February 15, 2011 Mr. Richard A. Boehne c/o The E. W. Scripps Company 312 Walnut Street 2800 Scripps Center Cincinnati, OH 45202 Re: Employment Agreement Dear Rich:
EXHIBIT 10.66
February 15, 2011
Xx. Xxxxxxx X. Xxxxxx
c/o The X. X. Xxxxxxx Company
000 Xxxxxx Xxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
c/o The X. X. Xxxxxxx Company
000 Xxxxxx Xxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Dear Rich:
The X. X. Xxxxxxx Company (the “Company”) agrees to employ you and you agree to continue such
employment upon the following terms and conditions. On the Effective Date (as defined
below), this Agreement shall replace and supersede the letter agreement between you and the
Company dated August 7, 2008.
l. Term. Subject to the provisions for earlier termination provided in paragraph 10
below, the term of your employment hereunder shall become effective as of August 7, 2011 (the
“Effective Date”) and shall continue through and until the third anniversary of the Effective
Date. Such period shall be referred to as the “Term,” notwithstanding any earlier
termination of your employment for any reason. The Company shall provide you with at least
ninety (90) days’ notice prior to the expiration of the Term if the Company does not intend
to continue to employ you beyond the expiration of the Term. If the Company does not provide
you with such notice and the parties do not otherwise agree in writing to renew, extend, or
replace this Agreement, the Term shall automatically renew for one one-year term.
2. Duties.
(a) In General. You will be the President and Chief Executive Officer of the
Company, reporting directly to the Board of Directors (“the Board”). You agree to devote
substantially all your business time, and apply your best reasonable efforts, to promote the
business and affairs of the Company and its affiliated companies during your employment. You
will perform such duties and responsibilities commensurate with your position and title
during the Term, and as may be reasonably assigned to you from time to time by the Board. You
shall not, without the prior written consent of the Company, directly or indirectly, during
the Term, other than in the performance of duties naturally inherent to the businesses of the
Company and in furtherance thereof, render services of a business, professional, or
commercial nature to any other person or firm, whether for compensation or otherwise;
provided, however, that so long as it does not materially interfere with the performance of
your duties hereunder, you may serve as a director, trustee or officer of, or otherwise
participate in, educational, welfare, social, religious, civic, professional, or trade
organizations. Your principal place of business shall be in Cincinnati, Ohio.
(b) Board Service. In addition, the Company shall cause you to be appointed as a
member of the Board on or before the Effective Date, and following such date, you shall
remain on the Board and shall perform your duties as a director of the Company
conscientiously and faithfully.
(c) Other Entities. You also shall serve, without additional compensation, as an
officer and director of each of the Company’s subsidiaries, joint ventures or affiliates, as
determined by the Company, provided, that such service does not materially interfere with the
performance of your duties and responsibilities as the President and Chief Executive Officer
of the Company.
3. Compensation.
(a) Annual Salary. For all the services rendered by you in any capacity under this
Agreement, the Company agrees to pay you no less than Six Hundred Eighty Thousand Dollars
($680,000) a year in base salary (“Annual Salary”), less applicable deductions and
withholding taxes, in accordance with the Company’s payroll practices as they may exist from
time to time during the Term. Your Annual Salary may be increased by the Company’s
Compensation Committee in conjunction with your annual performance review conducted pursuant
to the guidelines and procedures of the Company applicable to other senior executive
officers. Your Annual Salary shall not be reduced during the Term, other than in connection
with an across-the-board reduction in the salary of the Company’s senior officers that does
not disproportionately affect you.
(b) Annual Incentive. You shall participate in the Company’s Executive Annual
Incentive Plan, as amended, or any successor to such plan (the “Annual Incentive Plan”) with
a target annual incentive opportunity of no less than 50% of your Annual Salary as
established under paragraph 3(a) (“Annual Incentive”). Your target Annual Incentive shall
not be reduced during the Term, other than in connection with an across-the-board reduction
in the target Annual Incentive of the Company’s senior officers that does not
disproportionately affect you. The Annual Incentive amount actually paid shall be based on
your attainment, within the range of the minimum and maximum performance objectives, of
strategic and financial goals established for you by the Company and approved by the
Company’s Compensation Committee. The Company shall pay to you any Annual Incentive under
this paragraph 3(b) in accordance with the terms and subject to the conditions of the Annual
Incentive Plan.
4. Benefits. During your employment hereunder, you shall be eligible to participate
in all equity incentive plans of the Company applicable to other senior executive officers of
the Company, as shall be determined by the Company’s Compensation Committee. During your
employment hereunder, you shall also be entitled to participate in any employee retirement,
pension and welfare benefit plan or program available to other senior executive officers of
the Company, or to the Company’s employees generally, as such plans and programs may be in
effect from time to time, including, without limitation, pension, profit sharing, savings,
estate preservation and other retirement plans or programs, 401(k), medical, dental, life
insurance, short-term and long-term disability insurance plans, accidental death and
dismemberment protection, travel accident protection, and all other plans that the Company
may have or establish from time to time and in which you would be entitled to participate
under the terms of the applicable plan. This provision is not intended, nor shall it have the
effect of, reducing any benefit to which you were entitled as of the Effective Date. However,
this provision shall not be construed to require the Company to establish any welfare,
compensation or long-term incentive plans, or to prevent the modification or termination of
any plan once established, and no action or inaction with respect to any plan shall affect
this Agreement. You shall be entitled to be reimbursed by the Company for tax and financial
planning up to a maximum of $15,000 per year, and for the annual membership fees and other
dues associated with one luncheon club. In addition, the Company shall pay the costs of an
annual “senior executive” physical examination. You shall be entitled to no less than five
(5) weeks of Paid Time Off (“PTO”) per calendar year.
