EMPLOYMENT AGREEMENT AS AMENDED
EXHIBIT 10.14
This EMPLOYMENT AGREEMENT AS AMENDED (“Agreement”) is entered into this 9th day of
October 2008 between XXXXXXX & XXXXX, INC., an Ohio corporation (the “Company”), and XXXXX
X. XXXXXXX (“Executive”) under the following circumstances:
A. Executive and the Company entered into an Employment Agreement on June 28,
2006 (the “Employment Agreement”) that superseded the letter agreement
between the Company and Executive dated May 18, 2004 (the “Letter
Agreement”);
B. The Executive and the Company amended and restated the Employment Agreement
on November 9, 2007 to conform the Employment Agreement to the requirements of
Section 409A of the Internal Revenue Code; and Executive and the Company now desire
to execute this Agreement that restates the terms of the Employment Agreement as
amended on November 9, 2007 to include an amendment to such agreement adopted by the
Board of Directors of the Company (the “Board”) on October 9, 2008 relating
to the calculation and payment of Executive’s annual cash bonus in certain
situations; and
C. The Board of Directors continues to believe it is in the best interests of
the Company to further secure the services of Executive by entering into this
Agreement with Executive, and Executive desires to continue in the employment of the
Company upon the terms and conditions set forth herein;
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, THE COMPANY AND
EXECUTIVE AGREE AS FOLLOWS:
Section 1. Employment. The Company hereby agrees to continue to employ
Executive, and Executive hereby agrees to continue in the employment of the Company, during the
Term of Employment, which commenced on July 1, 2006, upon the terms and conditions set forth
herein, subject to earlier termination in accordance with Section 5. The existing Letter Agreement
terminated on June 30, 2006.
Section 2. Term of Employment. The “Term of Employment” of Executive
by the Company under this Agreement is the period commencing on the July 1, 2006 (the
“Effective Date”) and ending on the earlier to occur of (i) July 1, 2008 or (ii) the first
day of the month next following Executive’s attainment of age 65 (“Normal Retirement
Date”); provided, however, that commencing on July 1, 2007, and on each annual anniversary of
such date (such date and each annual anniversary thereof is hereinafter referred to as the
“Renewal Date”), the Term of Employment shall be automatically extended an additional year
so as to terminate on the earlier of (i) two (2) years from such Renewal Date or (ii) the first day
of the month next following
Executive’s Normal Retirement Date, unless, at least 60 days prior to the Renewal Date, the
Company or Executive shall give notice that the Term of Employment shall not be so extended in
which event this Agreement shall continue for the remainder of its then current term and terminate
as provided herein.
Section 3. Position and Duties.
(a) Position. During the Term of Employment, the Company shall employ Executive as,
and Executive shall serve as, the President and Chief Executive Officer of the Company, subject to
the supervising powers of the Board of Directors of the Company (the “Board”).
(b) Powers and Duties. Executive shall have those powers and duties consistent with
the position of President and Chief Executive Officer in a company the size and nature of the
Company, which powers shall in all cases include, without limitation, the power of supervision and
control over, and responsibility for, the general management and operations of the Company
(including the hiring and firing of employees and the appointment and termination of senior
officers other than executive officers), development and implementation of a comprehensive
strategic business plan, supervision of the day-to-day executive management process, and acting as
spokesperson for the Company. All executive officers and other officers with direct operational
responsibilities shall report directly to Executive unless Executive in his sole discretion
delegates such reporting responsibilities, in whole or in part, to another executive. Executive
agrees to devote substantially all his working time and attention to the business of the Company.
Executive shall not, without the prior consent of the Board, be directly or indirectly engaged in
any other trade, business or occupation for compensation requiring his personal services during the
Term of Employment. Nothing in this Agreement shall preclude Executive from (i) engaging in
charitable and community activities or from managing his personal investments or (ii) serving as a
member of the board of directors of an unaffiliated company not in competition with the Company,
subject, however, with respect to each such board membership, to approval by the Company’s Board
(not to be unreasonably withheld). During the Term of Employment, Executive shall be nominated for
re-election as a member of the Board of Directors.
Section 4. Compensation and Related Matters.
(a) Base Salary. During the Term of Employment commencing with June 1, 2006,
Executive shall be compensated at an annual base salary of no less than $525,000 (the base salary,
at the rate in effect from time to time, is hereinafter referred to as the “Base Salary”
and the Base Salary has been increased to $700,000 as of the date of this Agreement). The Board, or
a committee thereof, shall review and may, if appropriate, at its discretion, increase (but not
decrease without Executive’s written consent, except that no such consent shall be required in the
case of a general salary reduction that would affect at least three of the persons who were named
executive officers in the Company’s proxy statement for its most recent annual meeting of
shareholders) the annual Base Salary during the Term of Employment. Base Salary shall be reviewed
annually and be adjusted to reflect (among other factors) Executive’s performance in regard to the
corporate goals and objectives established for Executive by the Board or a committee thereof. The
Base Salary shall be payable in equal semi-monthy installments.
