Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (as amended, modified or otherwise supplemented from
time to time, the "AGREEMENT"), dated June 2, 2003, is entered into by and
between Xxxx National Corporation, a Delaware corporation ("PARENT"), Xxxx
National Group, Inc., a Delaware corporation ("CNG"), Xxxx Vision Corporation, a
Delaware corporation ("XXXX VISION"), Pearle, Inc., a Delaware corporation
("PEARLE"), Things Remembered, Inc., a Delaware corporation ("THINGS
REMEMBERED") (collectively, CNG, Xxxx Vision, Pearle and Things Remembered are
the "SUBSIDIARIES", and each individually, a "SUBSIDIARY") and Xxxxx Xxxxxxx, an
individual residing in the State of Ohio ("XXXXXXX"), to be effective as of the
earlier of the date on which Xxxxxxx officially assumes the office of Chief
Executive Officer of Parent, or July 1, 2003 (the "EFFECTIVE DATE").
PRELIMINARY STATEMENTS:
A. Immediately prior to the Effective Date, Xxxxxxx has served as
the President and Chief Operating Officer of Parent pursuant to an Employment
Agreement, dated January 19, 2000, between Parent and Xxxxxxx (the "PRIOR
EMPLOYMENT AGREEMENT").
X. Xxxxxxx, Parent and the Subsidiaries desire to terminate the
Prior Employment Agreement and to enter into a new agreement providing for the
employment of Xxxxxxx as President and Chief Executive Officer of Parent and
Chairman of the Board of Directors and an employee of each Subsidiary.
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements set forth herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
AGREEMENT:
1. Employment. Parent and each of the Subsidiaries hereby employs
Xxxxxxx, and Xxxxxxx hereby accepts employment with Parent and each of the
Subsidiaries, on the terms and conditions set forth in this Agreement.
2. Term.
(a) The term (the "TERM") of Xxxxxxx'x employment under this
Agreement will be for four (4) years commencing on the Effective Date and ending
on its fourth anniversary; provided, however, that on the third anniversary of
the Effective Date and on each succeeding anniversary of the Effective Date
until and including the anniversary that falls in the year in which Xxxxxxx
turns 65 years of age, the Term will be automatically extended by an additional
year, unless 60 days prior to any such succeeding anniversary either Xxxxxxx, on
the one hand, or Parent or any Subsidiary, on the other hand, has given the
other written notice to the contrary (which notice is not rescinded before such
anniversary date) or this Agreement has otherwise been terminated as provided in
this Agreement. Each year of the Term shall end at 11:59 P.M. EST, on the day
immediately preceding an anniversary of the Effective Date ("YEAR").
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(b) Xxxxxxx'x services to Parent and the Subsidiaries under this
Agreement will not be terminated by Xxxxxxx, Parent or any Subsidiary (while
such entity remains a subsidiary of Parent) unless such termination is with
respect to his services to all of Parent and the Subsidiaries as a whole.
3. Positions and Duties.
(a) During the Term, Xxxxxxx shall serve as the Chief Executive
Officer and President of Parent; in each case with such duties and
responsibilities as are customarily assigned to such positions, and such other
duties and responsibilities not inconsistent therewith as may from time to time
be assigned to him by the Board of Directors of Parent (the Board of Directors
of Parent or of any Subsidiary shall be referred to, as the context requires, as
the "BOARD"). While Xxxxxxx is employed during the Term, Parent shall cause
Xxxxxxx to be included in the slate of persons nominated to serve as directors
on its Board and shall use its best efforts (including, without limitation, the
solicitation of proxies) to have Xxxxxxx elected and reelected to its Board for
the duration of the Term. Upon any termination of his employment with Parent,
Xxxxxxx shall promptly resign from its Board. While Xxxxxxx is employed during
the Term, Xxxxxxx shall report solely to the Board of Parent.
(b) Xxxxxxx shall also serve as the Chairman of the Board of each
Subsidiary and in such offices or positions to which he is elected or appointed
by the Board of each Subsidiary. Xxxxxxx'x service as an officer or director of
one or more of the Subsidiaries will be encompassed within any reference made in
this Agreement to employment with Parent and the Subsidiaries.
(c) Xxxxxxx shall devote his principal time, energy, and
attention, consistent with his past practices, to the affairs and operations of
Parent and the Subsidiaries, but may engage in any unrelated business and
activities that are not prohibited by Section 8 of this Agreement.
(d) Xxxxxxx shall have the right to deliver to the Nominating
Committee (or similar committee discharging the director nomination function) of
the Board of Parent (the "NOMINATING COMMITTEE") the name of one (1) proposed
nominee to serve as a director on the Board of Parent (in addition to Xxxxxxx).
The Nominating Committee shall consider Xxxxxxx'x proposed nominee, applying the
same standards as it applies to all nominees for directors on the Board of
Parent. If the Nominating Committee determines, in its sole discretion, that
such proposed nominee does not meet the applicable standards for serving as a
director on the Board of Parent, then Xxxxxxx shall have the right to deliver to
the Nominating Committee the names of successive subsequent proposed nominees to
serve as a director on the Board of Parent until the Nominating Committee
determines, in its sole discretion, that a Xxxxxxx proposed nominee meets the
applicable standards for serving as a director on the Board of Parent. Upon the
Nominating Committee's determination, in its sole discretion, that Xxxxxxx'x
proposed nominee meets the applicable standards for serving as a director on the
Board of Parent, the Nominating Committee shall deliver such recommendation to
the Board of Parent, whereupon Parent shall either (1) use its best efforts to
appoint such proposed nominee to its Board (and if no vacancy exists on its
Board, Parent shall, in accordance with applicable law and Parent's Certificate
of Incorporation and By-Laws, use its best efforts to create such a vacancy) or
(ii) if Parent determines, in its sole discretion, not to appoint such proposed
nominee to fill such an existing or created vacancy, Parent shall use its best
efforts to include such proposed nominee in the next slate of persons
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nominated to serve as directors on its Board, and to the extent necessary all
subsequent slates of persons nominated to serve as directors on its Board until
such proposed nominee is elected to serve as a director on the Board of Parent.
Parent shall use its best efforts (including, without limitation, the
solicitation of proxies) to have such proposed nominee initially appointed or
elected as soon as practicable and, thereafter, re-elected to the Board of
Parent for the duration of the Term.
(e) Xxxxxxx will cause the Chairman of the Board of Parent (the
"PARENT CHAIRMAN") to be furnished with all operating results and other
operating information as the Parent Chairman may request. Xxxxxxx also will
communicate and consult with the Parent Chairman at such times as Xxxxxxx
believes will be of assistance to Xxxxxxx in performing his duties as Chief
Executive Officer of Parent. Subject to the approval of the Board of Parent (to
the extent required), Xxxxxxx shall have the right and authority to designate
and utilize such professional advisors to Parent and the Subsidiaries as he
selects and shall propose to the Board of Parent such general compensation
formats (for senior executives and others) as he believes will advance the
interests of Parent and the Subsidiaries. Xxxxxxx may designate a management
committee (not to be a Board committee) and its membership, meeting schedule,
and mode of operation.
4. Compensation. During the Term:
(a) Salary. The Subsidiaries shall pay Xxxxxxx an aggregate annual
base salary (from all of the Subsidiaries combined) of not less than $850,000
during the first Year; $875,000 during the second Year; $900,000 during the
third Year; $925,000 during the fourth Year; and during any Year after the end
of the aforesaid fourth Year, such amount, in no event less than $925,000, upon
which Parent and Xxxxxxx may mutually agree.
(b) Bonuses; Annual Incentive; and Multi-Year Performance
Incentive.
(i) Xxxxxxx will continue to participate in the existing
annual incentive bonus programs for senior management of
Parent or the Subsidiaries or any future annual incentive
bonus program(s) adopted for senior management of Parent or
the Subsidiaries, in which performance goals and corresponding
award amounts are determined from time to time by either (A)
the Board of each such Subsidiary, with the concurrence of the
Compensation Committee of the Board of Parent (the
"COMPENSATION COMMITTEE"), in its discretion, or (B) the
Compensation Committee, in its discretion, in either case as
provided in accordance with the terms of any such program;
provided, however, that for any Year in which Xxxxxxx earns an
annual incentive bonus award under such program(s), his entire
annual incentive bonus shall be not less than one hundred
percent (100%) of Xxxxxxx'x annual base salary for that Year
and not more than one hundred seventy-five percent (175%) of
Xxxxxxx'x annual base salary for that Year (the "ANNUAL
INCENTIVE BONUS"). The eligibility of Xxxxxxx to receive the
Annual Incentive Bonus shall not preclude Xxxxxxx from also
being eligible to be considered for a discretionary bonus if
either (Y) the Board of each such Subsidiary, with the
concurrence of the Compensation Committee, in its discretion,
or (Z) the Compensation Committee, in its discretion,
determines to
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award such a bonus based on contributions by Xxxxxxx to Parent
or any Subsidiary not otherwise fully reflected in the Annual
Incentive Bonus.