5. Business Expenses. During your employment hereunder, the Company shall reimburse
you for reasonable travel and other expenses incurred in the performance of your duties as
are customarily reimbursed to other senior executive officers of the Company.
6. Entitlements in Event of Death. In the event of your death during your employment
hereunder, your beneficiary or estate shall, for the one-year period following your death,
receive payments equal to your Annual Salary, in equal monthly installments commencing on the
first day of the month following the date of your death. Also, your family members who are
covered under a Company medical plan at the time of your death shall be entitled to receive
commensurate medical coverage under COBRA at the Company’s expense for the two-year period
immediately following your death, which period of coverage shall run concurrently with the
period of continuation coverage under Section 4980B of the Code. In addition, your
beneficiary or estate shall receive (i) any Annual Incentive earned in the prior calendar
year, but that has not yet been paid, in accordance with the terms of the Annual Incentive
Plan; (ii) a lump
sum payment equal to the target Annual Incentive opportunity for the calendar year of your death, multiplied by the number of years and
fractions thereof in the period commencing on January 1 of the calendar year of your death
and ending on the first anniversary of your death (with each full and partial month counting
as one-twelfth (1/12th) of a year), payable, less applicable deductions and withholding
taxes, within 60 days after your death; which such Annual Incentive shall be in lieu of any
Annual Incentive that you would have otherwise been entitled to receive under the terms of
the Annual Incentive Plan for that year; and (iii) reimbursement for all documented business
expenses previously incurred for which you have not been reimbursed.
7. Entitlements in Event of Permanent Disability. In the event of your permanent
disability during your employment hereunder (as defined under and covered by a Company
employee disability plan), your employment hereunder shall terminate. However, for the
one-year period beginning on the date of such disability, you shall continue to receive
payments equal to your Annual Salary, in equal monthly installments commencing on the first
day of the month following the date of your disability, which payments shall serve as an
offset to any benefits provided under the applicable Company employee disability plan to the
extent provided in that plan. Also, you and your family members who are covered under a
Company medical plan at the time of your permanent disability shall be entitled to receive
commensurate medical coverage at the Company’s expense for the longer of (i) the two-year
period immediately following your disability, or (ii) the period set forth in the
then-applicable Company employee disability plan. In addition, you shall receive (i) any
Annual Incentive earned in the prior calendar year, but that has not yet been paid, in
accordance with the terms of the Annual Incentive Plan; (ii) a lump sum payment equal to the
target Annual Incentive opportunity for the calendar year of your disability, multiplied by
the number of years and fractions thereof in the period commencing on January 1 of the
calendar year of your disability and ending on the first anniversary of your disability (with
each full and partial month counting as one-twelfth (1/12th) of a year), payable, less
applicable deductions and withholding taxes, within 60 days after your disability; which such
Annual Incentive shall be in lieu of any Annual Incentive that you would have otherwise been
entitled to receive under the terms of the Annual Incentive Plan for that year; and (iii)
reimbursement for all documented business expenses previously incurred for which you have not
been reimbursed.
8. Change in Control Protections. You shall be included in and covered by the
Company’s Senior Executive Change in Control Plan, which is incorporated herein by reference.
Your Termination Pay Multiple, as defined in the Plan, will be at least “3.0”. In the event
that such plan is terminated or you are excluded from the plan for any reason during the
Term, the Company agrees to promptly amend this Agreement so that you are similarly covered
and eligible for the same benefits and protection thereunder.
(a) Non-Competition. You agree that your employment with the Company is on an
exclusive basis and that, while you are employed by the Company, you will not engage in any
other business activity that would otherwise conflict with your duties and obligations
(including your commitment of substantially all business time) under this Agreement. You
agree that, during the Non-Compete Period (as defined below), you shall not directly or
indirectly engage in or participate as an owner, partner, stockholder, officer, employee,
director, agent of or consultant for any business competitive with any business of the
Company, without the prior written consent of the Company; provided, however,
that this provision shall not prevent you from investing as a less-than-one-percent (1%)
stockholder in the securities of any company listed on a national securities exchange or
quoted on an automated quotation system. The Non-Compete Period shall cover the entire Term;
provided, however, that, if your employment terminates before the end of the
Term, the Non-Compete Period shall terminate, if earlier, (i) six (6) months after you
terminate your employment for Good Reason or the Company terminates your employment without
Cause, or on such earlier date as you may make the election under paragraph 9(i) (which
relates to your ability to terminate your obligations under this paragraph 9(a) in exchange
for waiving your right to certain compensation and benefits); or (ii) twelve (12) months
after the Company terminates your employment for Cause. (Defined terms used
without definitions in the preceding sentence have the meanings provided in paragraphs 10(a)
and (b).)
