EXHIBIT 10.6.2
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
August 30, 2002
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement"), is
hereby made and entered into by and between Xxxxxxxx Financial Inc., a Delaware
corporation ("Xxxxxxxx") and Xxxxxx X. Xxxxxxx, an individual ("Executive") to
be effective as of August 30, 2002 (the "Effective Date").
WHEREAS, prior to June 12, 2000, Executive was employed by Kansas City
Southern Industries, Inc. ("KCSI"), and on June 12, 2000, Xxxxxxxx and Executive
entered into an employment agreement ("Prior Agreement") to be effective as of
July 12, 2000, the date that all of the issued and outstanding stock of Xxxxxxxx
was distributed to the shareholders of KCSI which had been the parent of
Xxxxxxxx since its formation on January 23, 1998 (the "Spin-off Distribution"),
for Xxxxxxxx to continue to employ Executive on the terms and conditions set
forth in the Prior Agreement; and
WHEREAS, as of the Effective Date, Xxxxxxxx and Executive desire for
Xxxxxxxx to continue to employ Executive on the terms and conditions set forth
in this Agreement and to provide an incentive to Executive to remain in the
employ of Xxxxxxxx hereafter, particularly in the event of any Change in Control
(as herein defined) of Xxxxxxxx or any Significant Subsidiary (as herein
defined), thereby establishing and preserving continuity of management of
Xxxxxxxx.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, it is agreed by and between Xxxxxxxx and Executive as follows:
1. Position and Responsibilities. Xxxxxxxx hereby employs and agrees to
appoint, elect, reappoint and reelect Executive during the term of the
Agreement, as the Chairman of its Board of Directors (the "Xxxxxxxx Board"), and
as President and Chief Executive Officer. During
the term of the Agreement, Executive shall devote substantially all of his
business time, attention and effort to the affairs of Xxxxxxxx, and shall use
his reasonable best efforts to promote the best interests of Xxxxxxxx. All
staff, all operations and other functions of Xxxxxxxx shall report directly or
indirectly (through one or more subordinates of Executive) to Executive.
Executive shall report on all operations and other functions solely and directly
to the Xxxxxxxx Board. During the term of the Agreement, and excluding any
periods of disability, vacation, or sick leave to which Executive is entitled,
Executive agrees to devote his full attention and time to the business and
affairs of Xxxxxxxx.
2. Compensation.
(a) Base Compensation. Xxxxxxxx shall pay Executive, in accordance
with the normal payroll practices of Xxxxxxxx, an annual base salary at the rate
of $825,000 per year ("Base Salary"). Base Salary shall be reviewed at least
annually and may be increased (but not decreased) from time to time as shall be
determined by the Xxxxxxxx Board. Any increase in Base Salary shall not limit or
reduce any other obligation of Xxxxxxxx to Executive under this Agreement. Once
Base Salary shall have been increased, it shall be treated for all purposes of
this Agreement as Executive's Base Salary. Base Salary shall not be decreased at
any time without the express written consent of Executive. (b) Incentive
Compensation. For the year 2002 and the six months ending June 30, 2003,
Executive shall not be entitled to participate in any Xxxxxxxx incentive
compensation plan.
3. Benefits and Stock Ownership.
(a) Benefits. During the period of his employment hereunder,
Xxxxxxxx shall provide Executive with coverage under such benefit plans and
programs as are made generally available to similarly situated employees of
Xxxxxxxx, provided (i) Xxxxxxxx shall have no
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obligation with respect to any plan or program if Executive is not eligible for
coverage thereunder, and (ii) Executive acknowledges that stock options and
other stock and equity participation awards are granted in the discretion of the
Xxxxxxxx Board or the Compensation Committee of the Xxxxxxxx Board and that
Executive has no right to receive stock options or other equity participation
awards or any particular number or level of stock options or other awards. In
determining contributions, coverage and benefits under any disability insurance
policy and under any cash compensation-based plan provided to Executive by
Xxxxxxxx, it should be assumed that the value of Executive's annual compensation
pursuant to this Agreement is 175% of Executive's Base Salary. Executive
acknowledges that all rights and benefits under benefit plans and programs shall
be governed by the official text of each such plan or program and not by any
summary or description thereof or any provision of this Agreement (except to the
extent this Agreement expressly modifies such benefit plans or programs) and
that Xxxxxxxx is not under any obligation to continue in effect or to fund any
such plan or program, except as provided in Paragraphs 4(e) and 7 hereof.
Xxxxxxxx also shall reimburse Executive for ordinary and necessary travel and
other business expenses in accordance with policies and procedures established
by Xxxxxxxx.
(b) Stock Ownership. During the period of his employment hereunder,
Executive shall retain ownership in himself or in members of his immediate
family of at least a majority of the number of shares of (i) Xxxxxxxx stock
received by Executive or members of his immediate family in the Spin-off
Distribution, and (ii) Xxxxxxxx stock acquired upon the exercise of stock
options, but excluding from such number of shares any such shares transferred to
Xxxxxxxx or sold to pay the purchase price upon the exercise of stock options or
to pay or satisfy tax obligations resulting from such exercise.
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4. Termination.
(a) Termination by Executive. Executive may terminate this
Agreement and his employment hereunder by at least thirty (30) calendar days
advance written notice to Xxxxxxxx.
(b) Death or Disability. This Agreement and Executive's employment
hereunder shall terminate automatically on the death or disability of Executive,
except to the extent employment is continued under Xxxxxxxx'x disability plan.
For purposes of this Agreement, Executive shall be deemed to be disabled if he
qualifies for disability benefits under Xxxxxxxx'x long-term disability plan.
(c) Termination by Xxxxxxxx for Cause.
(i) Subject to the provisions of Paragraph 4(c)(ii), Xxxxxxxx
may terminate this Agreement and Executive's employment for Cause (as defined
below). For purposes of this Agreement (except for Paragraph 7), termination for
"Cause" shall mean termination based upon any one or more of the following:
(A) Executive's willful or intentional material breach
of his material obligations under this Agreement;
(B) Executive's commission of a felony;
(C) willful or intentional material misconduct by
Executive in the performance of his duties under this Agreement;
(D) Executive's commission of a misdemeanor involving
fraud, dishonesty or moral turpitude; or
(E) the willful or intentional failure by Executive to
materially comply (to the best of his ability) with a specific, written
direction of the Xxxxxxxx Board that is not inconsistent with this Agreement and
Executive's responsibilities hereunder,
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provided that such refusal or failure (1) is not cured to the best of
Executive's ability within ten (10) business days after the delivery of such
direction to Executive, and (2) is not based on Executive's good faith belief,
as expressed by written notice to the Xxxxxxxx Board given within such ten (10)
business day period, that the implementation of such direction of the Xxxxxxxx
Board would be unlawful or unethical.