(ii) Xxxxxxx shall be eligible to receive multi-year
performance incentive awards, in such amounts and determined
on such basis as the Parent Board and Xxxxxxx negotiate after
the date of this Agreement in accordance with the parameters
set forth on EXHIBIT "A" attached hereto and made a part
hereof (the "MULTI-YEAR PERFORMANCE INCENTIVE BONUS", and
collectively with the Annual Incentive Bonus, the "BONUSES").
Such participation may be more favorable but will in no event
be less favorable than the participation of any other
similarly situated participant.
(c) Expenses and Allowances. Xxxxxxx is authorized, in carrying
out his responsibilities and duties under this Agreement, to incur reasonable
business expenses for the benefit of Parent and the Subsidiaries, including
business expenses for transportation, entertainment, travel, lodging, club
memberships (with the exception of country club membership fees) and expenses
and similar items, all of types and at levels determined in good faith to be
consistent with the office of the Chief Executive Officer of Parent and his
offices with the Subsidiaries. Xxxxxxx will be provided with a current model
automobile, of comparable style and quality to that which has previously been
provided to him in his employment with Parent. All such expenses referred to
above will either be paid directly by the Subsidiaries or the Subsidiaries shall
promptly reimburse Xxxxxxx for expenditures upon the submission, from time to
time, of itemized accountings for such expenditures. To the extent such expenses
and allowances are not attributable to duties performed on behalf of a single
Subsidiary, such expenses and allowances are to be allocated among the
Subsidiaries on the basis described in Section 10. Parent shall also reimburse
Xxxxxxx for up to $15,000 per Year for personal tax, estate and financial
planning.
(d) Vacations. Xxxxxxx will be entitled to five (5) weeks of
vacation in each calendar year or such greater amount of vacation as may be
permitted under the employment policies of Parent or any Subsidiary in effect
from time to time.
(e) Insurance and Employee Benefit Plans. Xxxxxxx will be entitled
to have group term and other term life insurance maintained on his life by the
Subsidiaries, the beneficiary of which Xxxxxxx will be allowed to designate, at
least in such amounts as are in good faith determined to be consistent with the
office of the Chief Executive Officer of Parent and his offices with the
Subsidiaries. Such life insurance policy, or any successor policy or policies
thereto, will not be terminated by the Subsidiaries without first offering
Xxxxxxx the right to purchase the same at the cash surrender value thereof, if
any. Xxxxxxx will also be entitled to participate in any of the employee
compensation and pension and welfare benefit plans and arrangements in which
senior management or executive employees of Parent or the Subsidiaries
participate from time to time (including without limitation, retirement plans
and supplemental arrangements; sick pay plans and medical expense and medical
reimbursement plans; disability benefit and accident insurance plans; and
employee discount and loan programs, employee savings and investment plans and
stock ownership plans (collectively, the "EMPLOYEE PLANS")), as the same may be
modified, supplemented or replaced without material reduction in total value of
the benefits to Xxxxxxx. Xxxxxxx will participate in such Employee Plans at a
level to be fixed
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from time to time (i) in the case of Employee Plans sponsored by Parent, by the
Board of Parent, or (ii) in the case of Employee Plans sponsored by the
Subsidiaries, by the Board of the Subsidiary sponsoring such Employee Plan, with
the concurrence of the Board of Parent; such participation may be more favorable
but shall in no event be less favorable than the participation of any other
similarly situated participant. Xxxxxxx will participate in an existing or new
supplemental executive retirement plan ("SERP") established and maintained by
Parent or the Subsidiaries that will provide, together with any other retirement
benefits received by Xxxxxxx under any Retirement Plans (as defined below),
Xxxxxxx with annual retirement benefits in an amount equal to: (i) thirty-five
percent (35%) of Xxxxxxx'x final annual salary if Xxxxxxx retires prior to
attaining age sixty-five (65); or (ii) fifty percent (50%) of Xxxxxxx'x final
annual salary if Xxxxxxx retires at or after attaining age sixty-five (65);
provided, that Xxxxxxx'x entitlement to the benefits provided under the SERP
shall vest upon the completion by Xxxxxxx of thirty (30) months of employment
with Parent and the Subsidiaries following the Effective Date; provided,
further, that such alternative forms of payment under the SERP shall be
available to Xxxxxxx (i.e., lump sum or varying forms of periodic payments) upon
such terms as Parent and Xxxxxxx mutually agree after the date of this
Agreement.
5. Death or Disability During Employment.
(a) If Xxxxxxx dies or is disabled during the term of this
Agreement, the Subsidiaries shall pay to Xxxxxxx, in lieu of the compensation
described in Section 4(a) and 4(b) of this Agreement, in the case of his
disability, or to the beneficiary or beneficiaries designated by Xxxxxxx in the
case of his death, or if Xxxxxxx is legally incompetent or no such designation
of death beneficiary has been made, then to Xxxxxxx'x personal representative,
an amount equal to the greater of: (i) the aggregate compensation that would
otherwise be payable to Xxxxxxx pursuant to Section 4(a) and 4(b) of this
Agreement for the full fiscal year in which his death or disability occurred as
if Xxxxxxx were not dead or disabled, his employment continued for the full
fiscal year and his Bonuses were an amount equal to either (A) the average of
Xxxxxxx'x Bonuses for the three (3) consecutive Years preceding the Year in
which his death or disability occurred, in the event that such death or
disability occurs on or after the third anniversary of the Effective Date, (B)
the average of Xxxxxxx'x Bonuses for the actual number of Years preceding the
Year in which his death or disability occurred, in the event that such death or
disability occurs on or after the first anniversary of the Effective Date but
prior to the third anniversary of the Effective Date, or (C)) Xxxxxxx'x bonus
for the last full year under the Prior Employment Agreement, in the event that
such death or disability occurs prior to the first anniversary of the Effective
Date; or (ii) the product of (A) seventy-five percent (75%) of the amount
determined pursuant to clause (i) immediately preceding and (B) the number of
Years from the first day of the month in which this death or disability occurs
through the date of termination of the remaining Term (the "TERMINATION DATE")
(for which it will be assumed that the automatic extension of the Agreement
under Section 2(a) of this Agreement will be discontinued upon such death or
disability, if such automatic extension has not already discontinued pursuant to
Section 2(a)), prorated on the basis of a 360 day year for partial years. The
amount so determined will be paid in equal monthly installments commencing in
the month in which Xxxxxxx'x death or disability occurs through the earlier of
the Termination Date or the cessation of his disability. The obligations of the
Subsidiaries under this Section 5(a) are to be offset by and reduced to the
extent of any other corresponding death or disability benefits (excluding life
insurance), if any, that the Subsidiaries provide at their expense to Xxxxxxx
under benefit plans or arrangements in
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place at the time of his death or disability. Xxxxxxx is entitled to receive, in
the aggregate, the greater of (y) the benefits specified in this Section 5(a)
excluding any such offset or (z) the benefits to which he would otherwise be
entitled under other benefit plans or arrangements.
(b) For the purpose of this Agreement, Xxxxxxx will be considered
disabled only when and if (i) he is adjudicated legally incompetent by a court
of competent jurisdiction, or (ii) (A) a physician selected by Xxxxxxx or his
legal guardian and reasonably satisfactory to the Board of Parent certifies that
Xxxxxxx suffers from a physical or mental disability; and (B) as a result of
such disability the Board of Parent, in the exercise of its reasonable judgment
based on such physician's report, determines that Xxxxxxx is unable to perform
his duties under this Agreement for at least ninety (90) days out of a one
hundred twenty (120) successive day period. For the purpose of determining
whether he is disabled, Xxxxxxx agrees that, if requested by the Board of
Parent, he will submit to a physical examination not more frequently than once
every Year during the Term by a physician mutually acceptable to Xxxxxxx and the
Board of Parent, the costs of such examination to be paid by the Subsidiaries.
