EXHIBIT 10.2
EMPLOYMENT AGREEMENT
by and between
DIAMOND TRIUMPH AUTO GLASS, INC.
and
XXXXXXX X. XXXXXX
Dated as of
October 21, 2004
This EMPLOYMENT AGREEMENT, dated as of _October 21_, 2004, by and
between XXXXXXX X. XXXXXX (the "Employee") and DIAMOND TRIUMPH AUTO GLASS, INC.,
a Delaware corporation (the "Company"). As used herein, the term "Companies"
shall refer to the Company and its existing and future subsidiaries.
The Company desires to engage the Employee to perform services for
the Companies, and the Employee desires to perform such services, on the terms
and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Employment, Term.
The Company will employ the Employee in its business, and the
Employee will work for the Company, for a term commencing as of the date hereof
and ending on December 31, 2005, upon the terms and subject to the conditions
set forth in this Agreement. Such period, including any extensions or renewals
thereof, is referred to herein as the "Employment Period" .
2. Duties.
2.1 During the Employment Period, the Employee shall serve as the
President, Chief Financial Officer, Secretary and General Counsel of the
Company, and perform duties of an executive character consisting of
administrative and managerial responsibilities on behalf of the Companies, and
shall perform such other duties on behalf of the Companies and exercise such
authority as may from time to time reasonably be delegated to the Employee by
the Board of Directors of the Company consistent with his abilities.
2.2 The Employee shall discharge his duties from the Company's
facility in Kingston, Pennsylvania. The Employee shall also engage in such
reasonable travel in furtherance of his duties set forth in Section 2.1, as
shall be reasonably requested by the Company.
3. Devotion of Time.
Throughout the Employment Period, the Employee shall: (a) devote
substantially all of his working time to the business and affairs of the
Companies; (b) faithfully and diligently perform his duties in conformity with
the directions of the Board of Directors of the Company; (c) devote his best
efforts, energy and skill to the services of the Companies and the promotion of
their interests; and not take part in activities known by the Employee to be
detrimental to the best interests of the Companies.
4. Compensation.
4.1 In consideration for the services to be performed by the
Employee during the Employment Period hereunder, the Company shall compensate
the Employee at a base salary of $350,000 per annum (the "Base Salary").
4.2 The Employee shall be eligible to receive, with respect to each
year of the Employment Period, a bonus (the "Bonus"), as set forth in Exhibit A
hereto (the "Bonus Plan").
5. Reimbursement of Expenses; Additional Benefits.
5.1 The Employee shall receive an automobile allowance for the use
of an automobile owned or leased by him in accordance with the policies and
procedures established by the Company from time to time for executive employees.
5.2 The Company shall pay directly, or reimburse the Employee for,
all other reasonable and necessary business expenses and disbursements
(including, but not limited to, professional dues, memberships, publications and
continuing education) incurred by the Employee for or on behalf of the Company
in the performance of his duties under this Agreement. For such purposes, the
Employee shall submit to the Company itemized invoices, statements or written
reports of such expenses in accordance with the policies and procedures
established by the Company from time to time.
5.3 The Employee shall be entitled to paid vacations during the
Employment Period in accordance with the then prevalent practices of the Company
for its senior executives; provided, however, that Employee shall be entitled to
such paid vacations for not less than four (4) weeks per annum.
5.4 During the Employment Period, the Employee shall be entitled to
participate in, and to receive benefits under, such employee benefit plans of
the Company (including, without limitation, pension, profit sharing, bonus,
group life insurance and group medical insurance plans) as may exist from time
to time for the Company's senior executives.
5.5 The Company shall pay directly, or reimburse the Employee for,
housing costs of up to $900 per month for so long as the Employee resides in
northeastern Pennsylvania during the Employment Period.
6. Representations and Warranties of the Employee.
The Employee represents and warrants to the Company that the
Employee is under no contractual or other restriction or obligation which
conflicts with, violates or is inconsistent with the execution of this
Agreement, the performance of his duties hereunder, or the other rights of the
Company hereunder.