(ii) Executive's employment may not be terminated for Cause
unless:
(A) Xxxxxxxx provides Executive with written notice (the
"Notice of Consideration") of its intent to consider the termination of
Executive's employment for Cause, including a detailed description of the
specific reasons which form the basis for such consideration;
(B) on a date not less than thirty (30) calendar days
after the date Executive receives the Notice of Consideration, Executive shall
have the opportunity to appear before the Xxxxxxxx Board, with or without legal
representation, at Executive's election, to present arguments and evidence on
his own behalf;
(C) the Xxxxxxxx Board by the affirmative vote of at
least seventy-five percent (75%) of its members (excluding Executive as a member
of the Xxxxxxxx Board, and any other member of the Xxxxxxxx Board reasonably
believed to be involved in the events leading the Xxxxxxxx Board to seek to
terminate Executive for Cause), determines at or after the meeting of the
Xxxxxxxx Board, that the actions or inactions of Executive specified in the
Notice of Consideration occurred, that such actions or inactions constitute
Cause, and that Executive's employment should accordingly be terminated for
Cause; and
(D) the Xxxxxxxx Board provides Executive with a written
determination (a "Notice of Termination for Cause") setting forth in specific
detail the
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basis of Executive's termination of employment. The Notice of Termination for
Cause shall not be based upon any reason or reasons other than one or more
reasons set forth in the Notice of Consideration.
If Executive disputes any purported termination of Executive for Cause,
the Xxxxxxxx Board shall have the burden of proof to establish by a
preponderance of the evidence, both (1) its full compliance with the substantive
and procedural requirements of this Paragraph 4(c)(ii) prior to a termination of
employment for Cause, and (2) that Executive's action or inaction specified in
the Notice of Termination for Cause did occur and constituted Cause. If the
Xxxxxxxx Board does not meet such burden of proof, any termination of employment
shall be deemed a termination without Cause for all purposes of this Agreement,
including Executive's entitlement to severance benefits and payments.
If the Xxxxxxxx Board determines by a vote of seventy-five percent
(75%) of its members (excluding Executive as a member of the Xxxxxxxx Board and
any other member of the Xxxxxxxx Board reasonably believed to be involved in the
events leading the Xxxxxxxx Board to seek to terminate Executive for Cause),
that it is in the best interests of Xxxxxxxx to suspend Executive from
performing his duties with respect to Xxxxxxxx under this Agreement pending
resolution of the Notice of Consideration, then Executive shall be suspended
from performing such duties, and such suspension shall not be considered to
constitute Good Reason or a breach of this Agreement on the part of Xxxxxxxx;
provided however, that the obligations (including payments of compensation to
Executive) of Xxxxxxxx and of Executive under this Agreement, other than
Executive's obligations under Paragraph 1 hereof, shall continue in full force
and effect during such period of suspension.
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(d) Termination by Xxxxxxxx Other than for Cause or by Executive
for Good Reason.
(i) Xxxxxxxx may terminate this Agreement and Executive's
employment other than for Cause immediately upon notice to Executive, or
Executive may terminate this Agreement and Executive's employment for Good
Reason (as defined in Paragraph 4(d)(iii) below) upon notice to Xxxxxxxx in
accordance with the provisions of Paragraph 4(d)(iv), and in any such event,
Xxxxxxxx shall provide severance benefits to Executive in accordance with
Paragraph 4(d)(ii) below (unless Paragraph 4(e) applies).
(ii) Unless the provisions of Paragraph 7 of this Agreement
are applicable, if Executive's employment is terminated under Paragraph 4(d)(i),
Xxxxxxxx (a) shall pay as soon as reasonably possible but not later than thirty
(30) calendar days after Executive's termination date, a lump sum amount in
immediately available funds equal to the product (discounted to the then present
value on the basis of a rate of five percent (5%) per annum) of (A) 175% of Base
Salary multiplied by (B) two, and, (b) for this two-year period, to reimburse
Executive for the cost (including state and federal income taxes payable with
respect to this reimbursement) of continuing the health insurance coverage
provided pursuant to this Agreement or obtaining health insurance coverage
comparable to the health insurance provided pursuant to this Agreement, and
obtaining coverage comparable to the life insurance provided pursuant to this
Agreement, unless Executive is provided comparable health or life insurance
coverage in connection with other employment. The foregoing obligations of
Xxxxxxxx shall continue until the end of such two (2) year period
notwithstanding the death or disability of Executive during said period (except,
in the event of death, the obligation to reimburse Executive for the cost of
life insurance shall not continue). In addition, Xxxxxxxx shall use its best
efforts to cause
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all outstanding options held by Executive under any stock option plan of
Xxxxxxxx or its affiliates to become immediately exercisable on the termination
date, and such options shall remain exercisable through the earlier to occur of
(1) five (5) years after the termination date, or (2) the expiration of the term
of the options. To the extent that such options are not vested and are
subsequently forfeited, Executive shall receive a lump-sum cash payment within
five (5) business days after the options are forfeited equal to the difference
between the fair market value of the shares of stock subject to the non-vested,
forfeited options determined as of the date such options are forfeited and the
exercise price for such options. In the year in which termination of employment
occurs, Executive shall be eligible to receive benefits under the Xxxxxxxx
Incentive Compensation Plan and the Xxxxxxxx Executive Plan (if such Plans then
are in existence and Executive was entitled to participate immediately prior to
termination) in accordance with the provisions of such plans then applicable,
and severance pay received in such year shall be taken into account for the
purpose of determining benefits, if any, under the Xxxxxxxx Incentive
Compensation Plan but not under the Xxxxxxxx Executive Plan. After the year in
which termination occurs, Executive shall not be entitled to accrue or receive
benefits under the Xxxxxxxx Incentive Compensation Plan or the Xxxxxxxx
Executive Plan with respect to the severance pay provided herein,
notwithstanding that benefits under the Xxxxxxxx Incentive Compensation Plan or
the Xxxxxxxx Executive Plan with respect to the severance pay provided herein
are still generally available to executive employees of Xxxxxxxx. After
termination of employment, Executive shall not be entitled to accrue or receive
benefits under any other employee benefit plan or program, except that Executive
shall be entitled to participate in the Xxxxxxxx Employee Stock Ownership Plan
and the Xxxxxxxx Section 401(k) Plan with Profit Sharing Plan Portion in the
year of termination of
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employment only if Executive meets all requirements of such plans for
participation in such year.