(c) In the event of Xxxxxxx'x disability during the term of this
Agreement, he will (i) continue to be treated as an active employee for purposes
of those Employee Plans that provide life insurance and medical insurance, and
will be entitled to continue participation in such Employee Plans at levels and
costs to him that are at least as favorable as those provided to other active
senior management or executive employees (other than any executive officers who
are named or employed, at any time following the commencement of Xxxxxxx'x
disability, to fill positions with Parent or the Subsidiaries of substantially
equivalent rank as the positions held by Xxxxxxx immediately prior to the
commencement of his disability) and, in any case, that are no less favorable
than the levels and costs provided to Xxxxxxx at the commencement of such
disability; (ii) continue to receive all the benefits and allowances provided in
Section 4(C)); (iii) continue, for Xxxxxxx'x lifetime, to receive all of the
benefits, for himself and his eligible dependants, set forth in Section 6(b)(A),
provided, however, that Xxxxxxx may elect to receive a lump sum payment equal to
the then present value of those benefits, in lieu of those benefits; and (iv)
continue to accrue benefit and vesting service under the Xxxx National
Corporation Retirement Plan and any supplemental retirement or supplemental
pension plan (the "RETIREMENT PLANS"), in either case, until the earlier of the
Termination Date or the cessation of his disability. With respect to the
benefits described in clause (iv) above, the Subsidiaries shall provide Xxxxxxx
with a benefit equal to the difference between (x) the benefit he would
otherwise have accrued under the Retirement Plans if such additional service
were actually credited to him under the Retirement Plans (assuming for this
purpose the compensation earned by Xxxxxxx in the Year prior to his disability),
and (y) the benefit he actually accrues under the Retirement Plans for the
period of his disability. Such benefit is to be provided from the Subsidiaries'
general assets.
(d) In the event of Xxxxxxx'x death during the Term, the
Subsidiaries shall continue to provide Xxxxxxx'x eligible dependents with
coverage under those Employee Plans, if any, that then provide medical insurance
at levels and costs to such dependents that are no less favorable than the
levels and costs provided to such dependents at Xxxxxxx'x death for the period
from Xxxxxxx'x date of death until the date on which Xxxxxxx would have attained
age sixty-five (65); provided, however, that the Subsidiaries will not be
required to expend amounts for such benefits in any year (expressed in terms of
premium costs to the Subsidiaries) in excess of the annual cost of such benefits
at the time of Xxxxxxx'x death increased over time by annual adjustments equal
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to the change in the Consumer Price Index (or any replacement index) as
published from time to time by the United States government.
6. Other Termination.
(a) Upon the termination of Xxxxxxx'x employment with Parent and
the Subsidiaries except:
(i) a termination by reason of his death or disability as
provided in Section 5; or
(ii) his voluntary resignation (other than a voluntary
resignation that occurs following Constructive Termination); or
(iii) a resignation tendered pursuant to Section 6(C); or
(iv) the expiration of the Term; or
(v) termination "for cause";
the Subsidiaries shall pay Xxxxxxx at the time of such termination, in a lump
sum, Three Million Dollars ($3,000,000).
If such termination is "FOR CAUSE," nothing will be payable pursuant to
this Section 6(a). For purposes of this Agreement, Xxxxxxx'x termination will be
"for cause" only if there is a final, non-appealable order in a proceeding
before a court of competent jurisdiction or a final order in an administrative
proceeding before the Securities and Exchange Commission (a "PROCEEDING")
finding that Xxxxxxx (i) committed any willful misconduct, fraud or criminal
activity (excluding traffic violations or other minor offenses) which commission
is materially inimical to the interests of Parent or any Subsidiary, whether for
his personal benefit or in connection with his duties for Parent or any
Subsidiary or (ii) intentionally or knowingly violated any antifraud provision
of the federal or state securities laws ("ADVERSE FINAL ORDER"). Xxxxxxx'x
employment under this Agreement may be terminated immediately by the Board of
Parent or of any Subsidiary if such Board reasonably believes that Xxxxxxx has
committed any of the acts referred to in the previous sentence; provided, that
if Xxxxxxx'x termination is alleged by Parent or any Subsidiary to be for cause,
the Subsidiaries shall deposit, at the time of such termination, the amount
otherwise payable to Xxxxxxx if said termination were not for cause, with an
escrow agent reasonably satisfactory to Xxxxxxx and the Subsidiaries. Such
amount is to be invested from time to time in 90 day U.S. Treasury obligations
or such other investments as Xxxxxxx and the Subsidiaries mutually may approve.
The principal amount, plus interest earned thereon, will be distributed by the
escrow agent to the Subsidiaries if an Adverse Final Order is entered, or to
Xxxxxxx on the earlier of (i) the time when there has been entered in a
Proceeding a final, non-appealable order on the merits of the matter, which is
not an Adverse Final Order or, (ii) the expiration of sixty (60) days after
Xxxxxxx'x termination if, at the end of such period, there is not pending any
Proceeding and no Adverse Final Order has been entered. The fees of the escrow
agent will be paid by Xxxxxxx if an Adverse Final Order is entered and otherwise
by the Subsidiaries. Xxxxxxx and the Subsidiaries shall provide the escrow agent
with customary indemnities and shall jointly execute and deliver customary and
reasonable escrow instructions.
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(b) Upon the expiration of the Term and other termination of
Xxxxxxx'x employment without cause other than
(i) a termination by reason of his death or disability as
provided in Section 5, or
(ii) his voluntary resignation (other than a voluntary
resignation that occurs following Constructive Termination, or such
resignation tendered pursuant to Section 6(c)),
the Subsidiaries shall, (y) with respect to (B) of this Section 6(b), for the
period of twenty-four (24) months from the expiration of the Term or other
termination of Xxxxxxx'x employment without cause, and (z) with respect to (A)
of this Section 6(b), for Xxxxxxx'x lifetime:
(A) continue to provide Xxxxxxx and his eligible
dependents with coverage under those Employee Plans that
provide medical insurance, medical expense and reimbursement
at levels and costs to the beneficiary that are no less
favorable than the levels and costs provided to Xxxxxxx
immediately prior to the time of his termination of employment
under this Agreement; provided, however, that the Subsidiaries
will not be required to expend amounts for such benefits in
any year in excess of the annual cost of such benefits at the
time of such termination increased over time by annual
adjustments equal to the change in the Consumer Price Index
(or any replacement index) as published from time to time by
the United States government, and
(B) provide Xxxxxxx with use of, or title to,
the automobile then provided to him under the Subsidiaries'
automobile leasing program.
Notwithstanding the foregoing provisions of this Section 6(b), upon the
expiration of the Term or other termination of employment without cause other
than
(i) a termination by reason of his death or
disability as provided in Section 5 or
(ii) his voluntary resignation (other than a
voluntary resignation that occurs following
Constructive Termination, or such resignation
tendered pursuant to Section 6(c)),
Xxxxxxx may elect at any time, by written notice to Parent and the Subsidiaries,
to receive in lieu of the benefits to be provided under this Section 6(b), a
lump sum payment from the Subsidiaries in an amount equal to the then present
value of the benefits to be provided to Xxxxxxx and his eligible dependents
under this Section 6(b). The foregoing sum shall be referred to as the "BENEFIT
PAYMENT". Upon Xxxxxxx'x receipt of the Change of Control Benefit Payment
provided for in Section 6(f), Xxxxxxx shall no longer be entitled to receive
either (y) the benefits to be provided under this Section 6(b), or (z) the
Benefit Payment.
For purposes of this Section 6(b), present value and life expectancy
for purposes of determining the Benefit Payment shall be determined using the
mortality tables and interest rates
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used on the date hereof under Parent's qualified defined benefit retirement
plan, and such other factors as may be determined by the actuary providing
services with respect to such plan on such date, or such other actuary as may be
selected by Xxxxxxx and reasonably satisfactory to the Subsidiaries.