7. Non-competition.
During the Employment Period, including any unexpired portion
thereof, the Employee shall not, directly or indirectly, own, manage, operate,
join, control, participate in, invest in or otherwise be connected or associated
with, in any manner, including, without limitation, as an officer, director,
employee, distributor, independent contractor, independent representative,
partner, consultant, advisor, agent, proprietor, trustee or investor, any
Competing Business located in any state or region (including foreign
jurisdictions) where any of the Companies conduct business or is considering
doing business; provided, however, that ownership of 1 % or less of the stock or
other securities of a corporation, the stock of which is
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listed on a national securities exchange or is quoted on The Nasdaq Stock
Market's National Market, shall not constitute a breach of this Section 7, so
long as the Employee does not in fact have the power to control, or direct the
management of, or is not otherwise engaged in activities with, such corporation.
For purposes hereof, the term "Competing Business" shall mean any
business or venture which is engaged, directly or indirectly, in (i) developing,
manufacturing, marketing, selling and/or distributing (including wholesale
distribution) of automobile or truck glass or windshields or other glass
products utilized in vehicles; repairing, replacing or installing automobile or
truck glass or windshields or other glass products utilized in vehicles; or
selling or installing those kinds of automobile or truck accessories sold by any
of the Companies, (ii) any other business engaged in or actively being developed
by any of the Companies, or (iii) any other business which is substantially
similar to the whole or any significant part of the business conducted by the
Companies.
8. No Solicitation.
During the Employment Period, including any unexpired portion
thereof, the Employee shall not, directly or indirectly, including on behalf of,
for the benefit of, or in conjunction with, any other person or entity, (i)
solicit, assist, advise, influence, induce or otherwise encourage in any way,
any employee of any of the Companies to terminate its relationship with any of
the Companies for any reason, nor assist any person or entity in doing so, or
employ, engage or otherwise contract with any employee or former employee of any
of the Companies in a Competing Business or any other business unless such
former employee shall not have been employed by any of the Companies for a
period of at least one year, (ii) interfere in any manner with the relationship
between any employee and any of the Companies or (iii) contact, service or
solicit any existing clients, customers or accounts of any of the Companies on
behalf of a Competing Business, either as an individual on his own account, as
an investor, or as an officer, director, partner, joint venturer, consultant,
employee, agent or salesman of any other person or entity.
9. Confidential Information.
9.1 "Confidential Information" shall mean confidential records and
information, including, but not limited to, development, marketing, purchasing,
organizational, strategic, financial, managerial, administrative, manufacturing,
production, distribution and sales information, distribution methods, data,
specifications and processes (including the Transferred Property as hereinafter
defined) presently owned or at any time hereafter developed by any of the
Companies or its agents or consultants or used presently or at any time
hereafter in the course of the business of any of the Companies, that are not
otherwise part of the public domain.
9.2 The Employee hereby sells, transfers and assigns to the Company,
or to any person or entity designated by the Company, all of his entire right,
title and interest in and to all inventions, ideas, methods, developments,
disclosures and improvements (the "Inventions"), whether patented or unpatented,
and copyrightable material, and all trademarks, all trade names, all goodwill
associated therewith and all federal and state registrations or applications
thereof, made, adopted or conceived by the Employee, solely or jointly, in whole
or in part (collectively,
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the "Transferred Property"), prior to or during the Employment Period which (i)
relate to methods, apparatus, designs, products, processes or devices sold,
leased, used or under construction or development by any of the Companies or
(ii) otherwise relate to or pertain to the business, products, services,
functions or operations of any of the Companies. The Employee shall make
adequate written records of all Inventions, which records shall be the Company's
property, and shall communicate promptly and disclose to the Company, in such
form as the Company requests, all information, details and data pertaining to
the aforementioned Inventions. Whether during the Employment Period or
thereafter, the Employee shall execute and deliver to the Company such formal
transfers and assignments and such other papers and documents as may be required
of the Employee to permit the Company, or any person or entity designated by the
Company, to file and prosecute patent applications (including, but not limited
to, records, memoranda or instruments deemed necessary by the Company for the
prosecution of a patent application or the acquisition of letters patent in the
United States, foreign jurisdictions or otherwise) and, as to copyrightable
material, to obtain copyrights thereon, and as to trademarks, to record the
transfer of ownership of any federal or state registrations or applications.