(iii) "Good Reason" means the occurrence of any one of the
following events unless Executive specifically consents in writing that such
event shall not be Good Reason:
(A) any material breach of this Agreement by Xxxxxxxx of
any of its material obligations under this Agreement, including any of the
following occurrences which shall be deemed to constitute a material breach of
Xxxxxxxx'x material obligations:
(1) failure to pay Base Salary as required by Paragraph
2(a); or
(2) any material adverse change in the status, position,
responsibilities, and duties of Executive as compared to
Executive's status, position, responsibilities, and
duties as set forth in Paragraph 1,
(B) the failure of Xxxxxxxx to assign this Agreement to
a successor, or the failure of such successor to explicitly assume and agree to
be bound by this Agreement,
(C) Xxxxxxxx'x requiring Executive to be principally
based at any office or location that is more than forty (40) miles from the
office or location where Executive was located as of the Effective Date,
(D) the Xxxxxxxx Board gives a Notice of Consideration
pursuant to Paragraph 4(c)(ii) (of the intent to consider terminating Executive
for Cause) and fails within a period of ninety (90) calendar days thereafter to
terminate Executive for Cause
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in compliance with all the substantive and procedural requirements of Paragraph
4(c)(ii), or
(E) after the Restructuring Date (as defined in
Paragraph 4(e)(i)), any material adverse change in the status, position,
responsibilities and duties of Executive as a member of the group of Xxxxxxxx
employees designated to effect the transition of Xxxxxxxx'x ongoing matters and
duties to other Company executives as part of the Restructuring (as defined in
Paragraph 4(e)(1)) ("Transition Team Members") until December 31, 2003.
Executive's position as a Transition Team Member is as non-executive Chairman of
the Board, and the responsibilities and duties associated with that position are
those of the Chairman of the Board of Directors.
(iv) Executive's termination of employment shall not be
considered to be for Good Reason unless:
(A) not more than ninety (90) calendar days after the
occurrence (or, if later, not more than ninety (90) calendar days after
Executive becomes aware) of the event or events alleged to constitute Good
Reason, Executive provides Xxxxxxxx with written notice (the "Notice of Good
Reason") of his intent to consider termination for Good Reason, including a
detailed description of the specific reasons which form the basis for such
consideration, and demanding that such event or events be cured not later than
ten (10) business days after Xxxxxxxx receives the Notice of Good Reason (the
"Cure Period");
(B) Xxxxxxxx shall have failed to cure such event or
events during the Cure Period; and
(C) not more than ninety (90) calendar days following
the expiration of the Cure Period, Executive shall have given Xxxxxxxx a second
notice (a
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"Notice of Termination for Good Reason") stating that such cure has not occurred
and that, as a result, Executive is terminating his employment for Good Reason
on the date (after the end of the Cure Period) specified in the Notice of
Termination for Good Reason. A Notice of Termination for Good Reason shall not
be based upon any reason or reasons other than one or more reasons set forth in
the Notice of Good Reason.
(e) Termination due to the Restructuring of Xxxxxxxx pursuant
to that certain Agreement and Plan of Merger dated August 30, 2002.
(i) If Xxxxxxxx terminates Executive's employment other
than for Cause, or Executive terminates his employment
hereunder for Good Reason as defined in Paragraph 4(d)(ii)
hereof, in connection with the restructuring of Xxxxxxxx (a
"Restructuring Termination") as contemplated by that
certain Agreement and Plan of Merger dated August 30, 2002
between Xxxxxxxx and Janus Capital Corporation (the
"Restructuring"), then Xxxxxxxx shall pay or provide to
Executive severance and retention benefits pursuant to the
Severance and Retention Policy adopted and approved by the
Xxxxxxxx Organization and Compensation Committee on August
21, 2002, as described in detail on Exhibit A to this
Agreement ("Restructuring Severance and Retention Benefits").
The effective date of the Restructuring, which is expected to
be on or around December 31, 2002, shall be the Restructuring
Date. Any termination of Executive's employment by Xxxxxxxx
prior to or within three years after the Restructuring Date
and any termination by Executive for Good Reason within three
years after the Restructuring Date shall be conclusively
deemed to be a Restructuring Termination. However, if within
on year of the Restructuring Date Executive should become a
permanent, full-time employee of Janus or any of its
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50% or more owned affiliates, Executive shall not receive the
severance portion of the Restructuring Severance and
Retention Benefits. If any such benefits shall have been paid
to Executive prior to the time of such employment with Janus
or any of its 50% or more owned affiliates, Executive shall
return the full amount of any such severance benefits so
received to the Company.
(ii) Unless Executive should voluntarily terminate his
employment with Xxxxxxxx before December 31, 2003, Executive
shall continue to receive his Base Salary and Benefits
described in Paragraph 3 through December 31, 2003.
(iii) Upon the Restructuring Date, Paragraphs 1 and 3(b)
of this Agreement shall be of no further force or effect, and
Executive shall serve as non-executive Chairman of the Board
of the Company until December 31, 2003 and then solely as a
Director of the Company until December 31, 2004. Such changes
shall not constitute Good Reason under Paragraph 4(d)(iii)
(A)(2) or 4(d)(iii)(E).
5. Non-Disclosure and Non-Compete.
(a) Non-Disclosure. During the term of this Agreement and at all
times after any termination of this Agreement, Executive shall not, either
directly or indirectly, use or disclose any Xxxxxxxx Trade Secret, except to the
extent necessary for Executive to perform his duties for Xxxxxxxx while an
employee. For purposes of this Agreement, the term "Xxxxxxxx Trade Secret" shall
mean any information regarding the business or activities of Xxxxxxxx or any
subsidiary or affiliate, including any formula, pattern, compilation, program,
device, method, technique, process, customer list, technical information or
other confidential or proprietary information, that (a) derives independent
economic value, actual or potential, from not being
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generally known to, and not being readily ascertainable by proper means by,
other persons who can obtain economic value from its disclosure or use, and (b)
is the subject of efforts of Xxxxxxxx or its subsidiary or affiliate that are
reasonable under the circumstance to maintain its secrecy. In the event of any
breach of this Paragraph 5 by Executive, Xxxxxxxx shall be entitled to terminate
any and all remaining severance benefits under Paragraphs 4(d)(ii) and shall be
entitled to pursue such other legal and equitable remedies as may be available.
