EMPLOYMENT AGREEMENT
Exhibit 10.12
This Employment Agreement (this “Agreement”), dated as of August 8, 2007, is made by and
between XXXXXXX, INC. (the “Company”), and Xxxxxx X. Xxxx (the “Executive”).
WITNESSETH
WHEREAS, the Board of Directors of the Company (the “Board”) has determined that it is in the
best interests of the Company and its shareholders to assure that the Company will have the
continued service and dedication of the Executive.
WHEREAS, the Board believes it is imperative to diminish the inevitable distraction of the
Executive by virtue of the personal uncertainties and risks created by a pending or threatened
Change of Control and to encourage the Executive’s full attention and dedication to the Company
currently and in the event of any threatened or pending Change of Control;
WHEREAS, the Company has determined that appropriate steps should be taken to reinforce and
encourage the continued attention and dedication of members of the Company’s executive management,
including the Executive, to their assigned duties with the Company, without distraction in the face
of potentially disruptive circumstances arising from the possibility of a Change of Control;
WHEREAS,
the Company has determined that the payments and benefits contemplated
by this Agreement are to be paid for services currently performed by
the Executive;
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained, and
for other good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Company and the Executive hereby agree as follows:
1. Definitions.
“Affiliate” means, with respect to any Person, any other Person controlling, controlled by, or
under direct or indirect common control with such Person. For the purposes of this definition
“control”, when used with respect to any specified Person, shall mean the power to direct the
management and policies of such Person, directly or indirectly, whether through ownership of voting
securities, by contract or otherwise; and the terms “controlling” and “controlled by” shall have
the meanings correlative to the foregoing.
“Cause” means, when used with respect to the termination of the employment of the Executive by
the Company, termination due to (a) an act or acts of personal dishonesty taken by the Executive
and intended to result in substantial personal enrichment of the Executive at the expense of the
Company; (b) the Executive’s continued failure to substantially perform the Executive’s employment
duties (other than any such failure resulting from the Executive’s incapacity due to physical or
mental illness) which are demonstrably willful and deliberate on the Executive’s part and which are
not remedied in a reasonable period of time after receipt of written notice from the Company; or
(c) conviction of, or a plea of guilty or no contest by, the Executive to a crime that constitutes
a felony involving moral turpitude. No act or failure to act on the part
of the Executive shall be considered “willful” unless it is done, or omitted to be done, by
the Executive in bad faith or without reasonable belief that the Executive’s action or omission was
in the best interests of the Company.
“Change of Control” means:
(i) The acquisition (whether by tender offer, exchange offer or other business
combination or by the purchase of shares or other securities (including from the
Company), and whether in a single transaction or multiple transactions), by any
Person or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 50% or more of either the then outstanding shares of common stock
of the Company (the “Outstanding Company Common Stock”) or the combined voting power
of the then outstanding voting securities of the Company entitled to vote generally
in the election of directors (the “Company Voting Securities”), provided, however,
that any acquisition by the Company or its subsidiaries, or any employee benefit
plan (or related trust) of the Company or its subsidiaries, or any corporation with
respect to which, following such acquisition, more than 50% of, respectively, the
then outstanding shares of common stock of such corporation and the combined voting
power of the then outstanding voting securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the Persons who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and Company Voting
Securities immediately prior to such acquisition in substantially the same
proportion as their ownership, immediately prior to such acquisition, of the
Outstanding Company Common Stock and Company Voting Securities, as the case may be,
shall not constitute a Change of Control and provided further, however, that for the
purposes of this Agreement the Convertible Preferred Stock shall be considered
Company Voting Securities based on the equivalent number of shares of common stock
of the Company that could be voted at that time; or
(ii) Individuals who, as of January 1, 2007, constitute the Board (the
“Incumbent Board”) cease for any reason to constitute at least a majority of the
Board, provided that any individual becoming a director subsequent to January 1,
2007 who is elected by the Company’s shareholders or was approved by a vote of at
least a majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of office
is in connection with an actual or threatened election contest relating to the
election of the directors of the Board (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act); or
(iii) The Company entering into (x) a reorganization, merger, consolidation or
other business combination, in each case, with respect to which all or substantially
all of the Persons who were the respective beneficial owners of the Outstanding
Company Common Stock and Company Voting Securities immediately prior to such
reorganization, merger, business combination or
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consolidation do not, following such reorganization, merger, business
combination or consolidation, beneficially own, directly or indirectly, more than
50% of, respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote generally in
the election of directors, as the case may be, of the corporation resulting from
such reorganization, merger, business combination or consolidation, or (y) a
complete liquidation or dissolution of the Company, or (z) the sale or other
disposition of all or substantially all of the assets of the Company in one
transaction or series of related transactions.
