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EXHIBIT (d)(4)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), is made as of the 5th day
of February, 2001 by and between Xxxxxxxx Management Specialists, Inc.
("Company"), and Xxxxx Xxxxxxx (the "Employee");
WITNESSETH:
WHEREAS, the Company desires to employ the Employee and the Employee
desires to be employed to provide services to the Company, all on the terms and
subject to the conditions, as hereinafter set forth; and
WHEREAS, under the terms of an Agreement and Plan of Merger by and
among Compass Group, PLC (an indirect parent of Compass Holdings, Inc.
("Holdings")), Yorkmont One, Inc. (a subsidiary of Holdings) and the Company,
the Company intends to become a wholly owned subsidiary of Holdings (the
"Acquisition"); and
WHEREAS, as part of the Acquisition, the parties have discussed and
agreed upon an Addendum to this Employment Agreement, which Addendum, attached
hereto, shall become effective only upon the completion of the Acquisition.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and obligations hereinafter set forth, the parties agree as follows:
1. EMPLOYMENT. The Company agrees to employ the Employee during the
Employment Term (as defined in Section 3) as Chief Financial Officer of the
Company and the Employee hereby accepts such employment. The Employee's office
and the principal place of business of the Employee and the Company will be
Atlanta, Georgia.
2. DUTIES. During the Employment Term, the Employee shall (a) perform
such services and duties as may be required, to the extent consistent with his
position as Chief Financial Officer of the Company, (b) shall devote the
Employee's full time and best efforts to the business affairs of the Company,
and (c) shall not become engaged, as an employee or otherwise, in any other
business or commercial activities; provided, however, that nothing herein shall
prevent the Employee from managing his own investments as an investor as long as
such activities do not interfere with the performance of Employee's duties
hereunder. The Employee shall comply with all stated standards of performance,
policies, rules, regulations and manuals of the Company. The Employee shall also
comply with such reasonable future Company policies, rules, regulations,
performance standards and manuals as may be published or amended from time to
time.
3. EMPLOYMENT TERM. The Employee shall be employed pursuant to the
terms of this Agreement for a period beginning on the 5th day of February, 2001
and continuing for a term which does not end until the Agreement is terminated
pursuant to Section 6 (the "Employment Term").
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4. COMPENSATION.
(a) ANNUAL BASE SALARY. During the Employment Term, the
Company will pay the Employee an Annual Base Salary as compensation for services
hereunder of Two Hundred Twenty Two Thousand Dollars ($222,000), as adjusted
pursuant to the following sentence (the "Annual Base Salary"), payable in
biweekly installments. The Annual Base Salary shall be reviewed at the Company's
discretion, but in no event less than once per year and any time that Employee's
responsibilities are materially increased (such as, by way of an acquisition by
the Company), and may be increased at the Company's discretion but may not be
decreased.
(b) ANNUAL BONUS. The Company shall pay the Employee an Annual
Bonus of up to 100% of Annual Base Salary, based on achievement of objectives
and on a formula consistent with Company past practices. The Company will
provide the bonus formula for any given fiscal year of the Company to the
Employee within the first ninety (90) days of the fiscal year with respect to
which the bonus may be subsequently earned. The bonus for any fiscal year will
be payable only if the Employee is employed by the Company on the last day of
the fiscal year. In addition, if the Employee's employment is terminated during
a fiscal year due to a Termination Without Cause by the Company or a Resignation
by the Employee for Good Reason, the Employee shall earn and accrue a bonus for
that fiscal year based on the bonus program's formula for that year, but the
bonus shall be prorated by multiplying the bonus by a fraction, the numerator of
which is the number of days in the fiscal year through the date of the
Employee's termination of employment and the denominator of which is 365.
(c) EXECUTIVE SUPPLEMENTAL PENSION. Company will cover and
provide the Employee and his beneficiaries with benefits pursuant to the
Executive Supplemental Pension Plan, attached hereto as Exhibit A (the "ESP");
provided, however, that if the sum of Employee's age and his years of Continuous
Service (as defined in the ESP) equal or exceeds 75, then the Employee's and his
beneficiaries' benefits shall be unreduced by the factors set forth in Section
4.2 of the ESP.