(b) Non-Compete. Following termination of this Agreement for a
period ending three (3) years after the last payment of salary or severance pay
to Executive, Executive shall not, directly or indirectly, as an individual,
consultant, employer, employee, officer, director, advisory director, principal,
agent, partner, member, stockholder (except non-controlling holdings of stock of
not more than 2% of a publicly traded company) or otherwise, (i) engage in a
business in competition with any business conducted by Xxxxxxxx or any
subsidiary of Xxxxxxxx at any time within five (5) years preceding the
commencement of the period of non-compete provided herein or any business which
Xxxxxxxx or any of its subsidiaries was actively considering for ownership or
conduct during the aforesaid five (5) year period, or (ii) participate in
management of any holding company owning, directly or indirectly, more than 5%
of any such business. Executive acknowledges that certain subsidiaries of
Stilwell now conduct business throughout the United States and in foreign
countries, and agrees that this non-compete shall apply in all countries and
jurisdictions in which Xxxxxxxx or any of its subsidiaries conduct business or
were actively considering conducting business during the aforesaid five (5) year
period.
6. Duties Upon Termination; Survival.
(a) Duties. Upon termination of this Agreement by Xxxxxxxx or
Executive for any reason, Executive shall immediately return to Xxxxxxxx all
Xxxxxxxx Trade Secrets which exist
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in tangible form and shall sign such written resignations from all positions as
an officer, director or member of any committee or board of Xxxxxxxx and all
direct and indirect subsidiaries and affiliates of Xxxxxxxx as may be requested
by Xxxxxxxx and shall sign such other documents and papers relating to
Executive's employment, benefits and benefit plans as Xxxxxxxx may reasonably
request.
(b) Survival. The provisions of Paragraphs 5, 6(a) and 7 of this
Agreement shall survive any termination of this Agreement by Xxxxxxxx or
Executive, the provisions of Paragraph 4(d)(ii) shall survive any termination of
this Agreement by Xxxxxxxx or Executive under Paragraph 4(d)(i) and the
provisions of Paragraph 4(e)(ii) shall survive any termination of this Agreement
by Xxxxxxxx or Executive under Paragraph 4(e)(i).
7. Continuation of Employment Upon Change in Control of Xxxxxxxx.
(a) Continuation of Employment. Subject to the terms and
conditions of this Paragraph 7, in the event of a Change in Control (as defined
in Paragraph 7(d)) at any time during the term of this Agreement, Executive
agrees to remain in the employ of Xxxxxxxx for a period of three (3) years (the
"Three-Year Period") from the date of such Change in Control (the "Control
Change Date"). Xxxxxxxx agrees to continue to employ Executive for the
Three-Year Period. During the Three-Year Period, (i) Executive's position
(including offices, titles, reporting requirements and responsibilities),
authority and duties shall be at least commensurate in all material respects
with the most significant of those held, exercised and assigned at any time
during the twelve (12) calendar month period immediately before the Control
Change Date and (ii) Executive's services shall be performed at the location
where Executive was employed immediately before the Control Change Date or at
any other location less than 40 miles from such former location. During the
Three-Year Period, Xxxxxxxx shall continue to pay to Executive
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Base Salary on the same basis and at the same intervals as in effect immediately
prior to the Control Change Date.
(b) Benefits. During the Three-Year Period, Executive shall be
entitled to participate, on the basis of his executive position, in each of the
following Xxxxxxxx plans (together, the "Specified Benefits") in existence, and
in accordance with the terms thereof, at the Control Change Date:
(i) any benefit plan, and trust fund associated therewith,
related to (a) life, health, dental, disability, accidental death and
dismemberment insurance or accrued but unpaid vacation time, (b) profit
sharing, thrift or deferred savings (including deferred compensation,
such as under Section 401(k) plans), (c) retirement or pension
benefits, (d) ERISA excess benefits and similar plans and (e) tax
favored employee stock ownership (such as under ESOP, and Employee
Stock Purchase programs); and
(ii) any other benefit plans hereafter made generally
available to executives of Executive's level or to the employees of
Xxxxxxxx generally.
In addition, Xxxxxxxx shall use its best efforts to cause all
outstanding options held by Executive under any stock option plan of Xxxxxxxx or
its affiliates to become immediately exercisable on the Control Change Date, and
such options shall remain exercisable through the earlier to occur of (1) five
(5) years after the Control Change Date, or (2) the expiration of the term of
the options. To the extent that such options are not vested and are subsequently
forfeited, Executive shall receive a lump-sum cash payment within five (5)
business days after the options are forfeited equal to the difference between
the fair market value of the shares of stock subject to the non-vested,
forfeited options determined as of the date such options are forfeited and the
exercise price for such options. During the Three-Year Period Executive shall be
entitled to participate, on the basis of his executive position, in any
incentive compensation
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plan of Xxxxxxxx in accordance with the terms thereof at the Control Change
Date; provided that if under Xxxxxxxx programs or Executive's employment
agreement in existence immediately prior to the Control Change Date, there are
written limitations on participation for a designated time period in any
incentive compensation plan, such limitations shall continue after the Control
Change Date to the extent so provided for prior to the Control Change Date.
If the amount of contributions or benefits with respect to the
Specified Benefits or any incentive compensation is determined on a
discretionary basis under the terms of the Specified Benefits or any incentive
compensation plan immediately prior to the Control Change Date, the amount of
such contributions or benefits during the Three-Year Period for each of the
Specified Benefits shall not be less than the average annual contributions or
benefits for each Specified Benefit for the three plan years ending prior to the
Control Change Date and, in the case of any incentive compensation plan, the
amount of the incentive compensation during the Three-Year Period shall not be
less than 75% of the maximum that could have been paid to Executive under the
terms of the incentive compensation plan.
(c) Payment. With respect to any plan or agreement under which
Executive would be entitled at the Control Change Date to receive Specified
Benefits or incentive compensation as a general obligation of Xxxxxxxx which has
not been separately funded (including specifically, but not limited to, those
referred to under Paragraph 7(b)(i) and (ii) above), Executive shall receive
within five (5) business days after such date full payment in cash (discounted
to the then present value on the basis of a rate of seven percent (7%) per
annum) of all amounts to which he is then entitled thereunder.