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(b) Annual Bonus. In addition to the Base Salary provided for in Section 4(a), the
Company shall provide annual cash bonus awards to Executive under its Senior Executive Annual Cash
Bonus Plan or substantially equivalent successor plan (the “Annual Bonus Plan”) in
accordance with such plan and any financial performance targets thereunder (the “Annual
Bonus”) each fiscal year of the Company during the Term of Employment. For the Company’s fiscal
year ending August 31, 2006, Executive’s target incentive opportunity under the Annual Bonus Plan
has been fixed at 60% of Base Salary (the target bonus as a percentage of Base Salary, as in effect
from time to time, is hereinafter referred to as the “Target Bonus Percentage” and the
Target Bonus Percentage has been increased to 80% as of the date of this Agreement). The Target
Bonus Percentage shall be reviewed annually for increase (but not decrease without Executive’s
consent) by the Board or a committee thereof.
(c) Additional Compensation. Executive may be awarded additional compensation,
including equity-based incentive awards, such as, stock options, performance shares and restricted
shares, pursuant to the Company’s 2004 Stock Incentive Plan As Amended or any future incentive
compensation or long-term compensation program established for the senior executive officers of the
Company (collectively the “Incentive Compensation Programs”), in an appropriate manner for
the position occupied by Executive and consistent with his performance as evaluated by the Board.
Except as otherwise provided herein, compensation granted under such plans will be subject to the
actual provisions and conditions applicable to such plans.
(d) Expenses. During the Term of Employment, Executive shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by Executive in performing services
hereunder, including all expenses of travel and living while away from home on business or at the
request of and in the service of the Company, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established by the Company.
(e) Other Benefits. The Company shall maintain in full force and effect, and
Executive shall be entitled to continue to participate in, all of the Company’s employee benefit
plans and arrangements in effect on the Effective Date hereof in which Executive participates or
plans or arrangements providing Executive with at least equivalent benefits thereunder (the
“Benefit Plans”). Such plans and arrangements shall, among other things, provide to
Executive personal leave days, sick days and vacation time, short-term and long-term disability
coverage, tax counseling, and family medical coverage. Executive shall be entitled to participate
in, or receive benefits under, any employee benefit plan or arrangement made available by the
Company in the future to its senior executives, subject to and on a basis consistent with the
terms, conditions and overall administration of such plans and arrangements. Nothing paid to
Executive under any Benefit Plan shall be deemed to be in lieu of the Base Salary and Annual Bonus
payable to Executive pursuant to Sections 4(a) and (b). Any payments or benefits payable to
Executive hereunder in respect of any fiscal year during which Executive is employed by the Company
for less than the entire year shall, unless otherwise provided in the applicable plan or
arrangement, be prorated in accordance with the number of days in such fiscal year during which he
is so employed.
(f) Non-Exclusivity. Nothing in this Agreement shall prevent Executive from being
entitled to receive any additional compensation or benefits as approved by the Company’s
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Board; provided, however, that in no event shall the Company make any loans to Executive that
are in violation of the Xxxxxxxx-Xxxxx Act of 2002, as such act may be amended or supplemented from
time to time, and the rules and regulations of the Securities and Exchange Commission promulgated
thereunder.
Section 5. Termination.
(a) Termination of Employment Other Than by Executive. Executive’s employment
hereunder may be terminated without any breach of this Agreement only under the following
circumstances:
(1) Death. Executive’s employment hereunder shall terminate upon his
death.
(2) Disability. If the Company determines in good faith that the
Disability of Executive has occurred (pursuant to the definition of “Disability” set
forth below), it may give to Executive written notice of its intention to terminate
Executive’s employment. In such event, Executive’s employment with the Company shall
terminate effective on the 30th day after the date of such notice, provided that,
within such 30-day period, Executive shall not have returned to full-time
performance of Executive’s duties. For purposes of this Agreement,
“Disability” means disability (either physical or mental) which, at least
one hundred eighty (180) days after its commencement, is determined by a physician
selected by the Company or its insurers and acceptable to Executive or Executive’s
legal representative to be total and permanent (such agreement as to acceptability
not to be withheld unreasonably).
(3) Cause. The Company has the right to terminate Executive’s
employment for Cause, and such termination shall not be a breach of this Agreement
by the Company. “Cause” means termination of employment for one of the
following reasons: (i) the willful and continued failure of Executive to perform
substantially Executive’s duties with the Company or one of its Subsidiaries (other
than any such failure resulting from incapacity due to physical or mental illness),
after a written demand for substantial performance is delivered to Executive by the
Board which specifically identifies the manner in which the Board believes that
Executive has failed to substantially perform his duties and such failure is not
cured within thirty (30) days of such written notice; (ii) an act or acts of
dishonesty taken by Executive and intended to result in substantial personal
enrichment of Executive at the expense of the Company; (iii) the willful engaging by
Executive in illegal conduct or gross misconduct; or (iv) a clearly established
violation by Executive of the Company’s Code of Conduct that is materially and
demonstrably injurious to the Company. Further, for purposes of this Section 5(a),
no act, or failure to act, on Executive’s part shall be deemed “willful”
if done, or omitted to be done, by Executive in good faith and with a reasonable
belief that his action or omission was in the best interest of the Company.