9.3 All such Confidential Information is considered secret and will
be disclosed to the Employee in confidence, and the Employee acknowledges that,
as a consequence of his employment and position with the Company, the Employee
may have access to and become acquainted with Confidential Information. Except
in the performance of his duties as an employee of the Company, the Employee
shall not, during the Employment Period and at all times thereafter, directly or
indirectly for any reason whatsoever, disclose or use any such Confidential
Information. All records, files, drawings, documents, equipment and other
tangible items, wherever located, relating in any way to or containing
Confidential Information, which the Employee has prepared, used or encountered
or shall in the future prepare, use or encounter, shall be and remain the
Company's sole and exclusive property and shall be included in the Confidential
Information. Upon termination of this Agreement, or whenever requested by the
Company, the Employee shall promptly deliver to the Company any and all of the
Confidential Information and copies thereof, not previously delivered to the
Company, that may be in the possession or under the control of the Employee. The
foregoing restrictions shall not apply to the use, divulgence, disclosure or
grant of access to Confidential Information to the extent, but only to the
extent, (i) expressly permitted or required pursuant to any other written
agreement between the Employee and the Company, (ii) such Confidential
Information has been publicly disclosed (not due to a breach by the Employee of
his obligations hereunder, or by breach of any other person, of a fiduciary or
confidential obligation to any of the Companies) or (iii) the Employee is
required to disclose Confidential Information by or to any court of competent
jurisdiction or any governmental or quasi-governmental agency, authority or
instrumentality of competent jurisdiction; provided, however, that the Employee
shall, prior to any such disclosure, immediately notify the Company of such
requirement and provided further, however, that the Company shall have the
right, at its expense, to object to such disclosures and to seek confidential
treatment of any Confidential Information to be so disclosed on such terms as it
shall determine.
10. Acknowledgement remedies: survival of this Agreement.
10.1 The Employee acknowledges that violation of any of the
covenants and provisions set forth in this Agreement would cause the Company
irreparable damage and agrees
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that the Company's remedies at law for a breach or threatened breach of any of
the provisions of this Agreement would be inadequate and, in recognition of this
fact, in the event of a breach or threatened breach by the Employee of any of
the provisions of this Agreement, it is agreed that, in addition to the remedies
at law or in equity, the Company shall be entitled, without the posting of a
bond, to equitable relief in the form of specific performance, a temporary
restraining order, temporary or permanent injunction, or any other equitable
remedy which may then be available for the purposes of restraining the Employee
from any actual or threatened breach of such covenants. Without limiting the
generality of the foregoing, if the Employee breaches or threatens to breach
Sections 7, 8, or 9 hereof, such breach or threatened breach will entitle the
Company to enjoin the Employee from disclosing any Confidential Information to
any Competing Business, to enjoin any Competing Business from retaining the
Employee or using any such Confidential Information, to enjoin the Employee from
engaging in any activities prohibited by Section 8 hereof and/or to enjoin the
Employee from rendering personal services to or in connection with any Competing
Business. The rights and remedies of the parties hereto are cumulative and shall
not be exclusive, and each such party shall be entitled to pursue all legal and
equitable rights and remedies and to secure performance of the obligations and
duties of the other under this Agreement, and the enforcement of one or more of
such rights and remedies by a party shall in no way preclude such party from
pursuing, at the same time or subsequently, any and all other rights and
remedies available to it.
10.2 The provisions of this Agreement shall survive the termination
of the Employee's employment with the Company.
11. Termination of Employment.
11.1 Termination. The Company may terminate the Employee's
employment for Cause (as hereinafter defined), in which case the provisions of
Section 11.2 shall apply. The Company may also terminate the Employee's
employment in the event of the Employee's death or Disability (as hereinafter
defined), in which case the provisions of Section 11.3 shall apply. The Company
may also terminate the Employee's employment for any other reason by written
notice to the Employee, in which case the provisions of Section 11.4 shall
apply. If the Employee's employment is terminated by reason of the Employee's
resignation, the provisions of Section 11.2 shall apply, provided that no
termination of this Agreement shall relieve either party from liability for any
breach of this Agreement or defeat or impair the right of non-breaching party to
pursue such relief as may otherwise be available to it as a result of any breach
of this Agreement or any term, provision or covenant contained herein.