(iv) Anything in this Agreement to the contrary notwithstanding, if an event
that would, but for this paragraph, constitute a Change of Control results from or
arises out of a purchase or other acquisition of the Company, directly or
indirectly, by a Person in which the Executive has a direct or indirect equity
interest, such event shall not constitute a Change of Control; provided, however,
that the limitation contained in this sentence shall not apply to any direct or
indirect equity interest in a Person (1) which equity interest is part of a class of
equity interests which are publicly traded on any national securities exchange or
other market system, (2) received by the Executive, without the Executive’s
concurrence or consent, as a result of a purchase or other acquisition of the
Company by such corporation or other entity, or (3) received by the Executive,
without the Executive’s explicit concurrence or consent, in connection with a
purchase or other acquisition of the Company by such Person in respect of any stock
options or performance awards granted to the Executive by the Company.
“Change of Control Period” means the 24-month period following a Change of Control; provided,
that for purposes of this Agreement there can be no more than one Change of Control Period.
“Code” means the Internal Revenue Code of 1986, as amended.
“Convertible Preferred Stock” means the Company’s Series A Preferred Stock and Series B
Preferred Stock with a par value of $0.001 per share issued and outstanding from time to time.
“Cumulative Annual Bonus” is the most recent two Annual Bonuses paid or payable to the
Executive within 24 months preceding a Change of Control.
“Date of Termination” means the date of the Executive’s death, the Disability Effective Date,
or the date on which the termination of the Executive’s employment by the Company for Cause or
without Cause or by the Executive for Good Reason or without Good Reason is effective, as the case
may be.
“Disability” means that the Executive has been unable, for the period specified in the
Company’s disability plan for senior executives, but not less than a period of 180 consecutive
days, to perform the Executive’s duties under this Agreement, as a result of physical or mental
illness or injury.
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“Disability Effective Date” has the meaning given such term in Section 5.1.
“Employment Period” means the period commencing on the date hereof and ending one and one half
years after the anniversary of such date; provided, however, that commencing on the date that is
one year after the date hereof, and on each annual anniversary of such date (such date and each
annual anniversary thereof is hereinafter referred to as the “Renewal Date”), the Employment Period
shall be automatically extended without any action required of either party to this Agreement so as
to terminate one and one half years from such Renewal Date, unless at least 180 days prior to the
applicable Renewal Date, either party gives written notice to the other that it wishes not to
extend the Employment Period (the “Non-Renewal Notice”) in which event the Employment Period will
expire one and one half years from the date of the Non-Renewal Notice. The expiration of the
Employment Period resulting from the delivery of a Non-Renewal Notice will not be deemed a
termination of the Executive’s employment without Cause. Notwithstanding the foregoing, unless the
Employment Period has already terminated, the Employment Period shall be automatically extended
upon a Change of Control so as to terminate two years from the date of the Change of Control.
“Fiscal Period” shall mean a full calendar year.
“Good Reason” means the Executive’s termination of the Executive’s employment during
the Change of Control Period for any one or more of the following reasons: (a) the
assignment to the Executive of any duties inconsistent with the Executive’s position,
authority, duties or responsibilities as contemplated by Section 3 of this Agreement, or
any other action by the Company which results in a diminution in such position, authority,
comparable duties or responsibilities, excluding for these purposes an isolated,
insubstantial or inadvertent action not taken in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the Executive; (b) any failure by
the Company to comply with any of the provisions of Section 4 of this Agreement (including
(i) adopting a bonus plan that does not have substantially similar terms and payments for
comparable performance, and (ii) providing Welfare Benefit Plans, Vacation and Fringe
Benefits and Perquisites that are in the aggregate less favorable to the Executive than
those in effect 90 days before the Change of Control) other than an isolated, insubstantial
or inadvertent failure not occurring in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the Executive; (c) the Company’s
requiring the Executive to be based at any office or location other than the location where
the Executive was employed immediately preceding the date of the Change of Control or any
office or location more than 50 miles from such location and in no event shall the
Executive be required to travel outside such location more often than 45 days in any
calendar year; (d) any purported termination by the Company of the Executive’s employment
otherwise than as expressly permitted by this Agreement; or (e) any failure by the Company
to comply with and satisfy Section 9.3 of this Agreement.
“Good Reason” shall also mean the Executive’s
termination of the Executive’s employment at any time if the
Company terminates the Executive’s employment other than as
expressly permitted by this Agreement.
“Notice of Termination” shall mean either a Notice of Termination for Cause under
Section 5.2, Notice of Termination without Good Reason under Section 5.3, or a Notice of
Termination for Good Reason under Section 5.4.