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(b) Termination of Employment by Executive for Good Reason. Executive may terminate
his employment hereunder for Good Reason, provided that Executive shall have delivered a Notice of
Termination within ninety (90) days after the occurrence of the event of Good Reason giving rise to
such termination. For purposes of this Agreement, “Good Reason” shall not mean a
termination resulting from non-renewal of this Agreement or the occurrence of any of the events
listed in the following subsections of this Section 5(b) if they occurred in connection with the
termination of Executive’s employment because of Disability or for Cause. “Good Reason”
shall mean the occurrence of one or more of the following circumstances, without Executive’s
express written consent, that are not remedied by the Company within thirty (30) days of receipt of
Executive’s Notice of Termination except that no 30-day period shall apply if the reason for
termination is a Change of Control as provided in Section 5(b)(5):
(1) The assignment to Executive of any duties materially inconsistent with his
position, duties, responsibilities, and status with the Company, or any material
limitation of the powers of Executive not consistent with the powers of Executive
contemplated by Section 3 hereof.
(2) The removal of Executive from, or any failure to appoint or elect, or
re-elect, Executive to the position of President and Chief Executive Officer of the
Company.
(3) The reduction in Executive’s Base Salary, except as permitted under Section
4(a), or Target Bonus Percentage without his written consent.
(4) The failure of the Company to obtain the assumption of this Agreement by
any successor as provided in Section 12.
(5) The occurrence of a Change of Control of the Company and Executive gives
Notice of Termination within 30 days following the first annual anniversary date of
the occurrence of the Change of Control and the Date of Termination occurs within
such 30-day period.
(6) The failure of the Company to continue in effect any material Benefit Plan
that was in effect on the Effective Date or provide Executive with substantially
equivalent benefits other than a reduction in benefits that occurs as part of a
reduction in benefit plans or programs affecting similarly situated employees of the
Company.
(7) The continued material breach for a period of 30 days by the Company of any
provision of this Agreement after a demand for performance is delivered by Executive
to the Company which specifically identifies the manner in which Executive believes
the Company has materially breached this Agreement.
(c) Notice of Termination. Any termination of Executive’s employment by the Company
or by Executive shall be communicated by written Notice of Termination to the other party. For
purposes of this Agreement, a “Notice of Termination” shall mean a notice which shall indicate the
specific termination provision in this Agreement relied upon and shall
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set forth in reasonable detail the facts and circumstances claimed to provide a basis for
termination of Executive’s employment under the provisions so indicated. In the case of any Notice
of Termination given by the Company to Executive, it shall be accompanied by a resolution of the
Board, certified by the Secretary of the Company, stating that a resolution approving the giving of
the Notice of Termination to Executive was adopted by the affirmative vote of a majority of the
members of the Board.
(d) Date of Termination. “Date of Termination” means the date Notice of
Termination is given by either the Company or Executive as the case may be or any later date
specified therein; provided, however, if Executive’s employment is terminated by reason of death or
Disability, the Date of Termination shall be the date of death of Executive or the effective date
of Disability, as the case may be, and if in the case of a termination for Good Reason, the Date
of Termination shall be the date specified in the Notice of Termination, which date shall not be
less than thirty (30) days (other than in connection with a termination pursuant to Section
5(b)(5)) or more than forty 40 days after the Notice of Termination is given.
(e) Effect of Termination. Except as provided in the immediately following sentence,
this Agreement shall terminate and be of no further force or effect after the Date of Termination
associated with the earliest to occur of the following: (i) Executive’s death; (ii) Executive’s
Disability; (iii) the Company’s dismissal of Executive for Cause; or (iv) voluntary termination of
employment with Good Reason. The obligations of Executive set forth in Sections 7 through 10 and
the obligations of the Company set forth in Section 6 shall survive any termination of this
Agreement.
(f) Resignation of Offices. Upon the Date of Termination for any reason (other than
an expiration of the Term of Employment), Executive shall be deemed to have resigned as a director
and/or officer of the Company and any similar positions he held with any Subsidiary of the Company.
Section 6. Compensation Upon Termination.
(a) Termination for Cause, Disability or Death or by Executive Other than for Good
Reason. If Executive’s employment is terminated for Cause, Disability, death or by Executive
other than for Good Reason, regardless of whether before or after a Change of Control:
(1) The Company shall pay Executive (i) his Base Salary through the Date of
Termination, (ii) any earned but unpaid bonus for any prior fiscal year of the
Company, (iii) Executive’s Prorated Target Bonus as defined at Section 21, and (iv)
all other unpaid amounts, if any, to which Executive is entitled as of the Date of
Termination under any compensation plan or program of the Company at the time such
payments are due; provided, however, if the termination is for Cause or by Executive
other than for Good Reason, then Executive shall not be entitled to, or paid, the
items listed in clauses (ii) and (iii) of this Section 6(a)(1);
(2) The Company shall reimburse Executive pursuant to the Company’s policy for
reasonable business expenses incurred, but not paid, prior to
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termination of employment, unless such termination resulted from a misappropriation
of Company funds; and
(3) Executive shall be entitled to any other rights, compensation and/or
benefits as may be due to Executive following termination to which he is otherwise
entitled in accordance with the terms and provisions of any plans or programs of the
Company.