(d) Change in Control. Except as provided in the last sentence of
this Paragraph 7(d), for purposes of this Agreement, a "Change in Control" means
any one or more of the following:
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(i) the acquisition or holding by any person, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934 (the "Exchange Act"), other than by Xxxxxxxx or any Subsidiary (as
defined below), or any employee benefit plan of Xxxxxxxx or a Subsidiary (and
other than by KCSI prior to the Spin-off Distribution), of beneficial ownership
(within the meaning of Rule 13d-3 under the Exchange Act) of 20% or more of the
then-outstanding common stock or the combined voting power of the
then-outstanding voting securities ("Voting Power") of Xxxxxxxx; provided,
however, that no Change in Control shall occur solely by reason of any such
acquisition by a corporation with respect to which, after such acquisition, more
than 60% of both the then-outstanding common shares and the then-outstanding
Voting Power of such corporation are then beneficially owned, directly or
indirectly, by the persons who were the beneficial owners of the
then-outstanding common stock and Voting Power of Xxxxxxxx immediately before
such acquisition, in substantially the same proportions as their respective
ownership, immediately before such acquisition, of the then-outstanding common
stock and Voting Power of Xxxxxxxx; or
(ii) individuals who, as of the date of the Spin-off
Distribution, constitute the Xxxxxxxx Board (the "Incumbent Board") cease for
any reason to constitute at least 75% of the Xxxxxxxx Board; provided that
any individual who becomes a director after the Spin-off Distribution whose
election or nomination for election by the stockholders of Xxxxxxxx was approved
by at least 75% of the Incumbent Board (other than an election or nomination of
an individual whose initial assumption of office is in connection with an actual
or threatened "election contest" relating to the election of the directors of
Xxxxxxxx (as such terms are used in Rule 14a-11 under the Exchange Act) or
"tender offer" (as such term is used in Section 14(d) of the Exchange Act) or a
proposed
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Extraordinary Transaction (as defined below)) shall be deemed to be a member of
the Incumbent Board; or
(iii) any one or more of the following:
(A) consummation of a merger, reorganization,
consolidation or similar transaction (any of the foregoing, an "Extraordinary
Transaction") with respect to which persons who were the respective beneficial
owners of the then-outstanding common stock and Voting Power of Xxxxxxxx
immediately before such Extraordinary Transaction would not beneficially own,
directly or indirectly, more than 60% of both the then-outstanding common shares
and the then-outstanding Voting Power of the corporation resulting from such
Extraordinary Transaction, in substantially the same relative proportions as
their respective ownership, immediately before such Extraordinary Transaction,
of the then-outstanding common stock and Voting Power of Xxxxxxxx,
(B) approval by the shareholders of Xxxxxxxx of a
liquidation or dissolution of Xxxxxxxx, or
(C) consummation of a sale or other disposition of
all or substantially all of the assets of Xxxxxxxx in one transaction or a
series of related transactions; or
(iv) the sale or other disposition by Xxxxxxxx, directly or
indirectly, whether by merger, consolidation, combination, lease, exchange,
spin-off, split-off, or other means, of any Significant Subsidiary or any
reduction in Xxxxxxxx'x direct or indirect beneficial ownership of any
Significant Subsidiary to less than 50% of the Voting Power of such entity.
For purposes of this Agreement, "Subsidiary" shall mean any entity of which at
least 50% of the Voting Power is beneficially owned, directly or indirectly, by
Xxxxxxxx and "Significant
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Subsidiary" shall mean (A) any Subsidiary which contributed 30% or more of the
total combined revenues of Xxxxxxxx and all Subsidiaries for the prior calendar
year, and (B) any one or more entities, businesses or groups of assets directly
or indirectly sold or disposed of by Xxxxxxxx (within the meaning of paragraph
7(d)(iv)) within any two (2) year period that contributed 30% or more of such
total combined revenues or would have contributed such 30% based on revenues of
such entities, businesses or groups of assets for the calendar year prior to
their sale or disposition. Notwithstanding the foregoing provisions of this
Paragraph 7(d) to the contrary, the Spin-off Distribution shall not constitute a
Change in Control.
(e) Termination After Control Change Date. Notwithstanding any other
provision of this Paragraph 7, at any time after the Control Change Date,
Xxxxxxxx may terminate the employment of Executive (the "Termination"), but
unless such Termination is for Cause as defined in subparagraph (g) or for
disability, within five (5) business days of the Termination Xxxxxxxx shall pay
to Executive his full Base Salary through the Termination, to the extent not
theretofore paid, plus a lump sum amount (the "Special Severance Payment") equal
to the product (discounted to the then present value on the basis of a rate of
five percent (5%) per annum) of (i) 175% of Base Salary specified in Paragraph
7(a) multiplied by (ii) three, and Specified Benefits (excluding any incentive
compensation) to which Executive was entitled immediately prior to Termination
shall continue until the end of the three (3) year period ("Benefits Period")
beginning on the date of Termination. If any plan pursuant to which Specified
Benefits are provided immediately prior to Termination would not permit
continued participation by Executive after Termination, then Xxxxxxxx shall pay
to Executive within five (5) business days after Termination a lump sum payment
equal to the amount of Specified Benefits Executive would have received under
such plan if Executive had been fully vested in the average annual contributions
or benefits in effect for the three plan years ending prior to the Control
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Change Date (regardless of any limitations based on the earnings or performance
of Xxxxxxxx) and a continuing participant in such plan to the end of the
Benefits Period. Following the end of the Benefits Period, Xxxxxxxx shall
continue to provide to Executive and Executive's family the following benefits
("Post-Period Benefits"): (1) prior to Executive's attainment of age sixty (60),
health, prescription and dental benefits equivalent to those then applicable to
active peer executives of Xxxxxxxx and their families, as the same may be
modified from time to time, and (2) following Executive's attainment of age
sixty (60) (and without regard to Executive's period of service with Xxxxxxxx),
health and prescription benefits equivalent to those then applicable to retired
peer executives of Xxxxxxxx and their families, as the same may be modified from
time to time. The cost to Executive of such Post-Period Benefits shall not
exceed the cost of such benefits to active or retired (as applicable) peer
executives, as the same may be modified from time to time. Notwithstanding the
preceding two sentences of this Paragraph 7(e), if Executive is covered under
any health, prescription or dental plan provided by a subsequent employer, then
the corresponding type of plan coverage (i.e., health, prescription or dental)
required to be provided as Post-Period Benefits under this Paragraph 7(e) shall
cease. Executive's rights under this Paragraph 7(e) shall be in addition to, and
not in lieu of, any post-termination continuation coverage or conversion rights
Executive may have pursuant to applicable law, including without limitation
continuation coverage required by Section 4980B of the Internal Revenue Code
(the "Code"). Nothing in this Paragraph 7(e) shall be deemed to limit in any
manner the reserved right of Xxxxxxxx, in its sole and absolute discretion, to
at any time amend, modify or terminate health, prescription or dental benefits
for active or retired employees generally.