“Person” means an individual, partnership, corporation, limited liability company, business
trust, joint stock company, trust, unincorporated association or joint venture.
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2. Term of Employment. Subject to the terms and provisions set forth in this
Agreement, the Company shall continue to employ the Executive, and the Executive agrees to remain
in the employ of the Company, for the Employment Period, unless either party terminates the
Executive’s employment pursuant to the terms of this Agreement.
3. Position and Duties.
3.1 Positions and Duties. During the Employment Period, the Executive shall be
employed and shall serve as a senior corporate officer with such duties and responsibilities as are
customarily assigned to a Vice President.
3.2 Best Efforts. During the Employment Period, and excluding any periods of vacation
and sick leave to which the Executive is entitled, the Executive shall devote substantially all
their attention and time during normal business hours to the business and affairs of the Company
and, to the extent necessary to discharge the responsibilities assigned to the Executive under this
Agreement, use the Executive’s reasonable best efforts to carry out such responsibilities
faithfully and efficiently. It shall not be considered a violation of the foregoing for the
Executive to (A) serve on corporate, civic or charitable boards or committees, (B) deliver
lectures, fulfill speaking engagements or teach at educational institutions, and (C) manage
personal investments, so long as such activities do not significantly interfere with the
performance of the Executive’s responsibilities as an employee of the Company in accordance with
this Agreement.
4. Compensation and Other Benefits. The Executive’s compensation during the
Employment Period shall be determined by the Board upon recommendation of the committee of the
Board having responsibility for approving the compensation of senior executives, subject to the
provisions below:
4.1 Base Salary. During the Employment Period, the Executive shall receive an annual
base salary (“Base Salary”) at a rate of not less than 15% lower than $190,000. The Base Salary
shall be payable in accordance with the Company’s regular payroll practices for its senior
executives, as in effect from time to time. During the Employment Period, the Executive’s Base
Salary will be reviewed at least annually by the Board, and the Board may, in its sole discretion,
increase the Base Salary. Any increase in the Base Salary shall not limit or reduce any other
obligation of the Company under this Agreement. The term “Base Salary” shall thereafter refer to
the Base Salary as so increased.
4.2 Annual Bonus. With respect to each year during the Employment Period, the
Executive shall be designated as a participant in the Company’s Management Incentive Bonus Plan or
any similar bonus plan for senior executives (the “Bonus Plan”), which provides for bonus payments
to the Executive, and subject to meeting the criteria of the Bonus Plan established by the Board in
its discretion, shall receive the bonus award provided for therein (the “Annual Bonus”). Each such
Annual Bonus shall be paid not later than the 15th day of the third month of the Fiscal
Period for which the Annual Bonus is awarded, unless the Executive elects to defer the receipt of
such Annual Bonus pursuant to a Company deferred compensation plan, if any.
4.3 Incentive, Retirement, and Savings Plans. During the Employment Period, the
Executive shall participate in all incentive, pension, retirement, supplemental retirement,
savings, stock option, restricted stock and other stock grant and equity compensation plans, as
well
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as all other employee benefit plans and programs, which are made available from time to time
by the Company for the benefit of similarly situated senior executives of the Company.
4.4 Welfare Benefit Plans. During the Employment Period, the Executive and their
spouse and other eligible dependents shall participate in, and be covered by, all of the health and
other welfare benefit plans, practices, policies and programs that are made available from time to
time by the Company for the benefit of senior executives and/or other employees of the Company,
collectively the “Welfare Benefit Plans”.
4.5 Expense Reimbursement. During the Employment Period, the Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses, including reasonable business
travel expenses, incurred by the Executive in performing the Executive’s duties and
responsibilities under this Agreement in accordance with the policies, programs, procedures and
practices of the Company as in effect at the time the expense was incurred, as the same may be
changed from time to time.
4.6 Vacation and Fringe Benefits. During the Employment Period, the Executive shall
be entitled to vacation days each Fiscal Period at such times which do not materially interfere
with the performance of the Executive’s duties and responsibilities under this Agreement in
accordance with the vacation policy of the Company. In addition, during the Employment Period, the
Executive shall be eligible to benefit from such fringe benefits, in accordance with the policies,
programs, procedures and practices of the Company, as may be in effect and provided from time to
time to senior executives and/or other employees of the Company, collectively the foregoing are
referred to as “Vacation and Fringe Benefits”
4.7 Perquisites. During the Employment Period the Company will also pay for $1
million of term life insurance assuming the Executive is insurable at standard rates and pay for
the Executive to have an annual physical examination, both in accordance with the Company’s current
policy, collectively the foregoing are referred to as “Perquisites”.