(4) The Company shall pay Executive amounts described in Section 6(a) as
follows: (a) all amounts paid pursuant to a separate plan, program, agreement or
arrangement shall be paid as provided therein; (b) all reimbursements that fit
within the exception to Code Section 409A provided in Section 1.409A-1(b)(9)(v) of
the Treasury Regulations (reimbursements that Executive could otherwise deduct under
Code Section 162 or Code Section 167 as business expenses incurred in connection
with the performance of services, ignoring any applicable limits based on AGI) shall
be paid no later than the twentieth day following the Date of Termination; provided,
however, if any reimbursements do not fall within that exception, such
reimbursements shall be made on the first day of the seventh calendar month
following the calendar month in which the Date of Termination occurred; (c) all
other amounts shall be paid in accordance with the Company’s normal payroll
practices in effect on January 1, 2008.
(b) Termination By the Company Other Than for Cause or on Account of Disability or Death;
Termination By Executive For Good Reason. Executive’s employment may be terminated without
Cause by the Company or by Executive for Good Reason provided in such event:
(1) The Company shall pay Executive (i) his Base Salary through the Date of
Termination, (ii) any earned but unpaid bonus for any prior fiscal year of the
Company; (iii) Executive’s Prorated Performance Bonus as defined at Section 21, and
(iv) all other unpaid amounts, if any, to which Executive is entitled as of the Date
of Termination.
(2) The Company shall pay Executive a single lump sum payment equal to the
product of (i) 1/12 of the sum of Executive’s Base Salary and Target Bonus (as
defined in Section 21), and (ii) the greater of (a) the number of months remaining
in the Term of Employment, and (b) twelve months. If, however, Executive terminates
his employment pursuant to Section 5(b)(5) hereof or if, within two (2) years
following a Change of Control (as defined herein), Executive’s employment is
terminated without Cause by the Company or if Executive terminates his employment
for Good Reason, then, in lieu of the payments provided for in the first sentence of
this Section 6(b)(2), the Company shall pay to Executive a single lump sum payment
equal to the product of (i) the sum of (a) Executive’s Base Salary, and (b) the
average annual bonus paid to Executive by the Company with respect to the three
fiscal years that immediately precede the fiscal year in which the Date of
Termination occurs (or such lesser number of years that Executive was employed by
the Company), and (ii) the
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number three (3.0), except that the number two (2.0) shall be substituted for the
number three (3.0) if termination was by Executive pursuant to Section 5(b)(5);
(3) The Company shall maintain in full force and effect, for the continued
benefit of Executive (and his spouse and/or his dependent, as applicable) for a
period of twenty-four (24) months following the Date of Termination the medical,
hospitalization, and dental programs in which Executive (and his spouse and/or his
dependents, as applicable) participated immediately prior to the Date of Termination
at the level in effect and upon substantially the same terms and conditions
(including without limitation contributions required by Executive for such benefits)
as existed immediately prior to the Date of Termination; provided, if Executive (or
his spouse) is eligible for Medicare or a similar type of governmental medical
benefit, such governmental benefit shall be the primary provider before Company
medical benefits are provided. If Executive (or his Spouse and/or his dependents)
is prohibited from continued participation in Company programs providing such
benefits due to plan limitations or governmental laws or regulations, the Company
shall arrange to provide Executive (and his spouse and/or his dependents, as
applicable) with benefits which are the economic equivalent of such benefits they
otherwise would have been entitled to receive under such plans and programs
(“Continued Benefits”). If Executive becomes re-employed with another employer and
is eligible to receive medical, hospitalization and dental benefits under another
employer-provided plan, the medical, hospitalization and dental benefits described
herein shall be secondary to those provided under such plan during the applicable
period.
In no event may reimbursements or benefits provided pursuant to this subsection
in one tax year affect the expenses eligible for reimbursement or benefits provided
in any other tax year. All reimbursements or in-kind benefits provided pursuant to
this subsection, if any, must be made by the end of Executive’s tax year following
the tax year in which the expenses were incurred. None of the rights provided
within this subsection may be liquidated or exchanged for any other benefits;
(4) The Company shall reimburse Executive pursuant to the Company’s policy for
reasonable business expenses incurred, but not paid, prior to the Date of
Termination;
(5) All options, shares of restricted stock, performance shares and any other
equity based awards shall be and become fully vested as of the Date of Termination
and, notwithstanding any provision to the contrary in the applicable Award
Agreement, any such options may be exercised and shall not expire until the earlier
of (i) the expiration of the option term as set forth in the Award Agreement or (ii)
the first annual anniversary of the Date of Termination provided that this Section
6(b)(5) will not extend the term of an option beyond a date that would result in the
application of Section 409A of the Code;
(6) Executive shall be entitled to any other rights, compensation and/or
benefits as may be due to Executive following termination to which he is
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otherwise entitled in accordance with the terms and provisions of any plans or
programs of the Company;
(7) Executive shall not be required to mitigate the amount of any payment
provided for in this Section 6(b) by seeking other employment or otherwise, nor
shall the amount of any payment provided for in this Section 6(b) be reduced by any
compensation earned by Executive after the Date of Termination as the result of
employment by another employer or otherwise; and
(8) Notwithstanding anything to the contrary contained in this Agreement, upon
payment to Executive of the amounts provided for in this Section 6(b) and Section
19, if any, the Company shall have no further payment obligations to Executive in
the event Executive terminates his employment for Good Reason or the Company
terminates Executive’s employment without Cause; and
(9) The Company shall pay Executive amounts described in Section 6(b) as
follows: (a) all amounts paid pursuant to a separate plan, program, agreement or
arrangement shall be paid as provided therein; (b) all reimbursements (other than
those provided in Section 6(b)(3)) that fit within the exception to Code Section
409A provided in Section 1.409A-1(b)(9)(v) of the Treasury Regulations
(reimbursements that Executive could otherwise deduct under Code Section 162 or Code
Section 167 as business expenses incurred in connection with the performance of
services, ignoring any applicable limits based on AGI) shall be paid no later than
the twentieth day following the Date of Termination; provided, however, if any
reimbursements do not fall within that exception, such reimbursements shall be paid
on the first day of the seventh calendar month following the calendar month in which
the Date of Termination occurred; (c) all amounts paid pursuant to Section 6(b)(2)
shall be paid to Executive on the first day of the seventh calendar month following
the calendar month in which the Date of Termination occurred; and (d) all other
amounts shall be paid in accordance with the Company’s normal payroll practices in
effect on January 1, 2008.