(b) Confidential Information. You agree that, during the Term or at any time
thereafter, (i) you shall not use for any purpose other than the duly authorized business of
the Company, or disclose to any third party, any information relating to the Company or any
of its affiliated companies which is proprietary to the Company or any of its affiliated
companies (“Confidential Information”), including any trade secret or any written (including
in any electronic form) or oral communication incorporating Confidential Information in any
way (except as may be required by law or in the performance of your duties under this
Agreement consistent with the Company’s policies); and (ii) you will comply with any and all
confidentiality obligations of the Company to a third party, whether arising under a written
agreement or otherwise. Information shall not be deemed Confidential Information which (x) is
or becomes generally available to the public other than as a result of a disclosure by you or
at your direction or by any other person who directly or indirectly receives such information
from you, or (y) is or becomes available to you on a non-confidential basis from a source
which is entitled to disclose it to you.
(c) No Solicitation or Interference. You agree that, during the Term and for
one (1) year thereafter, you shall not, directly or indirectly:
one (1) year thereafter, you shall not, directly or indirectly:
| (i) | employ or solicit the employment of any person who is then or has been within six (6) months prior thereto, an employee of the Company or any of its affiliated companies; or |
| (ii) | interfere with, disturb or interrupt the relationships (whether or not such relationships have been reduced to formal contracts) of the Company or any of its affiliated companies with any customer, supplier or consultant. |
(d) Ownership of Works. The results and proceeds of your services under this
Agreement, including, without limitation, any works of authorship resulting from your
services to the Company or any of its affiliates during your employment with the Company
and/or any of its affiliated companies and any works in progress resulting from such
services, shall be works-made-for-hire and the Company shall be deemed the sole owner
throughout the universe of any and all rights of every nature in such works, whether such
rights are now known or hereafter defined or discovered, with the right to use the works in
perpetuity in any manner the Company determines in its sole discretion without any further
payment to you. If, for any reason, any of such results and proceeds are not legally deemed a
work-made-for-hire and/or there are any rights in such results and proceeds which do not
accrue to the Company under the preceding sentence, then you hereby irrevocably assign and
agree to assign any and all of your right, title and interest thereto, including, without
limitation, any and all copyrights, patents, trade secrets, trademarks and/or other rights of
every nature in the work, whether now known or hereafter defined or discovered, and the
Company shall have the right to use the work in perpetuity throughout the universe in any
manner the Company determines in its sole discretion without any further payment to you. You
shall, as may be requested by the Company from time to time, do any and all things which the
Company may deem useful or desirable to establish or document the Company’s rights in any
such results and proceeds, including, without limitation, the execution of appropriate
copyright, trademark and/or patent applications, assignments or similar documents and, if you
are unavailable or unwilling to execute such documents, you hereby irrevocably designate the
Secretary and any Assistant Secretary of the Company as your attorneys-in-fact with the
power to execute such documents on your behalf. To the extent you have any rights in the
results and proceeds of your services under this Agreement that cannot be assigned as
described above, you unconditionally and irrevocably waive the enforcement of such rights.
This paragraph 9(d) is subject to, and does not limit, restrict, or constitute a waiver by
the Company or any of its affiliated companies of any ownership rights to which the Company
or any of its affiliated companies may be entitled by operation of law by virtue of being
your employer.
(e) Litigation.
| (i) | You agree that, during the Term, for one (1) year thereafter and, if longer, during the pendency of any litigation or other proceeding, and except as may be required by law or legal process, (x) you shall not communicate with anyone (other than your own attorneys and tax advisors), except to the extent necessary in the performance of your duties under this Agreement, with respect to the facts or subject matter of any pending or potential litigation, or regulatory or administrative proceeding involving the Company or any of its affiliated companies, other than any litigation or other proceeding in which you are a party-in-opposition, without giving prior notice to the Company’s General Counsel; and (y) in the event that any other party attempts to obtain information or documents from you with respect to such matter, either through formal legal process such as a subpoena or by informal means such as interviews, you shall promptly notify the Company’s General Counsel before providing any information or documents. |
| (ii) | You agree to cooperate with the Company and its attorneys, both during employment and during the five-year period following termination of your employment, in connection with any litigation or other proceeding arising out of or relating to matters in which you were involved prior to the termination of your employment. Your cooperation shall include, without limitation, providing assistance to the Company’s counsel, experts or consultants, and providing truthful testimony in pretrial and trial or hearing proceedings. In the event that your cooperation is requested after the termination of your employment, the Company will (x) seek to minimize interruptions to your schedule to the extent consistent with its interests in the matter; and (y) reimburse you for all reasonable and appropriate out-of-pocket expenses actually incurred by you in connection with such cooperation upon reasonable substantiation of such expenses. |
| (iii) | Except as required by law or legal process, you agree that you will not testify in any lawsuit or other proceeding which directly or indirectly involves the Company or any of its affiliated companies, or which may create the impression that such testimony is endorsed or approved by the Company or any of its affiliated companies. In all events, you shall give advance notice to the Company’s General Counsel of such testimony promptly after you become aware that you may be required to provide it. The Company expressly reserves its attorney-client and other privileges except if expressly waived in writing. |
(f) Return of Property. All documents, data, recordings, or other property, whether
tangible or intangible, including all information stored in electronic form, obtained or
prepared by or for you and utilized by you in the course of your employment with the Company
or any of its affiliated companies shall remain the exclusive property of the Company. In the
event of the termination of your employment for any reason, the Company reserves the right,
to the extent permitted by law and in addition to any other remedy either may have, to deduct
from any monies otherwise payable to you the following: (i) all amounts you may directly owe
to the Company or any of its affiliated companies at the time of or subsequent to the
termination of your employment with the Company; and (ii) the reasonable value of the Company
property which you retain in your possession after the termination of your employment with
the Company. In the event that the law of any state or other jurisdiction requires the
consent of an employee for such deductions, this Agreement shall serve as such consent.