(d) OTHER BENEFITS. The Employee shall receive all other
benefits provided by the Company to substantially all senior executives of the
Company, to the extent substantially similar benefits are not provided
hereunder, including stock options, vacation, automobiles, automobile allowance,
any incentive compensation plans and all group health, hospitalization, and
permanent disability plans or other employee welfare benefit plans provided by
action of the Board of Directors of the Company or pursuant to Company policy.
5. REIMBURSEMENT OF EXPENSES IN PERFORMANCE OF EMPLOYMENT. Upon
submission of proper vouchers, the Company shall pay or reimburse the Employee
for all normal and reasonable expenses, including travel expenses, incurred by
the Employee during the Employment Term in accordance with the Company policy
then in effect. The Company shall reimburse the Employee for necessary and
reasonable moving expenses, in accordance with the Company's relocation policy
in effect, in the event the Company requests that the Employee relocate during
the term of this Agreement and in the event the Employee agrees to do so.
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6. TERMINATION.
(a) The Employment Term shall terminate upon the occurrence of
any of the following events: (i) immediately upon retirement or death of the
Employee; (ii) upon the effective date of Resignation by the Employee (as
defined below); (iii) upon the effective date of Termination Without Cause (as
defined below), in which case the Company must provide to the Employee notice of
such Termination Without Cause at least sixty (60) days prior to the Termination
Without Cause; (iv) upon the close of business on the date the Company gives the
Employee notice of Termination for Just Cause (as defined below); or (v)
immediately upon the occurrence of the Permanent Disability of the Employee (as
defined below).
(b) For the purposes of this Agreement:
(1) "Resignation by the Employee" shall mean any
voluntary termination or resignation by the Employee from employment with the
Company hereunder. The Employee is required to give at least sixty (60) days
written notice of Resignation and the Company is entitled, upon receiving such
notice, to accept such Resignation any time prior to the Resignation date
proposed by the Employee. The effective date of the Resignation shall be the
date the Resignation is accepted by the Company or the Resignation date proposed
by the Employee, whichever is earlier.
(2) "Good Reason" means a Resignation by the Employee
due to and immediately following the breach of any material provision of this
Agreement by the Company; including without limitation, without the Employee's
written consent, (i) a diminution in the Employee's duties or responsibilities,
or (ii) a relocation of the Employee's office or the Employee's or the Company's
principal place of business outside of Atlanta, Georgia; which, in the case of
an act or event described in clauses (i) or (ii) hereof, remains uncured by the
Company for thirty (30) days after notice from the Employee thereof.
(3) "Termination Without Cause" shall mean any
termination of the employment of the Employee by the Company other than a
Termination for Just Cause or due to Permanent Disability.
(4) "Termination for Just Cause" shall mean
termination of the employment of the Employee by the Company due to and
immediately following: (i) an act or acts by the Employee, or any omission by
the Employee, constituting a felony; (ii) any act by the Employee of fraud,
significant dishonesty or willful and material misconduct; (iii) the breach of
any material provision of this Agreement by the Employee; or (iv) any attempt by
the Employee to materially usurp corporate benefits or opportunities of the
Company for the Employee's own gain.
(5) "Permanent Disability" shall mean the Employee's
inability to perform the essential functions of the Employee's job with or
without reasonable accommodation as a result of a physical or mental disability
or infirmity which has continued for more than one hundred eighty (180)
consecutive days. The Employee agrees to submit to such medical
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evidence regarding any disability or infirmity, including making himself or
herself available for medical examination, as is reasonably requested by the
Company.
(c) Except for the payment of any earned but unpaid salary and
any earned but unpaid bonus owed at the time of termination of the Employment
Term, except for any payments which may be due as set forth below, and except as
otherwise provided herein, the Employee shall not be entitled to receive any
additional compensation of any kind from the Company upon the termination of the
Employment Term. These payments are in lieu of any severance or similar payments
which may be otherwise payable to terminated employees under Company plans.
(1) If termination of the Employment Term is due to
the death of the Employee, the Employee's estate or legal representative shall
be paid the Annual Base Salary in monthly installments for a period of one (1)
year commencing immediately upon the death of the Employee, any bonus which is
accrued, but unpaid at the time of death shall be paid by no later than at the
end of the second month following the end of the fiscal year.