(c) In the event of a "CHANGE OF CONTROL," which will be deemed to
have taken place upon the occurrence of any of the following:
(i) Parent merges into itself, or is merged or
consolidated with, another corporation and as a result of such merger
or consolidation less than 51% of the voting power of the
then-outstanding voting securities of the surviving or resulting
corporation immediately after such transaction are owned in the
aggregate by the former stockholders of Parent immediately prior to
such transaction;
(ii) all or substantially all the assets accounted for on
the Consolidated Balance Sheet of Parent are sold or transferred to one
or more corporations or persons, and as a result of such sale or
transfer less than 51% of the voting power of the then-outstanding
voting securities of such corporation or person immediately after such
sale or transfer is directly or indirectly beneficially held in the
aggregate by the former stockholders of Parent immediately prior to
such transaction or series of transactions (it being agreed and
acknowledged that a sale of all or substantially all of the assets or
more than 50% of the voting stock of Things Remembered shall not
constitute a change of control);
(iii) A person, within the meaning of Sections 3(a)(9) or
13(d)(3) (as in effect on the date of this Agreement) of the Securities
Exchange Act of 1934, becomes the beneficial owner (as defined in Rule
13d-3 of the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934) of (i) 15% or more, but less than 35%,
of the voting power of the then outstanding voting securities of Parent
without the prior approval of the Board of Parent or (ii) 35% or more
of the voting power of the then-outstanding voting securities of
Parent; provided, however, that the foregoing does not apply to any
such acquisition that is made by (w) any Subsidiary; (x) any employee
benefit plan of Parent or any Subsidiary; or (y) any person or group of
which employees of Parent control a greater than 25% interest unless
the Board of Parent determines that such person or group is making a
"hostile acquisition;" or (z) any person or group of which Xxxxxxx is
an affiliate; provided, further, that clause (i) of this Section
6(c)(iii) is acknowledged to apply to HAL International N.V.; or
(iv) a majority of the members of the Board of Parent or
of any Subsidiary are not Continuing Directors, where a "CONTINUING
DIRECTOR" is any member of such Board who (x) was a member of such
Board on the date of this Agreement or (y) was nominated for election
or elected to such Board with the affirmative vote of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election;
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Xxxxxxx may terminate his employment with Parent and the Subsidiaries for any
reason, or without reason, during the ninety (90) day period commencing with
such change of control, on which termination the Subsidiaries shall pay Xxxxxxx,
in a lump sum, the sum of:
(A) three times (3x) Xxxxxxx'x aggregate annual
base salary as in effect under Section 4(a) at the time of
such termination, plus
(B) three times (3x) an amount equal to either:
(i) the average of Xxxxxxx'x Bonuses for the three (3)
consecutive Years preceding the Year in which such termination
occurred, in the event that such termination occurs on or
after the third anniversary of the Effective Date; (ii) the
average of Xxxxxxx'x Bonuses for the actual number of Years
preceding the Year in which such termination occurred, in the
event that such termination occurs on or after the first
anniversary of the Effective Date but prior to the third
anniversary of the Effective Date; or (iii) Xxxxxxx'x bonus
for the last full year under the Prior Employment Agreement,
in the event that such termination occurs prior to the first
anniversary of the Effective Date, plus
(C) an amount, prorated for the months in the
current Year prior to the termination, equal to either: (i)
the average of Xxxxxxx'x Bonuses for the three (3) consecutive
Years preceding the Year in which such termination occurred,
in the event that such termination occurs on or after the
third anniversary of the Effective Date; (ii) the average of
Xxxxxxx'x Bonuses for the actual number of Years preceding the
Year in which such termination occurred, in the event that
such termination occurs on or after the first anniversary of
the Effective Date but prior to the third anniversary of the
Effective Date; or (iii) Xxxxxxx'x bonus for the last full
year under the Prior Employment Agreement, in the event that
such termination occurs prior to the first anniversary of the
Effective Date.
(d) The provisions of this Section 6 are in lieu of and not in
addition to, any benefits Xxxxxxx would otherwise be entitled to receive under
any severance policy in effect or hereafter adopted by Parent or any Subsidiary
unless such Employee Plan or policy specifically provides otherwise.
(e) As used in this Agreement, "CONSTRUCTIVE TERMINATION" means
either
(i) a substantial, nonconsensual adverse change in
Xxxxxxx'x employment duties or title, or
(ii) the moving of Parent's executive headquarters more
than 50 miles from its present location without Xxxxxxx'x consent.
(f) Following Xxxxxxx'x termination of employment, if a change of
control occurs, the Subsidiaries shall, for a period of thirty-six (36) months
from the date of such termination:
(i) continue to provide Xxxxxxx and his eligible
dependents with coverage under those Employee Plans that provide life
insurance at levels and costs to the beneficiary that are no less
favorable than the levels and costs provided to Xxxxxxx
10
immediately prior to the time of his termination of employment under
this Agreement; provided, however, that the Subsidiaries will not be
required to expend amounts for such benefits in any year in excess of
the annual cost of such benefits at the time of such termination
increased over time by annual adjustments equal to the change in the
Consumer Price Index (or any replacement index) as published from time
to time by the United States government, and
(ii) continue to provide Xxxxxxx and his eligible
dependents with coverage under those Employee Plans that provide
medical insurance, medical expense and reimbursement at levels and
costs to the beneficiary that are no less favorable than the levels and
costs provided to Xxxxxxx immediately prior to the time of his
termination of employment under this Agreement; provided, however, that
the Subsidiaries will not be required to expend amounts for such
benefits in any year in excess of the annual cost of such benefits at
the time of such termination increased over time by annual adjustments
equal to the change in the Consumer Price Index (or any replacement
index) as published from time to time by the United States government,
and
(iii) provide Xxxxxxx with an office at the headquarters of
Parent, comparable to his office at the time of his termination, for
his use, and provide Xxxxxxx with secretarial services substantially
equivalent to those provided to him prior to termination, and
(iv) provide Xxxxxxx with continuing financial, estate and
tax consulting services in an amount not to exceed $15,000 per Year;
and
(v) provide Xxxxxxx with use of, or title to, the
automobile then provided to him under the Subsidiaries' automobile
leasing program.
Notwithstanding the foregoing provisions of this Section 6(f), upon a
change of control following Xxxxxxx'x termination of employment, Xxxxxxx may
elect at any time, by written notice to Parent and the Subsidiaries, to receive
in lieu of the benefits to be provided under (ii) and (v) of this Section 6(f),
a lump sum payment from the Subsidiaries in an amount equal to the then present
value of the benefits to be provided to Xxxxxxx and his eligible dependents
under (ii) and (v) of this Section 6(b). The foregoing sum shall be referred to
as the " CHANGE OF CONTROL BENEFIT PAYMENT". Upon Xxxxxxx'x receipt of the
Benefit Payment provided for in Section 6(b), Xxxxxxx shall no longer be
entitled to receive either (y) the benefits to be provided under (ii) and (v) of
this Section 6(f), or (z) the Change of Control Benefit Payment.
For purposes of this Section 6(f), present value and life expectancy
for purposes of determining the Change of Control Benefit Payment shall be
determined using the mortality tables and interest rates used on the date hereof
under Parent's qualified defined benefit retirement plan, and such other factors
as may be determined by the actuary providing services with respect to such plan
on such date, or such other actuary as may be selected by Xxxxxxx and reasonably
satisfactory to the Subsidiaries.
7. Excise Tax Gross-Up.
(a) In the event that it is determined (as provided in this
Agreement) that any payment or distribution by the Subsidiaries pursuant to or
for the benefit of Xxxxxxx pursuant to
11
the terms of Section 6(c) of this Agreement (a "PAYMENT"), would be subject to
the excise tax imposed by Section 4999 (or any successor thereto) of the
Internal Revenue Code of 1986, as amended (the "CODE"), or any interest or
penalties with respect to such excise tax (such excise tax, together with any
such interest and penalties, are collectively referred to as the "EXCISE TAX"),
then Xxxxxxx will be entitled to receive an additional payment or payments
(collectively, a "GROSS-UP PAYMENT"). The Gross-Up Payment will be in an amount
such that, after payment by Xxxxxxx of all taxes (including any interest or
penalties imposed with respect to such taxes), including any Excise Tax imposed
upon the Gross-Up Payment equal to the Excise Tax, Xxxxxxx retains a portion of
the Gross-Up Payment equal to the Excise Tax imposed upon the Payment.
(b) Subject to the provisions of Section 7(e), all determinations
required to be made under this Section 7, including whether an Excise Tax is
payable by Xxxxxxx and the amount of such Excise Tax, and whether a Gross-Up
Payment is required and the amount of such Gross-Up Payment, will be made by a
nationally recognized firm of certified public accountants (the "ACCOUNTING
FIRM") selected by Xxxxxxx and approved by the Subsidiaries (such approval not
to be unreasonably withheld). Xxxxxxx shall direct the Accounting Firm to submit
its determination and detailed supporting calculations to both the Subsidiaries
and Xxxxxxx within 15 calendar days after the effective date of Xxxxxxx'x
termination of employment, if applicable, or such earlier time or times as may
be requested by the Subsidiaries or Xxxxxxx. If the Accounting Firm determines
that any Excise Tax is payable by Xxxxxxx, the Subsidiaries shall pay the
required Gross-Up Payment to Xxxxxxx within five (5) business days after receipt
of the aforesaid determination and calculations. If the Accounting Firm
determines that no Excise Tax is payable by Xxxxxxx, it shall, at the same time
as it makes such determination, furnish Xxxxxxx with an opinion that he has
substantial authority not to report any Excise Tax on his federal income tax
return. Any determination by the Accounting Firm as to the amount of the
Gross-Up Payment to be paid by the Subsidiaries within such 15 calendar-day
period will be binding upon the Subsidiaries and Xxxxxxx. As a result of the
uncertainty in the application of Section 4999 (or any successor thereto) of the
Code at the time of the initial determination by the Accounting Firm under this
Agreement, it is possible that Gross-Up Payments that will not have been made by
the Subsidiaries should have been made ("UNDERPAYMENT"), or that Gross-Up
Payments will be made that are subsequently refunded as overpayments of the
amounts actually due ("OVERPAYMENTS"), consistent with the calculations required
to be made under this Agreement. In the event that the Subsidiaries exhaust
their remedies pursuant to Section 7(e) and Xxxxxxx thereafter is required to
make payment of any Excise Tax, Xxxxxxx shall direct the Accounting Firm to
determine the amount of the Underpayment that has occurred and to submit its
determination and detailed supporting calculations to both the Subsidiaries and
Xxxxxxx as promptly as possible. Any such Underpayment shall be promptly paid by
the Subsidiaries to or for the benefit of Xxxxxxx within three (3) calendar days
after receipt of such determination and calculations. In the event that Xxxxxxx
receives any refund of an Overpayment for which he has previously been
reimbursed by the Subsidiaries, Xxxxxxx shall promptly pay an amount equal to
the amount of such refund to the Subsidiaries within three (3) calendar days
after receipt of such determination and calculations.