5. Termination of Employment.
5.1 Death or Disability. The Executive’s employment, and the Employment Period, shall
terminate automatically upon the Executive’s death. The Company shall be entitled to terminate the
Executive’s employment because of the Executive’s Disability during the Employment Period. A
termination of the Executive’s employment by the Company for Disability shall be communicated to
the Executive by written notice, and shall be effective on the 30th day after receipt of
such notice by the Executive (“Disability Effective Date”) at which time the Employment Period
shall end, unless the Executive returns to full-time performance of the Executive’s duties before
the Disability Effective Date.
5.2 Termination by the Company. The Company may terminate the Executive’s employment
hereunder for Cause or without Cause at any time during the Employment Period at which time the
Employment Period shall end. The Company shall give the Executive written notice of its intention
to terminate the Executive’s employment and the effective date of Executive’s termination of
employment, and for terminations for Cause the notice shall set forth in
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reasonable detail the specific conduct of the Executive that it considers to constitute Cause
and the specific provisions of this Agreement on which it relies (the “Notice of Termination for
Cause”).
5.3 Termination by Executive. The Executive may terminate their employment hereunder
without the Company’s approval at any time during the Employment Period without Good Reason upon
not less than 60 nor more than 90 days advance written notice to the Company stating the date on
which the Employment Period shall end (the “Notice of Termination without Good Reason”). A
termination of the Executive’s employment by the Executive without Good Reason shall be effected by
giving the Company written notice of the termination and setting forth the date of such
termination. Notwithstanding the foregoing, the Company may elect to have any such termination
become effective immediately or at such other date, not later than the date specified in the Notice
of Termination without Good Reason, as the Company may determine, however it will continue the
Executive’s Base Salary, Welfare Benefit Plans, Vacation and Fringe Benefits, and Perquisites
through the date specified by the Executive for their termination in such Notice unless the Company
terminates the Executive’s employment pursuant to another section of this Agreement prior to such
date.
5.4 Termination by Executive for Good Reason. During the Change of Control Period,
the Executive may terminate their employment hereunder for Good Reason by giving the Company
written notice (“Notice of Termination for Good Reason”) of the termination, setting forth in
reasonable detail the specific conduct of the Company that constitutes Good Reason and the specific
provision(s) of this Agreement on which the Executive relies. The failure by the Executive to set
forth in the Notice of Termination for Good Reason any fact or circumstance which contributes to a
showing of Good Reason shall not waive any right of the Executive hereunder or preclude the
Executive from asserting such fact or circumstance in enforcing the Executive’s rights hereunder.
6. Obligations of the Company upon Termination of Employment.
6.1 Termination upon Death or Disability. If an Executive’s employment is terminated
by death or the Company terminates the Executive’s employment for Disability the Company shall:
(a) pay to the Executive (or in the event of termination of employment by reason of the
Executive’s death, the Executive’s legal representative or the Executive’s estate if no
representative has been appointed) in a lump sum in cash, within 30 days after the Date of
Termination, or as otherwise provided in this Section 6.1, any portion of the Executive’s Base
Salary through the Date of Termination that has not been paid plus any unpaid Annual Bonus,
deferred compensation, if any, or other payments due the Executive,
(b) pay to the Executive a prorata portion of any bonus the Executive would have earned in
that year (based on the days covered by the Agreement in that year divided by the number of days in
the year) as if he had been employed for the full year, payable at time specified in Section 4.2,
and
(c) make available to the Executive (or the Executive’s eligible dependents) any rights to
continued health and welfare benefits provided by law (i.e., COBRA) or payable to the
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Executive under the terms of such plans and programs in effect immediately prior to the
Executive’s death or Disability.
Anything in this Agreement to the contrary notwithstanding, if the Executive’s death or
Disability occurs during the Change of Control Period, the Executive or Executive’s family shall be
entitled to receive benefits at least equal to the most favorable benefits provided by the Company
and any of its Affiliates to disabled executives or the surviving families of peer executives of
the Company and such Affiliates under such plans, programs, practices and policies relating to
family disability or death benefits, if any, as in effect with respect to other peer executives and
their families at any time during the 90-day period immediately preceding the Change of Control or,
if more favorable to the Executive and/or the Executive’s family, as in effect on the date of the
Executive’s death or disability with respect to other peer executives of the Company and its
Affiliates and their families.