(g) Non-Disparagement. During the Term hereof and for one (1) year following the
termination hereof for any reason, you shall not make, nor cause any one else to make or
cause on your behalf, any public disparaging or derogatory statements or comments regarding
the Company or its affiliated companies, or its officers or directors; likewise the Company
will not make, nor cause any one else to make, any public disparaging or derogatory
statements or comments regarding you.
(h) Injunctive Relief. The Company has entered into this Agreement in order to
obtain the benefit of your unique skills, talent, and experience. You and the Company
acknowledge and agree that your violation of paragraphs 9(a) through (h) of this Agreement
may result in irreparable damage to the Company and/or its affiliated companies and,
accordingly, the Company may obtain injunctive and other equitable relief for any breach or
threatened breach of such paragraphs, in addition to any other remedies available to the
Company.
(i) Survival; Modification of Terms. The obligations set forth under paragraphs 9(a)
through (i) shall remain in full force and effect for the entire period provided therein
notwithstanding the termination of your employment under this Agreement for any reason or the
expiration of the Term; provided, however, that your obligations under
paragraph 9(a) (but not under any other provision of this Agreement) shall cease if you
terminate your employment for Good Reason or the Company terminates your employment without
Cause and you notify the Company in writing that you have elected to waive your right to
receive, or to continue to receive, termination payments and benefits under paragraphs
10(d)(i) through (iv). You and the Company agree that the restrictions and remedies contained
in paragraphs 9(a) through (h) are reasonable and that it is your intention and the intention
of the Company that such restrictions and remedies shall be enforceable to the fullest extent
permissible by law. If a court of competent jurisdiction shall find that any such restriction
or remedy is unenforceable but would be enforceable if some part were deleted or the period
or area of application reduced, then such restriction or remedy shall apply with the
modification necessary to make it enforceable.
10. Termination.
(a) Termination for Cause. The Company may, at its option, terminate your employment
under this Agreement for Cause and thereafter shall have no obligations under this Agreement,
including, without limitation, any obligation to pay Annual Salary or Annual Incentive or
provide benefits. “Cause” shall mean exclusively: (i) embezzlement, fraud or other conduct
that would constitute a felony (other than traffic-related citations); (ii) willful
unauthorized disclosure of Confidential Information; (iii) your material breach of this
Agreement; (iv) your gross misconduct or gross neglect in the performance of your duties
hereunder; (v) your willful failure to cooperate with a bona fide internal investigation or
investigation by regulatory or law enforcement authorities, after being instructed by the
Company to cooperate, or the willful destruction or failure to preserve documents or other
material reasonably known to be relevant to such an investigation, or the willful inducement
of others to fail to cooperate or to destroy or fail to produce documents or other material;
or (vi) your willful and material violation of the Company’s written conduct policies,
including but not limited to the Company’s Employment Handbook and Ethics Code. The Company
will give you written notice prior to terminating your employment pursuant to (iii), (iv),
(v), or (vi), of this paragraph 10(a), setting forth the nature of any alleged failure,
breach or refusal in reasonable detail and the conduct required to cure. Except for a
failure, breach or refusal which, by its nature, cannot reasonably be expected to be cured,
you shall have twenty (20) business days from the giving of such notice within which to cure
any failure, breach or refusal under (iii), (iv), (v), or (vi) of this paragraph 10(a);
provided, however, that, if the Company reasonably expects irreparable injury
from a delay of twenty (20) business days, the Company may give you notice of such shorter
period within which to cure as is reasonable under the circumstances.
(b) Good Reason Termination. You may terminate your employment under this Agreement
for Good Reason at any time during the Term by written notice to the Company. Good Reason
shall mean without your consent (other than in connection with the termination or suspension
of your employment or duties for Cause or in connection with your Permanent Disability)
exclusively: (i) a material diminution in your authority, duties, or responsibilities; (ii) a
requirement that you report to a corporate officer or employee instead of reporting directly
to the Board; (iii) a material diminution in the budget over which you retain authority
(except for good faith
budget adjustments necessitated by the legitimate business needs of the Company); (iv)
a material change in geographic location at which you must perform services under this
Agreement from the Company’s offices at which you were principally employed; or (v) any other
action or inaction that constitutes a material breach by the Company of the terms of the
Agreement. A termination of your employment shall not be deemed to be for Good Reason unless
(1) you provide notice to the Company of the existence of the event or condition constituting
the basis for your Good Reason termination within thirty (30) days after such event or
condition initially occurs or exists, (2) the Company fails to cure such event or condition
within thirty (30) days after receiving such notice, and (3) your termination of employment
occurs not later than ninety (90) days after such event or condition initially occurs or
exists.