(2) If termination of the Employment Term is due to
Termination Without Cause by the Company or Resignation by the Employee for Good
Reason, then provided the Employee complies with and continues to comply with
Sections 7, 8 and 9 of this Agreement and signs a release of any and all claims
the Employee has against the Company other than any rights the Employee may have
under any Company employee benefit plan (within the meaning of Section 3(2) of
the Employee Retirement Income Security Act of 1974, as amended), any retirement
plan or agreement, any deferred compensation plan or agreement, any stock option
or other stock incentive agreement, any other employee benefit or incentive
compensation program or arrangement, or any contract between the Company and the
Employee on a form to be prepared by the Company, then the Employee shall be
paid severance in an amount equal to the product of one and one half (1.5)
multiplied by the Employee's Annual Base Salary then in effect. The Company may
pay the severance, either ratably over a twelve (12) month period in equal
biweekly installments when payroll is normally distributed to employees of the
Company or in a lump sum no later than thirty (30) days following the date of
termination, less applicable tax withholdings required by law. Any bonus which
is accrued but unpaid at the time of termination shall be paid no later than at
the end of the second month following the end of the fiscal year. The Company,
at its expense, will provide the Employee with the support services of an
executive outplacement firm for a period until re-employment, but no longer than
twelve (12) months after termination.
(3) If termination of the Employment Term is due to
termination for Just Cause, the Company's obligation to compensate the Employee
shall cease immediately.
7. TRADE SECRETS/CONFIDENTIAL INFORMATION.
(a) The Employee recognizes and acknowledges that during the
course of the Employee's employment by the Company, the Company has disclosed
and will furnish, disclose, or make available to the Employee trade secrets, as
defined in Georgia statute 10-1-760, et seq., also known as the Georgia Trade
Secrets Act of 1990 ("Trade Secrets"), which Trade Secrets the
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Employee agrees not to ever disclose to any third party, either directly or
indirectly, voluntarily or involuntarily, for any purpose whatsoever.
(b) The Company will also disclose to the Employee certain
confidential and proprietary information related to the Company's business
("Confidential Information") which Confidential Information has been developed
and will be developed through the expenditure by the Company of substantial time
and money. The Employee further acknowledges that said Confidential Information
is and shall remain the sole property of the Company, and agrees to use the
Confidential Information only for the purpose of carrying out his or her duties
with the Company and agrees that the Employee will not, during the term of this
Agreement use for him or herself or others or disclose to any third party,
either directly or indirectly, voluntarily or involuntarily, for any purpose
whatsoever any Confidential Information. The Employee shall not be in breach of
this Section 7(b) for any disclosure he is required to make by virtue of a legal
process, provided that the Employee provides prompt notice to the Company of any
such legal process so as to allow the Company to seek appropriate limitations
and protections in connection with such disclosure.
(c) The Employee further covenants and agrees that every
document, computer disk, computer software program, notation, record, diary,
memorandum, development, investigation, or the like, and any method or manner of
doing business of Company (or containing Confidential Information) made or
acquired by Employee during said employment, is and shall be the sole and
exclusive property of Company. The Employee will deliver the same (and every
copy, disk, abstract, summary, or reproduction of same made by or for Employee
or acquired by Employee) whenever Company may so require and in any event prior
to or at the termination of said employment.
8. NON-SOLICITATION OF EMPLOYEES.
For a period of eighteen (18) months following the Employee's
last day of employment by the Company, Employee shall not, directly or
indirectly, without the written consent of the Company, knowingly solicit,
entice, or persuade any other employee of the Company, or any employee of an
affiliate of the Company (any person or entity that directly or indirectly
through one or more intermediaries, controls or is controlled by, or is under
common control with, the Company, an "Affiliate"), to leave the services of the
Company or such affiliate for any reason.
9. COVENANT NOT TO COMPETE.
(a) During the course of performing his duties, the Employee
will become intimately knowledgeable of the Company's business, plans and
prospects throughout the United States. The Employee recognizes the importance
of such knowledge and acknowledges that it is reasonable that he assist the
Company in protecting the Company's business.