(c) Parent, the Subsidiaries, and Xxxxxxx shall each cooperate
with the Accounting Firm in connection with the preparation and issuance of the
determination provided for in Section 7(b). Such cooperation will include,
without limitation, providing the Accounting Firm access to and copies of any
books, records and documents in the possession of Parent, the
12
Subsidiaries, or Xxxxxxx, as the case may be, that are reasonably requested by
the Accounting Firm. Xxxxxxx will provide the Subsidiaries and the Accounting
Firm, copies of portions of such returns, other filings or correspondence
relating to the payment of any Excise Tax as the Subsidiaries and the Accounting
Firm may reasonably request.
(d) The fees and expenses of the Accounting Firm for its services
in connection with the determinations and calculations provided for in Section
7(b) shall be paid by Xxxxxxx. The Subsidiaries shall reimburse Xxxxxxx for his
payment of such costs and expenses within five (5) business days after receipt
from Xxxxxxx of a statement []herefore and evidence of his payment thereof.
(e) Xxxxxxx shall notify Parent and the Subsidiaries in writing of
any claim by the Internal Revenue Service that, if successful, would require the
payment by the Subsidiaries of a Gross-Up Payment. Such notification shall be
given as soon as practicable but no later than 10 business days after Xxxxxxx
receives notice of such claim and shall apprise Parent and the Subsidiaries of
the nature of such claim and the date on which such claim is requested to be
paid. Xxxxxxx shall not pay such claim prior to the earlier of (i) the
expiration of the 30 calendar-day period following the date on which he gives
such notice to Parent and the Subsidiaries or (ii) the date that any payment of
taxes with respect to such claim is due. If the Subsidiaries notify Xxxxxxx in
writing prior to the expiration of such period that they desire to contest such
claim Xxxxxxx shall:
(i) give the Subsidiaries any information reasonably
requested by the Subsidiaries relating to such claim;
(ii) take such action in connection with contesting such
claim as the Subsidiaries reasonably requests in writing from time to
time, including, without limitation, accepting legal representation
with respect to such claim by an attorney reasonably selected by the
Subsidiaries;
(iii) cooperate with the Subsidiaries in good faith in
order effectively to contest such claim; and
(iv) permit the Subsidiaries to participate in any
proceeding relating to such claim;
provided, however, that the Subsidiaries shall bear and pay directly all costs
and expenses (including additional interest and penalties incurred in connection
with such contest) and shall indemnify and hold Xxxxxxx harmless, on an
after-tax basis, for any Excise Tax or income tax, including interest and
penalties with respect thereto, imposed as a result of such representation and
payment of costs and expenses. Without limitation of the foregoing provisions of
this Section 7(e), the Subsidiaries will control all proceedings taken in
connection with such contest and, at their sole option, may pursue or forego any
and all administrative appeals, proceedings, hearings and conference with the
taxing authority in respect of such claim (but Xxxxxxx may participate therein
at his own cost and expense) and may, at its sole option, either direct Xxxxxxx
to pay the tax claimed and xxx for a refund or contest the claim in any
permissible manner, and Xxxxxxx agrees to prosecute such contest to a
determination before any administrative tribunal, in
13
a court of initial jurisdiction and in one or more appellate courts, as the
Subsidiaries determine; provided, however, that if the Subsidiaries direct
Xxxxxxx to pay the tax claimed and xxx for a refund, the Subsidiaries shall
advance the amount of such payment to Xxxxxxx on an interest-free basis and
shall indemnify and hold Xxxxxxx harmless, on an after-tax basis, from any
Excise Tax or income tax, including interest or penalties with respect thereto,
imposed with respect to such advance or with respect to any imputed income with
respect to such advance; and further provided that any extension of the statute
of limitations relating to payment of taxes for the taxable year of Xxxxxxx with
respect to which the contested amount is claimed to be due is limited solely to
such contested amount. Furthermore, the Subsidiaries' control of such contest
will be limited to issues with respect to which a Gross-Up Payment would be
payable under this Agreement, and Xxxxxxx will be entitled to settle or contest,
as the case may be, any other issue raised by the Internal Revenue Service or
any other taxing authority.
(f) If, after the receipt by Xxxxxxx of an amount advanced by the
Subsidiaries pursuant to Section 7(e), Xxxxxxx receives any refund with respect
to such claim, Xxxxxxx shall (subject to the Subsidiaries' complying with the
requirements of Section 7(e)) promptly pay to the Subsidiaries the amount of
such refund (together with any interest paid or credited thereon after any taxes
applicable thereto). If, after the receipt by Xxxxxxx of any amount advanced by
the Subsidiaries pursuant to Section 7(e), a determination is made that Xxxxxxx
is not entitled to any refund with respect to such claim and the Subsidiaries do
not notify Xxxxxxx in writing of their intent to contest such denial or refund
prior to the expiration of 30 calendar days after such determination, then such
advance will be forgiven and will not be required to be repaid and the amount of
such advance shall offset, to the extent thereof, the amount of Gross-Up Payment
required to be paid.
8.
(a) Confidentiality. During the Term and at any time thereafter,
Xxxxxxx shall not disclose, furnish, disseminate, make available, or, except in
the ordinary course of performing his duties on behalf of Parent or the
Subsidiaries, use any trade secrets or confidential business and technical
information of Parent, any Subsidiary, any direct or indirect, wholly or
partially owned subsidiary of Parent or any Subsidiary, or customers of any
Subsidiary, without limitation as to when it was acquired by him or whether it
was compiled or obtained by or furnished to him while he was employed by Parent
or the Subsidiaries. Such trade secrets and confidential business and technical
information are considered to include, without limitation, the vendor lists,
vendor terms and programs, merchandise costs, financial statistics, research
data, or any other statistics and plans contained in monthly and annual review
books, profit plans, capital plans, critical issues, annual plans, strategic
plans, or merchandising, marketing, real estate, or store operations plans.
Xxxxxxx specifically acknowledges that all such information, whether reduced to
writing or maintained in his mind or memory and whether compiled by Parent
and/or any Subsidiary and/or him, derives independent economic value from not
being readily known to or ascertainable by proper means by others who can obtain
economic value from its disclosure or use, that reasonable efforts have been put
forth by Parent or the Subsidiaries to maintain the secrecy of such information,
that such information is and will remain the sole property of Parent or the
Subsidiaries and that any retention and use of such information during or after
the termination of his employment relationship with Parent and the Subsidiaries
(except in the course of performing his duties) under this Agreement will
constitute a misappropriation of the
14
trade secrets of Parent or the Subsidiaries, as the case may be; provided,
however, that his restriction will not apply to information which is in the
public domain or otherwise made public by others through no fault of Xxxxxxx, or
as may be required by law.
(b) Non-Competition. Except as may otherwise be approved in
advance by the Board of Parent, during the Term and for a period of three (3)
years after the termination of his employment, Xxxxxxx shall not compete,
directly or indirectly with any of the Subsidiaries or Parent. Without limiting
the generality of the foregoing, Xxxxxxx shall not:
(i) enter into or engage in any business which competes
with the business of any of the Subsidiaries or Parent;
(ii) solicit customers, business, patronage, or orders
for, or sell, any products in competition with, or for any business
that competes with, the business of any of the Subsidiaries or Parent;
or
(iii) divert, entice, or otherwise take away any customers,
business, patronage or orders of any of the Subsidiaries or Parent or
attempt to do so; or
(iv) promote or assist, financially or otherwise, any
person, firm, association, partnership, corporation, or any other
entity engaged in any business that competes with the business of any
of the Subsidiaries or Parent.
For the purposes of this Section 8(b), Xxxxxxx understands, acknowledges and
agrees that he will be competing if he engages in any or all of the activities
set forth in this Section 8(b) directly as an individual for his own account, or
indirectly as a partner, joint venture, employee, agent, salesman, consultant,
officer and/or director of any firm, association, corporation, or other entity,
or as a stockholder of any corporation in which he owns, directly or indirectly,
individually or in the aggregate, more than one percent (1%) of the outstanding
stock.