6.2 Termination by the Executive other than for Good Reason. If the Executive
voluntarily terminates employment during the Employment Period, other than during the Change of
Control Period for Good Reason, the Company shall pay to the Executive any portion of the
Executive’s Base Salary through the Date of Termination that has not been paid, plus any other
amounts due the Executive under this Agreement within 30 days and the Executive shall have any
rights to continued health and welfare benefits provided by law (i.e., COBRA) or payable to the
Executive under the terms of such plans and programs in effect immediately prior to the Date of
Termination. If the Executive voluntarily terminates employment during the Employment Period, other
than during the Change of Control Period for Good Reason, then the Executive shall not be entitled
to any Annual Bonus for the Fiscal Period that includes the Executive’s Date of Termination.
6.3 Termination by the Company for Cause. If the Executive’s employment is terminated
by the Company for Cause during the Employment Period, the Company shall pay to the Executive any
portion of the Executive’s Base Salary through the Date of Termination that has not been paid, plus
any other amounts due the Executive under this Agreement within 30 days and the Executive shall
have any rights to continued health and welfare benefits to the extent provided by law (i.e.,
COBRA) or payable to the Executive under the terms of such plans and programs as in effect
immediately prior to the Notice of Termination. If the Executive is terminated for Cause during
the Employment Period, then the Executive shall not be entitled to any Annual Bonus for the Fiscal
Period that includes the date of the Notice of Termination for Cause.
6.4 Termination by the Company other than for Cause. If the Executive’s employment is
terminated by the Company other than for Cause or due to death or Disability during the Employment
Period and not during a Change of Control Period, the Company shall:
(a) pay to the Executive, in a lump sum within thirty days after the Date of Termination, an
amount equal to 1.5 times the Executive’s Base Salary for the Fiscal Period in which the Date of
Termination occurs in lieu of any severance under the Company’s Severance Plan,
(b) pay to the Executive a prorata portion of any bonus the Executive would have earned in
that Fiscal Period (based on the days covered by the Agreement divided by the number
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of days in that Fiscal Period) as if he had been employed for the full Fiscal Period payable
at the time specified in Section 4.2,
(c) pay 18 months of health and welfare (COBRA) benefits that provide the Executive with
coverage comparable to other executives that are employed by the Company during that time, and
(d) reimburse the executive for outplacement services incurred within one year of the Date of
Termination no later than 30 days after receipt of appropriate documentation, for an amount not
greater than the lesser of (i) 7.5% of the Executive’s Base Salary or (ii) $25,000.
6.5 Termination following a Change of Control. If (a) contemporaneously with or
during the Change of Control Period, the Executive’s employment is terminated (i) by the Company or
a successor entity other than for Cause or (ii) by the Executive for Good Reason or (b) if the
Executive’s employment with the Company is terminated or the Executive ceases to be an officer of
the Company prior to the date on which a Change of Control occurs and it is reasonably demonstrated
that such termination of employment (i) was at the request of a third party who has taken steps
reasonably calculated to effect the Change of Control or (ii) otherwise arose in connection with or
in anticipation of the Change of Control, the Company shall:
(a) pay to the Executive, in a lump sum within thirty days after the Date of
Termination, an amount equal to (i) two (2) times the Base Salary and (ii) the Cumulative
Annual Bonus;
(b) continue benefits described in Sections 4.4, 4.6 and 4.7 of this Agreement to the
Executive or the Executive’s family from the Date of Termination through the end of the
Change of Control Period, or such longer period as any plan, program, practice or policy may
provide, at least equal to those which would have been provided to them in accordance with
the plans, programs, practices and policies described in Sections 4.4, 4.6 and 4.7 of this
Agreement if the Executive’s employment had not been terminated, in accordance with the most
favorable plans, practices, programs or policies of the Company and its Affiliates
applicable to other peer executives and their families during the 90-day period immediately
preceding the Date of Termination, or, if more favorable to the Executive, as in effect at
any time thereafter with respect to other peer executives of the Company and its Affiliates
and their families. For purposes of determining the amount an Executive is going to
receive, the Executive shall be considered as eligible for retiree benefits pursuant to such
plans, practices, programs and policies, the Executive shall be considered to have remained
employed until the end of the Change of Control Period and to have retired on the last day
of such period; and
(c) reimburse the executive for outplacement services incurred within one year of the Date of
Termination no later than 30 days after receipt of appropriate documentation, for an amount not
greater than the lesser of (i) 7.5% of the Executive’s Base Salary or (ii) $25,000.
6.6 Non Disparagement. The Company agrees that the Company will not make any
negative of disparaging comments about the Executive unless required by legal process to do so.
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7. Effect of Termination. The provisions of this Section 7 shall apply in the event
of termination of the Executive’s employment, pursuant to Section 5 or otherwise.