(c) Termination Without Cause. The Company may terminate your employment under this
Agreement without Cause at any time during the Term by written notice to you.
(d) Termination Payments/Benefits. Subject to paragraph 11, in the event that your
employment terminates under paragraph 10(b) or (c), or in the event that the Company provides
notice to you in accordance with paragraph 1 that it does not intend to continue to employ
you beyond the expiration of the Term and your employment hereunder ends as a result, you
shall thereafter receive the following, less applicable deductions and withholding taxes:
| (i) | A lump sum payment equal to the product of (A) two and (B) the sum of your Annual Salary and your target Annual Incentive, in each case as in effect on the date on which your employment terminates, but prior to any reduction that would qualify as a Good Reason termination event. Such payment shall be made within twenty (20) days after the Release described in paragraph 11 becomes effective and irrevocable in accordance with its terms; |
| (ii) | A lump sum payment equal to your Annual Incentive that would have been payable for the calendar year of your termination under the Annual Incentive Plan if you had remained employed for the entire year, based on actual performance during the entire year and without regard to any discretionary adjustments that have the effect of reducing the amount of your Annual Incentive (other than discretionary adjustments applicable to all similarly situated executives in the plan who did not terminate employment), pro-rated for the portion of the year through the date of termination. Such payment shall be made at the same time that payments are made to other participants in the Annual Incentive Plan for that year (but in no event later than March 15 of the fiscal year immediately following the fiscal year during which the date of termination occurs) and shall be in lieu of any Annual Incentive that you would have otherwise been entitled to receive under the terms of the Annual Incentive Plan for the year of termination; |
| (iii) | Subject to compliance with paragraph 11, medical and dental insurance coverage provided under COBRA (or early retiree medical if eligible for such coverage and elected) at no cost to you (except as hereafter described) pursuant to the plans then covering the employees of the Company (until the second anniversary of your date of termination or, if earlier, the date on which you become eligible for medical and dental coverage from a third party, which period of coverage shall run concurrently with the period of continuation coverage under Section 4980B of the Code); provided, that, during the period that the Company provides you with this coverage, an amount equal to the applicable COBRA premiums (or such other amounts as may be required by law) will be included in your income for tax purposes to the extent required by law and the Company may withhold taxes from your compensation for this purpose; and provided, further, that you may elect to continue your medical and dental insurance coverage under COBRA, if applicable, at your own expense for the balance, if any, of the period required by law; and |
| (iv) | Subject to compliance with paragraph 11, the Company shall take all steps reasonably necessary to continue the life insurance coverage pursuant to the policy then covering the employees of the Company (and if the policy cannot be continued in its then-current form, the Company shall exercise any required conversion features to continue the policy) in the amount then furnished to the Company employees, at no cost to you, until the end of the Term. The amount of such coverage will be reduced by the amount of life insurance coverage furnished to you at no cost by a third party employer. |
(e) Termination of Benefits. Notwithstanding anything in this Agreement to the
contrary (except as otherwise provided in paragraph 10(d) with respect to medical and dental
benefits and life insurance), participation in all the Company benefit plans and programs
will terminate upon the termination of your employment except to the extent otherwise
expressly provided in such plans or programs and subject to any vested rights you may have
under the terms of such plans or programs.
(f) Resignation from Official Positions. If your employment with the Company
terminates for any reason, you shall be deemed to have resigned at that time from any and all
officer or director positions that you may have held with the Company or any of its
affiliated companies and all board seats or other positions in other entities you held on
behalf of the Company. If, for any reason, this paragraph 10(f) is deemed insufficient to
effectuate such resignation, you agree to execute, upon the request of the Company, any
documents or instruments which the Company may deem necessary or desirable to effectuate such
resignation or resignations, and you hereby authorize the Secretary and any Assistant
Secretary of the Company to execute any such documents or instruments as your
attorney-in-fact.
11. Severance Contingent On Release, Waiver and Non-Compete Agreement. Any
compensation and benefits to be provided under paragraph 10(d) shall be provided only if you
execute and do not later revoke or materially violate the Release, Waiver and Non-Compete
Agreement in a form materially similar to the document attached hereto as Exhibit A (with
such changes as the Company may determine to be required or reasonably advisable in order to
make the release enforceable and otherwise compliant with applicable law) (the “Release”).
The Release must be executed by you and become effective and irrevocable in accordance with
its terms no later than the fifty-second (52nd) day following termination of your employment
(the “Release Date”).
12. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit your
continuing or future participation in any plan, program, policy or practice provided by the
Company or its affiliates and for which you may qualify. Amounts that are vested benefits or
that you are otherwise entitled to receive under any plan, policy, practice or program of or
any contract or agreement with the Company or its affiliates at or subsequent to the date of
termination shall be payable in accordance with such plan, policy, practice or program or
contract or agreement except as explicitly modified by this Agreement.