(c) Non-solicitation. During the Term and for a period of three
(3) years after the termination of his employment either for cause or by his
voluntary resignation, Xxxxxxx shall not directly or indirectly solicit or
induce or attempt to solicit or induce any employee(s) or any sales
representative(s), agent(s) or consultant(s) of any of the Subsidiaries or
Parent to terminate their employment, representation or other association with
such entity.
(d) Cooperation and Assistance of Xxxxxxx to Parent and the
Subsidiaries. During the Term and thereafter, Xxxxxxx will provide reasonable
cooperation to Parent and the Subsidiaries in litigation and regulatory matters
that relate to events that occurred during his periods of employment with
Parent, the Subsidiaries and its or their predecessors, and will provide
reasonable assistance to Parent and the Subsidiaries with matters relating to
their corporate history from the periods of his employment with them or their
predecessors. Xxxxxxx will be entitled to reasonable additional compensation and
reimbursement of reasonable costs and expenses relating to any such cooperation
or assistance that occurs following the Term.
(e) Cooperation and Assistance of Parent and the Subsidiaries to
Xxxxxxx. During the Term and thereafter, Parent and the Subsidiaries will
provide reasonable cooperation to Xxxxxxx
15
or his personal representative in litigation and regulatory and other matters
that relate to his employment with Parent and the Subsidiaries.
(f) Remedies. Xxxxxxx expressly acknowledges and agrees that the
remedy at law for any breach by him of his obligations under this Section 8 will
be inadequate and that the damages flowing from such breach are not readily
susceptible to being measured in monetary terms. Accordingly, he acknowledges
and agrees that upon his violation of any obligation in this Section 8, Parent
and/or the Subsidiaries will be entitled to immediate injunctive relief and may
obtain a temporary order restraining any threatened or further breach without
the necessity of proof of actual damage. Nothing in this Agreement will be
deemed to limit the remedies of Parent or the Subsidiaries at law or in equity
for any breach by Xxxxxxx of any of the obligations in this Section 8 that may
be pursued or availed of by Parent or the Subsidiaries.
9. Stock Options. On the Effective Date, or as soon thereafter as
permitted by applicable law or regulation, Parent and Xxxxxxx shall execute an
Option Agreement, substantially in the form of EXHIBIT B attached hereto (the
"OPTION AGREEMENT"), which shall provide for Parent's grant to Xxxxxxx of an
option to purchase 300,000 shares of the common stock of Parent on the terms and
conditions stated therein.
10. Division of Obligations.
(a) Subject to Sections 10(b) and 10(c), the performance of the
obligations of the Subsidiaries to Xxxxxxx under this Agreement is allocated
among the Subsidiaries as follows:
SUBSIDIARY PROPORTIONATE PERCENTAGE
-----------------------------------------------------------
CNG 0%
-----------------------------------------------------------
Xxxx Vision 53%
-----------------------------------------------------------
Pearle 16%
-----------------------------------------------------------
Things Remembered 31%
-----------------------------------------------------------
(b) In the event that any Subsidiary ceases to be a direct or
indirect subsidiary of Parent, such Subsidiary will thereupon be relieved of any
obligations under this Agreement and the performance of the Subsidiaries'
obligations to Xxxxxxx under this Agreement will be reallocated, without
reducing the amount of aggregated compensation or benefits payable under this
Agreement, by the Board of Parent; provided, however, that in the event that
both Xxxx Vision and Things Remembered cease to be direct or indirect
subsidiaries of Parent, provision will be made, immediately prior to such event,
by such subsidiaries or by Parent, to provide Xxxxxxx with financial assurances
(which may include the establishment of an escrow or trust fund, or the
provision of letters of credit from financial institutions reasonably
satisfactory to Xxxxxxx) on terms reasonably acceptable to Xxxxxxx for the
fulfillment of the monetary obligations of the Subsidiaries under this
Agreement. Except for such financial assurances,
16
nothing in this Section 10 is to be construed as restricting Parent's right to
dispose of its interests in the Subsidiaries (except as may be provided in other
agreements with Xxxxxxx).
(c) With respect to any obligations of the Subsidiaries not
expressed directly in monetary terms, including without limitation, those
described in Sections 4(c), 4(e), 5, 6(b), and 6(c), each Subsidiary shall bear
its proportionate percentage as provided in Sections 10(a) or 10(b), as
applicable.
(d) CNG hereby guarantees the performance by each Subsidiary of
its obligations under this Agreement.
(e) Each of the obligations incurred under this Agreement by the
Subsidiaries will be borne pro rata by each Subsidiary in its proportionate
share as provided in this Section 10, and each Subsidiary will be entitled to
contributions from the other Subsidiaries for any amounts paid in connection
with any of the obligations in excess of such Subsidiary's respective
proportionate share. This Section 10(e) is intended only to define the relative
rights of the Subsidiaries, and nothing set forth in this Section 10(e) is
intended to or will impair the obligations of the Subsidiaries to pay to Xxxxxxx
amounts in connection with the obligations as and when the same become due and
payable under this Agreement in accordance with the terms of this Agreement.
(f) In the event that all of the Subsidiaries cease to be direct
or indirect subsidiaries of Parent, the obligations of the Subsidiaries to
provide continuing health insurance and life insurance benefits pursuant to any
section of this Agreement must be satisfied by delivery to Xxxxxxx of an annuity
in an amount and with terms reasonably acceptable to Xxxxxxx (or his dependents
or legal guardian, as applicable) and to the Board of Parent.
11. Termination of Prior Agreement. Immediately upon the
effectiveness of this Agreement, the Prior Employment Agreement shall terminate.
Such termination shall not, however: (a) prejudice any rights Xxxxxxx may have
(i) under the Prior Employment Agreement (or any agreements, stock option
grants, restricted stock grants or loans entered into or made pursuant to, or
contemplated by, the Prior Employment Agreement), or otherwise, relating to
obligations to have been performed by Parent or any Subsidiary prior to the date
of this Agreement or (ii) under any other agreement between Parent or any
Subsidiary and Xxxxxxx; and (b) cause Xxxxxxx to receive or become eligible for
any additional payments or rights that might otherwise be triggered by a
termination of the Prior Employment Agreement or the termination of Xxxxxxx'x
employment under this Agreement.
12. Charter Provisions. The Certificates of Incorporation and
By-laws of Parent and each Subsidiary with respect to indemnification and
limitations on liability of officers and directors may not be amended insofar as
they relate to Xxxxxxx without his consent (which will not be unreasonably
withheld).
13. Choice of Law. This Agreement was entered into, and the
negotiations proceeding this Agreement were conducted in Cleveland, Ohio, and
this Agreement is intended to be performed within the State of Ohio, which is
the principal residence of Xxxxxxx. Accordingly, the validity and interpretation
of this Agreement will be determined in accordance with the internal laws of the
State of Ohio.
17
14. Notices. Any notice required or permitted to be given under
this Agreement is to be in writing and either given by personal delivery or
deemed to be delivered three (3) days after deposited, postage pre-paid, in the
U.S. certified or registered mail, return receipt requested, addressed as
follows:
If to Parent or the Subsidiaries: Xxxx National Corporation
0000 Xxxxxxxxxxx Xxxxx
Xxxxxxxx Xxx., Xxxx 00000
Attention: General Counsel
If to Xxxxxxx: Xxxxx Xxxxxxx
00000 Xxxxx Xxxx Xxxx.
Xxxxxx Xxxxxxx, Xxxx 00000
or at such other address as is specified in written notice given in the manner
required in this Agreement.
15. Waiver of Breach. The waiver by either Parent or the
Subsidiaries, on the one hand, or Xxxxxxx, on the other hand, of a breach of any
provision of this Agreement will not operate or be construed as a waiver of any
subsequent breach by the other party.
16. Binding Effect. This Agreement will be binding upon and shall
inure to the benefit of both Xxxxxxx, on the one hand, and Parent and the
Subsidiaries, on the one hand, and their respective successors, heirs and legal
representatives, but neither this Agreement nor any rights under this Agreement
may be assigned by Xxxxxxx or Parent and the Subsidiaries without the written
consent of the other.
17. Severability. If any portion of this Agreement is invalid or
illegal, such invalidity or illegality will not render this Agreement invalid or
illegal as a whole but the invalid or illegal portions are to be stricken
herefrom and the remainder of this Agreement will be binding on the parties and
their successors and assigns as if such invalid or illegal provisions were never
included in this Agreement from the first instance.
18. Amendments. No amendment or variation of the terms of this
Agreement will be valid unless the same is in writing signed by all parties.