(f) Resignation After Control Change Date. In the event of a Change
in Control as defined in Paragraph 7(d), thereafter, upon Good Reason (as
defined below), Executive may, at any time during the three (3) year period
following the Change in Control,
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subject to the provisions of this Paragraph 7(f), terminate his employment with
Xxxxxxxx (the "Resignation"). Within five (5) business days of such a
Resignation, Xxxxxxxx shall pay to Executive his full Base Salary through the
effective date of such Resignation, to the extent not theretofore paid, plus a
lump sum amount equal to the Special Severance Payment (computed as provided in
the first sentence of Paragraph 7(e), except that for purposes of such
computation all references to "Termination" shall be deemed to be references to
"Resignation"). Upon Resignation of Executive, Specified Benefits to which
Executive was entitled immediately prior to Resignation shall continue on the
same terms and conditions as provided in Paragraph 7(e) in the case of
Termination (including equivalent payments provided for therein), and
Post-Period Benefits shall be provided on the same terms and conditions as
provided in Paragraph 7(e) in the case of Termination. For purposes of Paragraph
7, "Good Reason" means the occurrence of any of the events enumerated in
Paragraph 4(d)(iii) of this Agreement, or any of the following events, subject
to the provisions of Paragraph 4(d)(iv), except that the provisions of Paragraph
4(d)(iv) shall not apply if twelve (12) calendar months have lapsed after the
date of the occurrence (or if later, after Executive becomes aware) of the event
or events alleged to constitute Good Reason, and in any case, the provisions of
Paragraph 4(d)(iv) shall not apply to clause (iii) below of this Paragraph 7(f):
(i) a material reduction or elimination of any component of
Executive's incentive payment, benefits or perquisites which Executive
was receiving immediately prior to a Change in Control;
(ii) any failure by Xxxxxxxx to comply with any of the
provisions of Paragraph 7; or
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(iii) a termination of employment by Executive for any reason
or no reason during the sixty (60) calendar day period commencing
twelve (12) calendar months after the Control Change Date.
(g) Termination for Cause After Control Change Date. Notwithstanding
any other provision of this Paragraph 7, at any time after the Control Change
Date, Executive may be terminated by Xxxxxxxx for Cause subject to Xxxxxxxx'x
compliance with the provisions of Paragraph 4(c)(ii). "Cause" shall have the
meaning set forth in Paragraph 4(c)(i), except that Cause shall not mean:
(i) bad judgment or negligence;
(ii) any act or omission believed by Executive in good faith
to have been in or not opposed to the interest of Xxxxxxxx (without
intent of Executive to gain, directly or indirectly, a profit to which
Executive was not legally entitled);
(iii) any act or omission with respect to which a
determination could properly have been made by the Xxxxxxxx Board that
Executive met the applicable standard of conduct for indemnification or
reimbursement under Xxxxxxxx'x by-laws, any applicable indemnification
agreement, or applicable law, in each case in effect at the time of
such act or omission; or
(iv) any act or omission of which any member of the Xxxxxxxx
Board who is not a party to the act or omission has had actual
knowledge for at least six (6) calendar months.
(h) Gross-up for Certain Taxes. If it is determined (by the
reasonable computation of Xxxxxxxx'x independent auditors, which determinations
shall be certified to by such auditors and set forth in a written certificate
("Certificate") delivered to Executive) that any benefit received or deemed
received by Executive from Xxxxxxxx pursuant to this Agreement or
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otherwise (collectively, the "Payments") is or will become subject to any excise
tax under Section 4999 of the Code or any similar tax payable under any United
States federal, state, local or other law (such excise tax and all such similar
taxes collectively, "Excise Taxes"), then Xxxxxxxx shall, immediately after such
determination, pay Executive an amount (the "Gross-up Payment") equal to the
product of:
(i) the amount of such Excise Taxes; multiplied by
(ii) the Gross-up Multiple (as defined in Paragraph 7(k)).
The Gross-up Payment is intended to compensate Executive for
the Excise Taxes and any federal, state, local or other income or
excise taxes or other taxes payable by Executive with respect to the
Gross-up Payment. Xxxxxxxx shall cause the preparation and delivery to
Executive of a Certificate upon request at any time.
Xxxxxxxx shall, in addition to complying with this Paragraph
7(h), cause all determinations and certifications under Paragraphs
7(h)-(o) to be made as soon as reasonably possible and in adequate time
to permit Executive to prepare and file Executive's individual tax
returns on a timely basis.
(i) Determination by Executive.
(i) If Xxxxxxxx shall fail (a) to deliver a Certificate to
Executive or (b) to pay to Executive the amount of the Gross-up
Payment, if any, within fourteen (14) calendar days after receipt from
Executive of a written request for a Certificate, or if at any time
following receipt of a Certificate Executive disputes the amount of the
Gross-up Payment set forth therein, Executive may elect to demand the
payment of the amount which Executive, in accordance with an opinion of
counsel to Executive ("Executive Counsel Opinion"), determines to be
the Gross-up Payment. Any such demand by
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Executive shall be made by delivery to Xxxxxxxx of a written notice
which specifies the Gross-up Payment determined by Executive and an
Executive Counsel Opinion regarding such Gross-up Payment (such written
notice and opinion collectively, the "Executive's Determination").