13. Company’s Policies. You agree that, during your employment hereunder, you will
comply in all material respects with all of the Company’s written policies, including, but
not limited to, the Company’s Employee Handbook and Ethics Code.
14. Indemnification; D&O Liability Insurance. If you are made a party to, are
threatened to be made a party to, receive any legal process in, or receive any discovery
request or request for
information in connection with, any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a “Proceeding”), by reason of the fact that you were an
officer, director, employee, or agent of the Company or any of its affiliated companies, or
were serving at the request of or on behalf of the Company or any of its affiliated
companies, the Company shall indemnify and hold you harmless to the fullest extent permitted
or authorized by the Company’s Articles of Incorporation or Code of Regulations or, if
greater, by the laws of the State of Ohio, against all costs, expenses, liabilities and
losses you incur in connection therewith. Such indemnification shall continue even if you
have ceased to be an officer, director, employee or agent of the Company or any of its
affiliated companies, and shall inure to the benefit of your heirs, executors and
administrators. The Company shall reimburse you for all costs and expenses you incur in
connection with any Proceeding within 20 business days after receipt by the Company of a
written requests for such reimbursement and appropriate documentation associated with such
expenses. In addition, the Company agrees to maintain a director’s and officer’s liability
insurance policy or policies covering you at a level and on terms and conditions commensurate
to the coverage the Company provides other senior executive officers of the Company.
15. Notices. All notices under this Agreement must be given in writing, by personal
delivery facsimile or by mail, if to you, to the address shown on this Agreement (or any
other address designated in writing by you), with a copy to any other person you designate in
writing, and, if to the Company, to the address shown on this Agreement (or any other address
designated in writing by the Company), with a copy, to the attention of the Company’s General
Counsel’s Office. Any notice given by mail shall be deemed to have been given three days
following such mailing.
16. Assignment. This is an Agreement for the performance of personal services by you
and may not be assigned by you, without the prior written consent of the Company, otherwise
than by will or the laws of descent and distribution. This Agreement shall inure to the
benefit of and be enforceable by your legal representatives. This Agreement shall inure to
the benefit of and be binding upon the Company and its successors and assigns. Except as
provided in the immediately following sentence, this Agreement shall not be assignable by the
Company without your prior written consent. The Company will 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 to assume expressly and agree to perform
this Agreement in the same manner and to the same extent that the Company would be required
to perform if no such succession had taken place. “Company” means the Company as defined in
this Agreement and any successor to its business and/or assets as described above that
assumes and agrees to perform this Agreement by operation of law or otherwise.
17. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Ohio.
18. No Implied Contract. Nothing contained in this Agreement shall be construed to
impose any obligation on the Company or you to renew this Agreement or any portion thereof.
The parties intend to be bound only upon execution of a written agreement and no negotiation,
exchange of draft or partial performance shall be deemed to imply an agreement. Neither the
continuation of employment nor any other conduct shall be deemed to imply a continuing
agreement upon the expiration of the Term.
19. Entire Understanding. Except where specifically stated otherwise herein, this
Agreement contains the entire understanding of the parties hereto relating to the subject
matter contained in this Agreement, and can be changed only by a writing signed by both
parties.
20. Void Provisions. If any provision of this Agreement, as applied to either party
or to any circumstances, shall be found by a court of competent jurisdiction to be
unenforceable but would be enforceable if some part were deleted or the period or area of
application were reduced, then such provision shall apply with the modification necessary to
make it enforceable, and shall in no way affect any other provision of this Agreement or the
validity or enforceability of this Agreement.
21. Supersedes Prior Agreements. With respect to the period covered by the Term,
this Agreement supersedes and cancels all prior agreements relating to your employment by the
Company or any of its affiliated companies.
22. Deductions and Withholdings. All amounts payable under this Agreement shall be
paid less deductions and income and payroll tax withholdings as may be required under
applicable law and any property (including shares of the Company’s Class A Common Stock),
benefits and perquisites provided to you under this Agreement shall be taxable to you as may
be required under applicable law.
(a) Section 409A of the Internal Revenue Code (“Section 409A”) imposes payment restrictions
on “separation pay” (i.e., payments owed to you upon termination of employment). Failure to
comply with these restrictions could result in negative tax consequences to you, including
immediate taxation, interest and a 20% penalty tax. It is the Company’s intent that this
Agreement be exempt from the application of, or otherwise comply with, the requirements of
Section 409A. Specifically, any taxable benefits or payments provided under this Agreement
are intended to be separate payments that qualify for the “short-term deferral” exception to
Section 409A to the maximum extent possible, and to the extent they do not so qualify, are
intended to qualify for the involuntary separation pay exceptions to Section 409A of the
Code, to the maximum extent possible. If neither of these exceptions applies, then
notwithstanding any provision in this Agreement to the contrary:
(i) All amounts that would otherwise be paid or provided during the first six months
following the date of termination shall instead be accumulated through and paid or provided
(together with interest on any delayed payment at the applicable federal rate under the
Internal Revenue Code), on the first business day following the six-month anniversary of your
termination of employment.