(b) Employee will not for a period of eighteen (18) months
following Employee's last day of employment by the Company: (i) perform for a
"Competitor" (as defined below) the same or substantially similar duties as
those performed by the Employee for the
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Company on the date the Employment Term ends or otherwise expires, including
such duties as those performed by the Employee for the Company eighteen (18)
months prior to the date the Employment Terms ends or otherwise expires, within
the "Territory" (as defined below), or (ii) solicit the business of any customer
of the Company or a potential customer of the Company, which business was a
customer or potential customer of the Company during the period including
eighteen (18) months prior to the time this Agreement expires or is otherwise
terminated up through and including the time this Agreement expires or is
otherwise terminated, or (iii) enter into any relationship whatsoever, alone or
in a partnership, or as an officer, director, employee, stockholder
(beneficially owning the stock or options to acquire stock totaling more that
five percent (5%) of the outstanding shares) of any corporation, or acquire or
agree to acquire a significant present or future equity or other proprietorship
interests, whether as a stockholder, partner, proprietor, or otherwise, with any
enterprise, business or division thereof, which is a "Competitor", hereby
defined as any company or entity that provides contract food or vending services
like that engaged in by the Company or any parent, subsidiary or Affiliate
during the term of this Agreement. "Territory" means the states in which the
Company provides contract food service at any health care or health care related
facility as of the date of this Agreement; inasmuch as the Company provides such
services throughout the United States, "Territory" shall encompass the United
States.
(c) The Employee acknowledges that the restrictions placed
upon the Employee by this Section 9 are reasonable, given the nature of
Employee's position, and that there is sufficient consideration promised
Employee pursuant to this Agreement to support these restrictions. The Employee
further acknowledges that under the law of Georgia, which governs this
agreement, the above non-competition provision is enforceable, as it, inter
alia: (1) is in writing, (2) is part of a contract of employment, (3) is based
on valuable consideration (4) is reasonably necessary for the protection of the
Company's interest, and (5) is reasonable as to time and territory.
(d) The invalidity or unenforceability of any provision of
this Agreement shall in no event affect the validity or enforceability of any
other provision.
(e) The restrictions of this Section 9 shall survive
Employee's last day of employment by the Company and shall be in addition to any
restrictions imposed upon the Employee by statute or at common law.
10. CONSIDERATION. Employee acknowledges that the consideration to
Employee in this Agreement is valuable consideration for the Employee's
covenants and obligations in this Agreement and is in addition to any
consideration currently due to Employee from the Company.
11. INJUNCTIVE RELIEF. The Employee expressly acknowledges that any
breach or threatened breach by the Employee of any of the terms set forth in
Sections 7, 8 and 9 of this Agreement may result in significant and continuing
injury to the Company, the monetary value of which may be impossible to
establish. Therefore, the Employee agrees to submit to the jurisdiction of the
courts (federal or state) of the State of Georgia and the courts (federal and
state) of any states within the Territory and agrees that the Company shall be
entitled to apply for
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injunctive relief in Georgia or any state within the Territory and any other
court of appropriate jurisdiction. The provisions of this Section 11 shall
survive the Employment Term.
12. PARTIES BENEFITED; ASSIGNMENTS. This Agreement shall be binding
upon the Employee, the heirs and personal representative or representatives of
the Employee, and upon the Company and its successors and assigns. Neither this
Agreement nor any rights or obligations hereunder may be assigned by the
Employee.
13. NOTICES. Any notice required or permitted by this Agreement shall
be in writing, sent by personal delivery, or by registered or certified mail,
return receipt requested, addressed to the CEO and the Company at its then
principal office, or to the Employee at the Employee's then current address, as
the case may be, or to such other address or addressees as any party may from
time to time specify in writing. Notices shall be deemed given when received.
14. GOVERNING LAW AND VENUE. This Agreement takes effect on the date
provided in Section 3 upon acceptance and execution by the Company in Georgia,
and shall be governed by, construed and enforced, in accordance with the laws of
the State of Georgia without regard to conflict of law principles.