7.1 Payment in Full. Payment by the Company to Executive of any Base Salary and other
specified amounts or benefits which are due the Executive (or, as the case may be, the Executive’s
designated beneficiary, estate, surviving spouse or dependents) under the applicable termination
provision of Sections 6.1, 6.2, 6.3, 6.4 or 6.5 shall constitute the entire obligation of the
Company to the Executive under this Agreement, except that nothing in this Section 7.1 is intended
or shall be construed to affect the rights and obligations of the Company (or its Affiliates), on
the one hand, and the Executive, on the other, with respect to any option plans, option agreements,
restricted stock grants, awards or agreements, subscription agreements, stockholders agreements,
employee benefit plans or other equity arrangements or agreements to the extent said rights or
obligations survive termination of employment under the provisions of documents relating thereto.
The Executive shall only be eligible to receive the benefits of Sections 6.1, 6.2, 6.3, 6.4 or 6.5
of this Agreement and shall not be entitled to receive benefits under more than one such section.
The Company’s obligation to provide payment and/or benefits set forth herein shall be conditioned
upon the Executive’s (or the Executive’s executor or legal representative) execution of a
Separation and Release Agreement consistent with the terms of this Agreement in a form agreeable to
the Company.
7.2 Termination of Benefits. Except as set forth above and for any right of
continuation of health coverage at the Executive’s cost to the extent provided by Sections 601
through 608 of ERISA, all of the Executive’s rights to any benefits under the Welfare Benefit Plans
shall terminate pursuant to the terms of the applicable benefit plans based on the Date of
Termination.
7.3 Return of Property. Within a reasonable time after the Date of Termination of
employment, the Executive shall return to the Company all of the Company’s property of which he is
in possession, including, without limitation, any material and documentation that constitutes
Confidential Information, credit cards, computers, and keys.
8. Executives Commitment to the Company.
8.1 Confidentiality. The Executive shall not, during the Employment Period or for two
years after the Employment Period (and for an indefinite period for Confidential Information
composed of trade secrets of the Company), disclose any Confidential Information (as such term is
defined herein) to any Person for any reason or purpose whatsoever, other than in connection with
the performance of the Executive’s duties under this Agreement. The term “Confidential
Information” shall mean all confidential information of or relating to the Company and any of its
Affiliates, including without limitation, financial information and data, business plans and
information regarding prospects and opportunities (such as, by way of example only, client and
customer lists and acquisition, disposition, expansion, product development and other strategic
plans), but does not include any information that is or becomes public knowledge by means other
than the Executive’s breach or nonobservance of the Executive’s obligations described in this
Section 8.1. Notwithstanding the foregoing, the Executive may disclose such Confidential
Information as he may be legally required to do so on the advice of counsel in connection with any
legal or regulatory proceeding; provided, however, that the Executive shall provide the Company
with prior written notice of any such required or potentially required
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disclosure and shall cooperate with the Company and use their best efforts under such
circumstances to obtain appropriate confidential treatment of any such Confidential Information
that may be so required to be disclosed in connection with any such legal or regulatory proceeding.
In no event shall an asserted violation of the provisions of this Section 8 constitute a basis for
deferring or withholding any amounts otherwise payable to the Executive under this Agreement during
or with respect to the Change of Control Period.
8.2 Litigation. The Executive agrees to cooperate fully with the Company, or its
assignee, and counsel for the Company, or its assignee, in any and all matters involving
litigation, administrative proceedings, arbitration or governmental investigations. The Executive’s
cooperation shall include being reasonably available for, without limitation, interviews,
depositions, and trial testimony. To the extent that the Executive’s cooperation involves travel,
the Company or its assignee will reimburse the Executive for their reasonable travel expenses. To
the extent that the Executive’s cooperation requires him to incur out-of-pocket expenses, including
without limitation reasonable attorney’s fees, the Company or its assignee will reimburse such
expenses, provided they are reasonable and supported by reasonable documentation. The Executive
will make available, at the expense of the Company or its assignee, copies of all documents and
files requested by the Company in connection with this duty of cooperation, excluding only those
documents and files which are subject to any attorney-client privilege, work product doctrine, or
other legal protection from disclosure that is held solely by the Executive in their individual
capacity, as opposed to any privilege or legal protection from disclosure held by the Company.
8.3 Compliance with Securities Laws. The Executive agrees not to directly or
indirectly buy or sell the Company stock or other securities as long as he possesses “material
non-public information” as that term is defined by interpretations of the Securities Exchange Act
of 1934 and the rules and regulations there under. Without limiting the generality of the
foregoing, the Executive further agrees to abide by the Company’s Xxxxxxx Xxxxxxx policy as in
effect during the Employment Period until three (3) business days after the public release of the
financial results for the fiscal quarter ending after the Executive’s Date of Termination.