11.2 Termination for Cause; Resignation. Notwithstanding anything to
the contrary contained herein, in the event that the Employee's employment
hereunder is terminated during the Agreement Term (x) by the Company for Cause
or (y) by reason of the Employee's resignation, then the Company shall pay to
the Employee, within thirty (30) days of the date of such termination, only the
Base Salary through such date of termination. For purposes of this Agreement,
"Cause" shall mean (i) conviction of, or plea of nolo contendere (no contest)
to, any crime (whether or not involving the Company) constituting a felony in
the jurisdiction involved; (ii) engaging in any act involving moral turpitude;
(iii) conduct related to the Employee's employment for which either criminal or
civil penalties against the Employee or any of the Companies may be sought; (iv)
gross neglect in the performance of the Employee's duties
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hereunder; (v) misconduct in the performance of the Employee's duties hereunder,
which misconduct continues after notice thereof is given to the Employee by the
Board of Directors of the Company, (vi) willful failure or refusal to perform
such duties as may be delegated to the Employee commensurate with the Employee's
position, which misconduct continues after notice thereof is given to the
Employee by the Board of Directors of the Company, (vii) material violation of
the Company's policies, including, without limitation, those relating to sexual
harassment, the disclosure or misuse of Confidential Information (as hereinafter
defined), or those set forth in Company manuals or statements of policy, which
violation continues after notice thereof is given to the Employee by the Board
of Directors of the Company (viii) engaging in any conduct which is materially
injurious or materially damaging to any of the Companies or the reputation of
any of the Companies; or (ix) material breach of any provision of this Agreement
by the Employee.
11.3 Death or Disability. If, as a result of the Employee's
incapacity due to physical or mental illness, the Employee shall have been
absent from the Employee's duties hereunder for either (i) one hundred eighty
(180) days within any three hundred sixty five (365) day period, or (ii) one
hundred twenty (120) consecutive days, and within thirty (30) days after written
notice of termination is given shall not have returned to the performance of the
Employee's duties hereunder on a full time basis, the Company may terminate the
Employee's employment hereunder for "Disability". In the event this Agreement is
terminated by reason of the Employee's death or Disability, the Company shall
pay to the Employee (i) the Base Salary for a period of twelve months (but in no
event beyond December 31, 2004), which Base Salary shall be paid commencing with
such date of termination at the times and in the amounts such Base Salary would
have been paid, and (ii) the amount of any Bonus payable under the Bonus Plan
through such date of termination, which Bonus, if any, shall be payable at the
time provided in the Bonus Plan. During any period that the Employee fails to
perform the Employee's duties hereunder as a result of incapacity due to
physical or mental illness (a "Disability Period"), the Employee shall continue
to receive the compensation and benefits provided by Section 5.4 hereof until
the Employee's employment hereunder is terminated; provided, however, that the
amount of compensation and benefits received by the Employee during the
Disability Period shall be reduced by the aggregate amounts, if any, payable to
the Employee pursuant to Section 5.4 hereof or under the Social Security or
state disability insurance programs.
11.4 Termination By the Company For Any Other Reason. In the event
that the Employee's employment hereunder is terminated by the Company during the
Employment Period for any reason other than as provided in Sections 11.2 or 11.3
hereof, which shall include, but not be limited to, any termination by the
Company due to or arising from a change in control of the Company's common
and/or preferred stock ownership and/or a change in the composition of the Board
of Directors of the Company such that a majority of the Board of Directors of
the Company are not Continuing Directors, then the Company shall pay to the
Employee, (i) within thirty (30) days of the date of such termination, the Base
Salary through such date of termination, (ii) the amount of any Bonus payable
under the Bonus Plan through such date of termination, which Bonus, if any,
shall be payable at the time provided in the Bonus Plan, and (iii) in lieu of
any further compensation, benefits or other amounts for the balance of the
Employment Period, severance pay equal only to the Base Salary that Executive
would have otherwise received during the period beginning on such date of
termination and ending on the earlier of (i) the scheduled termination date of
the Employment Period under this Agreement or (ii) such time as
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Employee obtains other employment which provides for compensation in an amount
reasonably comparable to the amount of the Base Salary (it being understood that
the Company's obligation under clause (iii) of this Section 11.4 shall be
reduced by any amounts received by the Executive by reason of any other
employment, which severance pay shall be paid commencing with such date of
termination at the times and in the amounts such Base Salary would have been
paid. "Continuing Director" shall mean, as of any date of determination, any
member of the Board of Directors of the Company who was a member of such Board
of Directors on the date of this Agreement or was nominated for election or
elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board of Directors at the time of
such nomination or election.