(ii) Any expense eligible for reimbursement must be incurred, or any entitlement to a
benefit must be used, during the Term (or the applicable expense reimbursement or benefit
continuation period provided in this Agreement). The amount of the reimbursable expense or
benefit to which you are entitled during a calendar year will not affect the amount to be
provided in any other calendar year, and your right to receive the reimbursement or benefit
is not subject to liquidation or exchange for another benefit. Provided the requisite
documentation is submitted, the Company will reimburse the eligible expenses on or before the
last day of the calendar year following the calendar year in which the expense was incurred.
(b) For purposes of this Agreement, “termination of employment” or words or phrases to that
effect shall mean a “separation from service” within the meaning of Section 409A.
If the foregoing correctly sets forth our understanding, please sign, date and return all
three (3) copies of this Agreement to the undersigned for execution on behalf of the Company;
after this Agreement has been executed by the Company and a fully-executed copy returned to
you, it shall constitute a binding agreement between us.
Sincerely yours,
By: /s/ Xxxxxx X. Xxxxxxxxxx
Its: Chairwoman of the Board of Directors
ACCEPTED AND AGREED:
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Dated: February 15, 2011
EXHIBIT A
RELEASE, WAIVER AND NON-COMPETE AGREEMENT
This Release, Waiver and Non-Compete Agreement (the “Agreement”) is entered by and between
(the “Executive”) and The X.X. Xxxxxxx Company (the “Company”).
WHEREAS, the Company and Executive entered into that certain Employment Agreement dated
(the “Employment Agreement”);
WHEREAS, paragraph 11 of the Employment Agreement specifically provides that the Executive is
required to sign this Agreement to receive the payment of certain severance benefits following
termination of employment;
WHEREAS, the Company and Executive desire to enter into this Agreement to give effect to the
foregoing, and to agree on and/or reaffirm certain rights, obligations and understandings that
shall survive the Employment Agreement; and
NOW, THEREFORE, in consideration of the mutual promises contained herein and in the Employment
Agreement and other valuable consideration, the receipt of which is hereby acknowledged, the
parties agree as follows:
1. Reference and Definitions. The Employment Agreement shall be incorporated herein
for reference, but only to the extent specifically called for hereunder. The capitalized terms
contained in this Agreement shall, to the extent they are the same as those used in the Employment
Agreement, shall carry the same meaning as in the Employment Agreement.
2. Severance and Other Benefits. In consideration for Executive executing and not
revoking or materially violating this Agreement and for his/her compliance with its terms and those
certain Covenants that shall survive the Employment Agreement specified in paragraph 5 below, the
Company shall provide the payments and benefits described in paragraph 10(d) of the Agreement (the
“Severance Benefits”) at the times set forth in the Agreement.
3. General Release and Waiver of Claims. In exchange for and in consideration of the
Severance Benefits, Executive, on behalf of himself/herself and his/her successors, assigns, heirs,
executors, and administrators, hereby releases and forever discharges the Company and its parents,
affiliates, associated entities, representatives, successors and assigns, and their officers,
directors, shareholders, agents and employees from all liability, claims and demands, actions and
causes of action, damages, costs, payments and expenses of every kind, nature or description
arising out of his/her employment relationship with the Company, or the ending of his/her
employment on , 20_____. These claims, demands, actions or causes of action include, but
are not limited to, actions sounding in contract, tort, discrimination of any kind, and causes of
action or claims arising under federal, state, or local laws, including, but not limited to, claims
under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, the
Age Discrimination in Employment Act of 1967, as amended by the Older Workers Benefit Protection
Act of 1990, the Americans With Disabilities Act, and any similar state or local laws. Executive
further agrees that Executive will neither seek nor accept any
further benefit or consideration
from any source whatsoever
in respect to any claims which Executive has asserted or could have asserted against the Company.
Executive represents to his/her knowledge neither Executive nor any person or entity acting on
Executive’s behalf or with Executive’s authority has asserted with any federal, state, or local
judicial or administrative body any claim of any kind based on or arising out of any aspect of
Executive’s employment with the Company or the ending of that employment. If Executive, or any
person or entity representing Executive, or any federal, state, or local agency, asserts any such
claim, this Release and Waiver Agreement will act as a total and complete bar to recovery of any
judgment, award, damages, or remedy of any kind.
4. No Admission of Liability. It is understood and agreed that this Agreement is a
compromise of any alleged claims and that the making of this offer, the entering into of this
Agreement, and the benefits paid to Executive are not to be construed as an admission of liability
on the part of the Company, and that all liability is expressly denied by the Company.
5. Non-Compete. In exchange for and in consideration of the Severance Benefits,
Executive agrees that, for the twelve (12) months following the effective date hereof, he/she shall
not directly or indirectly engage in or participate as an owner, partner, stockholder, officer,
employee, director, agent of or consultant for any business competitive with any business of the
Company, without the prior written consent of the Company; provided, however, that this provision
shall not prevent Executive from investing as a less-than-one-percent (1%) stockholder in the
securities of any company listed on a national securities exchange or quoted on an automated
quotation system.