Within fourteen (14) calendar days after delivery of the Executive's
Determination to Xxxxxxxx, Xxxxxxxx shall either (a) pay Executive the
Gross-up Payment set forth in the Executive's Determination (less the
portion of such amount, if any, previously paid to Executive by
Xxxxxxxx) or (b) deliver to Executive a Certificate specifying the
Gross-up Payment determined by Xxxxxxxx'x independent auditors,
together with an opinion of Xxxxxxxx'x counsel ("Xxxxxxxx Counsel
Opinion"), and pay Executive the Gross-up Payment specified in such
Certificate. If for any reason Xxxxxxxx fails to comply with clause (b)
of the preceding sentence, the Gross-up Payment specified in the
Executive's Determination shall be controlling for all purposes.
(ii) If Executive does not make a request for, and Xxxxxxxx
does not deliver to Executive, a Certificate, Xxxxxxxx shall, for
purposes of Paragraph 7(j), be deemed to have determined that no
Gross-up Payment is due.
(j) Additional Gross-up Amounts. If, despite the initial conclusion
of Xxxxxxxx and/or Executive that certain Payments are neither subject to Excise
Taxes nor to be counted in determining whether other Payments are subject to
Excise Taxes (any such item, a "Non-Parachute Item"), it is later determined
(pursuant to subsequently-enacted provisions of the Code, final regulations or
published rulings of the Internal Revenue Service (the "IRS"), final IRS
determination or judgment of a court of competent jurisdiction or Xxxxxxxx'x
independent auditors) that any of the Non-Parachute Items are subject to Excise
Taxes, or are to be counted in determining whether any Payments are subject to
Excise Taxes, with the result that the amount of Excise Taxes payable by
Executive is greater than the amount determined by Xxxxxxxx or
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Executive pursuant to Paragraph 7(h) or Paragraph 7(i), as applicable, then
Xxxxxxxx shall pay Executive an amount (which shall also be deemed a Gross-up
Payment) equal to the product of:
(i) the sum of (a) such additional Excise Taxes and (b) any
interest, fines, penalties, expenses or other costs incurred by
Executive as a result of having taken
(ii) a position in accordance with a determination made
pursuant to Paragraph 7(h); multiplied by
(iii) the Gross-up Multiple.
(k) Gross-up Multiple. The Gross-up Multiple shall equal a fraction,
the numerator of which is one (1.0), and the denominator of which is one (1.0)
minus the sum, expressed as a decimal fraction, of the rates of all federal,
state, local and other income and other taxes and any Excise Taxes applicable to
the Gross-up Payment; provided that, if such sum exceeds 0.8, it shall be deemed
equal to 0.8 for purposes of this computation. (If different rates of tax are
applicable to various portions of a Gross-up Payment, the weighted average of
such rates shall be used.)
(l) Opinion of Counsel. "Executive Counsel Opinion" means a legal
opinion of nationally recognized executive compensation counsel that there is a
reasonable basis to support a conclusion that the Gross-up Payment determined by
Executive has been calculated in accordance with this Paragraph 7 and applicable
law. "Xxxxxxxx Counsel Opinion" means a legal opinion of nationally recognized
executive compensation counsel that (i) there is a reasonable basis to support a
conclusion that the Gross-up Payment set forth in the Certificate of Xxxxxxxx'x
independent auditors has been calculated in accordance with this Paragraph 7 and
applicable law, and (ii) there is no reasonable basis for the calculation of the
Gross-up Payment determined by Executive.
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(m) Amount Increased or Contested. Executive shall notify Xxxxxxxx
in writing of any claim by the IRS or other taxing authority that, if
successful, would require the payment by Xxxxxxxx of a Gross-up Payment. Such
notice shall include the nature of such claim and the date on which such claim
is due to be paid. Executive shall give such notice as soon as practicable, but
no later than ten (10) business days, after Executive first obtains actual
knowledge of such claim; provided, however, that any failure to give or delay in
giving such notice shall affect Xxxxxxxx'x obligations under this Paragraph 7
only if and to the extent that such failure results in actual prejudice to
Xxxxxxxx. Executive shall not pay such claim less than thirty (30) calendar days
after Executive gives such notice to Xxxxxxxx (or, if sooner, the date on which
payment of such claim is due). If Xxxxxxxx notifies Executive in writing before
the expiration of such period that it desires to contest such claim, Executive
shall:
(i) give Xxxxxxxx any information that it reasonably requests
relating to such claim;
(ii) take such action in connection with contesting such claim
as Xxxxxxxx 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 Xxxxxxxx;
(iii) cooperate with Xxxxxxxx in good faith to contest such
claim; and
(iv) permit Xxxxxxxx to participate in any proceedings
relating to such claim; provided, however, that Xxxxxxxx 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 Executive harmless, on an after-tax basis, for any Excise Tax
or income tax, including related interest and penalties, imposed as a
result of such representation and payment of costs and expenses.
Without limiting the foregoing,
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Xxxxxxxx shall control all proceedings in connection with such contest
and, at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option,
either direct Executive to pay the tax claimed and xxx for a refund or
contest the claim in any permissible manner. Executive agrees to
prosecute such contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as Xxxxxxxx shall determine; provided, however, that
if Xxxxxxxx directs Executive to pay such claim and xxx for a refund,
Xxxxxxxx shall advance the amount of such payment to Executive, on an
interest-free basis and shall indemnify Executive, on an after-tax
basis, for any Excise Tax or income tax, including related interest or
penalties, imposed 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 Executive with respect to which such
contested amount is claimed to be due is limited solely to such
contested amount. Xxxxxxxx'x control of the contest shall be limited to
issues with respect to which a Gross-up Payment would be payable.
Executive shall be entitled to settle or contest, as the case may be,
any other issue raised by the IRS or other taxing authority.
(n) Refunds. If, after the receipt by Executive of an amount
advanced by Xxxxxxxx pursuant to Paragraph 7(m), Executive receives any refund
with respect to such claim, Executive shall (subject to Xxxxxxxx'x complying
with the requirements of Paragraph 7(m)) promptly pay Xxxxxxxx the amount of
such refund (together with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by Executive of an amount advanced by
Xxxxxxxx pursuant to Paragraph 7(m), a determination is made that Executive
shall not be entitled to a full refund with respect to such claim and Xxxxxxxx
does not notify Executive in
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writing of its intent to contest such determination before the expiration of
thirty (30) calendar days after such determination, then the applicable part of
such advance shall be forgiven and shall not be required to be repaid and the
amount of such advance shall offset, to the extent thereof, the amount of
Gross-up Payment required to be paid. Any contest of a denial of refund shall be
controlled by Paragraph 7(m).