15. ARBITRATION OF DISPUTES. The parties agree that except for claims
barred by the applicable statute of limitations and except for claims for
injunctive relief which the Company may elect to pursue in state or federal
court, any and all disputes between them, including any disputes or
controversies arising out of or involving this Agreement or any of its
provisions, and any claim by either party that cannot be otherwise amicably
settled, shall be determined solely and exclusively by arbitration in accordance
with the Employment Dispute Resolution Rules then pertaining of the American
Arbitration Association, or any successor thereto, at its office nearest
Company's principal place of business. The arbitration shall be conducted by
three arbitrators, one of whom shall be chosen by each party hereto and the
third, who will serve as chairman of the arbitration panel, shall be chosen by
the two so appointed. The arbitrators in any such proceeding will be without
authority to alter, amend or otherwise depart from the terms of this Agreement,
and shall strictly enforce the terms hereof. Judgment upon an award by the
majority of the arbitrators shall be binding, and shall be entered in a court of
competent jurisdiction. The arbitrators, however, shall not have authority to
award punitive damages or damages for pain and suffering.
16. INDEMNIFICATION AND OFFICER LIABILITY INSURANCE. The Company shall
indemnify the Employee to the maximum extent permitted by the laws of the
incorporation of the Company. The Company shall cover the Employee under any
director and officer liability policy it may maintain.
17. MISCELLANEOUS. This Agreement contains the entire agreement of the
parties and supersedes any prior written or oral agreements or understandings
between the parties relating to the employment of Employee, and the compensation
or benefits promised to Employee. No modification or amendment of this Agreement
shall be valid unless in writing and signed by or on behalf of the party who is
bound. A waiver of the breach of any term or condition of this Agreement shall
not be deemed to constitute a waiver of any subsequent breach
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of the same or any other term or condition. This Agreement is intended to be
performed in accordance with, and only to the extent permitted by, all
applicable laws, ordinances, rules and regulations. If any person or
circumstance, shall, for any reason and to any extent, be held invalid or
unenforceable, such invalidity and unenforceability shall not affect the
remaining provisions hereof and the application of such provision to other
persons or circumstances, all of which shall be enforced to the greatest extent
permitted by law. The compensation provided to the Employee pursuant to this
Agreement shall be subject to any withholdings and deductions required by any
applicable tax laws. Any amounts payable to the Employee hereunder after the
death of the Employee shall be paid to the Employee's estate or legal
representative. The headings in this Agreement are inserted for convenience of
reference only and shall not be part of or control or affect the meaning of any
provision.
18. EARLY TERMINATION. Notwithstanding any other provision of this
Agreement to the contrary, if the Acquisition is not completed within one
hundred twenty (120) days of the date of the Agreement, then the Agreement shall
become null and void and, as a result, no party thereafter shall have
enforceable rights or obligations under the Agreement from and after the
expiration of the one hundred twenty (120) period.
IN WITNESS WHEREOF the parties have duly executed and delivered this
Agreement as of the day and year first above written.
XXXXXXXX MANAGEMENT SPECIALISTS, INC.
By: /s/ XXXXX X. XXXXXXXXX
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Xxxxx X. Xxxxxxxxx, President and CEO
EMPLOYEE
By: /s/ XXXXX XXXXXXX
-------------------------------------
Xxxxx Xxxxxxx
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ADDENDUM TO EMPLOYMENT AGREEMENT
THIS ADDENDUM ("Addendum") is effective as of the _________ day of
February, 2001, and is entered into by and between Xxxxxxxx Management
Specialists, Inc. ("the Company"), Compass Group USA, Inc. ("Compass") and Xxxxx
Xxxxxxx ("Employee").
WITNESSETH:
WHEREAS, under the terms of an Agreement and Plan of Merger by and
among Compass Group, PLC, an indirect parent of Compass Holdings, Inc.
("Holdings"), Yorkmont One, Inc. (a subsidiary of Holdings) and the Company, the
Company intends to become a wholly owned subsidiary of Holdings (the
"Acquisition"); and
WHEREAS, the Employee and the Company have entered into that certain
Employment Agreement dated February 5th, 2001 ("Employment Agreement"), whereby
the Company desires to employ the Employee and the Employee desires to be
employed to provide services to the Company, all on the terms and subject to the
conditions as set forth in the Employment Agreement; and
WHEREAS, the parties have discussed and agreed upon this Addendum to
the Employment Agreement, which Addendum shall become effective only upon the
completion of the Acquisition.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties, intending to be legally bound,
contract and agree as follows:
Should the Acquisition be completed within One Hundred Twenty (120)
days of the date of the Employment Agreement, the parties agree, in addition to
the provisions previously set forth in the Employment Agreement, that:
1) The Employee shall participate in the Compass Group USA, Inc.