Section 7. Confidential Information. Executive acknowledges that he has had,
and will have, access to certain Confidential Information (as hereinafter defined) of the Company
and its Subsidiaries and Executive agrees that he will not at any time, directly or indirectly,
disclose orally or in writing or use any Confidential Information, regardless of how it may have
been acquired, unless the disclosure or use of such Confidential Information is expressly
authorized in writing in advance by the Company, is necessary in the ordinary conduct of
Executive’s duties under this Agreement or is required by law. “Confidential Information”
means all information pertaining or relating to the Company’s or its Subsidiaries’ business,
including, but not limited to, products, pricing, drawings and bills of materials, manufacturing
and application engineering know-how, services, strategies, customers, customer list, customer
account records, financial information, employee compensation, marketing plans, computer software
(including all operating system and system application software) and other proprietary business
information. As used herein, Confidential Information shall not include any information which (i)
is or becomes generally known to the public other than as a result of the
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disclosure or use thereof by Executive in violation of the terms of this Agreement or (ii) is
obtained by Executive from a third party who is lawfully in possession of such information and is
not subject to any obligation to refrain from disclosing such information. Executive acknowledges
and agrees that all of the Confidential Information is and shall continue to be the exclusive
proprietary property of the Company and its Subsidiaries whether or not prepared in whole or in
part by Executive and whether or not disclosed to or entrusted to the custody of Executive.
Section 8. Non-Competition.
(a) Executive agrees that while employed by the Company and for the 12-month period
immediately after Executive ceases to be employed by the Company for any reason, Executive shall
not, without the prior written consent of the Company, either directly or indirectly, perform any
services (whether advisory, consulting, employment or otherwise) for, invest in or otherwise become
associated with in any capacity, any person, corporation, partnership or other entity which engages
in a Competitive Business (as defined in Section 8(b)); provided, however, that nothing herein
contained shall prevent Executive (1) from purchasing and holding for investment less than 2% of
the shares of any corporation, the shares of which are regularly traded either on a national
securities exchange or in the over-the-counter market or (2) from providing services to any
corporation, partnership, or other entity if the Competitive Business represents less than 15% of
the gross revenues of such corporation, partnership, or entity and Executive’s services are not
rendered, directly or indirectly, to the division or subsidiary which is engaged in the Competitive
Business.
(b) For purposes of this Agreement, “Competitive Business” means the design,
engineering, manufacture, marketing, distribution, sale, or servicing in the Prohibited Territory
(as defined below) of (1) processing or packaging equipment used in the pharmaceutical industry,
(ii) wellhead, drilling, recovery and transmission equipment used in the oil and gas industry, or
(iii) progressing cavity pumps, industrial mixers and agitators, or glass-lined reactor and storage
vessels used in any industry. “Prohibited Territory” means the countries in which the
Company or one of its Subsidiaries had manufacturing, distribution facilities, or sales offices at
any time that Executive was employed by the Company. In addition, all records, files, drawings,
documents, models, equipment, and the like relating to the Company’s business or its Subsidiaries’,
which Executive has control over may not be removed from the Company‘s premises without
its written consent, unless removal is in the furtherance of the Company’s business or is in
connection with Executive’s carrying out his duties under this Agreement and, if so removed, shall
be returned to the Company promptly after termination of Executive‘s employment under
this Agreement.
Section 9. Non-Solicitation or Hire. Executive agrees that while employed by
the Company and for the 12-month period immediately after Executive ceases to be employed by the
Company for any reason, Executive shall not, without the prior written consent of the Company,
either directly or indirectly, solicit or attempt to solicit or induce, directly or indirectly, (i)
any person or entity who is or was a customer of the Company or its Subsidiaries while Executive
was employed by the Company for the purpose of marketing, selling or providing to any such person
or entity any services or products that are of the same general type as those offered by or
available from the Company or its Subsidiaries or (ii) any person who was an employee of the
Company or any of its Subsidiaries on the Date of Termination to terminate
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such employee’s employment relationship with the Company or its Subsidiaries in order to enter
into a similar relationship with Executive, any business which then employs Executive or to which
Executive provides any services, or any Competitive Business.
Section 10. Equitable Relief; Judicial Modification.
(a) Executive acknowledges that compliance with the covenants and provisions in Sections 7
through 9 is necessary to protect the Company and that a breach of these covenants will result in
irreparable and continuing damage for which there will be no adequate remedy at law. Accordingly,
Executive agrees that in the event of any breach of said covenants or provisions, the Company and
its successors and assigns shall be entitled to injunctive relief (including specific performance)
and to such other and further equitable relief (in addition to money damages) as is proper in the
circumstances. Executive further agrees to waive the securing or purchasing of any bond in
connection with any such remedy.