8.4 Position as Officer and Director. Upon the Executive’s termination of employment
the Executive shall resign as an Officer/Director from the Company and all Affiliates and any
administrative roles in any plans sponsored by the Company and its Affiliates and will execute all
instruments and documents requested by the Company to effectuate this.
8.5 Non Compete. The Executive agrees not to directly or indirectly compete with the
business of the Company and its successors and assigns during the Employment Period and for a
period of one year following the Executive’s termination of employment. The term “not compete” as
used herein shall mean that the Executive shall not own, manage, operate, consult or be an employee
in a business that has operations in the United States that are substantially similar to or
competitive with the business activity of the Company or any of its Affiliates at the Executive
Termination Date. Notwithstanding the foregoing the Executive may own up to 5% of any stock or
security that is publicly traded on any national securities exchange or other market system.
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8.6 Non-Solicitation. The Executive agrees for a period of one year from the
Executive’s Termination Date that the Executive will not without the prior written approval of the
Company directly or indirectly: (i) solicit for hire any employees of the Company or any Affiliate,
or (ii) induce any employee of the Company or any Affiliate to terminate their relationship with
the Company or Affiliate. The foregoing will not apply to individuals hired as a result of the use
of an independent employment agency (so long as the agency was not directed to solicit a particular
individual) or as a result of the use of a general solicitation not specifically directed to
Company or its Affiliate’s employees.
8.7 Non Disparagement. The Executive agrees that the Executive will not make any
negative of disparaging comments about the Company unless required by legal process to do so.
8.8 Injunctive Relief. The Executive acknowledges and agrees that the Company will
have no adequate remedy at law, and would be irreparably harmed, if the Executive breaches or
threatens to breach any of the provisions of this Section 8. The Executive agrees that the Company
shall be entitled to equitable and/or injunctive relief to prevent any breach or threatened breach
of this Section 8, and to specific performance of each of the terms of this Section 8 in addition
to any other legal or equitable remedies that the Company may have. The Executive further agrees
that he shall not, in any equity proceeding relating to the enforcement of the terms of this
Section 8, raise the defense that the Company has an adequate remedy at law.
8.9 Special Severability. The terms and provisions of this Section 8 are intended to
be separate and divisible provisions and if, for any reason, any one or more of them is held to be
invalid or unenforceable, and neither the validity nor the enforceability of any other provision of
this Agreement shall thereby be affected.
9. Successors.
9.1 The Executive. This Agreement is personal to the Executive and, without the prior
written consent of the Company, shall not be assignable by the Executive, other than by will or the
laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable
by the Executive’s heirs, beneficiaries and/or legal representatives.
9.2 The Company. This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
9.3 Successors. The Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company to assume expressly and agree to perform this Agreement in the same manner
and to the same extent that the Company would be required to perform it if no such succession had
taken place and the Executive will consent to such successor’s assumption. As used in this
Agreement, “Company” shall mean the Company as previously defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law
or otherwise.
10. Full Settlement; Mitigation. The Company’s obligation to make the payments
provided for in, and otherwise to perform its obligations under, this Agreement shall not be
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affected by any set-off, counterclaim, recoupment, defense or other claim, right or action
that the Company may have against the Executive or others other than a claim, right or action for
fraud after the individual is judicially determined to have committed such action. In no event
shall the Executive be obligated to seek other employment or take any other action by way of
mitigation of the amounts payable to the Executive under any of the provisions of this Agreement
and such amounts shall not be reduced, regardless of whether the Executive obtains other
employment.
11. Indemnification. The Company shall pay or indemnify the Executive to the full
extent permitted by law and the by-laws of the Company for all expenses, costs, liabilities and
legal fees which the Executive may incur in the discharge of the Executive’s duties hereunder.
12. Miscellaneous.
12.1 Applicable Law. This Agreement shall, to the extent not superseded by federal
law, be governed by and construed in accordance with the laws of the State of Delaware, without
regard to principles of conflict of laws.
12.2 Amendments/Waiver. This Agreement may not be amended, waived, or modified
otherwise than by a written agreement executed by the parties to this Agreement or their respective
successors and legal representatives. No waiver by any party to this Agreement of any breach of
any term, provision or condition of this Agreement by the other party shall be deemed a waiver of a
similar or dissimilar condition or provision at the same time, or any prior or subsequent time.