19. Section References. Unless otherwise specified, all references
in this Agreement to section will be construed to refer to sections of this
Agreement.
18
This Employment Agreement has been executed by the parties on the date
and year first above written.
XXXX NATIONAL CORPORATION
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
XXXX NATIONAL GROUP, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
PEARLE, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
XXXX VISION CORPORATION
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
THINGS REMEMBERED, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
/s/ Xxxxx Xxxxxxx
-----------------------------------
Xxxxx Xxxxxxx, individually
19
EXHIBIT "A"
MULTI-YEAR PERFORMANCE INCENTIVE BONUS
The terms of the Multi-Year Performance Incentive Bonus shall be
negotiated and agreed to between the Board of Parent and Xxxxxxx after the
execution of this Agreement in accordance with the following parameters:
- - The annualized target bonus award for Xxxxxxx shall be
$700,000, with a maximum bonus award of $1,400,000.
- - In order for Xxxxxxx to receive the target bonus award, Parent
and the Subsidiaries must achieve "meaningful improvement" (to be
mutually defined) in U.S. optical financial performance.
- - In order for Xxxxxxx to receive the maximum bonus award,
Parent and the Subsidiaries must achieve "exceptional improvement" (to
be mutually defined) in U.S. optical financial performance.
- - In order for Xxxxxxx to receive any multi-year performance
incentive bonus award in the fourth Year of the Agreement, Xxxxxxx must
have established a succession plan approved by the Board of Parent.
20
EXHIBIT "B"
XXXX NATIONAL CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
This Nonqualified Stock Option Agreement (this "AGREEMENT") is entered into
between Xxxxx Xxxxxxx (the "OPTIONEE") and Xxxx National Corporation, a Delaware
corporation (the "COMPANY"), as of the Grant Date. Certain capitalized terms
used herein are defined in Paragraph 8.
WHEREAS, the Board of Directors of the Company has authorized a grant of stock
options on the terms hereof to the Optionee, who is employed in the capacity
shown on the signature page.
NOW, THEREFORE, the Company hereby grants to the Optionee options (the
"OPTIONS") pursuant to the Company's 1998 Equity Performance and Incentive Plan,
amended and restated effective June 10, 1999, or any other similar plans of the
Company (collectively, the "PLAN") to purchase the number of shares of Common
Stock, par value $.001 per share, of the Company ("COMMON STOCK") shown as the
Original Award on the signature page hereof; and agrees to cause certificates
for any shares purchased hereunder to be delivered to the Optionee upon payment
of the purchase price in full, all subject, however, to the terms and conditions
of the Plan and the terms and conditions hereinafter set forth.
1. EXERCISE.
(a) Except as otherwise provided herein, the Options (until
terminated as hereinafter provided) will become vested and exercisable as
follows:
AMOUNT VESTED DATE EXERCISABLE
-------------------------------------------------------------------------------------
1/2 of the Original Award The second anniversary of the Grant Date;
-------------------------------------------------------------------------------------
All Unvested Shares The fourth anniversary of the Grant Date
-------------------------------------------------------------------------------------
for so long as the Optionee remains in the continued employment of the Company,
except as provided below. To the extent exercisable, the Options may be
exercised in whole or in part from time to time.
(b) If, after the Grant Date, any of the following occurs: (i) a
Change of Control, (ii) a Termination Event, (iii) a Constructive Termination,
(iv) the Optionee voluntarily ceases to be an employee of the Company or a
Subsidiary or retires under a retirement plan of the Company or any Subsidiary,
in either case with the consent of the Compensation Committee, or (v) the
Optionee dies or becomes permanently disabled while in the employ of the Company
or any Subsidiary, then the Options will, in addition to any vesting pursuant to
Paragraph 1(a) above, immediately become exercisable in full.
21
(c) If, after the Grant Date, the Optionee voluntarily ceases to
be an employee of the Company or a Subsidiary or retires under a retirement plan
of the Company or any Subsidiary, in either case without the consent of the
Compensation Committee, then the Options will, in addition to any vesting
pursuant to Paragraph l(a) above, immediately become exercisable in full with
respect to all of the Unvested Shares that would have vested on the next
succeeding anniversary of the Grant Date (if the event occurs on an anniversary
of the Grant Date, no additional Options will become exercisable besides those
that became exercisable as of that anniversary). Thereupon, all remaining
Unvested Options will be forfeited and cancelled.
(d) Any exercise of the Options must be made in writing by the
Optionee delivered to the Secretary of the Company.
2. EXERCISE PRICE AND PAYMENT; RELOAD OPTIONS.
(a) The Options will be exercisable for Vested Shares (whether
such vesting occurs pursuant to Paragraph 1(a), 1(b), or 1(c)) at the Exercise
Price shown on the signature page hereof.
(b) The Exercise Price for any shares may be paid (i) in cash or
by check, (ii) by actual or constructive transfer to the Company of Mature
Shares, or (iii) by a combination of such methods of payment.
(c) If, at the date of exercise the Optionee is an employee of the
Company, and the Optionee pays the Exercise Price of shares by delivery of
Mature Shares, additional option rights ("Reload Option Rights") shall, subject
to the provisions hereinafter set forth, be automatically granted to the
Optionee equal to the sum of (i) the number of Mature Shares transferred to the
Company with respect to such Exercise Price and (ii) the number of shares of
Common Stock surrendered to the Company in payment of the Withholding Amount
associated with the Options exercised through the delivery of Mature Shares.
Reload Option Rights shall be granted as set forth in this Paragraph 2(c) with
respect to Optionee's exercise of Options prior to their termination pursuant to
Paragraph 3. In no event, however, shall Reload Option Rights be granted unless
the remainder of the original ten (10) year term of the option being exercised
is greater than six (6) months at the time of such exercise. Reload Option
Rights will not be granted with respect to any Options that have been
transferred by the original Optionee. Reload Option Rights shall not be
exercisable during the six (6) month period immediately following the date of
grant of such Reload Option Rights. The Exercise Price of such Reload Option
Rights shall be one hundred percent (100%) of the Stock Price per share on the
day of the exercise of the Options to which such Reload Option Rights relate.
Such Reload Option Rights shall terminate at such time as the Options being
exercised would have terminated had they not been exercised. Such Reload Option
Rights will be evidenced by an agreement in form substantially the same as this
Agreement, with appropriate changes.
3. TERMINATION. The Options will terminate and all Unvested and Vested
Options then outstanding will be forfeited on the earliest of the following
dates:
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(a) Within thirty (30) days following the date on which the
Optionee ceases to be an employee of the Company or a Subsidiary by reason of
termination of employment for Cause;
(b) Subject to possible extension pursuant to Paragraph 3(c)
below, five (5) years after either (i) the date on which the Optionee ceases to
be an employee of the Company or a Subsidiary with eligibility for retirement
under a retirement plan of the Company or a Subsidiary or (ii) the date of
permanent disability of the Optionee if the Optionee becomes permanently
disabled while an employee of the Company or a Subsidiary;
(c) Five (5) years after the date of the death of the Optionee if
the Optionee dies while an employee of the Company or a Subsidiary or one (1)
year after the date of death of the Optionee if the Optionee dies during the
fifth year of the five (5) year period referred to in Paragraph 3(b) above;
(d) Five (5) years after the date of a Termination Event or
Constructive Termination;
(e) Immediately (x) upon the Optionee accepting employment with a
Competitor without the prior written approval of the Company's Board or (y) upon
a material breach by the Optionee of any applicable agreement with the Company
or a Subsidiary relating to non-competition, non-solicitation or maintaining of
Company confidences; or
(f) Ten (10) years from the Grant Date.
4. TRANSFERABILITY. Unless otherwise approved by the Compensation
Committee following a request from the Optionee or the Optionee's guardian or
legal representative, the Options are not transferable by the Optionee otherwise
than by will or the laws of descent and distribution. If another type of
transfer is approved by the Compensation Committee, a transfer will only be
effective when the transferee of the Options enters into an agreement with the
Company (in form and substance acceptable to the Company) agreeing to be bound
by the provisions of this Agreement as if such transferee were the Optionee. If
exercised during the lifetime of the Optionee, the Options are exercisable only
by the Optionee or by the Optionee's guardian or legal representative, or by a
transferee authorized as provided in this Paragraph. At the reasonable request
of the Optionee, the Company shall cooperate with the Optionee to permit
transfers to family members or trusts controlled by the Optionee or members of
his immediate family to facilitate estate planning. Any transferee must agree in
writing to be bound by the terms and conditions of this Agreement in a writing
in form and substance reasonably acceptable to the Company.