(o) Expenses. If any dispute should arise under this Agreement after
the Control Change Date involving an effort by Executive to protect, enforce or
secure rights or benefits claimed by Executive hereunder, Xxxxxxxx shall pay
(promptly upon demand by Executive accompanied by reasonable evidence of
incurrence) all reasonable expenses (including attorneys' fees) incurred by
Executive in connection with such dispute, without regard to whether Executive
prevails in such dispute except that Executive shall repay Xxxxxxxx any amounts
so received if a court having jurisdiction shall make a final, nonappealable
determination that Executive acted frivolously or in bad faith by such dispute.
To assure Executive that adequate funds will be made available to discharge
Xxxxxxxx'x obligations set forth in the preceding sentence, Xxxxxxxx has
established a trust and upon the occurrence of a Change in Control shall
promptly deliver to the trustee of such trust to hold in accordance with the
terms and conditions thereof that sum which the Xxxxxxxx Board shall have
determined is reasonably sufficient for such purpose.
(p) Prevailing Provisions. On and after the Control Change Date, the
provisions of this Paragraph 7 shall control and take precedence over any other
provisions of this Agreement which are in conflict with or address the same or a
similar subject matter as the provisions of this Paragraph 7.
8. Mitigation and Other Employment. After a termination of Executive's
employment pursuant to Paragraphs 4(d)(i), 4(e) or a Change in Control as
defined in
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Xxxxxxxxx 0(x), Xxxxxxxxx shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or otherwise,
and except as otherwise specifically provided in Paragraphs 4(d)(ii) with
respect to health and life insurance and in Paragraphs 4(e)(ii) and 7(e) with
respect to health, prescription and dental benefits, no such other employment,
if obtained, or compensation or benefits payable in connection therewith shall
reduce any amounts or benefits to which Executive is entitled hereunder. Such
amounts or benefits payable to Executive under this Agreement shall not be
treated as damages but as severance compensation to which Executive is entitled
because Executive's employment has been terminated.
9. Payment of Interest. If Xxxxxxxx fails to pay any amount provided under
this Agreement when due, Xxxxxxxx shall pay interest on such amount at a rate
equal to the greater of (A) or (B), where (A) is (i) the highest rate of
interest charged by the lender of Xxxxxxxx for maintaining a revolving line of
credit, or (ii) in the absence of a revolving line of credit, 200 basis points
over the prime commercial lending rate announced by Citibank, N.A. on the date
such amount is due or, if no such rate shall be announced on such date, the
immediately prior date on which Citibank, N.A. announced such a rate, and (B) is
five percent (5%); provided, however, that if the interest rate determined in
accordance with this Paragraph 9 exceeds the highest legally permissible
interest rate, then the interest rate shall be the highest legally-permissible
interest rate.
10. Legal Fees.
(a) If Executive incurs legal, accounting, expert witness or other fees
and expenses in an effort to establish, in connection with any dispute with
Xxxxxxxx, Executive's entitlement to compensation and benefits under this
Agreement, Xxxxxxxx shall, regardless of the outcome of such effort, reimburse
Executive for such fees and expenses, to the extent the
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amounts thereof are reasonable, except to the extent limited by paragraph 10(b).
In addition, Xxxxxxxx shall pay Executive an additional amount in respect to any
federal, state and local income and other taxes ("Taxes") incurred by Executive
with respect to such reimbursement of fees and expenses in an amount such that
after Executive's payment of Taxes on such additional amount, there remains a
balance sufficient to pay the Taxes being reimbursed. Xxxxxxxx shall reimburse
Executive for such fees and expenses on a monthly basis upon Executive's request
for reimbursement accompanied by evidence that the fees and expenses were
incurred.
(b) If Executive's position in such dispute is found in a final order
of a court of competent jurisdiction to have (i) had no reasonable basis and to
have been maintained in bad faith, or (ii) been frivolous, no further
reimbursement for legal fees and expenses shall be due to Executive and
Executive shall refund any amounts previously reimbursed hereunder with respect
to such action.
11. Notice. Notices and all other communications to either party pursuant
to this Agreement shall be in writing and shall be deemed to have been given
when personally delivered, delivered by facsimile or deposited in the United
States mail by certified or registered mail, postage prepaid, addressed, in the
case of Xxxxxxxx, to Xxxxxxxx at 000 Xxxx, 00xx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx
00000, Attention: Corporate Secretary, or, in the case of Executive, to him at
EverGlades Farm, 00000 Xx. Xxxxxx, Xxxxxx Xxxx, XX 00000, or to such other
address as a party shall designate by notice to the other party.
12. Amendment. No provision of this Agreement may be amended, modified,
waived or discharged unless such amendment, waiver, modification or discharge is
agreed to in a writing signed by Executive and Xxxxxxxx. No waiver by any party
hereto at any time of any breach by another party hereto of, or compliance with,
any condition or provision of this Agreement to be
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performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the time or at any prior or subsequent time.
13. Successors in Interest. The rights and obligations of Xxxxxxxx under
this Agreement shall inure to the benefit of and be binding in each and every
respect upon the direct and indirect successors and assigns of Xxxxxxxx,
regardless of the manner in which such successors or assigns shall succeed to
the interest of Xxxxxxxx hereunder, and this Agreement shall not be terminated
by the voluntary or involuntary dissolution of Xxxxxxxx or by any merger or
consolidation or acquisition involving Xxxxxxxx or upon any transfer of all or
substantially all of Xxxxxxxx'x assets, or terminated otherwise than in
accordance with its terms. In the event of any such merger or consolidation or
transfer of assets, the provisions of this Agreement shall be binding upon and
shall inure to the benefit of the surviving corporation or the corporation or
other person to which such assets shall be transferred. Neither this Agreement
nor any of the payments or benefits hereunder may be pledged, assigned or
transferred by Executive either in whole or in part in any manner, without the
prior written consent of Xxxxxxxx.
14. Severability. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted.
15. Controlling Law and Jurisdiction. The validity, interpretation and
performance of this Agreement shall be subject to and construed under the laws
of the State of Missouri, without regard to principles of conflicts of law.
16. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and terminates and
supersedes all other prior agreements and understandings including without
limitation the Prior Agreement, both written
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and oral, between the parties with respect to the terms of Executive's
employment or severance arrangements.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the Effective Date.
XXXXXXXX FINANCIAL INC.
By /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President
EXECUTIVE
/s/ Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx
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