to Employee under this Agreement.
Any salary or remuneration received by Employee from a third party for the
providing of personal services (whether by employment or by functioning as an
independent contractor) following the termination of his employment with the
Company shall not reduce the Company's obligation to make a payment to Employee
(or the amount of such payment) pursuant to the terms of this Agreement.
4. Notices. All notices or other communications pursuant to this
Agreement may be given by personal delivery, or by certified mail, addressed to
the home office of the Company or to the last known address of Employee. Notices
given by personal delivery shall be deemed given at the time of delivery, and
notices sent by certified mail shall be deemed given when deposited with the
U.S. Postal Service.
5. Entirety of Agreement; Amendment. This Agreement contains the entire
understanding of the parties and all of the covenants and agreements between the
parties with respect to severance arrangements. No amendment to this Agreement
shall be effective unless it is in writing and signed by both the parties
hereto.
6. Governing Law. This Agreement shall be construed and enforced in
accordance with, and be governed by, the laws of the State of Texas.
7. Waiver. The failure of either party to enforce any rights hereunder
shall not be deemed to be a waiver of such rights, unless such waiver is an
express written waiver which has been signed by the waiving party. Waiver of one
breach shall not be deemed a waiver of any other breach of the same or any other
provision hereof.
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8. Assignment. This Agreement shall not be assignable by Employee.
Subject to Paragraph 2(c) hereof, in the event of a future disposition of the
properties and business of the Company by merger, consolidation, sale of assets,
or otherwise, then the Company may assign this Agreement and all of its rights
and obligations to the acquiring or surviving entity; provided, that any such
entity shall assume all of the obligations of the Company hereunder.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original for all purposes
hereof.
10. Arbitration. Any dispute, controversy or claim arising out of or
relating to this Agreement shall be submitted to and finally settled by binding
arbitration to be held in Houston, Texas, in accordance with the rules of the
American Arbitration Association in effect on the Effective Date, and judgment
upon the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. In any proceeding to enforce the provisions hereof, the
prevailing party shall be entitled to recover reasonable expenses incurred by
him, including reasonable attorneys' fees.
This Agreement is entered into as of the Effective Date.
"COMPANY"
BOOTS & XXXXX SERVICES, LLC
By: /s/ Xxxxx Xxxxxxxxxx
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Xxxxx Xxxxxxxxxx - CEO/President - Boots-Xxxxx Services
"EMPLOYEE"
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
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