12.3 Notices. All notices and other communications hereunder shall be in writing and
shall be deemed given when received by hand-delivery to the other party, by overnight courier, or
by registered or certified mail, return receipt requested, postage prepaid, addressed, addressed as
follows:
If to the Executive:
Xxxxxx X. Xxxx
0000 Xxxxxxx Xxxx Xxx
Xxxxxxxxx, X.X. 00000
0000 Xxxxxxx Xxxx Xxx
Xxxxxxxxx, X.X. 00000
If to the Company:
The Compensation Committee
of the Board of Directors of Xxxxxxx, Inc.
c/x Xxxxxxx, Inc.
1041 000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxx Xxxx, Xxxxx Xxxxxxxx 00000-0000
of the Board of Directors of Xxxxxxx, Inc.
c/x Xxxxxxx, Inc.
1041 000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxx Xxxx, Xxxxx Xxxxxxxx 00000-0000
With a copy to:
Xxxxxxx Xxxx, Esq.
Xxxxxxx Xxxxxx Xxxxxx & Dodge, LLP
Xxxxxxx Xxxxxx Xxxxxx & Dodge, LLP
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0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Xxxxxxxxxx, XX 00000
or to such other addresses as either party furnishes to the other in writing in accordance with
this Section 12.3. Notices and communications shall be effective when actually received by the
addressee.
12.4 Withholding. The Company may withhold from any amounts payable under this
Agreement such taxes as shall be required to be withheld pursuant to any applicable law or
regulation.
12.5 Strict Compliance. The Executive’s or Company’s failure to insist upon strict
compliance with any provisions of, or to assert, any right under, this Agreement shall not be
deemed to be a waiver of such provision or right or of any other provision of or right under this
Agreement.
12.6 Enforceability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision of this Agreement.
If any portion or provision of this Agreement shall to any extent be declared illegal or
unenforceable by a court of competent jurisdiction, then the remainder of this Agreement, or the
application of such portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of
this Agreement shall be valid and enforceable to the fullest extent permitted by law.
12.7 Captions; Counterparts. The captions of this Agreement are for convenience of
reference only, are not part of the terms of this Agreement and shall have no force or effect in
the application or interpretation thereof. This Agreement may be executed in several counterparts,
each of which shall be deemed an original and said counterparts shall constitute but one and the
same instrument.
12.8 Entire Agreement. This Agreement contains the entire agreement between the
parties to this Agreement concerning the subject matter hereof and supersedes all prior agreements,
understandings, discussions, negotiations and undertakings, whether written or oral, between the
parties with respect thereto. Specifically this Agreement replaces and supersedes in its entirety
any prior the Employment Agreement between the Company and the Executive.
12.9 Survivorship. The obligations of the Company and the Executive under Sections 6,
7, 8, 9, 10, 11, and 12 shall survive the expiration or termination for any reason of this
Agreement.
12.10 Assignment. The rights and benefits of the Executive under this Agreement may
not be anticipated, assigned, alienated or subject to the attachment, garnishment, levy, execution
or other legal or equitable process except as required by law. Any attempt by the Executive to
anticipate, alienate, assign, sell, transfer, pledge, encumber or charge the same shall be void.
12.11 Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit the
Executive’s continuing or future participation in any benefit, bonus, incentive or other plans,
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programs, policies or practices provided by the Company or any of its Affiliates and for which
the Executive may qualify, nor shall anything herein limit or otherwise affect such rights as the
Executive may have under any other agreements with the Company or any of its Affiliates. Amounts
which are vested benefits or which the Executive is otherwise entitled to receive under any plan,
policy, practice or program of the Company or any of its Affiliates at or subsequent to the Date of
Termination shall be payable in accordance with such plan, policy, practice or program except as
explicitly modified by this Agreement.
12.12 Arbitration. The Executive and the Company both agree to submit any disputes
under this Agreement to binding arbitration with a mutually agreeable arbitrator and to make their
best efforts to settle any disputes within 90 days. In the event this does not occur and the
Executive has cooperated in the arbitration process the Company agrees to pay, to the full extent
permitted by law, all legal fees and expenses which the Executive may reasonably incur as a result
of any contest (regardless of the outcome thereof) by the Company or others of the validity or
enforceability of, or liability under, any provision of this Agreement or any guarantee of
performance thereof, plus in each case interest at the applicable Federal rate provided for in
Section 7872(f)(2) of the Code.
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IN WITNESS WHEREOF, the Executive has hereunto set their hand and, pursuant to the
authorization of its Board, the Company has caused this Agreement to be executed in its name and on
its behalf by a duly authorized officer, as of the date set forth above.
| XXXXXXX, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Chief Financial Officer | |||
| EXECUTIVE |
||||
| /s/ Xxxxxx X. Xxxx | ||||
| Xxxxxx X. Xxxx | ||||
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