11.5 Non-Renewal of the Employee's Employment For Any Reason.
Notwithstanding any provision to the contrary, in the event that the Employees
employment hereunder is not extended or renewed beyond the December 31, 2005
expiration date, for any reason whatsoever other than due to the Death or
Disability of the Employee, including but not limited to a change in control of
the Company`s common and/or preferred stock ownership and/or a change in the
composition of the Board of Directors of the Company, such that a majority of
the Board of Directors of the Company are not Continuing Directors, then the
Company shall pay to the Employee a separation payment equal to ten (10) months
of the Employee's Base Salary (the "Separation Payment"). The Separation Payment
shall be paid to the Employee in accordance with the Company's normal payroll
practices for its senior management employees.
12. Assignment.
This Agreement, as it relates to the employment of the Employee, is
a personal contract and the rights, interests and obligations of the Employee
hereunder may not be sold transferred, assigned, pledged or hypothecated. Except
as otherwise herein expressly provided, this Agreement shall be binding upon and
inure to the benefit of the Employee and his personal representatives and shall
inure to the benefit of and be binding upon the Company and its successors and
assigns, including without limitation, any corporation or other entity into
which the Company is merged or which acquires all of the outstanding shares of
the Company's capital stock, or all or substantially all of the assets of the
Company. This Agreement may be assigned by the Company to any existing or future
subsidiary or affiliate of the Company, any purchaser of all or substantially
all of the Company's business or assets, any successor to the Company or any
assignee thereof (whether direct or indirect, by purchase, merger, consolidation
or otherwise).
13. Notices.
Any notice, request, consent or approval required or permitted to be
given under this Agreement or pursuant to law shall be sufficient if in writing,
and if and when sent by certified or registered mail, return receipt requested,
with postage prepaid, or by a nationally recognized overnight courier service to
the Employee's residence (as reflected in the Company's records or as otherwise
designated by the Employee on thirty (30) days' prior written notice to the
Company) or to the Company's principal executive office, attention: Co-Chairman
(with copies to the General Counsel), as the case may be. All such notices,
requests, consents and
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approvals shall be effective upon being deposited in the United States mail or
upon delivery to such overnight courier service. Rejection or other refusal to
accept, or the inability to deliver because of changed address of which no
notice was given as provided herein, shall be deemed to be receipt of the
notice, request, consent or approval sent.
if to the Employee:
Xxxxxxx X. Xxxxxx
000 Xxxxxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
if to the Company:
Diamond Triumph Auto Glass, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
Attn.: Xxxxxxx Xxxxxx, Co-Chairman
Xxxxxx Xxxxxx, Chief Executive Officer
With a copy to:
Green Equity Investors II, L.P.
x/x Xxxxxxx Xxxxx & Xxxxxxxx, X. X.
00000 Xxxxx Xxxxxx Blvd., (Suite 2000)
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxxxxx Xxxxxxx
or to such other address as any such party shall designate by written notice to
the other party.
14. Non-waiver.
Neither any course of dealing nor any failure or neglect of either
party hereto in any instance to exercise any right, power or privilege hereunder
or under law shall constitute a waiver of any other right, power or privilege or
of the same right, power or privilege in any other instance. All waivers by
either party hereto must be contained in a written instrument signed by the
party to be charged and, in the case of the Company, by its duly authorized
officer.
15. Entire Agreement.
This Agreement (including Exhibit A hereto) contains the entire
agreement of the parties relating to the subject matter hereof and supersedes
all prior agreements and understandings, written or oral, between them.