5. SECURITIES LAWS. The Options are not exercisable if such exercise would
involve a violation of any applicable federal, state or other securities law,
and the Company hereby agrees to make reasonable efforts to comply with such
securities laws. The Options are not exercisable unless under said laws at the
time of exercise the shares of Common Stock or other securities purchasable
hereunder are exempt, are the subject matter of an exempt transaction, or are
registered in accordance with such laws.
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6. ADJUSTMENTS.
(a) The Board of Directors or the Compensation Committee shall
make such adjustment in the option price and in the number or kind of shares of
Common Stock or other securities covered by the Options as such Board or
Committee may in good faith determine is equitably required to prevent dilution
or enlargement of the rights of the Optionee that otherwise would result from
(i) any stock dividend, stock split, combination of shares, recapitalization or
other change in the capital structure of the Company, or (ii) any merger,
consolidation, spin-off, split-off, spin-out, split up, reorganization, partial
or complete liquidation or other distribution of assets, issuance of rights to
purchase securities, or (iii) any distribution to the holders of the Common
Stock of rights or warrant to purchase equity interests of the Company, or (iv)
any other corporate transaction or event having an effect similar to any of the
foregoing. Moreover, in the event of any such transaction or event, the Board of
Directors or the Compensation Committee, in its discretion, may provide in
substitution for any or all outstanding awards under the Options such
alternative consideration as it, in good faith, may determine to be equitable in
the circumstances and may require in connection therewith the surrender of all
awards so replaced.
(b) In the event that any provision of this Agreement would result
in a calculation of a number of shares in amounts other than a whole number, the
number of shares so calculated will be reduced or increased to the nearest whole
number (rounding 0.50 up), with the effect of any such rounding deemed to attach
to the last group of shares to be so calculated (with calculations to be
conducted in alphabetical or numerical order, as applicable).
7. WITHHOLDING. If the Company is required to withhold any federal, state,
local or foreign tax in connection with the exercise of the Options, it will be
a condition to such exercise that the Optionee make provision satisfactory to
the Company for payment of all such taxes. Upon exercise of any Options,
Optionee shall surrender to the Company, by the Company withholding from the
shares of Common Stock to be issued upon such exercise to the Optionee, in
satisfaction of the Withholding Amount, shares of Common Stock that have value
in the aggregate that is equal to such Withholding Amount. In the event that the
Optionee desires to have an amount greater than the Withholding Amount withheld,
the excess over the Withholding Amount must be paid to the Company in cash.
8. DEFINITIONS. The following capitalized terms have meanings set forth
below.
"CHANGE OF CONTROL" means if at any time any of the following events shall have
occurred:
(a) the Company merges into itself, or is merged or consolidated
with, another corporation and as a result of such merger or consolidation less
than 51% of the voting power of the then-outstanding voting securities of the
surviving or resulting corporation immediately after such transaction are owned
in the aggregate by the former stockholders of the Company immediately prior to
such transaction;
(b) all or substantially all the assets accounted for on the
consolidated balance sheet of the Company are sold or transferred to one or more
corporations or persons, and as a result of such sale or transfer less than 51%
of the voting power of the then-outstanding voting securities of such
corporation or person immediately after such sale or transfer is directly or
indirectly beneficially held in the aggregate by the former stockholders of the
Company immediately prior to such transaction or series of transactions (it
being agreed and
24
acknowledged that a sale of all or substantially all of the assets or more than
50% of the voting stock of Things Remembered, Inc. shall not constitute a change
of control);
(c) A person, within the meaning of Section 3(a)(9) or 13(d)(3)
(as in effect on the date hereof) of the Securities Exchange Act of 1934,
becomes the beneficial owner (as defined in Rule 13d-3 of the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934) of (i) 15%
or more, but less than 35%, of the voting power of the then-outstanding voting
securities of the Company without the prior approval of the Board, or (ii) 35%
or more of the voting power of the then-outstanding voting securities of the
Company; provided, however, that the foregoing does not apply to any such
acquisition that is made by (w) any subsidiary of the Company; (x) any employee
benefit plan of the Company or of any Subsidiary or (y) any person or group of
which employees of the Company or of any Subsidiary control a greater than 25%
interest unless the Board of Directors of the Company determines that such
person or group is making a "hostile acquisition;" or (z) any person or Group of
which the Optionee is an affiliate; provided, further that clause (i) of this
Paragraph 8(c) is acknowledged to apply to HAL International N.V.
(d) A majority of the members of the Board of Directors of the
Company or of any Subsidiary are not Continuing Directors, where a "Continuing
Director" is any member of the Board of Directors of the Company or, with
respect to a Subsidiary, of such Subsidiary who (x) was a member of the Board of
Directors of the Company or, with respect to a Subsidiary, of such Subsidiary on
the date hereof or (y) was nominated for election or elected to such Board of
Directors with the affirmative vote of a majority of the Continuing Directors
who were members of such Board at the time of such nomination or election.
"COMPETITOR" means any Person that competes with any then-existing business of
the Company or any Subsidiary.
"CONSTRUCTIVE TERMINATION" means either (i) a substantial, nonconsensual adverse
change in the Optionee's employment duties or title, or (ii) the moving of the
Company's executive headquarters more than 50 miles from its present location
without the Optionee's consent.
"EXERCISE PRICE" means the exercise price per share indicated as the Exercise
Price per share on the signature page hereof.
"FOR CAUSE" means that there is a final, non-appealable order in a proceeding
before a court of competent jurisdiction or a final order in an administrative
proceeding before the Securities and Exchange Commission finding that the
Optionee (i) committed any willful misconduct, fraud or criminal activity
(excluding traffic violations or other minor offenses) which commission is
materially inimical to the interests of any of the Subsidiaries or the Company,
whether for his personal benefit or in connection with his duties for the
Company or the Subsidiaries or (ii) intentionally or knowingly violated any
antifraud provision of the federal or state securities laws.
"GRANT DATE" means the date of the Board or Compensation Committee action
awarding the Options to the Optionee as indicated on the signature page hereof.
"MATURE SHARES" means (x) nonforfeitable, unrestricted shares of Common Stock
that have been owned by the Optionee for more than six (6) months prior to the
date of exercise, or (y)
25
shares of restricted stock or other shares of Common Stock that are forfeitable
or subject to restrictions on transfer, including, without limitation, shares of
Common Stock issued pursuant to the earn out of performance shares or
performance units, which shares have been owned by the Optionee for more than
six (6) months and that the Company agrees to accept as consideration, or (z)
such other Company securities as the Company's chief accounting officer, upon
consultation with the Company's independent accountants, determines will not
adversely affect the Company's tax or accounting position by accepting.
"ORIGINAL AWARD" means the number of shares of Common Stock indicated as the
Original Award on the signature page hereof.
"PERSON" means any corporation, partnership, limited liability company,
association, firm, other entity or individual(s).
"STOCK PRICE" means the closing price of the Common Stock on the principal
exchange on which the Common Stock is traded.
"SUBSIDIARY" means Xxxx National Group, Inc., Xxxx Vision Corporation, Pearle,
Inc., and Things Remembered, Inc.
"TERMINATION EVENT" means the Optionee's ceasing to be an employee of the
Company or its Subsidiaries by reason of termination by the employer of the
Optionee's employment without Cause.
"UNVESTED SHARES" means, as of any given time, those shares of Common Stock
relating to the Options that are not, at the time in question, otherwise
permitted, under the terms of this Agreement, to be acquired pursuant to the
exercise of the Options.
"VESTED SHARES" means, as of any given time, those shares of Common Stock
relating to the Options that are, at the time in question, otherwise permitted,
under the terms of this Agreement, to be acquired pursuant to the exercise of
the Options.
"WITHHOLDING AMOUNT" means the minimum amount of withholding taxes including
Federal, state and local income taxes and social security and Medicare taxes
required to be withheld by the Company by the applicable taxing authorities, as
the result of the exercise of an Option.
9. ACKNOWLEDGMENT. The undersigned Optionee hereby acknowledges receipt of
an executed original of this Agreement and accepts the Options granted
hereunder.
EXECUTED at Cleveland, Ohio as of the date first set forth above.
XXXX NATIONAL CORPORATION
By:_______________________________
Name:
Title:
26
_____________________________
OPTIONEE
----------------------------------------------------------------------------------------------
Name of Optionee: Xxxxx Xxxxxxx
----------------------------------------------------------------------------------------------
Name of Employer: Xxxx National Corporation
----------------------------------------------------------------------------------------------
Position: President and Chief Executive Officer of the Company
and Chairman of each of the Subsidiaries
----------------------------------------------------------------------------------------------
Number of Shares in the Original Award: 300,000
----------------------------------------------------------------------------------------------
Date of Board Resolution authorizing
this Option (Grant Date): ____________, 2003
----------------------------------------------------------------------------------------------
Exercise Price per Share: $__.__
----------------------------------------------------------------------------------------------
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