(b) If any court determines that any of the covenants in Sections 7 through 9, or any part of
any of them, is invalid or unenforceable, the remainder of such covenants and parts thereof shall
not thereby be affected and shall be given full effect, without regard to the invalid portion. If
any court determines that any of such covenants, or any part thereof, is invalid or unenforceable
because of the geographic or temporal scope of such provision, such court shall reduce such scope
to the minimum extent necessary to make such covenants valid and enforceable.
Section 11. Indemnification; and Insurance.
(a) Indemnification. The Company represents and warrants that it will continue to
extend to Executive during the Term of Employment and for a period of four years after the Date of
Termination the same rights to indemnification in his capacity as a director or officer of the
Company that he had on the Effective Date of this Agreement.
(b) Insurance. The Company represents and warrants that during the Term of Employment
and for a period of four years after the Date of Termination: (i) Executive is and shall continue
to be covered and insured up to the maximum limits provided by all insurance which the Company
maintains to indemnify its directors and officers (and to indemnify the Company for any obligations
which it incurs as a result of its undertaking to indemnify its officers and directors) and (ii)
the Company will use reasonably commercial efforts to maintain such insurance, in not less than its
present limits, in effect.
Section 12. Agreement Binding on Successors.
(a) Company’s Successors. No rights or obligations of the Company under this
Agreement may be assigned or transferred except that the Company shall require any successor
(whether direct or indirect, by purchase, merger, reorganization, sale, transfer of stock,
consolidation or otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no succession had taken place. As used
in this Agreement, “Company” means the Company as hereinbefore defined and any successor to its
business and/or assets (by merger, purchase or otherwise as provided in this
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Section 12(a)) which executes and delivers the agreement provided for in this Section 12(a) or
which otherwise becomes bound by all the terms and provisions of this Agreement by operation of
law.
(b) Executive’s Successors. No rights or obligations of Executive under this
Agreement may be assigned or transferred by Executive other than his rights to payments or benefits
under this Agreement, which may be transferred only by designation of a beneficiary in accordance
with this Section 12(b) or by will or the laws of descent and distribution. Upon Executive’s death,
this Agreement and all rights of Executive under this Agreement shall inure to the benefit of and
be enforceable by Executive’s beneficiary or beneficiaries, personal or legal representatives, or
estate, to the extent any such person succeeds to Executive’s interests under this Agreement.
Executive shall be entitled to select and change a beneficiary or beneficiaries to receive any
benefit or compensation payable under this Agreement following Executive‘s death by
giving the Company written notice thereof in a form acceptable to the Company. In the event of
Executive’s death or a judicial determination of his incompetence, reference in this Agreement to
Executive shall be deemed, where appropriate, to refer to his beneficiary(ies), estate or other
legal representative(s). If Executive should die following his Date of Termination while any
amounts would still be payable to him under this Agreement if he had continued to live, all such
amounts unless otherwise provided shall be paid in accordance with the terms of this Agreement to
such person or persons so appointed in writing by Executive, or otherwise to his legal
representatives or estate.
Section 13. Waiver. Except as otherwise provided herein, the failure of
either party to insist, in any one or more instances, upon the performance of any of the terms,
covenants or conditions of this Agreement by the other party hereto, shall not be construed as a
waiver or as a relinquishment of any right granted hereunder to the party failing to insist on such
performance, or as a waiver of the future performance of any such term, covenant or condition, but
the obligations hereunder of both parties hereto shall remain unimpaired and shall continue in full
force and effect.
Section 14. Notices. For the purposes of this Agreement, notices, demands
and all other communications provided for in this Agreement shall be in writing and shall be deemed
to have been duly given when delivered either personally or by United States certified or
registered mail, return receipt requested, postage prepaid, addressed as follows:
If to Executive:
At his last known address evidenced on the Company’s payroll records.
If to the Company:
Xxxxxxx & Xxxxx, Inc.
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Chairman of the Board; and
Corporate Secretary
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Chairman of the Board; and
Corporate Secretary
12
or to such other address as any party may have furnished to the others in writing in accordance
with this Agreement, except that notices of change of address shall be effective only upon receipt.
Section 15. Entire Agreement; Amendment. This Agreement contains the entire
agreement between the parties hereto with respect to the matters contemplated by this Agreement and
supersedes all prior negotiations, representations, warranties, commitments, offers, contracts and
writings. No modification or amendment of any provision of this Agreement shall be effective
unless made in writing and duly signed by the party to be bound thereby.
Section 16. Severability. If any of the provisions of this Agreement shall
be held to be invalid, such holding shall not in any way whatsoever affect the validity of the
remainder of this Agreement.