16. Severability; Reasonableness of Agreement.
If any term, provision or covenant of this Agreement or part
thereof, or the application thereof to any person, place or circumstance shall
be held to be invalid,
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unenforceable or void by a court of competent jurisdiction, the remainder of
this Agreement and such term, provision or covenant shall remain in full force
and effect, and any such invalid, unenforceable or void term, provision or
covenant shall be deemed, without further action on the part of the parties
hereto, modified, amended and limited, and the court shall have the power to
modify, amend and limit any such term, provision or covenant, to the extent
necessary to render the same and the remainder of this Agreement valid,
enforceable and lawful. In this regard, the Employee understands that the
provisions of Sections 7, 8, 9, and 10 may limit his ability to earn a
livelihood in a business similar or related to the business of the Company, but
nevertheless agrees and acknowledges that (i) the provisions of Sections 7, 8, 9
and 10 hereof are reasonable and necessary for the protection of the Company,
and do not impose a greater restraint than is necessary to protect the goodwill
or other business interests of the Company; and (ii) such provisions contain
reasonable limitations as to the time and the scope of activity to be
restrained. In consideration of the foregoing and in light of the Employee's
education, skills and abilities, the Employee agrees that all defenses by the
Employee to the strict enforcement of such provisions are hereby waived by the
Employee.
17. Headings.
The headings of the sections of this Agreement are provided for
convenience only and are intended to have no effect in construing or
interpreting this Agreement.
18. Governing Law.
This Agreement, including the validity, interpretation, construction
and performance of this Agreement, shall be governed by and construed in
accordance with the internal laws of the State of New York, without regard to
principles of conflicts of law. All actions and proceedings relating directly or
indirectly to this Agreement shall be litigated in any state court or federal
court located in New York, New York. The parties hereto expressly consent to the
jurisdiction of any such court and to venue therein and consent to the service
of process in any such action or proceeding by certified or registered mailing
of the summons and complaint therein directed to the Employee or the Company at
the address as provided in Section 13 hereof.
19. Amendment.
This Agreement may be amended only by a writing which makes express
reference to this Agreement as the subject of such amendment and which is signed
by the Employee and, on behalf of the Company, by its duly authorized officer.
20. Costs and Expenses.
Each party shall pay all of its own costs and expenses, including
reasonable legal fees, in connection with the execution, delivery, performance
and compliance with this Agreement by such party. If an action or proceeding is
commenced by a party to enforce or interpret any provision of this Agreement,
the non-prevailing party shall promptly reimburse the prevailing party for the
prevailing parry's reasonable costs and expenses of such action or proceeding,
including reasonable attorneys' fees.
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21. Counterparts.
This Agreement may be executed in one or more counterparts, all of
which together shall be deemed one original.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the undersigned has duly executed this Agreement
as of the date and year first written above.
DIAMOND TRIUMPH AUTO GLASS, INC.
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Chief Executive Officer
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
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EXHIBIT A
1. Bonus Awards.
(a) In respect of the year ending December 31, 2005, Employee shall
be entitled to receive a Bonus in the amount set forth in Column A below
corresponding to the Company's EBITDA (as defined below) set forth in Column B
in respect of each Performance Year (as defined below):
Column A Column B
Bonus EBITDA
-------- --------
$ 30,000 $13,000,000 to $13,999,999
$ 60,000 $14,000,000 to $14,999,999
$ 90,000 $15,000,000 to $15,999,999
$ 120,000 $16,000,000 to $16,999,999
$ 150,000 $17,000,000 to $17,999,999
$ 180,000 $18,000,000 and above.
(b) The Employee and Company acknowledge and agree that the Bonus
Award payable for the Performance Year (as defined below) ending December 31,
2005, would be payable to the Employee after the expiration of the Employee's
term of employment provided that the Employee's employment term is not extended
beyond this initial term of Employment. The Employee and Company further
acknowledge and agree that it is intended that the Employee shall be paid all
mounts due to him under this Bonus Award for such Performance Year which is
payable in calendar year 2006, even if the Employee is no longer an employee
beyond December 31, 2005.