Long Term Incentive Plan, attached hereto as Exhibit B, as may
be amended from time to time.
2) Compass Group, PLC shall grant the Employee an option to
purchase 50,000 shares of common stock of the Compass Group,
PLC in accordance with the Compass Group, PLC Executive Share
Option Plan, as may be amended from time to time, and at an
exercise price determined on a basis consistent with past
practice, which Compass Group, PLC Executive Share Option Plan
is attached hereto as Exhibit C. In October, 2001, Compass
Group PLC shall grant the Employee an option to purchase at
least 30,000 shares of Common stock of Compass Group PLC
(adjusted for any stock dividends, stock splits, or similar
changes in capital structure after the date hereof) in
accordance with the Compass Group, PLC Executive Share Option
Plan, as may be amended from time to time, and at an exercise
price determined on a basis consistent with past practice.
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The Employee understands that shares issued under the Compass
Group, PLC Executive Share Option Plan ("Compass Shares") have
not been registered under the Securities Act of 1933 or
qualified under the securities laws of any state and therefore
cannot be transferred, resold, pledged, hypothecated, assigned
or otherwise disposed of unless (i) they are subsequently
registered or qualified under the Securities Act and under
applicable state securities laws or an exemption from
registration and/or qualification is available, or (ii) they
are disposed of in a transaction not subject to the
registration provisions of the Securities Act or the
Securities laws of any state. In this regard, the Employee
acknowledges and agrees as follows:
(a) He will not sell or otherwise transfer the Compass
Shares in a transaction subject to the Securities Act
or the securities laws of any state without prior
registration under the Securities Act or the laws of
any such state or pursuant to an exemption therefrom,
and understands and agrees that Compass is not
obligated to register or qualify the Compass Shares
on his behalf or to assist him in complying with any
exemption from such registration or qualification.
(b) The undersigned understands and agrees that stop
transfer instructions with respect to the Compass
Shares received by him pursuant to an exercise of an
option will be given to Compass's transfer agent and
that there will be placed on the certificates for
such shares, or shares issued in substitution
thereof, legends evidencing these restrictions.
Upon Employee's retirement from the Company, Employee may
exercise each vested Compass option until the earlier of (i)
twelve (12) months from the date of such retirement, or (ii)
the expiration of the option period (determined without regard
to the Employee's retirement); provided, however, that upon
such retirement, Employee forfeits any and all non-vested
Compass Shares; provided, further, however, if Employee
retires from the Company on or after April 30, 2004, Employee
may exercise each Compass option, whether or not vested, until
the earlier of (i) eighteen (18) months from the date of such
retirement, or (ii) the expiration of the option period
(determined without regard to the Employee's retirement).
3) The Company will continue to cover and provide the Employee
and his beneficiaries with benefits pursuant to the existing
terms of the ESP; provided, however, that the ESP will be
amended for the benefit of the Employee as follows:
(a) In calculating such benefit all the Executive's
service with the Company, both up to and after the
date of this Addendum, shall count as "Continuous
Service" as defined thereunder; and
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(b) The offsets to the formula (presently under Section
3.1(c) and 3.1(d) of the ESP) shall not apply for the
purpose of calculating the benefits payable to the
Employee or his beneficiaries.
4) The Employee will be eligible to participate in a nonqualified
deferred compensation plan attached hereto as Exhibit D, which
will allow the Employee during the Employment Term to defer up
to 100% of his Annual Base Salary and 100% of his Annual Bonus
with a Company matching credit equal to $0.35 on each dollar
deferred by the Employee up to 6% of the sum of the Employee's
Annual Base Salary and Annual Bonus (i.e., the maximum
matching contribution is 2.1% of the sum of the Employee's
Annual Base Salary and Annual Bonus).
5) Holdings will, or will cause the Company to, maintain the
Company's Nonqualified Deferred Compensation Plan, attached
hereto as Exhibit E, and shall pay out benefits when the
Employee would be entitled to payment in accordance with the
existing terms of the plan. Notwithstanding the foregoing, the
Company shall have no obligation to make future contributions
to such plan, other than crediting investment returns thereto,
and the Company may merge the Company's Nonqualified Deferred
Compensation Plan with the Compass Group USA, Inc.
Nonqualified Deferred Compensation Plan.