Section 17. Arbitration; Legal Fees and Expenses. The parties agree that
Executive’s employment and this Agreement relate to interstate commerce, and that any disputes,
claims or controversies between Executive and the Company which may arise out of or relate to
Executive’s employment relationship or this Agreement shall be settled by arbitration. This
agreement to arbitrate shall survive the termination of this Agreement. Any arbitration shall be in
accordance with the Rules of the American Arbitration Association and undertaken pursuant to the
Federal Arbitration Act. Arbitration shall be held in Dayton, Ohio unless the parties mutually
agree on another location. The decision of the arbitrator(s) shall be enforceable in any court of
competent jurisdiction. The parties agree that punitive, liquidated or indirect damages shall not
be awarded by the arbitrator(s) unless such damages would have been awarded by a court of competent
jurisdiction. Nothing in this Agreement to arbitrate, however, shall preclude the Company from
obtaining injunctive relief from a court of competent jurisdiction prohibiting any on-going
breaches by Executive of this Agreement including, without limitation, violations of Sections 7
through 9. If any contest or dispute arises between the Company and Executive regarding any
provision of this Agreement, the Company shall reimburse Executive for all legal fees and expenses
reasonably incurred by Executive in connection with such contest or dispute, except that the
Company shall not be obligated to pay any legal fees or expenses incurred by Executive in any
contest in which the trier of fact determines that the Executive’s position was frivolous or
maintained in bad faith. Such reimbursement shall be made as soon as practicable following the
final, non-appealable resolution of such contest or dispute to the extent the Company receives
reasonable written evidence of such fees and expenses.
Section 18. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of Ohio without regard to
its conflicts of law principles.
Section 19. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding and except as set forth below,
in the event it shall be determined that any Payment would be subject to the Excise Tax, then
Executive shall be entitled to receive an additional payment (the “Gross-Up Payment”) in an
amount such that, after payment by Executive of all taxes (and any interest or penalties imposed
with respect to such taxes), including, without limitation, any income taxes
13
(and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the
Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(b) Subject to the provisions of Section 19(c), all determinations required to be made under
this Section 19, including whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be
made by such certified public accounting firm as may be designated by the Company (the
“Accounting Firm”), which shall provide detailed supporting calculations both to the
Company and Executive within 15 business days of the receipt of notice from Executive that there
has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of
the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined
pursuant to this Section 19, shall be paid by the Company to Executive within five days of the
receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be
binding upon the Company and Executive. As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder,
it is possible that Gross-Up Payments that will not have been made by the Company that should have
been made (“Underpayment”), consistent with the calculations required to be made hereunder.
In the event that the Company exhausts its remedies pursuant to Section 19(c) and Executive
thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the
amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by
the Company to or for the benefit of Executive.
(c) Executive shall notify the Company in writing of any claim by the Internal Revenue Service
that, if successful, would require the payment by the Company of the Gross-Up Payment. Such
notification shall be given as soon as practicable but no later than ten business days after
Executive is informed in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. Executive shall not pay such claim
prior to the expiration of the 30-day period following the date on which he gives such notice to
the Company (or such shorter period ending on the date that any payment of taxes with respect to
such claim is due). If the Company notifies Executive in writing prior to the expiration of such
period that it desires to contest such claim, Executive shall:
(i) give the Company any information reasonably requested by the Company
relating to such claim,
(ii) take such action in connection with contesting such claim as the Company
shall reasonably request in writing from time to time, including, without
limitation, accepting legal representation with respect to such claim by an attorney
reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order effectively to contest
such claim, and
(iv) permit the Company to participate in any proceedings relating to such
claim;
14
provided, however, that the Company 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
interest and penalties with respect thereto) imposed as a result of such representation and payment
of costs and expenses. Without limitation on the foregoing provisions of this Section 19(c), the
Company shall control all proceedings taken in connection with such contest and, at its sole
option, may pursue or forgo 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, and 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
the Company shall determine; provided, however, that if the Company directs Executive to pay such
claim and xxx for a refund, the Company shall advance the amount of such payment to Executive, on
an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from
any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with
respect to such advance or with respect to any imputed income with respect to such advance; and
further provided that any extension of the statute of limitations relating to payment of taxes for
the taxable year of Executive with respect to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be
limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive
shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal
Revenue Service or any other taxing authority.
(d) If, after the receipt by Executive of a Gross-Up Payment or payment by the Company of an
amount on Executive’s behalf pursuant to Section 19(c), Executive becomes entitled to receive any
refund with respect to the Excise Tax to which such Gross-Up Payment relates or with respect to
such claim, Executive shall (subject to the Company’s complying with the requirements of Section
19(c), if applicable) promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after payment by the Company
of an amount on Executive’s behalf pursuant to Section 19(c), a determination is made that
Executive shall not be entitled to any refund with respect to such claim and the Company does not
notify Executive in writing of its intent to contest such denial of refund prior to the expiration
of 30 days after such determination, then the amount of such payment shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be paid.
(e) Notwithstanding any other provision of this Section 19, the Company may, in its sole
discretion, withhold and pay over to the Internal Revenue Service or any other applicable taxing
authority, for the benefit of Executive, all or any portion of any Gross-Up Payment, and Executive
hereby consents to such withholding.
(f) The following terms shall have the following meanings for purposes of this Section 19.
(i) “Excise Tax” shall mean the excise tax imposed by Section 4999 of
the Code, together with any interest or penalties imposed with respect to such
excise tax.
15
(ii) “Parachute Value” of a Payment shall mean the present value as of
the date of the change of control for purposes of Section 280G of the Code of the
portion of such Payment that constitutes a “parachute payment” under Section
280G(b)(2), as determined by the Accounting Firm for purposes of determining whether
and to what extent the Excise Tax will apply to such Payment.