2. Performance Year. Each calendar year beginning with January 1,
2005 shall be a "Performance Year." If the Employee is employed by the Company
for a part of a Performance Year, he shall receive a Bonus equal to the Bonus he
would have received had he been employed for the entire Performance Year,
multiplied by a fraction, the numerator of which is the number of days he was
employed by the Company during such Performance Year and the denominator of
which is 365; provided, that if the Employee's employment is terminated prior to
the end of the Performance Year by the Company for Cause or the Employee
resigns, no Bonus shall be made for the Performance Year (or part thereof) in
which the Employee's employment was terminated or in which the Employee resigns.
For the purpose of calculating the Bonus that the Employee shall be entitled to
receive in respect of the Performance Year ending December 31, 2005, the
Employee shall be deemed to have been employed by the Company commencing on
January 1, 2005.
3. Definitions. Capitalized terms not otherwise defined herein have
the meanings set forth in the Employment Agreement dated as of October 21, 2004,
between the Company and the Employee to which this Exhibit A is annexed.
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4. EBITDA.
(a) As used herein, "EBITDA" means, for any period, Net Income for
such period, plus, without duplication and to the extent deducted from revenues
in determining Net Income, the sum of (a) the aggregate amount of interest
expense for such period, (b) the aggregate amount of income tax expense for such
period, (c) all amounts attributable to depreciation and amortization expense
for such period, (d) any fees paid in respect of the Management Services
Agreement dated March 31, 1998 between the Company and Xxxxxxx Xxxxx & Partners,
L.P., (e) subject to the approval of the Board of Directors of the Company, any
extraordinary or non-recurring loss, and (f) any loss arising from the sale of
capital assets or arising out of any sale of capital stock of the Companies, and
minus, without duplication and to the extent added to revenues in determining
Net Income for such period, (i) subject to the approval of the Board of
Directors of the Company, any extraordinary or non-recurring gain, and (ii) any
gain arising from the sale of capital assets or arising out of any sale of
capital stock of any of the Companies, all as determined on a consolidated basis
with respect to the Company and its subsidiaries in accordance with generally
accepted accounting principles consistent with past practice.
(b) As used herein, "Net Income" means for any period, net income or
loss of the Company and its subsidiaries for such period determined on a
consolidated basis in accordance with generally accepted accounting principles,
provided that there shall be excluded the income or loss of any person accrued
before the date it becomes a subsidiary or is merged into or consolidated with
the Company or any of its subsidiaries or the date that person's assets are
acquired by the Company or any of its subsidiaries.
(c) The final determination of EBITDA with respect to any
Performance Year shall be subject to the affirmative approval (the "Approval")
of the Board of Directors of the Company and the Employee. In the event that the
Approval is not obtained within fourteen (14) days after completion of the
Company's audited financial statements for such Performance Year, the Company's
auditors shall make such determination of EBITDA in respect of such Performance
Year, provided that the Board of Directors of the Company and the Employee shall
determine with respect to the Bonus for such Performance Year the amount not in
dispute by reason of such lack of Approval.
5. Time of Payment. Each Bonus shall be paid no later than the
fourteenth (14th) day (assuming Approval is obtained or, assuming Approval is
not obtained, as to the undisputed amount), or the thirtieth (30th) day
(assuming Approval is not obtained, as to the disputed amount), after completion
of the Companies' audited financial statements for such Performance Year.
6. No Assignments. Employee may not assign a Bonus without the prior
written consent of the Board of Directors of the Company. Any attempted
assignment without such consent shall be null and void. For purposes of this
paragraph, any designation of, or payment to, a beneficiary designated to
receive such Bonus in the event of the Employee's death, shall not be deemed an
assignment.
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7. Unfunded Incentive Compensation Arrangement. The Bonus
arrangement provided for herein and in the Employment Agreement is intended to
constitute an unfunded incentive compensation arrangement and nothing contained
in the Bonus arrangement provided for herein and in the Employment Agreement
shall create or be construed to create a trust of any kind. All Bonuses shall be
paid from the general funds of the Company, and no special or separate fund
shall be established and no segregation of assets shall be made to assure
payment of such awards.
8. Governing Law. The Bonus arrangement provided for herein and in
the Employment Agreement shall be construed and governed in accordance with the
internal laws of the State of New York, without regard to principles of conflict
of laws.
9. No Right to Specific Assets. There shall not vest in Employee any
right, title, or interest in and to any specific assets of the Company.
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