6. SURVIVING COVENANTS. EXECUTIVE AND THE COMPANY HEREBY ACKNOWLEDGE AND AFFIRM, TO
THE EXTENT APPLICABLE, THEIR RESPECTIVE CONTINUING OBLIGATIONS WITH RESPECT TO THOSE CERTAIN
COVENANTS CONTAINED IN THE EMPLOYMENT AGREEMENT, WHICH ARE INCORPORATED HEREIN BY REFERENCE,
SPECIFICALLY: SECTION 9(B) CONFIDENTIAL INFORMATION; SECTION 9(C) NO SOLICITATION OR INTERFERENCE;
SECTION 9(E) LITIGATION; AND SECTION 9(G) NON-DISPARAGEMENT.
7. Return of Property. Executive agrees to return, as soon as practicable and no
later than three (3) business days after his/her execution hereof, any and all property, including
duplicates or copies thereof, belonging to the Company, including, but not limited to: keys,
security cards, documents, equipment, supplies, customer lists, customer information, and
confidential information.
8. Business Expense Reports and Reconciliation of Company Charge Card Expenses.
Executive agrees that the Severance Benefits shall not be paid until Executive submits all required
business expense reports, if any, and pays for any and all non-business charges on the Company’s
charge card or otherwise for which he/she is personally responsible, within thirty (30) days
following termination of employment with the Company.
9. Severability/Waivers. Executive agrees that if any provision of this Agreement
shall be held invalid or unenforceable, that such provision shall be modified to the extent
necessary to comply with the law, or if necessary stricken, but the parties agree that the
remainder of this Agreement shall nevertheless remain in full force and effect. No waiver of any
term or condition of this Agreement or any part thereof shall be deemed a waiver of any other terms
or conditions of this Agreement or of any later breach of this Agreement.
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10. Confidentiality. The terms of this Agreement shall remain confidential, and
neither Executive nor the Company will publish or publicize the terms of this Agreement in any
manner, unless specifically required to do so by valid law or regulatory requirement, which, in
such case, the disclosing party shall provide the other party reasonable advance notice. Executive
shall not discuss or reveal the terms of this Agreement to any persons other than his/her immediate
family, personal attorney, and financial advisors.
11. Binding Agreement. The rights and obligations of the Company under this
Agreement shall inure to the benefit of, and shall be binding on, the Company and its successors
and assigns, and the rights and obligations (other than obligations to perform services) of
Executive under this Agreement shall inure to the benefit of, and shall be binding upon, Executive
and his/her heirs, personal representatives and successors and assigns. Except to the extent
specifically provided for in paragraphs 1, 2 and 5 above, upon its execution, this Agreement shall
supersede and render null and void any and all previous agreements, arrangements, or understandings
between you and the Company pertaining to Executive’s employment with the Company, including, but
not limited to the Employment Agreement.
12. Notices. Notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given when sent by certified mail, postage prepaid, addressed to
the intended recipient at the address set forth below, or at such other address as such intended
recipient hereafter may have designated most recently to the other party hereto with specific
reference to this Section.
| If to the Company: | The X. X. Xxxxxxx Company 00xx Xxxxx 000 Xxxxxx Xxxxxx Xxxxxxxxxx, Xxxx 00000 Attn: Xxxx X. Xxxxxxx, Senior Vice President, Human Resources Xxxxxxx Xxxxxxxx, Senior Vice President & General Counsel |
If to Executive:
13. Governing Law. This Agreement shall be governed by and construed exclusively in
accordance with the laws of the State of Ohio. The Parties agree that any conflict of law rule that
might require reference to the laws of some jurisdiction other than Ohio shall be disregarded. Each
Party hereby agrees for itself and its properties that the courts sitting in Xxxxxxxx County, Ohio
shall have sole and exclusive jurisdiction and venue over any matter arising out of or relating to
this Agreement, or from the relationship of the Parties, or from the Executive’s employment with
the Company, or from the termination of the Executive’s employment with the Company, whether
arising from contract, tort, statute, or otherwise, and hereby submits itself and its property to
the venue and jurisdiction of such courts.
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14. Revocation Period. Executive agrees that Executive has read this Agreement and
is hereby advised and fully understands his/her right to discuss all aspects of this Agreement with
Executive’s attorney prior to signing this Agreement. Executive has carefully read and fully
understands all of the provisions of this Agreement. Executive acknowledges that he/she has been
given at least twenty-one (21) days to discuss, review, and consider all of the terms, conditions,
and covenants of this Agreement. Executive understands that this Agreement does not become effective or
enforceable until seven (7) days after it has been executed by Executive. During the seven-day
period following its execution, Executive may revoke this Agreement in its entirety by providing
written revocation to the Company by notice to the Company pursuant to paragraph 12, in which case
this Agreement shall be on no further legal force or effect.
EXECUTIVE
|
THE X. X. XXXXXXX COMPANY | |
Name: Xxxxxxx X. Xxxxxx
|
By: /s/Xxxxxx X. Xxxxxxxxxx | |
(please print)
|
Its: Chairwoman of the Board of Directors | |
Signature: /s/Xxxxxxx X. Xxxxxx
|
Date: February 15, 2011 | |
Date: February 15, 2011 |
||
Witness’s Name: Xxxx X. Xxxxxxx |
||
Witness’s Signature: /s/Xxxx X. Xxxxxxx |
||
Date: February 15, 2011 |
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