(iii) A “Payment” shall mean any payment or distribution in the nature
of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the
benefit of Executive, whether paid or payable pursuant to this Agreement or
otherwise.
(iv) The “Safe Harbor Amount” means 2.99 times Executive’s “base
amount,” within the meaning of Section 280G(b)(3) of the Code.
(v) “Value” of a Payment shall mean the economic present value of a
Payment as of the date of the change of control for purposes of Section 280G of the
Code, as determined by the Accounting Firm using the discount rate required by
Section 280G(d)(4) of the Code.
(g) Notwithstanding anything to the contrary in this Section 19, any payment(s)
required to be made pursuant to this Section 19 to Executive shall be made no earlier than
the first day of the seventh calendar month following the calendar month in which the Date
of Termination occurred, but in no event later than the end of Executive’s tax year
following the tax year in which the Executive remits (or the Company remits on the
Executive’s behalf) the taxes associated with the payments made herein.
Section 20. Compliance with Code Section 409A. It is intended that the
payments and benefits provided under this Agreement shall either be exempt from the application of,
or comply with, the requirements of Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”). This Agreement shall be construed, administered, and governed in a manner that
effects such intent, and the Company shall not take any action that would be inconsistent with such
intent. Without limiting the foregoing, the payments and benefits provided under this Agreement
may not be deferred, accelerated, extended, paid out or modified in a manner that would result in
the imposition of an additional tax under Section 409A of the Code upon Xx. Xxxxxxx.
Section 21. Certain Definitions.
(a) “Affiliate” means a person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with, a specified person.
(b) “Change of Control” means for the purpose of this Agreement and shall be deemed to
have occurred the date on which one of the following events occurs with respect to the Company (for
the purposes of this Section 21, the term “Company” means only Xxxxxxx & Xxxxx, Inc.):
(1) The Company is provided a copy of a Schedule 13D, filed pursuant to Section
13(d) of the Securities Exchange Act of 1934 indicating that a group or
16
person, as defined in Rule 13d-3 under said Act, has become the beneficial owner of
25% or more of the outstanding Voting Shares of the Company or the date upon which
the Company first learns that a person or group has become the beneficial owner of
25% or more of the outstanding Voting Shares of the Company if a Schedule 13D is not
filed provided, in each case, such group or person is not controlled, directly or
indirectly, by persons or entities that were, at any time this Agreement is in
effect, partners, shareholders or members of M.H.M. & Co. Ltd., an Ohio limited
partnership, the Xxxxxxx X. Xxxxx Co., Inc., or Xxxxxx Investments, Inc. or
Affiliates of any of them;
(2) A change in the composition of the Board such that individuals who were
members of the Board on the date two years prior to such change (or who were
subsequently elected to fill a vacancy in the Board, or were subsequently nominated
for election by the Company’s shareholders, by the affirmative vote of at least
two-thirds of the directors then still in office who were directors at the beginning
of such two year period) no longer constitute a majority of the Board;
(3) The consummation of a reorganization, merger, statutory share exchange or
consolidation involving the Company or any of its Subsidiaries (each a “Business
Combination”) unless, following such Business Combination, all or substantially
all of the individuals and entities that were the beneficial owners of the Voting
Shares of the Company immediately prior to the Business Combination beneficially
own, directly or indirectly, more than 60% of the then outstanding Voting Shares of
the corporation resulting from such Business Combination in substantially the same
proportions as their ownership immediately prior to such Business Combination of the
outstanding Voting Shares of the Company; or
(4) Shareholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all, or
substantially all, of the Company’s assets.
(c) “Prorated Target Bonus” means the Target Bonus prorated for the period beginning
on the first day of the fiscal year in which occurs the Date of Termination through the Date of
Termination.
(d) “Prorated Performance Bonus” means an amount equal to the annual cash bonus
Executive would have received for the fiscal year that ends on or immediately after the Date of
Termination, based on the Company’s actual achievement of performance goals for such year prorated
for the period beginning on the first day of the fiscal year in which occurs the Date of
Termination through the Date of Termination, with such prorated bonus being paid at the time that
cash bonuses are normally paid under the Company’s annual cash bonus plan then in effect.
(e) “Subsidiary” means an entity (whether or not a corporation) of which 50% or more
of the voting stock in the case of a corporation, or other equity interest having voting power in
the case of an entity that is not a corporation, is owned or controlled, directly or indirectly, by
the Company.
17
(f) “Target Bonus” means an amount equal to the target bonus Executive would have
received for the fiscal year that ends on or immediately after the Date of Termination, assuming
the Company achieved the target levels for which a bonus is paid under the Company’s annual bonus
plan then in effect.
(g) “Voting Shares” means any securities of a corporation that vote generally in the
election of directors of that corporation.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the day and year first above
written.
| “Executive” | “Company” | |||||||
| XXXXXXX & XXXXX, INC. | ||||||||
/s/ Xxxxx X. Xxxxxxx
|
By: | /s/ Xxxxxx X. Xxxxxx
|
||||||
| Chairman of the Board; and | ||||||||
| By: | /s/ Xxxxxx X. Xxxxx | |||||||
| Xxxxxx X. Xxxxx | ||||||||
| Corporate Secretary | ||||||||
18