6) If the Company changes its name during the Employment Term,
Holdings guarantees, so long as the Employee remains employed
and performs under the provisions of the Agreement, that the
Employee will receive a sum of Annual Base Salary and Annual
Bonus for each of the three (3) full years after the change
which is no less than the annual average of the sum of Annual
Base Salary and Annual Bonus paid in the two full years before
the change; provided, however, that if such name change is
mutually agreed upon by Compass and the Employee, Compass will
not guarantee the amount of the sum of the Annual Base Salary
and Annual Bonus.
7) The Employee may continue to participate in the Executive Life
Insurance Plan attached as Exhibit F hereto during the
Employment Term and thereafter for the remainder of
Executive's life on terms no less favorable than those
existing at the date of the Addendum.
8) The Employee shall be entitled to participate in the Compass
Group, PLC 1999 Stock Bonus Plan for U.S. Employees, attached
hereto as Exhibit G, during the Employment Term at no less
than the level offered to other employees.
9) The Employee shall receive all other incidental benefits
provided by Holdings to substantially all senior executives of
Compass Group USA, such as vacation, automobiles, and
permanent disability plans and shall receive credit in all
such plans for all of his prior service with the Company, up
to the date of this Addendum.
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10) The Employee presently is subject to an Indemnification
Agreement ("Indemnification Agreement") and a Change in
Control Agreement ("Change In Control Agreement"), each of
which gives the Employee rights to payments and other benefits
upon, among other circumstances, a change in control of the
Company, such as the Acquisition; this Agreement provides for
a longer Employment Term and payment of additional benefits to
the Employee. To induce Compass to enter into this Agreement,
provisions 13 and 14 of the Indemnification Agreement are
terminated and the entire Change In Control Agreement is
terminated, and the Employee waives any and all rights and any
and all payments pursuant to provisions 13 and 14 of the
Indemnification Agreement and the Change in Control Agreement.
11) Except for the express obligations of the Company under this
Agreement, Employee hereby releases and forever discharges the
Company, its present or former parents, subsidiaries and
affiliates, and their respective officers, employees, agents,
directors, successors and assigns from all claims or actions
of any kind. This general release and waiver shall include,
but not be limited to, all claims or actions arising out of,
or relating in any way to, the Employee's employment and
severance of Employee's employment with the Company, including
any claim for compensation or employee benefits, any
non-pending claim for workers' compensation (Employee is
acknowledging that Employee is currently able to work without
any physical or mental limitations, except for any pending
workers' compensation claim filed by Employee), or any claim
of discrimination under any state, federal, or local law or
regulation, or any claim for wrongful termination, breach of
contract, breach of covenant of good faith and fair dealing,
negligent or intentional infliction of emotional distress,
misrepresentation, or defamation. If Employee files,
maintains, or participates in any claim or action, in any
court or agency, based wholly or partially upon a claim or
action Employee has released or waived under this Agreement,
Employee agrees to pay all expenses and costs (including
reasonable attorney's fees) incurred by the Company and those
associated with the Company in defense of such claim or
action. Employee waives any rights Employee may have under the
law of any state (such as California Civil Code Section 1542)
which provide as follows (or which are similar in wording or
effect):
"A general release does not extend to claims which
the creditor does not know or suspect to exist in his favor at
the time of executing this release, which if known by him must
have materially affected his settlement with the debtor."
Notwithstanding the foregoing, Employee does not waive any
indemnification rights pursuant to the Company's Articles of
Incorporation or By-laws, the Indemnification Agreement or the
Merger Agreement, except for the waiver of provisions 13 and
14 of the Indemnification Agreement as provided for herein.
12
13
IN WITNESS WHEREOF, the parties have duly executed this
Addendum as of the date first above written.
XXXXXXXX MANAGEMENT SPECIALISTS, INC.
By: /s/ XXXXX X. XXXXXXXXX
------------------------------------------
Xxxxx X. Xxxxxxxxx, President and CEO
COMPASS GROUP USA, INC.
By: /s/ XXXXXX X. XXXXXX
------------------------------------------
Xxxxxx X. Xxxxxx, Chief Financial Officer
EMPLOYEE
By: /s/ XXXXX XXXXXXX
------------------------------------------
Xxxxx Xxxxxxx
13
